Appeal from the 506th District Court Grimes County, Texas
Trial Court Cause No. 33, 725
consists of Chief Justice Frost and Justices Christopher and
Thompson Frost Chief Justice.
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.
Factual and Procedural Background
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.
Did the trial court err in overruling Texas Central's
objections to the affidavits of Ben Leman and Gregory
second issue, Texas Central asserts that the trial court
erred in overruling its objections to Grimes County's
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."
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. 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.).
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 ...