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Miller v. Jasper-Newton Electric Cooperative, Inc.

Court of Appeals of Texas, Twelfth District, Tyler

July 31, 2017

PAM MILLER AND TOBE MILLER, APPELLANTS
v.
JASPER-NEWTON ELECTRIC COOPERATIVE, INC., APPELLEE

         APPEAL FROM THE 1A JUDICIAL DISTRICT COURT JASPER COUNTY, TEXAS (Tr. Ct. No. 34552)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Brian Hoyle Justice

         Pam Miller and Tobe Miller appeal from a summary judgment rendered in favor of Jasper-Newton Electric Cooperative, Inc. in the Millers' suit for declaratory judgment. The Millers raise three issues. We affirm.

         Background

         The Millers reside on a thirty-two acre tract of land in Jasper County, Texas. Jasper-Newton Electric Cooperative, Inc. is a provider of electrical service. In 2005, Tobe Miller applied for membership, and Jasper-Newton accepted the Millers as members of the cooperative. Pursuant to their agreement, Jasper-Newton provides electricity to the Millers' property.

         In 2014, two Jasper-Newton employees entered the Millers' property without providing prior notice to the Millers. The Millers confronted the employees, and the employees contended that they were within their rights to enter the Millers' property. Later, Jasper-Newton ran an electric line from the Millers' property to an adjoining property. The Millers contended that Jasper-Newton lacked the authority to utilize their property to provide electric service to others, and Jasper-Newton disagreed. The Millers sued Jasper-Newton seeking a declaratory judgment that Jasper-Newton held an easement to use the Millers' property to provide electric service only to the Millers and could not use the easement to provide electric service to the property of others.[1]

         Jasper-Newton moved for summary judgment asserting that it had written permission to perform the complained of activities. Jasper-Newton contended that, by his execution of certain documents, Tobe Miller granted Jasper-Newton the right to construct and operate electrical lines on the Millers' property without limitation of the use of the lines. Jasper-Newton asserted that the Millers granted an express easement to Jasper-Newton by submitting their 2005 Application for Membership and Electric Service and through Jasper-Newton's Service Tariff which was incorporated by reference. Finally, Jasper-Newton argued that Tobe Miller also provided a Right-of-Way Easement to Jasper-Newton in 2007 that likewise authorized Jasper-Newton to utilize the Millers' property to provide electric service to the property of others.

         The Millers responded to Jasper-Newton's motion for summary judgment and filed their own motion for summary judgment. The Millers read the easements granted to Jasper-Newton as allowing Jasper-Newton to construct and operate electrical lines on the Millers' property with the limitation that the lines provide electricity solely to the Millers' property. Thus, the Millers continued to argue that Jasper-Newton exceeded the scope of its easement when it ran an electric line from the Millers' property to an adjoining property.

         The trial court granted Jasper-Newton's motion for summary judgment and denied the Millers' motion for summary judgment. The trial court then signed a final judgment ordering that the Millers take nothing on their claims against Jasper-Newton. This appeal followed.

         Easement

         In their first issue, the Millers contend that, properly construed, the easement granted to Jasper-Newton is limited in scope, authorizing Jasper-Newton to provide utility service only for the Millers' property. Accordingly, the Millers argue that Jasper-Newton exceeded the scope of the easement when it ran a power line from a pole located on the Millers' property to deliver electrical services to an adjoining property.

         Standard of Review

         A declaratory judgment granted on a traditional motion for summary judgment is reviewed de novo. Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015). A party moving for traditional summary judgment bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). To determine if there is a fact issue, we review the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could do so, and ...


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