San Antonio Independent School District (SAISD) v. City of San Antonio, Acting by and through San Antonio Water System--Appeal from 73rd Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00835-CV
SAN ANTONIO INDEPENDENT SCHOOL DISTRICT,
Appellant
v.

CITY OF SAN ANTONIO,

acting by and through San Antonio Water System,

Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CI-05335
Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: November 3, 2004

AFFIRMED

San Antonio Independent School District ("SAISD") appeals the summary judgment rendered in favor of City of San Antonio, acting by and through San Antonio Water System ("SAWS"), in SAWS's suit against SAISD under the Declaratory Judgments Act. See TEX. CIV. PRAC. & REM. CODE ANN. 37.001-.011 (Vernon 1997 & Supp. 2004). SAISD raises two issues for review: (1) the trial court lacked jurisdiction to hear SAWS's claim; and (2) the trial court erred by declaring that an easement granted to SAWS to construct and maintain water facilities can be extended to allow unlimited access rights to a third party assignee or purchaser. We overrule both issues and affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

The properties subject to this dispute are as follows: SAWS owns title to approximately 25.142 acres of land ("SAWS's tract") situated north of Hildebrand Avenue and west of Devine Road in the City of San Antonio and the City of Olmos Park. Of SAWS's tract, SAWS utilizes approximately 3.828 acres for the operation of two elevated water tanks, water pump stations, and various other water service facilities. Abutting SAWS's tract to the south, SAISD owns approximately 0.51 acres of paved property ("SAISD's tract").

Regarding these properties, SAWS and SAISD entered into an Easement Agreement. (1) The Easement Agreement grants SAWS the right to use a 55 x 70 foot section of SAISD's tract (the "easement tract") to construct, reconstruct, realign, inspect, patrol, maintain, operate, repair, add, remove and replace recycle water and drain water facilities and appurtenances thereto. The Easement Agreement further provides for a right of ingress and egress for the purpose of using the easement tract to access adjoining property currently owned by SAWS.

SAWS has entered into a contract with Sunshine Cottage, a third party purchaser, to sell approximately 21.314 acres of the 25.142 acre tract. As one of the terms of the sale, Sunshine Cottage has asked for assurances that it will be able to utilize the easement tract to travel from the 25.142 acre site to the public right-of-way portion of Old Hildebrand Avenue and Devine Road. In order to obtain the necessary assurances, SAWS brought this action for declaratory judgment and requested that the court declare that the easement would be transferable to a purchaser upon a sale of the land. SAWS filed a motion for summary judgment. The trial court granted its motion for summary judgment, declaring the following:

1. The Ingress and Egress, Recycle Water, and Drain Water Easement between SAISD and SAWS grants SAWS, and its successors and assigns, the right to construct, reconstruct, realign, inspect, patrol, maintain, operate, repair, add, remove and replace recycle water and drain water facilities and appurtenances thereto, in, over and through the lands described in the Easement.

2. The Easement also grants SAWS, and its successors and assigns, the right of ingress and egress for the purpose of constructing, reconstructing, inspecting, patrolling, maintaining and removing recycle water and drain water facilities and appurtenances.

3. The Easement also grants SAWS, and its successors and assigns, the right of ingress and egress for the purpose of accessing adjoining land owned by SAWS on the date of the Easement.

4. These rights are appurtenant to and run with the dominant estate, and are freely transferable, in whole or in part, by SAWS to one or more third parties.

SAISD appeals from this summary judgment.

I. Did the Trial Court Have Jurisdiction?

In its first issue, SAISD contends that the trial court lacked jurisdiction based upon the doctrine of sovereign immunity. (2) Governmental immunity from suit deprives the trial court of subject matter jurisdiction over a lawsuit. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Whether the trial court lacked subject matter jurisdiction is a question of law that we review de novo. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Moreover, an exercise of jurisdiction by a trial court that lacked subject matter jurisdiction is fundamental error that may be raised at any time. Phillips Petroleum Co. v. Bivins, 423 S.W.2d 340, 345 (Tex. Civ. App.--Amarillo 1967, writ ref. n.r.e.). Therefore, we properly examine this issue for the first time on appeal.

A. Governmental Immunity

Governmental immunity, unless waived, protects school districts under the State of Texas from lawsuits for damages absent legislative consent. Gen. Serv. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). Governmental immunity consists of two principles: immunity from suit and immunity from liability. Id. Immunity from suit bars a suit against the governmental entity unless the Legislature has expressly given its consent. Id. Immunity from liability protects the governmental entity from judgments even if the Legislature has expressly given its consent to sue. Id.

On appeal, SAISD argues that it was immune from suit and, therefore, asks that we hold that the trial court lacked jurisdiction. We do not agree. We have specifically and unequivocally held that school districts like SAISD are not immune from suit. Alamo Cmty. Coll. Dist. v. Browning Constr. Co., 131 S.W.3d 146, 151 (Tex. App.--San Antonio 2004, pet. filed). Part of the "general law" governing the management and control of independent school districts is the Texas Legislature's consent that "[t]he trustees of an independent school district . . . in the name of the district may . . . sue and be sued . . . ." TEX. EDUC. CODE ANN. 11.151(a) (Vernon 1996); Browning, 131 S.W.3d at 151.

B. "Sue and be Sued"

In support of its argument, SAISD asserts that the "sue and be sued" language in the Texas Education Code is not a clear and unambiguous waiver of immunity. Once again, we disagree. Concerning the interpretation and application of this language, the supreme court held in Missouri Pacific Railroad Co. v. Brownsville Navigation District, 453 S.W.2d 812 (Tex. 1970), that "sue and be sued" language could be used to statutorily create a waiver of immunity. In Missouri Pacific, the Court considered whether a 1925 statute clearly and unambiguously waived Brownsville Navigation District's immunity from suit. Mo. Pac., 453 S.W.2d at 813. The statute at issue provided: "All navigation districts established under this Act may, by and through the navigation and canal commissioners, sue and be sued in all courts of this State in the name of such navigation district . . . ." Id. (emphasis added). The court held: "In our opinion [the statute] is quite plain and gives general consent for District to be sued in the courts of Texas in the same manner as other defendants." Id. Thus, under Missouri Pacific, governmental immunity is waived where the Legislature provides that the governmental entity may "sue and be sued." Id.; see also Browning, 131 S.W.3d at 152.

1. Satterfield

SAISD, instead, argues that the "sue and be sued" language in the Texas Education Code is not a clear and unambiguous waiver of immunity from suit and asks that we should follow our sister court's holding in Satterfield & Pontikes Construction, Inc. v. Irving Independent School District, 123 S.W.3d 63, 66 (Tex. App.-Dallas 2003, no pet.). In that case, the Fifth Court of Appeals concluded that section 11.151 is ambiguous as to whether it speaks to the school district's capacity to sue and to be sued as an entity once its immunity has been waived, or whether it is an unequivocal expression of the Legislature's intent to waive the school district's immunity from suit. See Satterfield, 123 S.W.3d at 66 (holding that the "sue and be sued" language merely recognizes the school district's ability to utilize the courts as a legal entity, just as the remainder of section 11.151 authorizes the school district to hold property and receive bequests, donations, and other funds). As we previously held in Browning, however, the effect of the Fifth Court's decision is to improperly overrule Missouri Pacific. See Browning, 131 S.W.3d at 154. We believe that we are bound by the authority of Missouri Pacific unless the Supreme Court overrules it. Id.

2. Freedman

SAISD also relies on Freedman v. University of Houston, 110 S.W.3d 504 (Tex. App.-Houston [1st Dist.] 2003, pet. denied), for support. In that case, the First Court of Appeals ruled that the "sue and be sued" language of section 111.33 of the Texas Education Code did not expressly grant legislative consent to sue the University of Houston. Id. We disagree, however, with SAISD's contention that this ruling is dispositive of the issue before us.

The contested statutory language in that case provided as follows:

The board [of regents] has the power to sue and be sued in the name of the University of Houston. . . . The University shall be impleaded by service of citation on the president or any of its vice presidents. Nothing in this section shall be construed as granting legislative consent for suits against the board, the University of Houston System, or its component institutions and entities except as authorized by law.

TEX. EDUC. CODE ANN. 111.33 (Vernon 2002) (emphasis added). The construction and language of section 111.33 is patently different than that of section 11.151. In particular, section 111.33 explicitly states that a waiver of immunity from suit shall not be presumed. Id. ("Nothing in this section shall be construed as granting legislative consent for suits . . . ."). By contrast, section 11.151 contains no such language. See TEX. EDUC. CODE ANN. 11.151 (Vernon 1996 & Supp. 2004). We, therefore, reiterate our holding in Browning and hold that because the Legislature clearly and unambiguously waived immunity for independent school districts, SAISD is not immune from suit. Accordingly, we overrule this issue on appeal.

II. The Easement

In its second issue, SAISD contends that the trial court erred in granting SAWS's motion for summary judgment. We disagree. We review the grant of a summary judgment de novo. Reynoso v. Huff, 21 S.W.3d 510, 512 (Tex. App.--San Antonio 2000, no pet.). Accordingly, we will uphold a summary judgment only if the summary judgment record establishes that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law on a ground set forth in the motion. Travis v. City of Mesquite, 830 S.W.2d 94, 99-100 (Tex. 1992). In deciding whether the summary judgment record establishes the absence of a genuine issue of material fact, we view as true all evidence favorable to the non-movant and indulge every reasonable inference, and resolve all doubts, in its favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

In the present case, the trial court granted summary judgment in favor of SAWS's petition for declaratory judgment asking that the court construe the terms of its easement agreement with SAISD. On appeal, SAISD frames the issue as follows: the trial court erred in holding that SAWS's easement can pass with the land to a new, private owner upon the sale of all or part of SAWS's property. Again, we disagree.

A. "Appurtenant" or "in gross"

The threshold question in this case is whether the easement at issue is "appurtenant" or "in gross." See McWhorter v. City of Jacksonville, 694 S.W.2d 182, 184 (Tex. App.--Tyler 1985, no pet.). An easement in gross attaches to, and vests in, the person or entity to whom it is granted. Id. Therefore, should the rights in question be an easement in gross, this easement would be personal to SAWS, and any subsequent transfers of the benefitted property would be inconsequential. To the contrary, an easement appurtenant attaches to the land or dominant estate and passes with it. Id. Therefore, should the rights in question be an easement appurtenant, this easement would pass to a subsequent grantee with the passage of title to the dominant estate.

In determining whether an easement is in gross or appurtenant, we look to a fair interpretation of the grant or reservation, aided, if necessary, by the situation of the property and the surrounding circumstances. Marcus Cable Assoc. v. Krohn, 90 S.W.3d 697, 700-02 (Tex. 2002). When, after applying these guidelines, an easement is susceptible to only one reasonable and definite interpretation, we construe the writing granting the easement as a question of law. Id. at 703. Concerning a reasonable and unambiguous easement agreement, we are bound, in our construction, by the statute of frauds; extraneous circumstances may not be resorted to, nor parol evidence admitted, to vary the terms of the instrument even if the parties offer different interpretations of the easement's terms. Id. at 700-01. In terms of construction, we favor the classification of an easement as appurtenant to some other estate. McWhorter, 694 S.W.2d at 184. An easement in gross will never be presumed absent the express and unambiguous intent of the parties. Id.

Here, applying the law to the facts of this case, we believe that the express language of the Easement Agreement between SAWS and SAISD classifies the easement as appurtenant rather than in gross. The relevant language is as follows: SAWS, and its "successors and assigns," are granted a right of "ingress and egress . . . for the purpose of using [the easement] to access adjoining property currently owned by [SAWS]." The reference in the Easement Agreement to "successors and assigns" unambiguously demonstrates that this is an easement in which the benefits are for a specific parcel, irrespective of the identity of the owner. Furthermore, the right of ingress and egress creates a right of entrance to and exit from an estate that is generally indicative of an appurtenant easement. See 31 A TEX. JUR. 3D Easements and Licences in Real Property 10 (1994). Because the Easement Agreement is susceptible to only one reasonable and definite interpretation, we hold that the easement in question is appurtenant and, thus, cannot be separated from, or transferred independently of, the land to which it is appurtenant.

B. Scope of the Agreement

SAISD further contends that the Easement Agreement is limited by its scope only to the construction, maintenance, and other activities related to SAWS's water systems and facilities. Accordingly, SAISD argues that the anticipated sale of part of the SAWS's tract to Sunshine Cottage will substantively change the use of the easement to an expanded use specifically forbidden "when harmonizing all parts of the grant." We disagree. To the contrary, the plain and unambiguous language of the Easement Agreement provides: "Said right of ingress and egress shall also be for the purpose of using said land to access adjoining property currently owned by [SAWS]." Accordingly, we overrule this issue on appeal. The judgment of the trial court is affirmed.

Karen Angelini, Justice

1. The Easement Agreement between SAWS and SAISD is entitled "Ingress and Egress, Recycle Water, and Drain Water Easement," and is dated July 14, 1998, and recorded in the Real Property Records of Bexar County, Texas (volume 7575, page 1307).

2. The terms sovereign immunity and governmental immunity are often used synonymously, but there is a distinction. Sovereign immunity refers to the State's immunity from suit and liability, and protects the State and its divisions. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). Governmental immunity protects political subdivisions of the State, including counties, cities, and school districts. Id. We, therefore, use the term governmental immunity in this opinion because we are dealing with a school district.