No. 01-14-00723-CV

__________________________________

IN THE COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

__________________________________

THE STATE OF TEXAS,

Appellant,

v.

KNA PARTNERS, INC., A TEXAS JOINT VENTURE,

Appellee.

__________________________________

SUR-REPLY OF APPELLEE

__________________________________

Trial Court Cause No. 1011330

On Appeal from County Civil Court at Law Number Three

Harris County, Texas

The Honorable Linda Storey, Judge Presiding

__________________________________

VINSON & ELKINS L.L.P.

H. Dixon Montague

State Bar No. 14277700

e-mail: dmontague@velaw.com

Billy C. Dyer

Catherine B. Smith

David G. Wall

1001 Fannin Street, Suite 2500

Houston, Texas 77002-6760

Telephone: 713.758.2086

Facsimile: 713.615. 5461

Attorneys for Appellee KNA Partners, Inc., A Texas Joint Venture

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 5/14/2015 5:01:50 PM CHRISTOPHER A. PRINE Clerk
i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................. ii

I. At Trial, the State Characterized KNA’s Driveways as Appurtenant

Easements.....................................................................................................1

II. The Judgment Is Supported by the State’s Agreement, Stipulation, or

Concession....................................................................................................3

A. The State’s Attorney’s Unequivocal Statement to the Trial

Court Constitutes an Agreement, Stipulation, or Concession. .............3

B. Alternatively, No Pleading Is Required Because the State Tried

the Driveway Issue by Consent. ..........................................................5

III. The State Acknowledges that Payment Is Required Prior to Passage of

Title. .............................................................................................................6

IV. The State’s Appeal Is Moot Because It Is Undisputed That the State

Voluntarily Restored the Driveways. ............................................................7

CONCLUSION AND PRAYER.............................................................................8

CERTIFICATE OF COMPLIANCE.....................................................................10

CERTIFICATE OF SERVICE..............................................................................11
ii

TABLE OF AUTHORITIES

Page(s)

Cases

Camarena v. Texas Employment Comm’n,

754 S.W.2d 149 (Tex. 1988).......................................................................... 8

City of Houston v. Texan Land and Cattle Co.,

138 S.W.3d 382 (Tex. App.—Houston [14th Dist.] 2004, no pet.).................. 6

Employees Finance Co v. Lathram,

369 S.W.2d 927 (Tex. 1963).......................................................................... 7

Gen. Land Office of Tex. v. OXY U.S.A., Inc.,

789 S.W.2d 569 (Tex. 1990).......................................................................... 8

Highland Church of Christ v. Powell,

640 S.W.2d 235 (Tex. 1982).......................................................................... 8

Miga v. Jensen,

96 S.W.3d 207 (Tex. 2002)............................................................................ 7

Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Martinez,

800 S.W.2d 331 (Tex. App.—El Paso 1990, no writ)..................................4, 5

Shepherd v. Ledford,

926 S.W.2d 405 (Tex.App.—Fort Worth 1996),

aff’d, 962 S.W.2d 28 (Tex. 1998)................................................................... 5

Southwestern Resolution Corp. v. Watson,

964 S.W2d 262 (Tex. 2003)........................................................................... 6

St. Louis, A. & T. Ry. Co. v. Henderson,

86 Tex. 307, 24 S.W. 381 (1893) ................................................................... 6

State v. Meyers,

403 S.W.2d 366 (Tex. 1966).......................................................................... 1
iii

Constitutions, Rules, and Statutes

Texas Constitution,

art. I, § 17 ...................................................................................................... 6

art. II, § 1 ....................................................................................................... 8

Texas Property Code § 21.042(d)........................................................................2, 5

Texas Rules of Civil Procedure,

Rule 11 .......................................................................................................... 5

Rule 67 .......................................................................................................... 6

Other Authorities

73 Am. Jur. 2d Stipulations § 1 (1974)................................................................... 5

http://www.merriam-webster.com/dictionary/restore ............................................. 4
1

TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

Appellee files this Sur-reply to respond to the State’s Reply Brief. This case

is set for submission without oral argument on May 19, 2015.

I. AT TRIAL, THE STATE CHARACTERIZED KNA’S DRIVEWAYS AS

APPURTENANT EASEMENTS.

The State agrees in its Reply brief that KNA “has an easement of access” to

the abutting roadway, but asserts that KNA’s “nine driveways or curb cuts do not

constitute easements appurtenant.” Reply 2. The State contends that none of

KNA’s cases “support the proposition that curb cuts constitute easements

appurtenant,” when that in act is exactly what they are. See Reply 4. State v.

Meyers, a Texas Supreme Court case cited by KNA, recognizes that “abutting

property owners have certain private rights in existing streets and highways . . .

[and] the most important of these private rights is the right of access to and from

the highway.” State v. Meyers, 403 S.W.2d 366, 370-71 (Tex. 1966). The Texas

Supreme Court expressly referred to this right of access as “an easement

appurtenant to the abutting land.” Id. Emphasis added.

Not only does the Texas Supreme Court authority refer to a driveway access

as an easement appurtenant, but the State’s counsel also agreed with that legal

description when it referred to the driveways during the trial. As the State’s

counsel explained to the trial court:
2

The owner has the right of egress and ingress, access,

onto and off of their property. . . . The analysis the courts

have employed is, it’s total access from the subject

property to the right-of-way and it has the right of access

to the – they have an easement appurtenant to the

right-of-way.

3 RR 81 (emphasis added); see also 6 RR 127-28; 8 RR 189.

The State asserts in a footnote that testimony by Peter Boecher and John

Hudson at trial that KNA held appurtenant easements in the driveways is

“conclusory, unreliable, and misstatements of the law... and no evidence.” Reply

7 n.1. But, the State never made any such objection at trial to that elicited

testimony, and in fact acknowledged the characterization by also referring to the

right of access through the driveways as an easement appurtenant in its crossexamination of Boecher and Mark Sikes, KNA’s appraisal expert. See, e.g. 6 RR

128; 8 RR 189.

The only manner by which an abutting property owner gains access to a

public street is by a curb cut, nine of which were needed in the case of KNA’s

property to support its highest and best use. If the access is altered (i.e., by loss of

curb cuts), the property owner has the right to pursue a claim for that loss as

provided by the Legislature in 2011 in § 21.042(d) of the Texas Property Code.

TEX. PROP. CODE § 21.042(d).
3

II. THE JUDGMENT IS SUPPORTED BY THE STATE’S AGREEMENT,

STIPULATION, OR CONCESSION.

A. The State’s Attorney’s Unequivocal Statement to the Trial Court

Constitutes an Agreement, Stipulation, or Concession.

It is undisputed that the State agreed to restore all nine of the driveways.

But, the State claims that it had no “agreement” or “stipulation” with KNA

regarding restoration of the nine driveway access connections. Reply 7. The State

does acknowledge that it “represented both before and during trial that its project

included reconstruction of the nine driveway access connections.” Id. The State

made this representation with the intent that KNA rely on it, which it did.

In connection with pretrial stipulations, the trial court expressly asked about

the curb cuts:

THE COURT: All the curb cuts were included in that [the

taking]?

MR. MONTAGUE: Yes. The curb cuts were included in the taking.

THE COURT: We are all talking about curb cuts.

MR. MONTAGUE: If the curb cuts were included in the taking. The

State, if you go out there today, has reestablished some of the curb

cuts. It’s a consequence of how close the taking is now to the

building. Those curb cuts really offer no viable access in and out of

the property for the types of traffic that the office/warehouse facility

serves.

THE COURT: Is it an agreed or a disputed fact that these buildings

are usable or not usable anymore?

MR. MONTAGUE: We have agreed to a stipulation as I think, Your

Honor, that as a consequence of the taking, the improvements on the
4

property, correct me if I’m wrong, Mr. Brocato, the improvements on

the property after the taking no longer are viable and must be raised.

THE COURT: Okay. And is that an agreed fact?

MR. BROCATO: That’s an agreed fact, Your Honor.

THE COURT: Why did ya’ll go put curb cuts back then for, I guess,

whatever somebody might tear down the buildings and rebuild?

MR. BROCATO: They can redevelop the site.

THE COURT: That’s what I’m saying. Okay. So, it can be

redeveloped with buildings in a different location, configuration or

whatever?

MR. BROCATO: Right. And we’ll put all the curb cuts back.

3 RR 7-8 (emphasis added).

The State thus represented on the record to the trial court that all of the curb

cuts would be restored. 13 RR 8. While it is true that the parties did not make a

formal stipulation about the curb cuts/driveways to the trial court, the trial court

could properly consider the material representations made by the State’s attorney

on the record, in open court.

A “stipulation” is an agreement, admission, or concession made in a judicial

proceeding by the parties or their attorneys, respecting some matter incident

thereto. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Martinez, 800 S.W.2d 331,

1 The State’s engineer witness, Robert Scott Davis, testified in that same pre-trial hearing

that TxDot made the decision to “leave [the nine driveways] restored.” 3 RR 71-72. The verb

“restore” means (1) to give back (someone or something that was lost or taken); (2) to return

(someone or something); (3) to put or bring (something) back into existence or use; (4) to return

(something) to an earlier or original condition by repairing it, cleaning it, etc. See

http://www.merriam-webster.com/dictionary/restore.
5

334 (Tex. App.—El Paso 1990, no writ) (citing 73 Am. Jur. 2d Stipulations § 1, at

536 (1974)). In the National Union case, the court held that the appellant’s

attorney’s statements to the court regarding wage rate in a workers’ compensation

case should be construed as an “agreement or stipulation” within the contemplation

of Rule 11 of the Texas Rules of Civil Procedure. Rule 11 and its mandate

encompass concessions made by counsel in trial court. See Shepherd v. Ledford,

926 S.W.2d 405, 410 (Tex.App.—Fort Worth 1996), aff’d, 962 S.W.2d 28 (Tex.

1998) (applying Rule 11 to stipulations which included a “concession” by

counsel). Certainly, the State’s attorney’s unequivocal statement to the trial court

on the record constitutes an agreement, stipulation, or concession. And KNA

relied on it; otherwise, it would have pursued a claim for a material impairment of

access. TEX. PROP. CODE § 21.042(d).

B. Alternatively, No Pleading Is Required Because the State Tried

the Driveway Issue by Consent.

KNA’s land planner, Peter Boecher, prepared a drawing showing that all

nine driveways would be restored “After the Taking,” and that Exhibit 10 was preadmitted for the trial of this case without any objection from the State. 4 RR 96;

see 16 RR DX10. As outlined in KNA’s Brief of Appellees, numerous witnesses

testified about KNA’s nine curb cuts/driveways and the value that those driveways

added to the property. Br. App’ee 16-18. When issues not raised by the pleadings

are tried by express or implied consent of the parties, they shall be treated in all
6

respects as if they had been raised in the pleadings. TEX. R. CIV. P. 67; see also

Southwestern Resolution Corp. v. Watson, 964 S.W2d 262, 264 (Tex. 2003)

(holding unpleaded affirmative defense of payment on a note was tried by consent

when the opposing party did not object to testimony about whether payment was

made).

III. THE STATE ACKNOWLEDGES THAT PAYMENT IS REQUIRED PRIOR TO

PASSAGE OF TITLE.

The Texas Constitution provides that “No person’s property shall be taken,

damaged, or destroyed for or applied to public use, without adequate compensation

being first made, unless by consent of such person; and when taken, except for the

use of the state, such compensation shall be first made or secured by a deposit of

money.” TEX. CONST. art. I, § 17 (emphasis added). The payment of

compensation is a condition precedent to the right to take and use, and title does

not vest until payment is made. St. Louis, A. & T. Ry. Co. v. Henderson, 86 Tex.

307, 312, 24 S.W. 381, 384 (1893); see also City of Houston v. Texan Land and

Cattle Co., 138 S.W.3d 382, 392 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

The State agrees that in condemnation that title “does not pass until payment is

made.” Reply 5. The State argues, however, that payment does not include

reconstruction of access connections because such reconstruction “was not part of

the compensation.” Id. at 6. The State argues that compensation in condemnation

must only be money damages based on fair market value. See id. But, the State
7

can point to no authority that excludes compensation “in kind” compensation (i.e.,

the restoration of the curb cuts), particularly where that compensation has been

agreed to by the property owner. Moreover, to so hold would foreclose a

condemning authority’s opportunity to make physical modifications to one’s

property to lessen the damages caused by the condemnation as part of the

consideration which is to no one’s benefit.

IV. THE STATE’S APPEAL IS MOOT BECAUSE IT IS UNDISPUTED THAT THE

STATE VOLUNTARILY RESTORED THE DRIVEWAYS.

It is undisputed that all nine driveways have been reconstructed. But, the

State still claims that there is still an existing controversy because the judgment

makes passage of title subject to the return of the driveways. However, the State

restored all nine driveways voluntarily and without explicitly reserving the right to

challenge the recitations in the judgment regarding the passage of title – as it

represented to KNA (and the trial court) that it would do both before and during

trial.

How is the State’s conduct any different than a judgment debtor who

voluntarily pays the judgment against him without explicitly reserving the right to

appeal? It is a settled rule of law that when a judgment debtor voluntarily pays and

satisfies a judgment rendered against him, the cause becomes moot. Employees

Finance Co v. Lathram, 369 S.W.2d 927, 930 (Tex. 1963). The judgment debtor

thereby waives his right to appeal and the case must be dismissed. See Miga v.
8

Jensen, 96 S.W.3d 207, 211 (Tex. 2002) (requiring judgment debtor who pays

judgment to express an intent to pursue his appeal); Highland Church of Christ v.

Powell, 640 S.W.2d 235, 236 (Tex. 1982) (noting that expressly reserving the right

to appeal when the judgment is paid is the safest course of action).

The State restored all nine driveways without expressly reserving its right to

appeal the recitations in the judgment relating to the restoration of those driveways.

It is a fundamental tenet that this Court cannot decide moot controversies. Gen.

Land Office of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 570-72 (Tex. 1990);

Camarena v. Texas Employment Comm’n, 754 S.W.2d 149, 151 (Tex. 1988). This

prohibition is rooted in the Texas Constitution’s separation of powers doctrine,

which prohibits courts from rendering advisory opinions. See TEX. CONST. art. II,

§ 1. Because the State voluntarily restored the driveways without reserving any

appellate rights, this appeal should be alternatively dismissed for want of

jurisdiction.

CONCLUSION AND PRAYER

For all the reasons stated above and in KNA’s Brief of Appellee, the Court

should affirm the judgment of the trial court or alternatively dismiss the appeal as

moot.
9

Respectfully submitted,

VINSON & ELKINS L.L.P.

/s/ H. Dixon Montague

H. Dixon Montague

State Bar No. 14277700

dmontague@velaw.com

Billy C. Dyer

State Bar No. 06312580

bdyer@velaw.com

Catherine B. Smith

State Bar No. 03319970

csmith@velaw.com

David G. Wall

State Bar No. 25060788

dwall@velaw.com

1001 Fannin Street, Suite 2500

Houston, Texas 77002-6760

Telephone: 713.758.2086

Facsimile: 713.615. 5461

Attorneys for Appellee, KNA Partners,

A Texas Joint Venture
10

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that

this Sur-reply contains 1,969 words, excluding the words not included in the word

count pursuant to Texas Rule of Appellate Procedure 9.4(i)(1). This is a computergenerated document created in Microsoft Word, using 14-point typeface for all

text, except for footnotes which are in 12-point typeface. In making this certificate

of compliance, I am relying on the word count provided by the software used to

prepare the document as well as a hand count of words contained in the charts

included in the brief.

/s/ Catherine B. Smith

Catherine B. Smith
11

CERTIFICATE OF SERVICE

The undersigned certifies that on May 14, 2015, the foregoing Sur-Reply of

Appellee was served electronically on the following parties in accordance with the

requirements of the Texas Rules of Appellate Procedure:

Susan Desmarais Bonnen

susan.bonnen@texasattorneygeneral.gov

Philip Arnold

Ken Paxton

Charles E. Roy

James E. Davis

Randall K. Hill

P.O. Box 12548

Austin, Texas 78711-2548

Attorneys for Appellant

Via Electronic Service

/s/ Catherine B. Smith

Catherine B. Smith

US 3451667v.1