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Texas Central Partners, LLC v. Grimes County

Court of Appeals of Texas, Fourteenth District

July 25, 2019

TEXAS CENTRAL PARTNERS, LLC, Appellant
v.
GRIMES COUNTY, TEXAS, Appellee

          On Appeal from the 506th District Court Grimes County, Texas Trial Court Cause No. 33, 725

          Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.

          OPINION

          Kem Thompson Frost Chief Justice.

         Grimes County filed a common-law public-nuisance suit against two companies, alleging that they unreasonably interfered with the public's use of roads and seeking a permanent injunction. One of the companies appeals from the trial court's final judgment granting the county's summary-judgment motion and issuing a permanent injunction. Concluding that the summary-judgment evidence did not conclusively prove the county's claim for common-law public nuisance, we reverse and remand.

         I. Factual and Procedural Background

         After contractors doing surveying work for a project of appellant/defendant Texas Central Partners, LLC, placed pins and markings in various county roadways, Grimes County sued Texas Central and defendant Pacheco Koch Consulting Engineers, Inc. (the "Texas Central Parties"), asserting a single claim for common-law public nuisance. Grimes County sought only injunctive relief The trial court granted Grimes County's motion for a traditional summary judgment on this claim and granted a final summary judgment, permanently enjoining the Texas Central Parties and their agents from "performing survey(s) or other studies which damage, alter, or impair county-maintained rights of way." The trial court also overruled all of Texas Central's objections to Grimes County's summary-judgment evidence. Pacheco Koch has not appealed. In this appeal, Texas Central asserts that (1) the trial court erred in granting summary judgment in Grimes County's favor, and (2) the trial court erred in overruling Texas Central's objections to two affidavits.

         II. Analysis

         A. Did the trial court err in overruling Texas Central's objections to the affidavits of Ben Leman and Gregory Blake?

         In its second issue, Texas Central asserts that the trial court erred in overruling its objections to Grimes County's summary-judgment evidence.

         The trial court overruled Texas Central's objections that the following statements, contained in the affidavits of Ben Leman or Gregory Blake, are conclusory:

• "[Texas Central] and its agents intentionally interfered with . . . county roads."
• "Such actions by [the Texas Central Parties] impaired the use of the roads and rendered the roads less commodious for public use while [the Texas Central Parties] were performing such acts."
• "Such actions put the individuals performing the work at risk as well as the traveling public."
• "Such actions have resulted in unreasonable interference with a right common to the public and an unreasonable discomfort or annoyance of persons with ordinary sensibilities. Such actions put at risk the public health, safety and welfare and they impair [Grimes County's] ability to maintain county roads."

         Because these statements are conclusory, they cannot support a summary judgment in Grimes County's favor, and the trial court abused its discretion in overruling Texas Central's objections.[1] See McIntyre v. Ramirez, 109 S.W.3d 741, 749-50 (Tex. 2003); Heritage Operating, L.P. v. Barbers Hill Indep. Sch. Dist., 496 S.W.3d 318, 330-32 (Tex. App.-Houston [14th Dist.] 2016, no pet.).

         The trial court overruled Texas Central's objections to the following statements, contained in the affidavits of Leman or Blake, on the ground that the testimony is speculative:

• "[T]he specific surveying techniques utilized would likely not have been permitted given their invasive and offensive nature which materially ...

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