James Nevins, Melissa Nevins, Edward Heinold, and Irene Heinold v. Neil Whitley ( 2005 )

                             NUMBER 13-04-486-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

JAMES NEVINS, MELISSA NEVINS,

EDWARD HEINOLD, AND IRENE HEINOLD,                  Appellants,

                                           v.

NEIL WHITLEY, ET AL.,                                            Appellees.

                  On appeal from the 135th District Court

                           of Victoria County, Texas.

                     MEMORANDUM OPINION^[1]

                Before Justices Yañez, Castillo, and Garza

                  Memorandum Opinion by Justice Castillo

Appellees (hereinafter collectively "Whitley"),^[2] the owners of an easement, sought a declaration of rights as to that easement when appellants (hereinafter collectively "Nevins")^[3] allegedly interfered with Whitley's use and maintenance of the easement.  The parties filed competing summary judgment motions.  The trial court granted Whitley's motion and denied Nevins's motion. This appeal ensued.  By seven issues, Nevins asserts that summary judgment was improper.  We affirm.

I.  BACKGROUND

The underlying dispute centers on a non-exclusive written easement benefitting Whitley and Whitley's land.  The easement, granted by Nevins's predecessor in title, granted a 40-foot wide roadway easement over part of the property now owned by Nevins.  The easement was originally granted to Val W. Holtz, but it has since been assigned to Whitley.  Nevins purchased his properties subject to this easement.

Whitley initially brought an action against Nevins seeking a declaratory judgment to determine (1) the validity of the easement and (2) whether Whitley had the right to use the easement.  Whitley sought an injunction barring Nevins from interfering with Whitley's maintenance and use of the easement.  Nevins filed a counterclaim. 

A.  The Easement

At the center of the parties' dispute is the following grant of an easement in a deed from W.H. York, Jr. to Val W. Hotz, executed on April 3, 1975:

The easement and right-of-way herewith granted to Grantee is subject to the following terms and conditions:

(1) This easement is confined to Grantee's use of the surface only of the premises described above, for road-way and access purposes. Grantee shall be responsible for the maintenance of said road, and any fences, gaps, gates, or cattle guards used in conjunction with said easement, and road right-of-way.  Grantor shall have equal right to use said easement together with Grantee, his heirs and assigns.

(2) This easement and right-of-way shall terminate in the event the Grantee fails to use the same for a period of two consecutive years.  This easement is granted as a convenience, and not as a way of necessity.

(3) This easement is granted as a private easement, to Grantee, his heirs, assigns, invitees, licensees, and employees, and is not intended as a public easement, nor as a dedication for public use.

(4) Grantor shall continue to have the right to use said premises fully in every respect, except for Grantee's right to use the surface of same as a way of access.

To have and to hold the above described and conveyed property together with all and singular the rights, improvements and appurtenances to the same in any manner belonging, incident or appertaining unto the said Grantee, his heirs and assigns, forever.  And I do hereby bind myself, my heirs, executors, administrators and assigns, to warrant and forever defend all and singular the said land and premises unto the said Grantee, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.

The parties do not dispute that the easement grants a forty-foot wide easement for the purpose of ingress and egress over part of the property now owned by Nevins.  The parties also do not dispute that each is the assignee of the grantor and grantee, respectively, of the original conveyance. 

B.  The Pleadings

1.  Whitley's Live Pleading

Whitley filed a declaratory judgment action against Nevins requesting the trial court to:  (1) construe the easement in question and determine its validity; and (2) determine the respective rights of the parties including (a) whether Whitley was entitled to use the easement and reasonably maintain the road, and (b) whether Nevins had the right to interfere with Whitley's use and maintenance of the easement. Whitley sought injunctive relief, alleging interference with his use and maintenance of the easement.  Whitley also sought attorney fees under the Uniform Declaratory Judgment Act ("the Act").  Tex. Civ. Prac. & Rem. Code Ann. ' 37.009 (Vernon 1997). 

2.  Nevins's Counterclaim

In a verified answer, Nevins alleged causes of action for breach of contract and negligence.  Nevins also sought declaratory judgment, attorney fees, and injunctive relief. Nevins asserted the affirmative defenses of adverse possession, capacity to sue, and termination of the easement. By his counterclaim, Nevins requested that the trial court determine:  (1) the construction, validity, and affirmative conditions Whitley placed on the easement thereby burdening Nevins's land; and (2) that the easement had terminated based on Whitley's failure to maintain.

C.  The Summary Judgment Proceedings

1.  Whitley's Grounds

In his traditional summary judgment motion, Whitley asserted that Nevins interfered with Whitley's rights to the easement by erecting fences in the easement and halting his attempts to repair and maintain the road. By his motion, Whitley requested a declaration of his rights under the easement, injunctive relief, and statutory attorney fees, asserting:  (1) the easement is valid; (2) the easement confers a right to (a) use the roadway for ingress and egress and (b) maintain the roadway in the easement; and (3) Nevins has interfered with Whitley's rights to use and maintain the easement. Among other things, Whitley's summary judgment evidence included affidavits from the original grantor and grantee as to the meaning of the word "grantee" in the easement,^[4] and from counsel as to attorney fees. 

Nevins filed a summary judgment response, special exceptions, and objections to Whitley's motion and evidence.  Generally, Nevins responded that declaratory judgment by summary proceeding was improper because the action was in essence a trespass to try title, the fence impediment issue was not ripe, maintenance was not a "right," and Nevins adversely possessed the easement.  Nevins did not controvert Whitley's summary judgment evidence on attorney fees.

2.  Nevins's Grounds

In his traditional summary judgment motion, Nevins asserted as grounds (1) that the easement terminated for non-use and, thus, Nevins was entitled to declaratory relief, (2) the affirmative defense of adverse possession of the easement, and (3) attorney fees.  Nevins relied on a letter from Whitley's counsel to support his adverse possession claim.^[5]

D.  The Summary Judgment

The trial court granted Whitley's motion and denied Nevins's motion for summary judgment.  The order recites, in part:

It is therefore ORDERED as follows:

1.  The Court declares as a matter of law that [Whitley] [is] the owner of the dominant estate and that the [Nevins] [is] the owner of the servient estate under that certain easement conveyed from William York to Val Hotz under instrument dated April 3, 1975 and filed for record at Vol. 868, Page 95 in the deed records of Victoria County, Texas.

2.  The Court declares as a matter of law that such easement has not terminated, and is valid and enforceable by [Whitley].

3.  The Court declares as a matter of law that the [Nevins] [does] not have the right to construct gates, fences or other barriers across or into such easement.

4.  The Court orders that [Nevins] [is] permanently enjoined from interfering with [Whitley's] enjoyment of [his] easement rights, including interfering with [Whitley's] access through the easement, or interfering with [Whitley's] right to maintain the easement.  The Court further orders [Nevins] to remove any fence or other barrier he has previously erected within the boundary of the easement owned by the [Whitley].  Such removal shall be completed within thirty days from the date of entry of final judgment in this cause.

5.  The Court denies the Motion for Summary Judgment filed by [Nevins].

6.  The Court orders that [Nevins] pay to the [Whitley] . . . [attorney fees].^[6]

E.  Finality

After examining the pleadings and summary judgment record, we conclude that the order disposes of all pending parties and claims.^[7]  See Guajardo v. Conwell, 46 S.W.3d 862, 863‑64 (Tex. 2001) (per curiam); Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Alaniz v. Hoyt, 105 S.W.3d 330, 338 (Tex. App.BCorpus Christi 2003, no pet.).  Accordingly, we find that the trial court's judgment is a final judgment over which we have jurisdiction.  See Conwell, 46 S.W.2d at 863-64; Lehmann, 39 S.W.3d at 195; Alaniz, 105 S.W,3d at 338.

II.  ISSUES PRESENTED

Nevins presents seven issues for review:

Issue 1:           The trial court erred in denying Nevins's summary judgment motion because summary judgment evidence established, as a matter of law, that the grantee had not used the easement in a continuous two-year period.

Issue 2:           The trial court erred in denying Nevins's summary judgment motion because summary judgment evidence established, as a matter of law, that Nevins adversely possessed the real property at issue for more than ten years.

Issue 3:           The trial court erred in granting declaratory relief in an action other than a trespass-to-try-title action. 

Issue 4:           The trial court abused its discretion by implicitly overruling Nevins's objections to Whitley's summary judgment evidence.

Issue 5:           The trial court erred by changing essential terms of the easement and declaring that the easement granted Whitley "rights" rather than imposing obligations.

Issue 6:           The trial court erred in granting summary judgment because Nevins raised material questions of fact.

Issue 7:           There was no or insufficient evidence to support the relief granted.

III.  SUMMARY JUDGMENT STANDARD OF REVIEW

The function of a summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial.  Hoyt, 105 S.W.3d at 344.  The propriety of a summary judgment is a question of law.  See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).  We therefore review the decision de novo.  See id.  We review the evidence "in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences."  See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp.,988 S.W.2d 746, 748 (Tex. 1999); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.BCorpus Christi 2003, no pet.).  The movant bears the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Hoyt, 105 S.W.3d at 345.  In deciding whether there is a genuine issue of material fact, we take evidence favorable to the non‑movant as true.  Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.BCorpus Christi 2003, no pet.).  We make all reasonable inferences and resolve all doubts in favor of the non‑movant. Id.  A non‑movant has the burden to respond to a traditional summary judgment motion if the movant conclusively (1) establishes each element of its cause of action or defense, or (2) negates at least one element of the non‑movant's cause of action or defense.  See id.

We affirm a trial court's ruling on a summary judgment motion if any of the theories advanced in the motion is meritorious.  State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Boren v. Bullen, 972 S.W.2d 863, 865 (Tex. App.BCorpus Christi 1998, no pet.).  When, as in the present case, both sides move for summary judgment and the trial court grants one motion but denies the other, a reviewing court should review both sides' summary judgment evidence, determine all questions presented, and render the judgment that the trial court should have rendered.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

We turn now to the heart of the parties' dispute.

IV.  ANALYSIS OF THE DECISION TO GRANT WHITLEY'S MOTION

A.  Propriety of Declaratory Judgment Relief

By his third issue, Nevins argues that a trespass-to-try-title proceeding, and not declaratory judgment relief, is the proper proceeding to adjudicate rival real property title claims.^[8] Nevins further argues that Whitley impermissibly used a declaratory proceeding as a "guise" to obtain statutory attorney fees.  Whitley responds that declaratory relief is proper. 

Suits for declaratory judgment are intended to determine the rights of parties when a controversy has arisen, before any wrong actually has been committed.  Montemayor v. City of San Antonio Fire Dep't., 985 S.W.2d 549, 551 (Tex. App.BSan Antonio 1998, pet. denied).  The stated purpose of the Declaratory Judgment Act (the "Act") is "to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations."  Tex. Civ. Prac. & Rem. Code Ann.'37.002(b) (Vernon 1997).  The Act provides that an interested party to a deed "may have determined any question of construction or validity arising under the instrument . . . and obtain a declaration of rights, status or other legal relations thereunder." Tex. Civ. Prac. & Rem. Code Ann. ' 37.004(a) (Vernon 1997).  The Act is a remedial statute designed for any "person . . . whose rights, status, or other legal relations are affected by a statute," and provides a way to "have determined any question of construction or validity arising under the . . . statute . . . and obtain a declaration of rights, status, or other legal relations thereunder."  Tex. Nat. Res. Conservation Comm'n v. IT‑Davy, 74 S.W.3d 849, 855 (Tex. 2002); see also Tex. Civ. Prac. & Rem. Code Ann.'_ 37.002(b), 37.004(a) (Vernon 1997).  A declaratory judgment action is neither legal nor equitable, but is sui generis ("of its own kind").  Cobb v. Harrington, 190 S.W.2d 709, 713 (Tex. 1945).  The Act "is to be liberally construed and administered."  Tex. Civ. Prac. & Rem. Code Ann. ' 37.002(b) (Vernon 1997).  Because the Act is a procedural device for deciding cases already within a court's jurisdiction, a litigant's request for declaratory relief cannot change the basic character of a suit." See State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994); see also Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).

In a declaratory judgment action, the trial court "may award costs and reasonable and necessary attorney fees as are equitable and just."  Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 784 (Tex. App.BCorpus Christi, no pet.) (citing Tex. Civ. Prac. & Rem. Code Ann. ' 37.009 (Vernon 1997)).  When a claimant has properly invoked the declaratory judgment statute, either party may plead for and obtain attorney fees.  Templeton v. Dreiss, 961 S.W.2d 645, 671 (Tex. App.BSan Antonio 1998, pet. denied) (citing Estopar Holdings, Inc. v. Advanced Metallurgical Tech., Inc., 876 S.W.2d 205, 211 (Tex. App.BFort Worth 1994, no writ)).  The law does not require prevailing-party status as a prerequisite to an award of attorney fees in a declaratory judgment action.  State Farm Lloyds v. C.M.W., 53 S.W.3d 877, 894 (Tex. App.BDallas 2001, pet. denied) (citing Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 637-38 (Tex. 1996)). 

Nevins and Whitley sought affirmative relief under the Act.  We briefly consider the principles of statutory construction. 

In interpreting a statute, a court must diligently attempt to ascertain legislative intent and must keep in mind the old law, the evil, and the remedy.  Tex. Gov't Code Ann. ' 312.005 (Vernon 2005).  Further, we must interpret the statute in a manner that gives effect to the plain meaning of the statute's words and effectuates the Legislature's intent.  State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).  Legislative intent should be determined by reading the language used and construing the statute in its entirety.  See Taylor v. Firemen's & Policemen's Civil Serv. Comm'n, 616 S.W.2d 187, 190 (Tex. 1981).  We should read every word, phrase, and expression as if it were deliberately chosen, and presume that words excluded from the statute were excluded purposefully.  Gables Realty Ltd. P'ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex. App.BAustin 2002, pet. denied).  With these principles in mind, we turn to Nevins's complaint. 

Declaratory judgment is only appropriate if a justiciable controversy exists as to the rights and status of the parties, and the controversy will be resolved by the declaration sought.  See Tex. Civ. Prac. & Rem. Code Ann. ' 37.006(b) (Vernon 1997).  Declaratory judgment relief is authorized to "obtain a declaration of rights, status or other legal relations thereunder."  Tex. Civ. Prac. & Rem. Code Ann. '37.004(a) (Vernon 1997).  The parties do not dispute that the trial court had jurisdiction to grant the relief requested.  Both parties sought to have the trial court determine a question of construction or validity of an easement and to obtain a declaration of their respective rights and status on their claims and defenses.  See IT‑Davy, 74 S.W.3d at 855.  We conclude that the Act, which was properly invoked by Nevins and Whitley for redress with respect to the controversy between them, was a proper statute for the adjudication of the parties' rights.  Further, a party that asks for a certain type of relief cannot complain on appeal if that relief is granted, and a party may not secure a reversal for error that it invited.  Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321‑22 (Tex. 1984); Transcontinental Ins. Co. v. Smith, 135 S.W.3d 831, 839 (Tex. App.BSan Antonio 2004, no pet.).  The trial court entered a declaratory judgment solely pursuant to the competing theories before it.  See Tex. Civ. Prac. & Rem. Code Ann. ' 37.004(a) (Vernon 1997).  Because Nevins affirmatively sought declaratory relief, he invited any complained-of error, although we find none.  Further, the record does not demonstrate that Whitley filed a declaratory judgment action as a "guise" for obtaining attorney fees.

We overrule Nevins's third issue.

B. Nevins's Objections to Summary Judgment Evidence

By his fourth issue, Nevins asserts that the trial court erred by implicitly denying his objections to Whitley's summary judgment evidence.  In particular, Nevins argues that the trial court impermissibly considered objected-to parol evidence in the summary judgment affidavits of the original grantor and grantee.^[9] 

A trial court does not implicitly sustain, by granting the motion, objections to summary judgment evidence where there is no ruling or order.  See Jones v. Ray Ins. Agency, 59 S.W.3d 739, 752 (Tex. App.BCorpus Christi 2001), pet. denied, 92 S.W.3d 530 (Tex. 2002).  For there to be an implicit ruling on a party's objection to summary judgment evidence, some indication must appear in the record or in the summary judgment itself, other than the mere granting of the summary judgment, that the trial court ruled on the objection.  Id. at 753 (citing Tex. R. App. P. 33.1(a)(2)(A) and stating that a trial court must either expressly or implicitly rule on objection for complaint to be preserved for review); see also Columbia Rio Grande Reg'l Hosp. v. Stover, 17 S.W.3d 387, 395 (Tex. App.BCorpus Christi 2000, no pet.). 

Nevins bore the burden of obtaining a ruling on his objections.  See Ray Ins. Agency, 59 S.W.3d at 753.  He did not do so.  Nor is there any indication in the record or in the summary judgment itself that the trial court sustained Nevins's objections on the basis of parol evidence.  In the absence of a ruling or written order on Nevins's objections or any other indication in the record or in the summary judgment itself that the trial court implicitly or explicitly sustained those objections, we find that the affidavits attached to Whitley's summary judgment motion are in evidence as part of the summary judgment record.  See In re Estate of Schiwetz, 102 S.W.3d 355, 360-61 (Tex. App.BCorpus Christi 2003, no pet.); see also Hoyt, 105 S.W.3d at 337 n.2 (citing Utils. Pipeline Co. v. Am. Petrofina Mktg., 760 S.W.2d 719, 723 (Tex. App.BDallas 1988, no writ)).  It follows that, in the absence of a ruling or written order or other indication the trial court implicitly or explicitly sustained the objections to the summary judgment evidence, the affidavits were properly before the trial court.  See Tex. R. Civ. P. 166a(a), (c).^[10]  The trial court was free to consider and believe both, one, or neither affidavit.

We overrule Nevins's fourth issue. 

C. The Trial Court's Construction of the Easement Terms

By his fifth issue, Nevins asserts that, by its granting of Whitley's summary judgment, the trial court impermissibly changed essential terms of the easement by (1) construing the word "grantee" to mean "grantee, his heirs and assigns," and (2) declaring "rights" rather than "imposing obligations." 

We must read the easement as a whole in determining its meaning.  Dewitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 101 (Tex. 1999). The conveyance contains the following language:

To have and to hold the above described and conveyed property together with all and singular the rights, improvements and appurtenances to the same in any manner belonging, incident or appertaining unto the said Grantee, his heirs and assigns, forever. 

(Emphasis supplied).  By its plain terms, the instrument unequivocally bound the original grantee and "his heirs and assigns, forever" as to "the rights" conveyed.  We have already concluded relief by declaratory judgment is proper.  The judgment provided the relief requested. The relief requested was consistent with the terms of  the instrument of conveyance.  We find no error. 

We overrule Nevins's fifth issue.

V.  ANALYSIS OF THE DECISION TO DENY NEVINS'S MOTION

By his sixth issue, Nevins asserts that disputed issues of material fact raised in his summary judgment response precluded summary judgment.  In particular, the issues of material fact Nevins terms "judgment points" are (1) whether the easement "imposed obligations" or conveyed "rights," (2) the validity of the easement, (3) whether by non-use the easement terminated on its own terms, and (4) the merits of Nevins's adverse possession claim.  By his seventh issue, Nevins asserts that there was no or insufficient evidence to sustain the relief granted.  Essentially, Nevins assigns error to the denial of his motion for summary judgment. See Tex. R. App. P 38.1(e).  Therefore, we review Nevins's first and second issues with his sixth and seventh issues. 

By our disposition of Nevins's fifth issue, we have already concluded that the declaratory judgment soundly interpreted the instrument of conveyance and declared the parties' rights.  We turn to Nevins's remaining "judgment points." As grounds in his request for declaratory and summary judgment relief, Nevins asserted that (1) the easement terminated by its own terms for non-use, and (2) Nevins adversely possessed the easement. 

A.  Termination for Non-Use

By his counterclaim and summary judgment motion, Nevins requested that the trial court declare the easement terminated because Mr. Holtz, the original grantee, failed to use the easement for a period exceeding two years.  In support of this summary judgment ground, Nevins focused on the following paragraph in the instrument of conveyance:

(2) This easement and right-of-way shall terminate in the event the Grantee fails to use the same for a period of two consecutive years. This easement is granted as a convenience, and not as a way of necessity.

In particular, appellants asserted that the term "grantee" meant the original "grantee,"

Mr. Holtz, and that he failed to use the easement for two years.  However, in our disposition of Nevins's fifth issue, after examining the record, we have already concluded that the conveying instrument by its terms bound Mr. Holtz and "his heirs and assigns, forever."  The parties do not dispute that Whitley is assignee under the conveyance.  The summary judgment evidence shows no two-year lapse in the use of the roadway easement.  Because the easement bound the original grantee and his heirs and assigns forever, and because the easement was in continuous use, the easement did not terminate; it remained valid, and was enforceable.  The trial court's refusal to declare the easement terminated is supported by the record evidence.  We conclude that the trial court properly denied Nevins's summary judgment motion on this ground.  See Tex. R. Civ. P. 166a(c).  

B.  Adverse Possession

As additional grounds, Nevins stated that the trial court improperly denied declaratory judgment relief on his summary judgment ground asserting the affirmative defense of adverse possession.^[11]  In particular, Nevins asserted that Whitley failed to bring suit to recover the fenced property within ten years after the fenced area was adversely possessed. 

1.  Standard of Review on Affirmative Defense

A movant must either negate at least one essential element of the nonmovant's cause of action or prove all essential elements of an affirmative defense.  See Randall's Food Mks., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); see also MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) (per curiam).  In order to prevail, every factual element of an affirmative defense must be conclusively established.  Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972); see Montgomery v. Kennedy, 669 S.W.2d 309, 314 (Tex. 1984).  Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of a material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant.  See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).  The only question is whether or not an issue of material fact is presented.  See Tex. R. Civ. P. 166a(c).

2.  The Law

An affirmative defense is by its nature "one of confession and avoidance" which seeks to establish an independent reason why the plaintiff should not prevail.  Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex. 1996).  Adverse possession is defined as "an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person."  Tex. Civ. Prac. & Rem. Code Ann. ' 16.021(1) (Vernon 2002); see also Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990); Garza v. Maddux, 988 S.W.2d 280, 288 (Tex. App.BCorpus Christi 1999, pet. denied); Clements v. Corbin, 891 S.W.2d 276, 278 (Tex. App.BCorpus Christi 1994, writ denied).  To establish title through adverse possession, "the possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant."  Clements, 891 S.W.2d at 278 (quoting Rick v. Grubbs, 214 S.W.2d 925, 927 (Tex. 1948)). The question of adverse possession normally is a question of fact, so only in rare instances is a court justified in holding that adverse possession has been established as a matter of law. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985).  A person must bring suit not later than ten years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.  See Tex. Civ. Prac. & Rem. Code Ann. ' 16.026 (Vernon 2002).

3.  Disposition

In this case, the parties do not dispute that Nevins constructed a fence enclosing part of the easement.  Nevins points to Whitley's live pleading and a letter in summary judgment evidence from one of Whitley's counsel in which the fence is alleged to be in "direct violation of the express terms of the easement" and "openly addressed the adverse possession issue," respectively.^[12]  In the context of his live pleading and summary judgment motion and evidence, Nevins essentially asserted that, because Whitley did not bring suit within the statutory ten year period to recover the property adversely possessed, Nevins was entitled to a declaration that the easement was terminated based on adverse possession grounds.  See Tex. R. App. P. 38.1(e).  Nevins further asserted that his adverse possession of the property negated the validity and enforcement of the easement, and, thus, Whitley's summary judgment motion must fail. 

At the crux of Nevins's affirmative defense is the fence, which undisputedly encumbers a portion of the easement.  Under adverse possession case law, there are two kinds of fences: "casual fences" and fences that "designedly enclose" an area.  Rhodes, 802 S.W.2d at 646.  If the fence existed before the claimant took possession of the land and the claimant fails to demonstrate the purpose for which it was erected, then the fence is a "casual fence."  Id.; Terrill v. Tuckness, 985 S.W.2d 97, 108 (Tex. App.BSan Antonio 1998, no pet.).  Nevins's summary judgment evidence does not demonstrate the purpose for which the fence was erected.  Thus, the trial court could have concluded that the fence was a casual fence and, accordingly, the encumbrance was not adversely possessed. See Rhodes, 802 S.W.2d at 646 (holding that the person claiming adverse possession did not establish as a matter of law that the fence surrounding the encumbered tracts was a designed enclosure rather than a casual fence and, accordingly, did not conclusively establish title to the land by adverse possession).  Further, one seeking to establish title to land by virtue of the statute of limitations has the burden of proving every fact essential to that claim.  Ramirez v. Wood, 577 S.W.2d 278, 287 (Tex. Civ. App.BCorpus Christi 1978, no writ).  In denying Nevins's summary judgment, the trial court could have found that Nevins failed to prove the essential elements of his adverse possession affirmative defense.

Reviewing all the summary judgment evidence under the applicable standard of review, we conclude that the summary judgment evidence in this case is sufficient to sustain the summary judgment in favor of appellees.  Thus, Whitley established by his summary judgment motion and evidence that there existed no genuine issue of material fact, and that he was entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Hoyt, 105 S.W.3d at 345; FM Props. Operating Co., 22 S.W.3d at 872.  However, Nevins did not conclusively establish all the essential elements of his affirmative defense.  Hoyt, 105 S.W.3d at 345.  We further conclude that the trial court properly granted Whitley's motion and properly denied Nevins's motion.

Accordingly, we overrule Nevins's first, second, sixth, and seventh issues.

VI.  CONCLUSION

Having overruled Nevins's seven issues, we affirm the trial court's declaratory judgment in favor of Whitley.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and filed

this the 25th day of August, 2005.                    

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^[1] See Tex. R. App. P. 47.2, 47.4. 

^[2] Appellees are Neil Whitley, Loretta Whitley, Royce Berger, Vicki Berger, Hugo Dittert, Shirley Dittert, James Maner, Linda Maner, John Shannon, and Wynona Shannon.

^[3] Appellants are James Nevins, Melissa Nevins, Edward Heinhold, and Irene Heinhold.

^[4] In virtually identical affidavits, the original grantor and original grantee state, "Each time the word Grantee is used in said Easement, I meant it to include Grantee, his heirs and assigns, forever."  In these affidavits, the original grantor and grantee further attested that they did not mean that the easement would terminate if the "original grantee, Val W. Hotz, failed to use the Easement for a period of two years."

^[5] The letter, dated February 14, 1992, states, in part:

Dear Mr. Nevins:

I have been contacted by some of the property owners living in your area concerning a 40-foot roadway easement that exists over part of your property. It is my understanding that you have threatened to interfere with my clients' right to maintain the 40-foot easement area.  Please be advised that under Texas law, a roadway easement is considered as the "dominant estate."  The easement owners have the superior right to use and maintain the easement area in such a way that is reasonable and necessary for their use and enjoyment of their properties.  Therefore, my clients have the right to use the full 40-foot area and the right to maintain such 40-foot area without obtaining any permission from you.  We ask that you refrain from taking any actions that will interfere with this use and maintenance.  If need be, we will take legal action to enforce our rights.

It has also come to our attention that you have built a fence onto the 40-foot easement area.  Although we have the legal right to make you remove your fence from the 40-foot area, in the spirit of neighborly cooperation, we will not require you to remove the fence at this time.  However, you should understand leaving your fence on the easement area is only temporary and with our permission.  We reserve the right to have all obstructions on the 40-foot roadway easement area removed at any time.

^[6] Whitley's attorney fee affidavit attested to specified "reasonable, necessary, equitable" fees for prosecuting the case, for direct appeal, and appeal to the Supreme Court.

^[7] The trial court severed the remaining claims and entered a final judgment.

^[8] See Tex. Prop. Code Ann. ' 22.001(a) (Vernon 2000) ("A trespass to try title action is the method of determining title to . . . real property.").

^[9] The original grantor, Mr. York, and the original grantee, Mr. Hotz, attested in their affidavits their intent as to the term "grantee" as used in the conveyance of the easement.  See note 3.

^[10] Even assuming that the trial court implicitly overruled Nevins's objections, as Nevins maintains, the standards for determining the admissibility of evidence in a summary judgment proceeding are the same as those applied in a trial.  United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (per curiam).  Decisions about the admissibility of evidence are left to the sound discretion of the trial court. Owens‑Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989); Pegasus Energy Corp. v. Cheyenne Petroleum Co., 3 S.W.3d 112, 133 (Tex. App.BCorpus Christi 1999, pet. denied).  An abuse of discretion exists when the court's decision is arbitrary or unreasonable.  Aquamarine Operators, Inc., 701 S.W.2d 238, 241(Tex. 1985).  We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof.  See Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952).  Nothing in the record demonstrates that the affidavits of the disinterested witnesses were not controvertible.  On this record, we cannot conclude that the trial court acted without reference to guiding principles in implicitly overruling the objections.  Id.  

^[11] We note Nevins's argument regarding a trespass to try title proceeding as discussed previously in our disposition of Nevins's third issue. However, we construe Nevins's counterclaim as an action for declaratory judgment and not in trespass to try title because Nevins does not state differently either in his summary judgment motion or on appeal.  See Tex. R. App. P. 38.1(e).

^[12] See footnote 4.