Whitehead Properties, Inc. v. Muriel Kile, et al.--Appeal from 51st District Court of Tom Green County

WHITEHEAD-final IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-439-CV
WHITEHEAD PROPERTIES, INC.,
APPELLANT
vs.
MURIEL KILE, JANE R. BLANCH, MARGARET R. TEMPLETON,
MARY ELLEN BUNYARD, AND NONALEE HOLMAN,

APPELLEES

 
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
NO. CV90-0795-A, HONORABLE ROYAL HART, JUDGE PRESIDING

This is a suit seeking judicial construction of a water-rights contract. Appellees, Muriel Kile, Jane R. Blanch, Margaret R. Templeton, Mary Ellen Bunyard, and Nonalee Holman filed this action to enjoin appellant, Whitehead Properties, Inc. ("Whitehead"), from operating water wells that appellees claim violate an earlier agreement. The trial court rendered judgment in favor of appellees and enjoined Whitehead from operating the wells. We will affirm the judgment of the trial court.

 
BACKGROUND

No statement of facts is before this Court. The background information set forth below comes from the trial court's findings of fact or from unchallenged assertions in Whitehead's brief, which may be accepted as correct. See Tex. R. App. P. 74(f).

The head of Lipan Creek, which is Lipan Springs, is located on a ranch Whitehead owns. Appellees own property that is immediately downstream from the Whitehead ranch. In 1975, Whitehead and appellees entered into a Compromise and Settlement Agreement (the "agreement") that settled earlier litigation concerning the parties' rights to the water flowing from Lipan Springs. The parties agreed that Whitehead would release downstream seventy-five percent of the water flowing from the springs. The agreement provided that Whitehead would install two flow monitors: one at the head of Lipan Springs to measure the flow of the springs and another just below a reservoir on the Whitehead ranch to measure the flow of Lipan Creek. The agreement required the amount of water flowing downstream to appellees, as measured by the Lipan Creek flow monitor, to be at least seventy-five percent of the total flow measured by the Lipan Springs flow monitor.

In January 1990, Whitehead drilled five producing water wells in a semi-circle around the head of Lipan Springs. The wells diverted water from the head of the springs into Whitehead's reservoir from which Whitehead drew water to irrigate crops. The operation of the wells enabled Whitehead to use water from Lipan Springs before it flowed through the Lipan Springs flow monitor.

After a bench trial, the trial court found that the operation of the wells interfered with the total flow of water from Lipan Springs and was not permitted under the agreement. The trial court awarded attorney's fees to appellees and enjoined Whitehead from operating the wells unless the water pumped from the wells first passed through the Lipan Springs flow monitor.

 
DISCUSSION

Because Whitehead has not timely filed a statement of facts, we must presume that the evidence supports the trial court's findings of fact. See Commercial Credit Corp. v. Smith, 187 S.W.2d 363 (Tex. 1945). Under the Texas Rules of Appellate Procedure, it was Whitehead's responsibility to bring forward a sufficient record for our review. Tex. R. App. P. 50. Whitehead's first, fourth, and sixth points of error contest factual findings of the trial court. Whitehead complains that the trial court erred by failing to find that the wells produce percolating groundwater, by finding that Whitehead's attorney drafted certain portions of the agreement, and by finding that Whitehead caused appellees' damages, although the judgment did not award damages. Because we must assume that the evidence supports the trial court's findings of fact, we overrule Whitehead's first, fourth, and sixth points of error.

Whitehead's third point of error maintains that, as a matter of law, the trial court failed to construe the agreement as a whole by disregarding a portion that provided that Whitehead expressly reserved the right to drill and pump water wells on its property, notwithstanding any other provisions in the agreement to the contrary. (1) The agreement is not part of the record before the Court.

Although we must assume that the evidence supports the trial court's findings of fact, conclusions of law are always reviewable. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex. App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.). Since conclusions of law must be drawn from the facts, we cannot reach a result that is inconsistent with the factual findings. The trial court found that the parties intended for appellees to receive at least seventy-five percent of the total flow of water from Lipan Springs and that Whitehead's operation of the wells caused the amount of water appellees received to fall below that amount. Without contradicting the factual findings, we cannot conclude that, as a matter of law, the agreement allows Whitehead to operate water wells that reduce the amount of water flowing downstream to appellees below seventy-five percent of the total flow of the springs. We overrule Whitehead's third point of error.

Similarly, Whitehead argues that the limitations the court imposed on Whitehead's right to operate water wells constitute a waiver of its groundwater rights. Whitehead claims that the agreement only affects surface-water rights and that the language clearly demonstrates that Whitehead had no intention to relinquish its groundwater rights. Nonetheless, to the extent that retention of its groundwater rights allows Whitehead unlimited use of the water in Lipan Springs, retention of those rights conflicts with the factual findings. Whitehead's second and ninth points of error are overruled.

Whitehead's fifth point of error asserts that the trial court improperly assumed jurisdiction over this controversy under an arbitration clause contained in the agreement. The trial court's judgment recited that relief was granted alternatively under the court's authority as arbitrator only to the extent that such authority was necessary to uphold the judgment. Whitehead does not contend that this dispute is subject to mandatory arbitration; therefore, the trial court's jurisdiction over this dispute under its general judicial authority is proper. The trial court's recital of an alternative basis of authority does not affect the validity of its judgment. Moreover, absent a statement of facts we are unable to review the trial court's construction of the arbitration clause. Whitehead's fifth point of error is overruled.

In its seventh point of error, Whitehead contends that the trial court erred in awarding attorney's fees to appellees, because the court failed to construe properly a portion of the agreement that provided that the parties thereto would pay their own costs. Because we must assume that the evidence supports the trial court's finding that appellees were entitled to attorney's fees, Whitehead's seventh point of error is overruled.

Whitehead's eighth point of error complains that the trial court abused its discretion by awarding attorney's fees to appellees under the Uniform Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code Ann. 37.001-.011 (West 1986 & Supp. 1993), because appellees' prayer for declaratory judgment did not include a specific request for attorney's fees. We need not reach the merits of this argument. Given the possibility of an amendment at trial and absent a statement of facts, Whitehead is unable to sustain its burden of showing that appellees' pleadings were insufficient to support an award of attorney's fees. See Tex. R. Civ. P. 67. Whitehead's eighth point of error is overruled.

 
CONCLUSION

Having overruled all of Whitehead's points of error, we affirm the judgment of the trial court.

 

Jimmy Carroll, Chief Justice

 

[Before Chief Justice Carroll, Justices Aboussie and Jones;

Justice Aboussie not participating]

 

Affirmed

 

Filed: May 12, 1993

[Do Not Publish]

1. The trial court's findings of fact set forth the following relevant portion of paragraph V of the agreement: "Notwithstanding anything to the contrary contained herein, this agreement shall not be construed as granting, waiving, releasing or denying any rights, obligations, causes of action, defenses or other equities to any of the parties hereto by reason of the drilling of and pumping of water from a water well or water wells on the above lands of Defendant; but this compromise and settlement agreement shall not be construed to have any force and effect as to any rights, causes of action, defenses, liabilities, or other equities of any of the parties hereto arising out of the drilling of and pumping of water from a water well or water wells on the lands of Defendant, and each of the parties hereto, in such event, shall have said rights, causes of action, defenses, liabilities or other equities as may be provided by law."