Robert Ward v. Northampton Municipal Utiity District

Affirmed as Modified and Memorandum Opinion filed June 12, 2008 Affirmed as Modified and Memorandum Opinion filed June 12, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00868-CV ____________ ROBERT WARD, Appellant V. NORTHAMPTON MUNICIPAL UTILITY DISTRICT, Appellee On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Cause No. 816194 M E M O R A N D U M   O P I N I O N Ward appeals from a judgment awarding him $23,000 for the acquisition of easements on his property by the Northampton Municipal Utility District (Athe District@). In four issues, Ward argues that the trial court erred in (1) failing to include all the terms of the settlement agreement in the final judgment, (2) finding that Ward acknowledged receipt of payment from the District, and (3) granting partial summary judgment. Background On April 20, 2004, the District offered Ward $4,420 as compensation for a drainage easement and a sanitary sewer easement that would run across Ward=s property. In response to Ward=s rejection of the District=s offer, the District filed a petition in condemnation pursuant to chapter 21 of the Property Code. See Tex. Prop. Code Ann. ' 21.012(a) (Vernon 2004). The trial court appointed special commissioners who awarded Ward $4,420. Ward objected to the special commissioners award vesting the county court with jurisdiction over the dispute. See Tex. Prop. Code ANN. ' 21.012(a) (Vernon 2004). Subsequently, the District tendered the $4,420 into the registry of the court. On February 28, 2006, the trial court granted a partial summary judgment, finding that the District had a right to take the easements, leaving the issue of compensation for trial. The parties subsequently entered into a settlement agreement in which the District agreed to pay Ward $23,000 in compensation for the taking of his property. The parties further agreed that A[t]he District or its assign or successor shall assume and be responsible for all construction and maintenance of the drainage easement located within the 1.133 acre tract condemned and conveyed in the Agreed Judgment.@ In compliance with the settlement agreement, the District prepared an agreed judgment, which stated that it would pay Ward $23,000 in exchange for the easements. Ward refused to agree to the judgment. On June 5, 2007, the District delivered a check to Ward in the amount of $18,580 (the condemnation award less the $4,420 in the registry of the court). In a letter sent with the check, the District demanded that Ward agree to the judgment, or the District would be forced to amend its pleadings to enforce the settlement agreement. Because Ward did not agree to the judgment, the District amended its pleadings to include an allegation that Ward had breached the settlement agreement. Two days later, the District filed a motion for partial summary judgment seeking to enforce Aitem 1@ of the settlement agreement, i.e., the payment provision. On July 13, 2007, the trial court signed a judgment in which it granted the easements to the District and ordered that Ward should recover $23,000 as total compensation for the acquisition of the easements. The judgment stated that Ward acknowledged receipt of the District=s check and that Ward could withdraw the $4,420 from the registry of the court. On July 24, 2007, Ward returned the District=s check. The Settlement Agreement In his first and second issues, Ward argues that the trial court erred in failing to include all the terms of the settlement agreement in the judgment. Specifically, Ward contends that the judgment should have included the obligation of the District to construct and maintain all necessary improvements on the drainage easement. When Rule 11 prerequisites are met, the trial court has a ministerial duty to grant relief in strict accordance with the parties= agreement. ExxonMobil Corp. v. Valence Operating Co., 174 S.W.3d 303, 309 (Tex. App.CHouston [1st Dist.] 2005, pet. denied); Tex. R. Civ. P. 11. The District contends that the trial court is not required to include all terms of the settlement agreement and that Ward is not harmed by the failure of the trial court to include the maintenance provision in the judgment. See Compania Financiara Libano v. Simmons, 53 S.W.3d 365, 367 (Tex. 2001). Ward responds, however, that if the District=s maintenance of the drainage easement is not included in the judgment, future bona fide purchasers will not be put on notice of the District=s obligation. If the District fails to comply with its obligation to maintain the drainage easement while Ward is the property owner, Ward can file suit against the district for breach of contract. However, because a future property owner is not a party to the contract, a future bona fide purchaser would have no remedy against the District, and the maintenance of the easement could revert to the property owner. The principles of condemnation, in part, enable a landowner to recover all reasonably foreseeable consequential damages from the taking in the statutory condemnation proceeding and not be Aburdened with the delay and expense of future lawsuits.@ White v. Natural Gas Pipeline Co. of Am., 444 S.W.2d 298, 301 (Tex. 1969). The District has recognized that a dominant estate owner has the duty to maintain an easement absent an express agreement placing that duty of maintenance upon the servient estate owner. See Roberts v. Friendswood Development Co., 886 S.W.2d 363, 367 (Tex. App.CHouston [1st Dist.] 1994, writ denied). Acknowledging its obligation, the District will not be harmed by its inclusion in the judgment. We sustain Ward=s first and second issues and modify the judgment to reflect the District=s maintenance obligation. We do so in order to provide notice to a potential bona fide purchaser of Ward=s property. Acknowledgment of Payment In his third issue, Ward argues that the trial court erred in finding that he acknowledged receipt of payment from the District. Ward contends that there is no evidence to support the trial court=s finding that he acknowledged receipt of payment. The record reflects that the District sent check number 9844, dated May 3, 2007, in the amount of $18,580, to Ward=s attorney. On June 7, 2007, in response to the District=s request that Ward approve the agreed judgment, Ward=s attorney wrote a letter to the District=s attorney stating that he would deliver the District=s check to Ward after the trial court signed a judgment reflecting the entire settlement agreement. Ward fails to explain how the trial court=s recitation of his acknowledgment of payment harms him. In presenting an issue on appeal, the issue must go further than to merely complain that some recital of fact or conclusion of law is erroneous. Chapman v. Reese, 268 S.W. 967, 970 (Tex. Civ. App.CBeaumont 1925), writ ref=d, 114 Tex. 583, 278 S.W. 1114 (Tex. 1925). Even if the trial court=s conclusion were erroneous, not every erroneous conclusion mandates a reversal. See In re D.S., 76 S.W.3d 512, 523 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Therefore, Ward has failed to demonstrate error requiring reversal. Ward=s third issue is overruled. Sovereign Immunity In his fourth issue, Ward argues that the District waived its right to sovereign immunity by amending its petition to enforce the settlement agreement. For this proposition, Ward cites Texas A & M UniversityBKingsville v. Lawson, 87 S.W.3d 518, 521 (Tex. 2002). In that case, the supreme court held that if a government entity agrees to settle a lawsuit from which it is not immune, it cannot claim immunity from suit for breach of the settlement agreement. Id. In its third amended petition, the District did not claim immunity from suit, but sought to enforce the settlement agreement. The supreme court=s holding in Lawson does not prohibit the District=s attempt in this case to enforce the settlement agreement. Moreover, the District=s right to sovereign immunity is waived in condemnation suits. See General Services Com=n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex. 2001). Ward=s fourth issue is overruled. The judgment of the trial court is modified to reflect the parties= agreement that AThe District or its assign or successor shall assume and be responsible for all construction and maintenance of the drainage easement located within the 1.133 acre tract condemned and conveyed in the Agreed Judgment.@ As modified, the judgment is affirmed. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed June 12, 2008. Panel consists of Chief Justice Hedges and Justice Boyce and Senior Justice Hudson.* _______________________________ * Senior Justice J. Harvey Hudson sitting by assignment.