Court of Appeals of Texas, Eighth District, El Paso
from 210th District Court of El Paso County, Texas (TC#
Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.
CRAWFORD McCLURE, Justice
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.
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.
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.
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
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 ...