Caseflicks

Texas Supreme Court • 1979

City of Houston v. Clear Creek Basin Authority

589 S.W.2d 671 | 23 Tex. Sup. Ct. J. 7 | 1979 Tex. LEXIS 327

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Takeaway

In short, this case established that Texas summary-judgment opponents must expressly preserve their grounds in a written response, while confirming that a local government may enforce Water Code discharge restrictions only for violations occurring within its own territorial boundaries.

Background

Clear Creek Basin Authority sued Houston under Chapter 26 of the Texas Water Code, seeking injunctions and civil penalties for allegedly unlawful wastewater discharges from City treatment plants. It also initially pleaded a common-law nuisance claim. Houston admitted that four plants located within Clear Creek's territorial boundaries exceeded permit limits during parts of 1974 and 1976. The other challenged plants were upstream and outside the Authority's boundaries.

Houston moved for summary judgment on three grounds: administrative-enforcement objections, Clear Creek's lack of authority to sue over violations outside its territory, and a statutory limitation on the Authority's functions. At the hearing, Clear Creek withdrew its nuisance claim, and Houston withdrew the first and third grounds of its motion. The parties therefore submitted only one question: whether Clear Creek could sue under the Water Code for discharges occurring upstream and outside its jurisdiction. The trial court granted Houston summary judgment.

The court of civil appeals reversed and remanded. It concluded that a fact issue remained concerning the four plants located within Clear Creek's boundaries and reasoned that Clear Creek had not waived that portion of its case without a written Rule 11 agreement. The Texas Supreme Court reversed the court of civil appeals and reinstated the trial court's judgment for Houston.

Issues

Issue #1

Whether Clear Creek could obtain reversal by asserting on appeal a fact issue concerning violations at plants within its territorial boundaries when the parties submitted only the upstream-standing issue to the trial court.

Holding

No. Clear Creek could not raise on appeal an issue that it did not expressly present to the trial court in a written summary-judgment response and that the parties had effectively excluded when narrowing the hearing to one legal issue.

Reasoning

The 1978 amendment to Texas Rule of Civil Procedure 166-A(c) bars appellate reversal on issues not expressly presented to the trial court by a written motion, answer, or other response. The amendment was designed to prevent a nonmovant from withholding objections or factual theories at the summary-judgment hearing and raising them for the first time on appeal.

The parties may narrow the issues otherwise framed in the written summary-judgment papers, but their agreement must satisfy Rule 11. Rule 11 permits an agreement made in open court if it is entered of record. Here, the trial court's judgment recited the parties' open-court representations: Clear Creek withdrew its nuisance claim, Houston withdrew two of its three summary-judgment grounds, and the hearing proceeded solely on whether Clear Creek could sue over violations outside its territorial boundaries. Those recitations satisfied Rule 11.

Clear Creek's pleadings did not preserve a separate fact issue concerning the four in-boundary plants. Pleadings are not summary-judgment proof, and the terms 'answer' and 'response' in Rule 166-A(c) refer to a written answer or response to the summary-judgment motion, not to pleadings generally filed in the lawsuit. A nonmovant's written response must fairly alert both the court and movant to the grounds asserted to defeat summary judgment.

The Court emphasized that this rule does not shift the movant's burden. A movant must still conclusively establish entitlement to judgment on the grounds expressly asserted, and a summary judgment cannot be granted merely by default because the nonmovant filed no response. But except for arguing that the movant's expressly stated ground is legally insufficient, a nonmovant must present in writing any affirmative reason or factual issue that would defeat summary judgment and may not revive an abandoned ground on appeal.】【”】【},{