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9029 Gateway South Joint Venture v. Eller Media Co.

Court of Appeals of Texas, Eighth District, El Paso

December 9, 2004

9029 GATEWAY SOUTH JOINT VENTURE, Appellant
v.
ELLER MEDIA COMPANY, Appellee.

          Appeal from 210th District Court of El Paso County, Texas (TC# 2001-025)

          Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.

          OPINION

          ANN CRAWFORD McCLURE, Justice

         9029 Gateway South Joint Venture appeals from a summary judgment granted in favor of Eller Media Company. At issue is whether Eller Media properly amended its original answer to assert an affirmative defense which formed the basis of its motion for summary judgment. We affirm.

         FACTUAL SUMMARY

         On May 30, 2000, the Joint Venture entered into a written lease agreement with Laizure/Cooney of Texas, L.L.C. for the erection and maintenance of an outdoor advertising structure on its property. Laizure/Cooney was responsible for obtaining all necessary permits for the erection of the billboard. Subsequent to the execution of the lease, Eller Media became the successor in interest to Laizure/Cooney and was bound to perform the terms of the lease.

         As it turned out, the billboard could not be legally constructed on the property. El Paso Municipal Ordinance Section 20.66.210(B) prohibits erection of billboards within 200 feet of the property line of R-4 zoned property when on the same side of the street. The leased property lies within 200 feet of Tract 503, located on the same side of the street and zoned R-4. Consequently, Eller Media attempted to have rental payments under the lease reduced. When the Joint Venture refused, Eller Media gave notice of termination pursuant to a lease provision allowing cancellation of the contract if the billboard could not be constructed unobstructed or if its erection would be illegal. The Joint Venture then sued Eller Media for breach of contract.

         Because the time line is pertinent to our analysis, we will offer some detail of the procedural history.

         • February 8, 2001 -- Eller Media files a general denial.

         • November 2, 2001 -- Eller Media files a motion for summary judgment contending that it was entitled to cancellation of the lease as a matter of law. A hearing is set for December 3, and then re-set to December 31.

         • December 21, 2001 -- The Joint Venture files its response, claiming that Eller Media was seeking summary judgment based on an affirmative defense which it had failed to plead.

         • December 26, 2001 -- Eller Media files an amended answer pleading the affirmative defense of cancellation. Contemporaneously, it files a motion for leave to file its amended answer.

         • December 31, 2001 -- No hearing is actually conducted. The Honorable Sam Paxson does not issue a ruling on the motion for summary judgment before he retires from the bench.

         • December 19, 2002 -- The newly elected judge, the Honorable Gonzalo Garcia, issues a notice of intent ...


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