BELLAS v. VAQUERO PERMIAN GATHERING LLC (2022)

OPINION

Appellant, Eduardo Bellas, Jr. (Bellas), appearing pro se, appeals from a judgment in a condemnation proceeding in favor of Appellee, Vaquero Permian Gathering, LLC. (Vaquero). Bellas argues on appeal the trial court erred in failing to grant his motions for continuance to allow him to obtain a new attorney and to adequately prepare for trial; the trial court erred in granting Vaquero's motion for summary judgment on eminent domain; the Texas Constitution guarantees a condemnee legal representation in a condemnation proceeding; and Vaquero's taking of his property, without an easement agreement, constitutes unjust enrichment. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Vaquero, a gas utility company, filed suit against Bellas on May 9, 2019, seeking easement and right-of-way rights for a natural gas pipeline on 0.85 acres of his land. After a hearing and award of compensation by a panel of Special Commissioners, Bellas filed an objection to the award, pro se, on September 11, 2019.

Vaquero moved to dismiss the objection for want of prosecution on November 16, 2020. The court set the motion for hearing on December 14, 2021, and counsel for Bellas filed a notice of appearance on November 24, 2021. The motion to dismiss was denied on January 15, 2021.

The trial court's docket sheet indicates a notice of trial setting for September 1, 2021, was sent out on April 6, 2021. On May 21, 2021, counsel for Bellas moved to withdraw, citing “irreconcilable differences regarding the scope of representation and factual and legal issues.” Bellas's counsel's motion to withdraw stated Bellas had been provided with a copy of the notice of trial setting and Bellas was aware of all deadlines in the case. The court granted the motion.

Between July 27 and August 3, Bellas filed various discovery responses. Vaquero filed a motion for summary judgment, seeking to confirm its right of eminent domain, leaving the only issue for trial, the amount of just compensation owed to Bellas resulting from the acquisition of easement rights. Bellas did not file a response to the motion for summary judgment. Instead, in the week before trial, he filed two separate motions for continuance seeking more time to hire new counsel and to prepare for trial.

According to the final judgment, the trial court heard the case on September 1, 2021. The judgment reflects the court granted Vaquero's motion for summary judgment on its right to take and decreed that Vaquero “fully satisfied all constitutional and statutory requisites to acquire by condemnation the easements sought in this proceeding and described in the Petition[.]” The court also issued the amount of compensation due to Bellas for the condemnation.¹

No transcript of any part of the hearing or trial was made a part of the record on appeal.

II. STANDARD OF REVIEW

We review a trial court's denial of a motion for continuance for an abuse of discretion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004); In re K-A.B.M., 551 S.W.3d 275, 283 (Tex.App.—El Paso 2018, no pet.). “Rule 251 provides that no continuance shall be granted ‘except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.’ ” K-A.B.M., 551 S.W.3d at 283 (quoting Tex.R.Civ.P. 251). An abuse of discretion occurs when a trial court reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Joe, 145 S.W.3d at 161. We will not disturb the trial court's decision on appeal absent a showing that it acted arbitrarily and unreasonably. Stierwalt v. FFE Transp. Servs., Inc., 499 S.W.3d 181, 189 (Tex.App.—El Paso 2016, no pet.).

A trial court's granting of summary judgment is reviewed using a de novo standard. Herrera v. Resignato, 621 S.W.3d 835, 840 (Tex.App.—El Paso 2021, no pet.)(citing Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)). Traditional summary judgment is appropriate when the movant shows no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Id.; Tex.R.Civ.P. 166a(c). When a movant establishes each element of the claim on which it seeks summary judgment, the burden of disproving or raising a fact issue as to at least one of those elements moves to the non-movant. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). If the movant does not establish each element on its claim, the burden does not shift, and the non-movant need not respond or present any evidence. Id.

In regard to eminent domain, “[t]he Texas constitution limits the inherent power of eminent domain by imposing the requirements that the State take property only for ‘public use’ and pay ‘adequate compensation’ whenever doing so.” City of Blue Mound v. Sw. Water Co., 449 S.W.3d 678, 685 (Tex.App.—Fort Worth 2014, no pet.)(quoting Tex.Const.art. 1, § 17). The State's statutory grant of eminent domain power to other entities is strictly construed in two regards. Id. (citing Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline-Tex., LLC, 363 S.W.3d 192, 198 (Tex. 2012)). First, the condemning authority must show strict compliance with the law granting it the power of condemnation. Id. (citing Tex. Rice, 363 S.W.3d at 198). Second, “in instances of doubt as to the scope of the power, the statute granting such power is ‘strictly construed in favor of the landowner and against those corporations and arms of the State vested therewith.’ ” Id. (citing Tex. Rice, 363 S.W.3d at 198).

III. DISCUSSION

A. Motion for Continuance

In his first issue, Bellas argues the trial court should have allowed him additional time to obtain an attorney and to prepare for trial and it abused its discretion in denying his motions for continuance. Bellas claims he had insufficient time to conduct discovery, obtain an expert witness, and conduct depositions. He states by denying his motions for continuance, the court deprived him of his property “without the due course of the law of the land.”

Bellas did not verify his motions for continuance or file an affidavit in support of it, see Tex.R.Civ.P. 251, 252; see also K-A.B.M., 551 S.W.3d at 283; nor did Bellas provide a record from the hearing or the trial.

By the time of trial, Bellas's objection to the award of the Special Commissioners had been on file just ten days short of two years. Bellas states he only had three months and 12 days to prepare for trial because his attorney did nothing to prepare for trial before withdrawing, but his argument ignores the period of over a year before he hired counsel.

Based on the record before us, we cannot say the trial court abused its discretion in denying Bellas's motions for continuance. In re S.M., 389 S.W.3d 483 (Tex.App.—El Paso 2012, no pet.) (citing Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996)).

B. Motion for Summary Judgment on Right to Take

Bellas argues the trial court erred in granting judgment for Vaquero because it did not establish it is a bona fide public utility or common carrier with the power of eminent domain.² Conversely, Vaquero contends it established its eminent domain authority as a matter of law.

“To establish a valid exercise of eminent domain, a [condemning authority] must show it intends to put the property to public use and that the condemnation is necessary to advance or achieve that public use.” KMS Retail, LP v. City of Rowlett, 593 S.W.3d 175, 186 (Tex. 2019). “A legislative declaration on public use,” such as a statutory grant of eminent domain authority and the accompanying statutes describing that use, “is entitled to our deference,” but “the ultimate question of whether a particular use is a public use is a judicial question to be decided by the courts.” Id. at 187.

In a condemnation case, “the initial burden is on the condemnor to show the right to take and compliance with the procedural steps involved.”³ Bevly v. Tenngasco Gas Gathering Co., 638 S.W.2d 118, 120 (Tex.App.—Corpus Christi 1982, writ ref'd n.r.e.). When the legislature has determined that a given exercise of eminent domain is for the public use, a presumption is created that the taking is necessary to accomplish the authorized purpose. Id. In such a case, “a determination by the condemnor of the necessity for acquiring certain property is conclusive in the absence of fraud, bad faith, or abuse.” Id.

Vaquero claimed its eminent domain authority from its status as a gas utility under the Texas Utility Code. See Tex.Util.Code Ann. § 181.004. Section 181.004 grants the power to condemn to gas corporations. See id. Section 181.001 defines “corporation” to include “a gas utility ․ regardless of form or organization, but not including a municipally owned utility.” Id. § 181.001(1)(D). Vaquero claimed it met the definition of a gas utility because it either (1) is paid to transport natural gas for public use; or (2) owns, operates, or manages a pipeline that is carrying natural gas, whether for public hire or not and has right-of-way acquired or to be acquired through its eminent domain powers. See id. § 121.001(a).

Vaquero's motion for summary judgment attached a “Written Consent of Managers in Lieu of Meeting” in which “all of the managers [of Vaquero], necessary to adopt and approve the actions [taken]” adopted certain resolutions. Among these were that “the Company is a gas utility pipeline company that is engaged in the receipt, transportation, and delivery of natural gas ․ that is or will be regulated as a gas utility by the Railroad Commission of Texas.” Also resolved by the managers was that “there is a public use and necessity” for the placement of the pipeline in certain areas of Ward County, including across Bellas's property. In addition, Vaquero attached the affidavit of Gary Wauson, its Senior Vice President of Operations, which stated Vaquero's board executed its resolutions and thereafter applied for and received a T-4 permit from the Texas Railroad Commission for the operation of the pipeline as a gas utility. Wauson stated pursuant to these resolutions and the T-4, Vaquero owns and operates the pipeline. The T-4, also attached to the motion for summary judgment, shows the Railroad Commission granted Vaquero a permit to operate the pipeline as a gas utility.

We conclude the evidence produced by Vaquero establishes it is a gas utility with the power of eminent domain under section 118.004 of the Texas Utilities Code. Accordingly, the trial court did not err in granting Vaquero's traditional motion for summary judgment on this issue.⁴

C. Bellas's Last Two Issues Were not Preserved for Appeal

In his last two issues, Bellas argues the Texas Constitution guarantees a condemnee legal representation in a condemnation proceeding and Vaquero's taking of his property, without an easement agreement, constitutes unjust enrichment. Although Bellas listed these as “Issues Presented,” he presents no argument on appeal on either of them.⁵ Having failed to adequately brief these issues, Bellas presents nothing for our review. See Tex.R.App.P. 38.1; In re N.E.B., 251 S.W.3d 211, 211-12 (Tex.App.—Dallas 2008, no pet.).

IV. CONCLUSION

The trial court did not abuse its discretion in denying Bellas's motions for continuance and did not err in granting Vaquero judgment. We, therefore, affirm.

FOOTNOTES

1.   Bellas does not complain on appeal about the amount of the award.

2.   Bellas did not file a response to Vaquero's motion for summary judgment; however, in his numerous filings at the trial court and on appeal, Bellas has challenged whether the taking is for the benefit of the public.

3.   Bellas does not complain of any failure on Vaquero's part to comply with the procedural requirements of Chapter 21 of the Texas Property Code.

4.   We note Bellas does not complain that Vaquero's determination of public use and necessity is fraudulent, in bad faith, or arbitrary and capricious.

5.   We note there is nothing in the record that shows he raised either of these arguments in the court below.

Sandee B. Marion, Chief Justice (Ret.)