Bauer v. Aep Tex. Inc.

STEVE BAUER, et al., Plaintiffs, v. AEP TEXAS Inc., et al., Defendants.

CIVIL ACTION NO. 1:18-CV-5

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION

September 26, 2018

OPINION AND ORDER

Defendants Wright Tree Service, Inc. ("WTS"), AEP Texas Inc. ("AEP Texas"), and American Electric Power Service Corporation ("AEPSC") have each moved for summary judgment (Docs. 13, 14, 15). Based on the parties' briefing related to the motions, the summary judgment evidence, the applicable law, and the record in this lawsuit, the Court finds the motions well taken as to the causes of action for breach of contract, breach of warranty, and violations of the Texas Deceptive Trade Practices Act. Plaintiffs Steve and Mary Ellen Bauer, however, have established that a genuine issue of material fact exists concerning their claims for negligence and gross negligence.¹

I. Factual Summary

In January 2017, a fire engulfed a palm tree farm that the Bauers own in South Texas. At the time, WTS was cutting down palm trees on the property, under a contract with AEP Texas, and based on AEP Texas's transmission line easement.² This easement on the Bauers' property granted AEP Texas "the right to remove from said lands all trees and parts, thereof, or other obstructions which endanger or may interfere with the safetyor efficiency of said line, or its appurtenances." AEP Texas Motion (Doc. 13) at Exh. 2. It is not disputed that AEP had the right to remove trees within their easement.

Before the work on the property began, AEP Texas provided the Bauers a "Tree Removal Agreement." AEP Texas Motion (Doc. 13) at Exh. 3. This document informed the Bauers that, in accordance with the easement, AEP Texas planned to contract tree removal professionals to cut palm and willow trees that threatened electrical service in the area, and that were on the Bauers' property.

The Bauers allege that during the work, a WTS worker placed a hot chainsaw on the ground, starting the fire that consumed or damaged all of the palm trees on the farm. American Electric Power Service Corporation and AEP Texas Inc.'s Notice of Removal (Doc. 1) at Exh. 3 (Plaintiffs' Original Petition). Following the blaze, in December 2017, the Bauers filed this lawsuit in a Texas state court. They assert causes of action against all three defendants for Breach of Contract, Breach of Warranty, Negligence, Gross Negligence, and violations of the Texas Deceptive Trade Practices Act ("DTPA").

In January 2018, Defendants removed the action to federal court based on diversity jurisdiction. Notice of Removal (Doc. 1). All three Defendants have now moved for summary judgment. Each defendant seeks judgment as a matter of law as to the Bauers' claims for breach of contract, breach of warranty, and under the DTPA. AEPSC and AEP Texas also move for summary judgment as to the Bauers' negligence and gross negligence claims.³

II. Standard of Review

Summary judgment is proper if there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(C). A genuine dispute over material facts exists if the evidence presents an issue "that properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Mere allegations of a factual dispute between the parties will not defeat a motion for summary judgment; however, it must be proven by the moving party that there is no genuine issue of material fact. Id. The moving party "bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact." Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

A fact is considered material if it might affect the outcome of the case under the governing law. Anderson, 477 U.S. at 242. A dispute concerning a material fact is genuine if there is evidence allowing a reasonable jury to return a verdict for the non-moving party. Id. If reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted. Id. at 249.

The movant on a summary judgment motion bears the initial burden of providing the court with a legal basis for its motion and identifying those portions of the record demonstrating the absence of a genuine issue of material fact. Id. at 257. The burden then shifts to the resisting party to present affirmative evidence to defeat the motion.Id. All facts and inferences drawn from those facts must be viewed in the light most favorable to the party resisting summary dismissal. Scott v. Harris, 550 U.S. 372, 378 (2007).

III. Analysis

After applying the relevant law to the summary judgment evidence, this Court concludes that the motions for summary judgment should be granted as to the causes of action for breach of contract, breach of warranty, and violations of the DTPA. However, because the Bauers have established that a genuine issue of material fact exists concerning the causes of action for negligence and gross negligence, those claims survive as to all parties.

A. Breach of Contract

Each defendant denies that it entered into a contract with the Bauers. To prove that an enforceable contract exists, a plaintiff must show (1) that an offer was made, (2) that it was accepted, (3) that there was mutual assent, (4) execution and delivery of the contract with the intent it be mutual and binding, and (5) consideration supporting the contract. Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007). In their Original Petition, the Bauers identify the alleged contract as a document entitled "Tree Removal Agreement," which AEP Texas provided to them before the work began, and which the Bauers signed. See Notice of Removal (Doc. 1) at Exh. 3, pp. 5-6. (Plaintiffs Original Petition). For the reasons indicated below, however, this document cannot constitute an enforceable contract between the Bauers and any of the Defendants.

In addition to the Tree Removal Agreement, in their Response to the AEP Texas Motion, the Bauers for the first time identify the original easement as a contract also supporting their breach of contract claim. See Response to AEP Texas Motion (Doc. 18)at ¶ 66; Response to AEPSC Motion (Doc. 19) at ¶ 67. "[A] claim which is not raised in the complaint, but is mentioned only in response to a motion for summary judgment is not properly before the court." Cutera v. Board of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005). This is so because "a properly pleaded complaint must give fair notice of what the claim is and the grounds upon which it is based." Id. Before their Response, the Bauers had not relied on the original easement in connection with their claims. In addition, in their cursory reliance on this document in their Responses, the Bauers note only that the document required AEP Texas to "maintain and safeguard" the power lines on the Bauers' property. The Bauers do not allege that AEP Texas failed to maintain and safeguard the power lines. In light of the untimely identification of this alleged contract, and the futility of relying on this document, this Court disregards the original easement as a basis for the Bauers' breach of contract claim. See, e.g., DeFrancheschi v. BAC Home Loans Service, L.P., 477 Fed. Appx. 200, 204 (5th Cir. 2012) (affirming summary dismissal of breach of contract claim based on theories not alleged in the complaint); Cutera, 429 F.3d at 113 (affirming summary judgment as to claims raised for the first time in response to a motion for summary judgment).

1. The "Tree Removal Agreement"

The document that AEP Texas provided to the Bauers does bear some indications of being a contract, beginning with the obvious - i.e., the bolded and all-capitalized title, "TREE REMOVAL AGREEMENT". AEP Texas Motion (Doc. 13) at Exh. 3. The document, after describing the trees to be removed, also requests the property owner to sign and confirm that "I, the undersigned, own the property described above and agree to the removal of the described tree(s)." Id. (emphasis added). No party disputes thatAEP Texas provided the document to the Bauers, and that Mr. Bauer complied with the request to sign the document before WTS began the tree removal services.

This document, however, despite its terminology, cannot represent a contract between the Bauers and any of the Defendants. The summary judgment evidence establishes that AEP Texas, by providing the Tree Removal Agreement to the Bauers, was not making an offer for the Bauers to consider, but was merely notifying the Bauers of a right that AEP Texas already possessed. The parties acknowledge that AEP Texas held a valid easement to remove trees from the Bauers property. See, e.g., AEP Texas Motion (Doc. 13) at ¶ 3; Plaintiffs' Response to AEP Texas Motion (Doc. 18) at ¶ 11. While AEP Texas used language in the Tree Removal Agreement requesting that the Bauers "agree" to the removal, the Bauers did not have to agree for AEP Texas to proceed with the removal. In other words, the Bauers could not "reject" the planned tree removal or deny AEP Texas access to the property. See, e.g., DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96 (Tex. 1999)(finding an easement that gave, among other things, the right to "clear the right-of-way of all obstructions," and "to cut and trim trees within the right-of-way . . .", granted a right to enter and remove trees within the easement); Lindemann Prop., Ltd. v. Campbell, 524 S.W.3d 873, 880 (Tex. App.—Fort Worth 2017, pet. denied) (holding an easement that granted the holder the right to "maintain" a tower gave the right to enter land and remove and replace the tower).

Consistent with the absence of a true offer, the "Tree Removal Agreement" also confirms on its face that the...