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Jannise v. Enterprise Products Operating LLC

Court of Appeals of Texas, Fourteenth District

July 30, 2019

KEITH JANNISE, COWBOY'S MOBILE HOMES, INC., AND COWBOY'S MOBILE HOME MOVERS, INC., Appellants
v.
ENTERPRISE PRODUCTS OPERATING LLC, ENTERPRISE TX PRODUCTS PIPELINE COMPANY LLC, AND GROVES RGP PIPELINE LLC, Appellees

          On Appeal from the 344th District Court Chambers County, Texas Trial Court Cause No. CV27447

          Panel consists of Justices Wise, Jewell, and Hassan.

          MEMORANDUM OPINION

          KEVIN JEWELL JUSTICE.

         After appellees Enterprise Products Operating LLC, Enterprise TX Products Pipeline Company LLC, and Groves RGP Pipeline LLC (collectively, Enterprise) obtained a temporary restraining order against appellants Keith Jannise, Cowboy's Mobile Homes, Inc., and Cowboy's Mobile Home Movers, Inc. (collectively, Jannise), Jannise countersued Enterprise for damages and claimed the temporary restraining order was wrongful. Enterprise moved for traditional and no-evidence summary judgment on all of Jannise's claims, which the trial court granted. Because we agree that Enterprise was entitled to a take-nothing judgment on Jannise's claims, we affirm the trial court's judgment.

         Background

         Jannise owns slightly more than fifty acres of land in Wallisville, Chambers County, approximately forty miles east of Houston. He constructed a warehouse on the property, which he accesses by a concrete driveway. Enterprise owns several easements that encumber Jannise's land. Enterprise operates and maintains four underground pipelines through the easements.

         Alleging that Jannise's driveway and other construction activities potentially posed a safety risk to the buried pipelines, Enterprise filed suit against Jannise in 2012. Enterprise alleged that Jannise: (1) constructed a driveway across the easements and pipelines, and that Jannise continually crossed the easements with dump trucks filled with dirt and dumped the dirt over the easements; (2) parked trailers, modular buildings, and heavy equipment on the easements; (3) removed the pipelines' markers; and (4) used heavy machinery to remove topsoil from the easements.

         Enterprise also alleged that Jannise had not notified Enterprise of the construction prior to commencement and that Jannise, upon Enterprise's request to cease and desist activity over the easements due to potential safety issues, refused to do so. Enterprise attached to its original petition affidavits from Enterprise employees, who averred that Jannise had not made any "Texas One-Calls" regarding the underground pipelines or Jannise's surface activities. The so-called "one-call" statute generally requires that any person intending to "excavate" give notice to a central notification center before the date excavation is to begin. See Tex. Util. Code § 251.151(a); see also generally id. §§ 251.001-.203 ("Underground Facility Damage Prevention and Safety Act"). In turn, the notification center is required to transmit the information received from the excavator to each member operator (such as a pipeline company) that may have underground facilities in the vicinity of the proposed excavation operation. See id. § 251.153(c). Enterprise sought an emergency temporary restraining order ("TRO"), a temporary injunction, and a permanent injunction "to stop [Jannise's] construction of activities on [Enterprise's] easements and rights of way, to cause the removal of encroaching structure, and to prevent [Jannise] from placing trailers and equipment over the easements and rights of way and from removing [Enterprise's] pipeline markers." Enterprise also asserted claims for declaratory relief, breach of contract, trespass, and a violation of Texas Health and Safety Code section 756.124.

         The trial court signed an ex parte TRO against Jannise, which required Jannise to "immediately remove (or take such actions to cause the removal of) . . . the drive way and any appurtenances from the Easements" and to immediately cease and desist from:

(a) crossing the Easements with dump trucks filled with dirt; (b)dumping dirt over the Easements; (c) parking trailers, modular buildings, and heavy equipment across the Easements; (d) removing the Pipelines' markers; (e) using heavy machinery to remove topsoil from across the Easements; and (f) conducting construction activities across the Easements or otherwise constructing any structures or other obstructions over the Easements.

         The order stated that it expired "no later than fourteen (14) days after the date same is signed, unless within such fourteen (14) day period the temporary restraining order is extended for a like period or [Jannise] consent[s] that it may be extended for a longer period."

         A week after issuing the TRO, the trial court conducted a hearing on Enterprise's request for a temporary injunction. At the hearing, Jannise presented evidence controverting Enterprise's representation that Jannise had not made any statutorily required one-calls before constructing a driveway. Jannise produced evidence that he made several one-calls in 2011. At the end of the hearing, Enterprise's attorney stated that Enterprise did not "have any issue with [Jannise] using the driveway in the interim," but that Enterprise requested "some information on the design of the driveway." It is undisputed that Jannise never removed the driveway. The trial court did not sign a temporary injunction, and the TRO expired by its terms after fourteen days.

         Nearly two years later, Jannise asserted a number of counterclaims against Enterprise. Jannise alleged that, prior to the TRO, he had "entered into a lucrative agreement with a third-party to lease [Jannise's warehouse] facility and to make heavy-hauls for the third-party renter of the facility." According to Jannise, when he notified the third-party renter, Kurt Degueyter, of the restraining order, Degueyter "canceled the agreement and took its business elsewhere," because the order "made access and therefore use of the property, as a practical matter, impossible."[1] Jannise asserted claims against Enterprise for negligence, [2] private nuisance, breach of contract, tortious interference with existing contract, tortious interference with prospective relations, and declaratory judgment. Jannise later amended his pleading to add claims for wrongful injunction and malicious prosecution. In his amended pleading, Jannise also asserted for the first time that Enterprise had obtained the TRO on a false and misleading factual premise, namely that Jannise had not notified Enterprise of the construction activities through the statutory one-call system.[3] Jannise sought to recover actual and special damages, attorney's fees, and punitive damages.

         Enterprise filed a combined traditional and no-evidence motion for summary judgment as to all of Jannise's counterclaims. Enterprise argued that Jannise could produce no evidence to support various elements of his claims for declaratory judgment, breach of contract, tortious interference, and negligence.[4] Enterprise also argued that Jannise's wrongful injunction and malicious prosecution claims failed as a matter of law.

         After considering Enterprise's motion and Jannise's response, the trial court granted Enterprise's motion for summary judgment and ordered that Jannise take nothing in his claims against Enterprise. The judgment does not state the specific grounds upon which the court relied in granting summary judgment.

         Jannise appeals.

         Standard of Review

         We review a grant of summary judgment under a de novo standard of review. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In reviewing the trial court's summary judgment, "we apply the familiar standard of review appropriate for each type of summary judgment, taking as true all evidence favorable to the nonmovant, and indulging every reasonable inference and resolving any doubts in the nonmovant's ...


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