John A. Lance, Debra L. Lance, F.D. Franks and Helen Franks v. Judith and Terry Robinson, Gary and Brenda Fest, Virginia Gray and Butch Townsend ( 2015 )

ACCEPTED
04-14-00758-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
NO. 04-14-00758-CV 7/15/2015 9:38:17 PM
KEITH HOTTLE
CLERK
___
Fourth Court of Appeals 4th COURT
FILED IN
OF APPEALS
San Antonio, Texas SAN ANTONIO, TEXAS
07/15/15 9:38:17 PM
KEITH E. HOTTLE
Clerk
John A. Lance, Debra L. Lance,
F.D. Franks and Helen Franks,
Appellants
v.
Judith and Terry Robinson, Gary and Brenda Fest,
Virginia Gray, Butch Townsend, and
Bexar-Medina-Atascosa Counties Water Control and
Improvement District No. 1,
Appellees
From the 198th Judicial District Court in Bandera County, Texas
Hon. M. Rex Emerson Presiding
BRIEF OF APPELLEES JUDITH AND TERRY ROBINSON, GARY AND
BRENDA FEST, VIRGINIA GRAY, AND BUTCH TOWNSEND
Stephan B. Rogers
SBN 17186350
Kelly P. Rogers
SBN 00788232
Ross S. Elliott
SBN 24080685
ROGERS & MOORE, PLLC
309 Water St., Ste 201
Boerne, TX 78006
(830) 816-5487
Fax: (866) 786-4777
steve@rogersmoorelaw.com kelly@rogersmoorelaw.com ross@rogersmoorelaw.com
Oral Argument Requested
Identity of Parties & Counsel Supplemented
Appellants’ statement of identity of parties and counsel is supplemented
and corrected as follows:
1. The address for Rogers & Moore, PLLC has a new suite number.
Rogers & Moore, PLLC
309 Water St., Ste. 201
Boerne, TX 78006
2. The fax number for Rogers & Moore, PLLC has an incorrect area code in
Appellants’ statement. The correct number is:
(866) 786-4777 (this is a toll free number)
3. Ross S. Elliott’s correct email address is ross@rogersmoorelaw.com.
4. Kelly P. Rogers is added as appellate counsel. Her bar number is
00788232, and her email address is kelly@rogersmoorelaw.com.
5. Trial Court: Bandera County was redistricted during this case.
2012-2013 2013-present
Hon. Keith Williams Hon. M. Rex Emerson and
Hon. Keith Williams (by
assignment)
216th Judicial District Court 198th Judicial District Court
Bandera County, TX Bandera County, TX
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Table of Contents
Identity of Parties & Counsel Supplemented ..................................................2
Index of Authorities.........................................................................................6
Citations to the Record ...................................................................................11
Statement of the Case ....................................................................................12
Reply to Issues Presented ..............................................................................15
Statement of Facts .........................................................................................16
A. Basic Facts............................................................................................16
1. Redus Point - A Subdivision on Medina Lake ..................................16
2. An Express Easement Reserves to Plaintiffs the Right to Use and
Enjoy the Beachfront in Redus Point ..................................................18
3. Defendants Have No Viable Claim of Ownership to the Easement
Land .....................................................................................................22
4. The Lances Wrongfully Attempted to Prevent Plaintiffs from Using
Their Express Easement .....................................................................23
B. Course of the litigation ........................................................................24
Summary of the Argument ............................................................................27
Argument .......................................................................................................29
A. The Summary Judgment Evidence ....................................................29
1. The Exhibits Admitted at the Temporary Injunction Hearing .......29
2. Defendants’ Untimely Offer of Evidence Was Rejected .................31
B. Defendants were Not Entitled to Use a Bogus Deed to Exclude
Plaintiffs from their Easement of Use and Recreation ............................32
1. The Summary Judgment Evidence Conclusively Established that
Neither the Franks nor the Lances Had a Right of Possession to the .
282-acre Tract ......................................................................................33
2. The Deed Without Warranty is a Cloud and Burden on Plaintiffs’
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Easement Rights ..................................................................................34
3. Defendants’ Arguments Against the Court’s Authority to Grant
Relief Have No Merit ...........................................................................35
a. Trespass to Try Title is Not Necessary to Determine that
Defendants’ Deed Without Warranty is Invalid and a Burden on
Plaintiffs’ Easement ........................................................................36
b. Plaintiffs are Aggrieved Parties, and Clearly Have Standing to
Bring this Suit ................................................................................40
c. The Trial Court Did Not Make a Determination of Title in
Holding the DWW Conveyed No Interest ......................................43
C. Plaintiffs’ Express Easement to Use and Enjoy the .282-Acre Tract
was Conclusively Established ...................................................................43
1. The 1917 Spettle Deed is Not Void ................................................44
2. Plaintiffs Have an Appurtenant Easement by Reservation Which
Runs with the Land and Burdens Property Conveyed to MVICO in
1917 .......................................................................................................46
3. The Express Easement in the Spettle Deed is Valid for a Host of
Reasons ................................................................................................48
a. The Easement Satisfies the Statute of Frauds ..........................48
b. The Easement has a Dominant and Servient Estate .................50
c. The Easement is an Easement Appurtenant ..............................51
d. The Easement Language is Explicit............................................51
e. No Rights are Being Implied .......................................................51
f. The Easement Runs with the Land and Plaintiffs are Entitled to
Enforce their Rights against Any Servient Estate Owner ..............52
D. Summary Judgment was Proper on Elements of Plaintiffs’ Chapter 12
Claims that were Conclusively Established ..............................................52
E. The Attorney’s Fee Award is Based on Sufficient Evidence of
Reasonable and Necessary Fees, and the Award is Equitable and Just ..56
1. Defendants Have Waived their Complaints Regarding the Fee
Award ...................................................................................................56
2. The trial court was presented with sufficient evidence that the fees
were reasonable and necessary; the court’s award was equitable and
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just ........................................................................................................59
Prayer .............................................................................................................65
Certificate of Compliance ..............................................................................66
Certificate of Service......................................................................................66
Appendix A ....................................................................................................67
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Index of Authorities
Cases
Adamson v. Doornbos,
587 S.W.2d 445 (Tex. Civ. App. 1979, no writ) .............................................38
Anderson v. McRae,
495 S.W.2d 351 (Tex. App.—Texarkana 1973, no writ) ................................40
Bexar-Medina-Atascosa Counties Water Improvement District No. 1
v. Wallace, 619 S.W.2d 551 (Tex. App.—San Antonio 1981,
writ ref’d n.r.e.) ........................................................................................44-45
Bocquet v. Herring,
972 S.W.2d 19 (Tex. 1998).............................................................................59
Cass v. Stephens,
156 S.W.3d 38 (Tex. App.—El Paso, 2004, pet. denied) ...............................57
Centurion Planning Corp. v. Seabrook Venture II, 176 S.W.3d 498 (Tex.
App.—Houston [1st Dist] 2004, no pet.) .....................................................54
City of China Grove v. Morris,
No. 04-10-00763-CV, 2011 WL 5869629, 2011 Tex. App. LEXIS 9260
(Tex. App.—San Antonio, Nov. 23, 2011, pet. denied) .................................63
City of Dallas v. Bargman,
207 S.W.3d 926 (Tex. App.—Dallas 2006, no pet.) ......................................35
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) ....................................................................59, 61
City of Mission v. Popplewell,
294 S.W.2d 712 (Tex. 1956) ...........................................................................37
City of San Antonio v. Earnest, 188 S.W.2d 775 (Tex. 1945) .................33-34
Cornick v. Arthur,
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73 S.W. 410 (Tex. Civ. App.—Austin 1903, no writ) .....................................38
De Arrellano v. State Farm Fire & Cas. Co.,
191 S.W.3d 852 (Tex. App.—Houston [14th Dist.], 2006, no pet.)...............57
Drye v. Eagle Rock Rd, 364 S.W.2d 196 (Tex. 1952) ..............................50-51
Elliott v. Moffett,
165 S.W.2d 911 (Tex. Civ. App.—Texarkana 1948, writ ref’d w.o.m.) ..........43
Fairfield Fin. Group, Inc. v. Synnott,
300 S.W.3d 316 (Tex. App.—Austin, 2009, no pet.) ....................................63
Frost v. Mischer,
463 S.W.2d 166 (Tex. 1971) ...........................................................................38
Gillett v. Van Horne et al.,
36 S.W.2d 305 (Tex. Civ. App.—El Paso 1931, writ dism’d) .........................37
Gordon v. West Houston Trees, Ltd.,
352 S.W.3d 32 (Tex. App.—Houston [1st Dist.] 2011, no pet.) ...............38, 55
Greenwood v. Lee,
420 S.W.3d 106 (Tex. App.—Amarillo 2012, pet. denied) ........................47-8
Howard v. Davis,
6 Tex. 174 (1851) ............................................................................................35
Howard v. Young,
210 S.W.2d 241 (Tex. Civ. App.—Amarillo 1948, writ ref’d n.r.e.) .........35, 40
Hollar v. Jowers,
310 S.W.2d 721 (Tex. Civ. App.—Eastland 1958, writ ref’d n.r.e.) ...............35
Inman v. Padrezas,
540 S.W.2d 789 (Tex. App.—Corpus Christi 1976, no pet.) .........................39
Korenek v. Korenek,
No. 13-07-00111-CV, 2008 WL 2894906, 2008 Tex. App. LEXIS 5652
(Tex. App.—Corpus Christi, July 29, 2008, no pet.) ....................................64
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Krabbe v. Anadarko Petroleum Corp.,
46 S.W.3d 308 (Tex. App.—Amarillo, 2001, pet. denied) ............................58
Lance v. Robinson, No. 04-09-00476-CV, 2013 WL 820590, 2013 Tex.
App. LEXIS 2163 (Tex. App.—San Antonio, March 6, 2013, no pet.)
(mem. op.) .............................................................................13, 24, 40, 42, 53
Lopez v. Morales,
No. 04-09-00476-CV, 2010 WL 3332318, 2010 Tex. App. LEXIS 6909
(Tex. App.—San Antonio 2010, no pet.) (mem. op.) ...............................40-41
Lopez v. State Farm Mut. Auto. Ins. Co., No. 13-06-276-CV,
2008 WL 2744609, 2008 Tex. App. LEXIS 7643 (Tex. App.—Corpus
Christi, June 30, 2008, no pet.)(mem. op.) ..................................................57
McMahon v. Fender,
350 S.W.2d 239 (Tex. Civ. App.—Waco 1961, pet. ref’d, n.r.e.) ...................38
Manning v. Enbridge Pipelines,
345 S.W.3d 718 (Tex. App.—Beaumont 2011, pet. denied) ..........................37
Maritime Overseas Corp. v. Ellis,
971 S.W.2d 402 (Tex. 1998) ....................................................................59, 62
Mart. v. Amerman,
133 S.W.3d 262 (Tex. 2004)..........................................................................63
Menczer v. Poage,
118 S.W. 863 (Tex. Civ. App. 1909) ...............................................................39
Nobles v. Marcus,
533 S.W.2d 923 (Tex. 1976) .....................................................................40-41
Pena v. Zardenetta,
714 S.W.2d 72 (Tex. App.—San Antonio 1986, no writ) ...............................37
Placke v. Lee-Fayette Counties W.C.I.D. #1,
NO. 03-04-00096-CV, 2005 WL 1034075, 2005 Tex. App. LEXIS 3411
(Tex. App.—Austin 2005, pet. denied) (mem. op.) ................................46, 49
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Pouns v. Zachery,
103 S.W. 234 (Tex. Civ. App.—Austin 1907, no writ) ...................................38
Roberson v. City of Austin,
157 S.W.3d 130 (Tex. App.— Austin 2005, pet. denied).........................38, 63
Rogers v. Ricane Enterprises, Inc.,
884 S.W.2d 763 (Tex. 1994) ..........................................................................38
Smith v. Reid,
No. 04-13-00550-CV, 2015 Tex. App. LEXIS 6387 (Tex. App.—San Antonio
2015, Rule 53.7(f) motion filed) (mem. op.) ...........................................48, 51
Sorsby v. State,
624 S.W.2d 227 (Tex. App.—Houston [1st Dist.] 1981, no writ) .................34
Stark v. Morgan,
602 S.W.2d 298 (Tex. Civ. App.—Dallas 1980, no writ) ...............................31
Temple Trust Co. v. Logan,
82 S.W.2d 1017 (Tex. Civ. App.–Amarillo 1935, no writ) .............................35
United States v. Denby,
522 F.2d 1358 (5th Cir. 1975).........................................................................17
Valadez v. Avitia,
288 S.W.3d 843 (Tex. App.—El Paso, 2007, no pet.) ...................................59
Vernon v. Perrien,
390 S.W.3d 47 (Tex. App.—El Paso Oct. 24, 2012, pet. denied) ..................39
Vinson v. Brown, 80 S.W.3d 221 (Tex. App.—Austin 2002, no pet.) ..........46
Wilhoite v. Sims,
401 S.W.3d 752 (Tex. App.—Austin, 2013, no pet.) .........................36, 43, 64
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Statutes and Rules
Tex. Civ. Prac. & Rem. Code § 12.001 ...........................................................42
Tex. Civ. Prac. & Rem. Code § 12.002 ...............................................53, 54, 55
Tex. Civ. Prac. & Rem. Code § 12.003 .....................................................42, 53
Tex. Civ.Prac. & Rem. Code § 37.009 ...............................................59, 63, 64
Tex. Prop. Code § 22.001 ..............................................................................36
Tex. R. App. P. 33.1........................................................................................58
Tex. R. App. P. 38.1 .......................................................................................58
Tex. R. Civ. P.74 .......................................................................................29-30
Tex. R. Civ. P 75 ............................................................................................30
Tex. R. Civ. P. 166a ........................................................................................34
Tex. R. Civ. P. 783 ....................................................................................36, 37
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Citations to the Record
“CR” is used to refer to the clerk’s record. Because the record does not
contain all relevant filings, Appellees intend to supplement the clerk’s
record and will so indicate in this brief.
“RR AF” is used to refer to the reporter’s record from the attorney’s fee
trial on September 17, 2014, presided over by Judge Emerson, and filed in
this Court by Appellants.
“RR MSJ” is used to refer to the reporter’s record from the motion for
summary judgment hearing held on May 28, 2013, presided over by Judge
Williams.
“RR Exhibits” is used to refer to the Exhibits admitted in the Temporary
Injunction hearing on July 16, 2012, presided over by Judge Williams.
“RR Rehearing” is used to refer to the reporter’s record from the hearing
on May 30, 2014 on the motion for rehearing of the summary judgment,
presided over by Judge Williams.
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Statement of the Case
Appellees, Judith and Terry Robinson, Brenda and Gary Fest,
Virginia Gray, and Butch Townsend [“Plaintiffs”] sued Appellants John and
Debra Lance, and F.D. and Helen Franks [“Defendants”]. RR Exhibits PX1.
Bexar-Medina-Atascosa Counties Water Control and Improvement District
No. 1, referred to as BMA or Intervenor, intervened in the case.1 RR MSJ 4.
The case arose from Defendants’ use of a deed without warranty
[“DWW”] to attempt to exclude Plaintiffs from .282 acre of land adjacent to
Defendants’ property on Medina Lake. The disputed area is owned by BMA,
which operates Medina Lake, and Plaintiffs have an express easement to
use the property to access the lake and build structures for recreation.
Plaintiffs sued Defendants for injunctive and declaratory relief and
damages.2 RR Exhibits PX1.
The case originated in the 216th District Court, presided over by
Judge Keith Williams. Id. He granted a temporary injunction after an
evidentiary hearing. CR 55-166. That injunction was the subject of an
interlocutory appeal to this Court by the Lances; this Court ruled in
1 The Clerk’s Record will be supplemented with BMA’s plea in intervention.
2 The Clerk’s Record will be supplemented with the live petition at the time of summary
judgment. That petition (Fifth Amended) is also attached to Appellants’ Brief at App. I.
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Plaintiffs’ favor. Lance v. Robinson, 2013 WL 820590 (Tex. App.—San
Antonio, March 6, 2013, no pet.), Appellant’s App. H.
Plaintiffs then filed a motion for partial summary judgment. CR
44-51. Defendants filed their own motion for summary judgment.3 After a
hearing, Judge Williams granted Plaintiffs’ motion, and Defendants filed a
motion for rehearing. CR 182-219. After another hearing, Judge Williams
modified the judgment and issued an amended order on June 11, 2014. CR
412-16. The court declared that Defendants had no ownership rights in
the .282 acre tract, and their DWW constituted a cloud on Plaintiffs’
easement rights. Plaintiffs and the Lances both have express easement
rights to use and enjoy the land at the lake’s edge below the flow line of the
lake. The court also found that Defendants used the DWW to create an
appearance of ownership, in violation of Texas Civil Practices and
Remedies Code Chapter 12. CR 412-14.
The summary judgment issues were severed from the rest of the
lawsuit. CR 251. Plaintiffs and BMA requested attorney’s fees and final
judgment related to the severed claims. Id., CR 5. These requests were
3Defendants did not include this cross-motion in the record. The 1917 deeds at issue
(Spettle Deed and Partition Deed) were submitted as evidence with their cross-motion.
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heard by Judge M. Rex Emerson.4 Judge Emerson rendered final judgment
for Plaintiffs and BMA, awarding them attorney’s fees. RR AF, CR 37, 505.5
Defendants initiated this appeal.
4When the case was filed, Bandera County was in the 216th Judicial District; in 2013,
after the summary judgment hearing, it was redistricted to the 198th Judicial District.
Judge Williams continued to preside over matters relating to the summary judgment by
assignment.
5 The final judgment was amended to clarify that the award was subject to post-
judgment interest.
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Reply to Issues Presented
1. The summary judgment evidence was sufficiently referenced, and there
was no objection to the form of the evidence. There is no substantive
defect in Plaintiffs’ summary judgment evidence, as it was on file at the
time of the summary judgment hearing, was considered by the trial
court, and is part of the record.
2. Defendants failed to respond to Plaintiffs’ summary judgment evidence
with evidence demonstrating that a material issue of fact existed on any
ground raised in the motion for summary judgment.
a. Defendants’ deed without warranty on the property at issue
conveyed no title, and constituted a cloud on Plaintiffs’ express
easement rights.
b. Plaintiffs have owned, used and enjoyed a valid express easement of
access to the property for decades.
c. Because the deed without warranty conveyed no title, Plaintiffs’
chapter 12 claims based on usage of a fraudulent deed are
established in part as a matter of law. The essential issues of intent
and damages were severed and reserved for trial.
3. The award of attorney’s fees to Plaintiffs is supported by the evidence,
and is more than equitable and just, especially given Defendants’ tactic
of rehashing the same arguments over and over again in repetitive
filings throughout this litigation. Moreover, Defendants waived their
arguments relating to attorney’s fees.
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Statement of Facts
A. Basic Facts
This statement of facts incorporates all the evidence the trial court
considered on the issues presented. Defendants are incorrect in their
assertion that the deeds and other exhibits admitted at the temporary
injunction hearing are not in the summary judgment record. Further,
Defendants are wrong in stating that the trial court considered evidence
they submitted a year after the court made its ruling. That evidence is not
part of the summary judgment record.
1. Redus Point - A Subdivision on Medina Lake
This case concerns lot owners in a subdivision on Medina Lake called
the Redus Point Addition Subdivision [“Redus Point”]. The subdivision is
on a cove created by a peninsula extending into the lake. RR Exhibits PX7.
Plaintiffs own lots 1, 2 and 3 in the subdivision. CR 89, 116, RR Exhibits
PX4. The Plaintiffs’ lots are bordered on the north by a steep 40-50 foot
rocky cliff that plummets down to the water; the southern side of the
peninsula is a gentling sloping beachfront. CR 78-79. For many years, since
the 1950’s, Plaintiffs and their predecessors enjoyed a section of the
beachfront adjacent to or near their lots. CR 90-95, 117 (Judith Robinson
has been using the area since she was a little girl, for 55 years). Plaintiffs
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and their predecessors built a boat ramp on the beachfront in the 1970’s,
and built a deck there about fifteen years ago; they launched their kayaks
from the beachfront, and picnicked and enjoyed quality time there (albeit
these times are more enjoyable when there is water than when there is not).
Id., RR Exhibits PX2 (photos documenting usage).
Defendants are the prior owners (Franks) and current owners
(Lances) of lot 8 in Redus Point. CR 133; RR Exhibits PX5, 6. Lot 8 is
adjacent to the road and beachfront enjoyed and used by Plaintiffs. The
beachfront land is outside the boundary of Lot 8and is the location of the
disputed tract at issue in this case. RR Exhibits PX5 (DWW). Frank Franks
testified that hegave the Lances a deed without warranty to .282 acre of
land outside of Lot 8; he said he gave the Lances a deed without warranty
because ownership of the area was disputed. CR 138-39. He admitted that
he had no title to the .282 acre tract prior to creating the deed without
warranty. Id. It thus is undisputed that the Franks never had title to the .
282 acre themselves, and Defendants never pled or offered evidence
sufficient to raise any issue of fact regarding an alternate source of title in
themselves such as adverse possession.6
6Because the land is owned by a governmental entity, BMA, adverse possession would
not be a valid title source for Defendants. See Tex. Civ. Prac. & Rem. Code § 16.061;
United States v. Denby, 522 F.2d 1358, 1363-64 (5th Cir. 1975) (adverse possession
cannot be asserted against the sovereign).
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2. An Express Easement Reserves to Plaintiffs the Right to
Use and Enjoy the Beachfront in Redus Point
The boundaries of Redus Point subdivision are laid out to
approximate the “Elevation 1084” line—the elevation above mean sea level
of the top of Medina Dam—the highest level the water in the lake can reach
during extreme flood conditions.7 CR 68-71; RR Exhibits PX7. Medina
Valley Irrigation Company (“MVICO”), the original owner of the lake,
obtained title to lands necessary to build the lake through condemnations
and voluntary conveyances of lands below Elevation 1084.8 Id.
On January 22, 1917, Theresa Spettle, her daughter Mathilda Spettle
Redus and five other grantors conveyed portions of their land totaling
1,568.82 acres to MVICO “[t]o be used forever as a reservoir for storing
7 According to the elevation datum (baseline standard) in use at the time Medina Lake
was built, the top of the dam was determined to be 1084 feet above sea level. However,
based on the National Geodetic Vertical Datum (NGVD) of 1929, the top of the dam is
1076.2 feet above sea level. “Elevation 1084” is used herein to mean the elevation of the
top of the dam as calculated when the dam was built and when the lands below
Elevation 1084 were conveyed to the Medina Valley Irrigation Company. The level of the
spillway, and the conservation pool level of the lake (the level of the water when the lake
is full), is “Elevation 1072,” which according to the 1929 datum is 1064.2 feet above
mean sea level. See http://www.waterdatafortexas.org/reservoirs/individual/medina.
8 Generally, when a lake is constructed, the owner must obtain the right to flood all
lands below the top of the dam in order to avoid the risk of having to pay flood damages
to owners of the lands around the lake. The shore lands of many lakes are not owned
privately, they are owned by the government, typically the United States Army Corps of
Engineers. For example, Canyon Lake in Comal County is a Corps of Engineers lake and
much of the land surrounding the lake is owned by the Corps (“fee lands”); however,
other portions of the shore lands are owned by private owners but are subject to a
flowage easement. See www.swf-wc.usace.army.mil/canyon/Realestate/index.asp.
Medina Lake is not a Corps of Engineers lake, and substantially all of the property
surrounding the lake is privately owned.
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water above the dam constructed by” MVICO. The tracts were described in
metes and bounds. RR Exhibits PX4 at 319.
In this “Spettle Deed,” the grantors—who retained ownership in the
adjoining lands—granted MVICO immunity for any damages caused by
flooding or submerging the lands conveyed to MVICO. Id.
Further, the grantors reserved an express easement of use and
enjoyment in the lands conveyed to MVICO and the lake, for their benefit
and the benefit of their heirs and assigns:
But it is distinctly understood and agreed that the grantors, their
heirs and assigns, herein have reserved and do hereby reserve unto
themselves:
(1) The right to use the waters in the reservoir for domestic purposes;
(2) The right to use the waters in the reservoir for bathing, boating,
fishing and hunting; and
(3) The right to construct upon the edges of the reservoir at their own
peril and expense and without any liability of the grantors for the
destruction thereof by water or otherwise, such improvements as
may be necessary and incident to the exercise of the privileges
above reserved by the grantors, their heirs and assigns, which
privileges are to be exercised by said parties only to the extent and
in the proportion which the acreage above described bears to the
total acreage under the flow line of said reservoir.
Id.
Several months later, on July 18, 1917, Theresa Spettle and the other
grantors in the Spettle Deed partitioned their adjoining lands among
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Theresa and her daughters Mathilda Spettle Redus, Pauline Spettle
Holzhaus, and Mary Theresa Spettle Mangold. RR Exhibits PX4, .pdf pp.
53-61. In the Partition Deed, 728 acres of land “situated on the east side of
the Medina Lake” were partitioned to Mathilda Spettle Redus. Id. at 560.
The Partition Deed described the partitioned lands by metes and bounds;
the descriptions make clear that the partitioned lands are adjacent to the
lake.9 Id. at 558-60.
The habendum clauses in the “Partition Deed,” including the clause
pertaining to the 728 acres partitioned to Mathilda Spettle Redus, expressly
state that all appurtenant rights in the partitioned lands were severed and
conveyed to the grantees along with the lands:
TO HAVE AND TO HOLD the said last-above described tracts or
parcels of land, with all and singular the hereditaments and
appurtenances thereunto belonging, or in anywise incident or
appertaining, unto her the same Mathilda Spettle Redus, to her sole
and separate use and as her separate estate, her heirs and assigns, in
severalty, absolutely, in fee simple and forever.
Id. at 561.
The Redus Point Addition Subdivision is located on land that was part
of the 728 acres partitioned to Mathilda Spettle Redus, and the Plaintiffs
and the Lances as lot owners in the subdivision are assigns under the
9 The tracts are bounded by “the backwater or flow-line” of the lands owned by MVICO.
See, e.g., RR Exhibit PX4 at .pdf p. 55 (description of 728 acres partitioned to Mathilda
Spettle Redus).
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Partition Deed with all the appurtenant rights held by Mathilda Spettle
Redus, including the easement of use and enjoyment in the adjoining lake
lands now owned by BMA as successor to MVICO. CR 75-76; RR Exhibits
PX 4, 6.
At the temporary injunction hearing held on July 16, 2012, the
Plaintiffs proved up their rights in the land and chain of title, assisted by
the uncontroverted testimony of a registered professional land surveyor,
Lemuel Sinclair. CR 16-36 All of the pertinent deeds were admitted without
objection. CR 70, 77, 79. Plaintiffs placed the testimony given and the
exhibits admitted at this hearing into the summary judgment record. CR
45, 50.
Sinclair testified without objection that the disputed .282-acre area is
located within a 104.6-acre tract of land in Survey No. 231 that was
conveyed to MVICO in the 1917 Spettle Deed. CR 70. The Redus Point
Addition Subdivision is located within Survey No. 231, and specifically
within the 728 acres that were partitioned to Mathilda Spettle Redus in the
1917 Partition Deed. CR 92-73. The boundaries of the subdivision are
meander lines drawn to approximate Elevation 1084, the elevation of the
top of the dam. Id. at 71. The land adjacent to the subdivision below
Elevation 1084, belongs to BMA as successor to MVICO. Id. at 71-72.
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The plaintiffs and the Lances, as owners of lots in the subdivision, are
successors in title to the lands partitioned to Mathilda Spettle Redus in
1917. Id. at 73. A chronological list of all the deeds reviewed by Sinclair was
admitted without objection. Id. at 77.
3. Defendants Have No Viable Claim of Ownership to the
Easement Land
At the temporary injunction hearing, certified copies of the deed in
which the Franks obtained lot 8 and the deed in which they conveyed lot 8
to the Lances were admitted in evidence. RR Exhibits PX5.10 At the same
time, the Franks gave a deed without warranty to the Lances to a .282-acre
tract of land between Lot 8 and Medina Lake located below Elevation 1084,
outside the boundaries of the subdivision. A certified copy of the DWW is
also in the record. Id.
Franks had not obtained a deed to this tract from any source; the
tract had not existed prior to the conveyance from the Franks to the Lances.
CR 138, 143. A deed without warranty was used for the .282-acre tract,
rather than a warranty deed with a promise of good title, because Frank
10The Prado to Franks deed is out of order in the record. The 3-page deed at pages
50-52 of the .pdf of the RR Exhibits volume should be between pages 80 and 81, just
before the Franks to Lance general warranty deed to lot 8. The list of deeds in exhibits 4
and 5 is in exhibit 6.
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Franks understood “that there might be some dispute regarding property
below the 1084 line.” Id. at 139
4. The Lances Wrongfully Attempted to Prevent Plaintiffs
from Using Their Express Easement
After acquiring the purported deed to the .282-acre tract, the Lances
began taking steps to fence off the tract and exclude their neighbors from it.
John Lance sent a letter to Plaintiff Judith Robinson (owner of Lot 1) in
early April 2012, telling her he was going to fence off “our property” and
that if she did not move the deck within 30 days, the Lances would remove
it. CR 103-04; RR Exhibits PX1 at 3 & Ex. B. The boundary of the .282-acre
tract, and the fence that the Lances planned to build around the tract, cut
across the deck, impeded access to the pier, and prevented use of the boat
ramp. Id. at 100-02.
Judith and the other plaintiffs responded through their attorney in
early May 2012, objecting to the building of the fence and asserting that the
DWW was invalid and fraudulent. CR 103-04.
After receiving the letter, the Lances began building the fence. CR
104. The .282-acre tract had never been enclosed by a fence, although there
was a short removable cable fence along the road on one side of the tract.
Id. at 136. Without consulting any of their neighbors, the Lances pulled out
the cable fence along the road and began building a permanent wooden
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fence to keep people off the beachfront. Id. at 96, 124. There was a gap in
the fence, but Lance stretched a cable across it to block access to the lake
across the beachfront. Id. at 98. The Lances also tore a section off the pier,
put up “no trespassing” signs, installed game cameras to monitor the area,
and told their neighbors to stay off the tract or the Lances would call the
constable. Id. at 97-98.
Not surprisingly, a dispute arose at the property and a deputy sheriff
was called. John Lance showed his DWW to the deputy, and claimed that it
gave him exclusive ownership of the .282-acre tract. Id. at 103. The deputy
told the Lances not to block Plaintiffs’ access to their pier or boat ramp. CR
102-03. To stop them from continuing to build their fence, Plaintiffs filed
this lawsuit. RR Exhibits PX1. The trial court granted a temporary
injunction. See Lance v. Robinson, 2013 WL 820590 (Tex. App.—San
Antonio 2013, no pet.).
B. Course of the litigation
After the July 17, 2012 hearing on the temporary injunction, at which
expert testimony and certified copies of the relevant deeds were admitted,
Plaintiffs determined they had sufficient grounds for a partial summary
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judgment on requests for declaratory relief relevant to their claims. See RR
Exhibits PX1.11
Specifically, Plaintiffs moved for a declaration that they had an
express easement right to access the .282-acre beachfront at issue. Further,
they moved for a declaration that the Lances did not own the beachfront
and could not restrict Plaintiffs’ access. They also moved for a declaration
that the Lances’ invalid claim of ownership (the DWW) constituted a cloud
on Plaintiffs’ and BMA’s rights in the land. CR 44-45.
At the time Plaintiffs moved for summary judgment, Defendants’
unsuccessful interlocutory appeal from the temporary injunction order was
pending in this Court. This Court issued its opinion March 6, 2013. The
trial court ordered a hearing for May 28, 2013, at which numerous motions
were set to be held, including Plaintiffs’ motion for summary judgment and
Defendants’ motion for summary judgment. At the end of that four-hour
hearing, the trial court orally granted summary judgment for Plaintiffs but
stated he would not sign an order until the parties participated in another
half-day mediation (their third). RR MSJ 69-70, 77.
The mediation was unsuccessful, and Judge Williams signed a
summary judgment order on October 14, 2013. CR 182-84. Defendants filed
11Plaintiffs also refer the Court to their Fifth Amended Petition, which will be requested
for the clerk’s record supplement.
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a motion for rehearing, and supplemented it twice over the next few
months, attempting to interject new evidence before the trial court. CR
185, 262, 406. Judge Williams held a hearing on the motion for rehearing
on May 20, 2014, and very carefully considered Defendants’ arguments yet
again. RR Rehearing. He refused to consider Defendants’ late-filed
evidence. RR Rehearing at 33-36. After the hearing, Judge Williams signed
a modified order on June 14, 2014, striking the language that declared BMA
was the owner of the disputed tract but otherwise leaving intact the original
summary judgment order. CR 412.
On June 12, 2014, the summary judgment order was severed from the
remaining issues in the case, save for the attorney’s fees associated with the
summary judgment rulings. CR 251-52. An evidentiary hearing was held on
attorney’s fees on September 17, 2014. RR AF. The trial court, Judge Rex
Emerson, awarded Plaintiffs $90,000 in attorney’s fees plus $10,000 if
successful on appeal. CR 505-06. BMA was awarded $31,025 plus $10,000
if successful on appeal. Id. Since Defendants raise evidentiary sufficiency
issues with respect to attorney’s fees, the evidence and equities in support
of Plaintiffs’ award of attorney’s fees will be discussed in response to
Defendant’s issues 6 and 7 in the Argument section of this Brief.
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Summary of the Argument
Summary judgment was properly granted in Plaintiffs’ favor.
Plaintiffs presented both conclusive and uncontroverted evidence
establishing that they owned an express easement of use and recreation
over lands owned by the water district below Elevation 1084 at Medina
Lake. Defendants attempted to prevent Plaintiffs from using their easement
rights by creating a deed without warranty out of thin air to lakefront land
they did not own.
The summary judgment evidence established as a matter of law that
Defendants’ deed without warranty was invalid, as Franks owned no
interest to convey to Lance.
Defendants’ multiple and multifarious arguments represent shallow
attempts to avoid these established facts: (1) Plaintiffs have an express
easement, and (2) Defendants’ deed without warranty is a nullity and an
invalid cloud on Plaintiffs’ easement. None of their legal arguments have
merit; all are based on mischaracterizations of the issues in this case and
the law governing the same.
Plaintiffs were awarded attorney’s fees under the Declaratory
Judgment Act. This award, which was drastically reduced from the amount
proven up, represented reasonable and necessary fees that were equitable
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and just. While Plaintiffs clearly waived error with respect to their
complaints regarding the attorney’s fees, the evidence is nevertheless
sufficient to support the attorney’s fee award.
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Argument
A. The Summary Judgment Evidence
1. The Exhibits Admitted at the Temporary Injunction
Hearing
Defendants’ issues 1 and 2 hinge on their inaccurate claim that the
summary judgment record is incomplete. Appellants’ Brief at xiii. Plaintiffs’
motion for summary judgment specifically referenced and relied on the
testimony and exhibits admitted at the temporary injunction hearing on
July 17, 2012. CR 44-166, RR Exhibits. Defendants now complain for the
first time on appeal that the reference to the exhibits admitted at the
hearing was improper because they were not on file and hence could not be
part of the summary judgment record. To the contrary, the exhibits were on
file with the court.12 (Defendants do concede that a citation to evidence on
file with the court is sufficient to support summary judgment).
Texas Rule of Civil Procedure 74 defines “filing with the court.” With
regard to exhibits, the rule states: “The filing of … exhibits as required by
these rules shall be made by filing them with the clerk of the court.”
Alternatively, a judge may permit exhibits to be filed with him to be
12At the temporary injunction hearing, Plaintiffs’ expert surveyor testified regarding
Plaintiffs’ express easement, and certified copies of every deed at issue in the case were
admitted into evidence along with a number of photographs, a large-sized plat of the
lake and tax records. CR 67-88, RR Exhibits.
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transmitted to the clerk. Id. Rule 75a also requires the court reporter at a
hearing to file any exhibits admitted into evidence with the clerk of the
court. And, Rule 75b(b) allows the court reporter to give the court clerk a
receipt for the exhibits if she takes custody of them in order to fulfill her
legal duties.
In this case, at the end of the temporary injunction hearing, Judge
Williams asked the Lances’ counsel if he wanted his exhibits back, and he
said no. The judge then said, “Okay, I’m going to leave all the exhibits with
the file.” CR 146. That same day, July 16, the clerk of the court noted that
the exhibits were filed in the court’s file.13 Tex. R. Civ. P. 74. Later, the
official court reporter, Cindy Huggins, withdrew the exhibits on August 28,
2012 and was apparently in possession of them until March 28, 2013, when
she returned them to the clerk.14 The summary judgment hearing was two
months later, on May 28. The record further reflects that the exhibits
remained in the custody of the clerk, until they were once again withdrawn
on April 16, 2015 to prepare the supplemental record for this appeal.15
13 The Clerk’s Record will be supplemented with the docket sheet showing this notation.
14In this timeframe, this Court will note, Defendants prosecuted their interlocutory
appeal and the reporter’s record from the hearing, including the exhibits, was part of the
appellate record.
15The Clerk’s Record will be supplemented with the receipts for exhibits reflecting these
facts but in the meantime, a certified copy of the receipt is attached to this brief as
Appendix A.
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Therefore, under the rules of civil procedure, the exhibits admitted at
the hearing were properly filed and Defendants’ assertion that they are not
in the record must be disregarded. Plaintiffs were entitled to refer to and
rely on the exhibits in their motion for summary judgment. Stark v.
Morgan, 602 S.W.2d 298, 303-04 (Tex. Civ. App.—Dallas 1980, no writ)
(reference to exhibits offered at temporary injunction hearing in motion for
summary judgment sufficient to put exhibits before the court).
It should also be noted that Defendants never once objected to
Plaintiffs’ evidence in their summary judgment response, or at the
summary judgment hearing on May 28, 2013, which lasted over four hours.
In fact, the record from the hearing is replete with references by the
attorneys and Judge Williams to the deeds and other summary judgment
evidence. RR MSJ 21, 36-38, 41-46, 54-55, 66-68, 71, 75-76. There was no
confusion or question on anyone’s part about the evidence the court was
asked to consider in ruling on the motions for summary judgment.16
2. Defendants’ Untimely Offer of Evidence Was Rejected
Plaintiffs object to Defendants’ citation to this Court of evidence that
was not part of the summary judgment record. After Judge Williams ruled
16In their response to Plaintiffs’ motion for summary judgment, Defendants concluded:
“Every claim for which Movants are seeking summary judgment should be denied based
on … the transcript of the temporary injunction hearing with exhibits.” CR 180
(emphasis added).
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on Plaintiffs’ motion for summary judgment, Defendants asked him to
reconsider. They filed a motion for rehearing and supplemented it twice,
each time adding additional evidence they wanted the trial court to
consider. CR 262-411. One year and two days after the summary judgment
hearing, Judge Williams had a hearing on the motion for rehearing. RR
Rehearing. Plaintiffs objected to the untimely offer of evidence without a
motion for leave, and the judge unambiguously sustained the objection and
flatly refused to consider Defendants’ evidence.17 Id. 33-36. In their brief,
Defendants summarize this excluded evidence and falsely state that the
trial court considered it. Appellants’ Brief at 8-9. That evidence was not
admitted, and Defendants have made no complaint in this Court regarding
the trial court’s ruling. The evidence is not in the summary judgment
record.
B. Defendants were Not Entitled to Use a Bogus Deed to
Exclude Plaintiffs from their Easement of Use and Recreation
In issue 3, Defendants complain that the trial court had no legal or
factual basis to find that Defendants used a bogus deed to try to exclude
Plaintiffs from using property Defendants did not own. They also assert
The excluded evidence includes the affidavit from surveyor Mike Grogan referenced in
17
Defendants’ brief at 8-9.
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(the issue is multifarious) that the court had no basis to hold that the DWW
is a cloud or burden on Plaintiffs’ easement. The issue should be overruled.
1. The Summary Judgment Evidence Conclusively
Established that Neither the Franks nor the Lances Had a
Right of Possession to the .282-acre Tract
The trial court’s ruling, that the DWW from the Franks to the Lances
was did not convey any ownership or other interest in the .282-acre tract to
the Lances, was conclusively established by the summary judgment
evidence and Defendants offered nothing raising a material issue of fact
showing otherwise. The evidence established that Defendants created and
used the DWW in a deliberate attempt to exclude others from accessing
land Defendants did not own. The evidence further established that the
Franks only had title to Lot 8, that the.282 acre lay outside Lot 8 within the
land conveyed to MVICO in the Spettle Deed, and thus the Franks had no
claim to the .282 acre prior to creating the DWW out of thin air. CR
128-29. After Franks made the deed up, the Lances used it to justify
building a fence to exclude Plaintiffs from their boat dock, destroy
Plaintiffs’ deck, and keep Plaintiffs from using their recreational
improvements on the lakefront below Elevation 1084.
In City of San Antonio v. Earnest, the defendants used a fraudulent
deed in a scheme to gain title to part of Laredo street; the Supreme Court
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found that the fraudulent deed was “an absolute nullity.” 188 S.W.2d 775,
778 (Tex. 1945). An absolute nullity is not merely voidable, rather it is void.
Id. It follows, and the court found, that there was no need for an absolute
nullity to be set aside. Id. As a nullity the fraudulent deed did not convey
any title and was properly addressed by a suit to quiet title. Id.
The evidence in this case also conclusively established that the .282
acre tract was in fact owned by BMA, not by Defendants. The trial court
deleted that ruling from its summary judgment order, CR 413-14, however
no evidence was offered to controvert the expert testimony that BMA was
the successor to MVICO and acquired all title to lands below Elevation 1084
conveyed to MVICO in the Spettle Deed. A summary judgment based on an
expert witness’ testimony will be sustained if the testimony is
uncontroverted, clear, positive and direct, and could have been readily
controverted. Tex. R. Civ. P. 166a(c); Sorsby v. State, 624 S.W.2d 227, 233
(Tex. App.—Houston [1st Dist.] 1981, no writ).
2. The Deed Without Warranty is a Cloud and Burden on
Plaintiffs’ Easement Rights
Defendants’ complaint in issue 3 — that the trial court had no legal or
factual basis to hold that the deed without warranty constituted a cloud and
burden on Plaintiffs’ easement rights — must be rejected. Plaintiffs have
carefully read Defendants’ brief and the only place they brief this particular
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point is on page 29, where Defendants summarily state that “a deed cannot
be a cloud on an easement.” To the contrary, Texas courts have recognized
a cause of action in equity to remove a cloud on an easement. See, e.g. City
of Dallas v. Bargman, 207 S.W.3d 926 (Tex. App.—Dallas 2006, no pet.)
and Howard v. Young, 210 S.W.2d 241 (Tex. Civ. App.—Amarillo 1948, writ
ref’d n.r.e.) (cases involving equitable claims of cloud on easement rights or
cloud on “title” to an easement).
The elements of a suit to quiet title, or remove a cloud on title, are: (1)
the plaintiff has an interest in the property; (2) the title to the property is
affected by a claim of the defendant; and (3) the defendant’s claim,
although facially valid, is actually invalid or unenforceable. Howard v.
Davis, 6 Tex. 174, 185 (1851); Temple Trust Co. v. Logan, 82 S.W.2d 1017,
1020 (Tex. Civ. App.–Amarillo 1935, no writ). Each element was
conclusively established in this case, and the trial court correctly held that
Defendants’ bogus deed without warranty clouded Plaintiffs’ interest in
their easement.
3. Defendants’ Arguments Against the Court’s Authority to
Grant Relief Have No Merit
Despite the conclusive evidence supporting the trial court’s rulings
relating to the deed without warranty, Defendants argue the trial court did
not have authority to make the rulings. First, they argue Plaintiffs had to
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bring this case as a trespass to try title action. Second, they argue that only
the grantor can seek to have a deed set aside. And third, they argue that
ownership of the .282 acres remains in dispute, hence the trial court could
not rule that Defendants did not have an ownership interest
a. Trespass to Try Title is Not Necessary to Determine
that Defendants’ Deed Without Warranty is Invalid and
a Burden on Plaintiffs’ Easement
Defendants have expended much energy on their argument that the
trial court did not have the authority to rule on Plaintiffs’ requests for relief
because Plaintiff failed to bring this action as a trespass to try title. See Tex.
Prop. Code 22.001(a), Tex. R. Civ. P. 783. Trespass to try title is the method
for determining title to real property. However, when a person makes up a
deed, like Defendants did in this case, a party negatively affected by that
deed does not need to bring a suit in trespass to try title to prove that the
deed is fake. Wilhoite v. Sims, 401 S.W.3d 752, 759 (Tex. App.—Dallas
2013, no pet.) (issue in the case was whether the quitclaim deed was
voidable, not whether defendant’s title was superior to plaintiff’s; suit was
proper under the declaratory judgment act).
Plaintiffs’ right to use and enjoy their express easement was
negatively affected by Defendants’ invalid claim to the easement property.
Because Plaintiffs had an easement, a non-possessory interest, a trespass to
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try title claim was not available to Plaintiffs. Pena v. Zardenetta, 714 S.W.
2d 72, 73 (Tex. App.—San Antonio 1986, no writ) (easement is a non-
possessory right). Only a party in possession or a party entitled to
possession of property can file a trespass to try title claim. Tex. R. Civ. P.
783(d). Easement rights are properly adjudicated, as they were and will be
in this case, through petitions for declaratory relief, injunctive relief, and/
or claims for damages.
The Texas Supreme Court made this clear nearly sixty years ago in
City of Mission v. Popplewell, 294 S.W.2d 712 (Tex. 1956). The Court held
an easement can be defended against interference through an injunction,
but not through trespass to try title:
The plaintiff in a trespass to try title must allege and prove the right
to present possession of the land. The owner of an ordinary
easement does not have such a possessory right and the remedy is
not available to him. Injunction is the proper remedy.
Id. at 714. This has been the consistent rule in Texas for over a century. The
following cases reiterate that injunctive or declaratory relief are the proper
vehicles to defend an easement, not trespass to try title: Manning v.
Enbridge Pipelines, 345 S.W.3d 718, 726-27 (Tex. App.—Beaumont 2011,
pet. denied) (declaratory judgment appropriate to defend easement, not
trespass to try title); Gillett v. Van Horne et al., 36 S.W.2d 305, 306 (Tex.
Civ. App.—El Paso 1931, writ dism’d) (trespass to try title not an
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appropriate remedy to determine an easement interest, declaratory
judgment is); Pouns v. Zachery, 103 S.W. 234 (Tex. Civ. App.—Austin 1907,
no writ) (declaratory judgment is the proper remedy to protect an
easement); Cornick v. Arthur, 73 S.W. 410, 411 (Tex. Civ. App.—Austin
1903, no writ) (easement owner cannot maintain a trespass to try title claim
against the owner of the land); Roberson v. City of Austin, 157 S.W.3d 130,
136 (Tex. App.— Austin 2005, pet. denied) (easement is non-possessory
property interest and, generally, the remedy of trespass to try title has not
been applied to non-possessory property interests such as easements).
Another reason it was not necessary for Plaintiffs to pursue relief in
trespass to try title is that Defendants’ deed without warranty does not raise
an issue of title. A quitclaim deed raises no presumption of ownership, and
does not put title into issue so as to invoke trespass to try title. See
McMahon v. Fender, 350 S.W.2d 239, 240-41 (Tex. Civ. App.—Waco 1961,
pet. ref’d, n.r.e.); Adamson v. Doornbos, 587 S.W.2d 445, 447-78 (Tex. Civ.
App. 1979, no writ); Frost v. Mischer, 463 S.W.2d 166, 168 (Tex. 1971, no
writ); Rogers v. Ricane Enterprises, Inc., 884 S.W.2d 763, 769 (Tex. 1994).
In such a case, injunction is an appropriate remedy. McMahon, 350 S.W.2d
at 240-41; Gordon v. West Houston Trees, Ltd., 352 S.W.3d 32, 46 (Tex.
App.—Houston [1st Dist.] 2011, no pet.) (creditor’s recovery affirmed on its
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claims for quiet title and declaratory judgment with respect to quitclaim
deed and amended warranty deed); Inman v. Padrezas, 540 S.W.2d 789,
792 (Tex. App.—Corpus Christi 1976, no pet.) (declaratory and injunctive
relief was appropriate when defendants claimed a quitclaim deed permitted
them to obstruct public easement); Vernon v. Perrien, 390 S.W.3d 47, 2012
Tex. App. LEXIS 8851, *8-9 (El Paso Oct. 24, 2012, pet. denied) (court has
jurisdiction to grant declaratory judgment declaring quitclaim deed “null
and void” and removing cloud on title, even if trespass to try title applies;
claim to remove cloud on title or to quiet title is a separate claim); Menczer
v. Poage, 118 S.W. 863 (Tex. Civ. App. 1909) (injunction appropriate
remedy when defendant attempted to fence in land claimed under deed
without warranty). The Lances’ DWW is no evidence of ownership, prima
facie or otherwise.
Further, Defendants failed to acknowledge the extremely broad scope
of the Court’s equitable power to quiet title. Unlike a trespass to try title
claim, “[a] suit to quiet title relies on the invalidity of the defendant’s claim
to the property. It exists to ‘enable the holder of the feeblest equity to
remove from his way to legal title any unlawful hindrance having the
appearance of a better right.’” Vernon, 390 S.W.3d 47. An easement owner
may ask a court to quiet title and remove a cloud that is interfering with use
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of the easement. See, e.g., Anderson v. McRae, 495 S.W.2d 351, 356,
360-61 (Tex. App.—Texarkana 1973, no writ) (subdivision lot owners
entitled to seek quiet title through declaratory judgments act for
recreational easements in areas adjacent to lake); Howard v. Young, 210
S.W.2d at 241-43 (quiet title and injunctive relief were appropriate
remedies when an easement's dimensions and validity were at issue).
b. Plaintiffs are Aggrieved Parties, and Clearly Have
Standing to Bring this Suit
Citing Nobles v. Marcus, 533 S.W.2d 923 (Tex. 1976) and Lopez v.
Morales, 2010 WL 3332318, 2010 Tex. App. LEXIS 6909 (Tex. App.—San
Antonio 2010, no pet.) (mem. op.), Defendants argue that only a grantor
has standing to bring suit to set aside a deed procured by fraud.
The test for whether a party has standing is whether “a party has a
sufficient relationship with the lawsuit so as to have a justiciable interest in
its outcome.” Lopez, 2010 Tex. App. LEXIS at *7. As this Court has already
recognized, Plaintiffs in this case have an ownership interest in an
easement over the land purported to be conveyed by the invalid deed.
Lance, 2010 WL 820590, *5. Further, BMA, who actually does have title, is
in this case as a necessary party. All parties were before the trial court, and
the court had authority to grant the relief requested with respect to the
DWW. See Hollar v. Jowers, 310 S.W.2d 721 (Tex. Civ. App.—Eastland
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1958, writ ref’d n.r.e.) (plaintiff in suit to set aside deed must have “some
interest” in relevant property; all necessary parties with an interest must be
joined).
Defendants’ reliance on Nobles and Lopez is misplaced. Nobles
obviously did not rule that only a grantor can sue to set aside a fraudulent
deed. Instead, Nobles stands for the unremarkable proposition that only a
person who has been defrauded can sue for fraud. “A suit to set aside a deed
obtained by fraud can only be maintained by the defrauded party.” Nobles,
533 S.W.2d at 927. The plaintiff in Nobles was not the defrauded party but
the creditor of the defrauded party who was attempting to step into the
shoes of the defrauded party.18 Id. Nobles does not address a scenario
where a grantor and grantee draw up an invalid deed with the intent to
defraud a third party, which is the situation in this case.
This Court in Lopez also held, citing Nobles, that only the actual party
defrauded could bring a suit to set aside a deed. 2010 Tex. App. LEXIS
6909 *8. The deed at issue, which was procured by fraud (lack of
consideration) from a holder of a 1/9th interest in the relevant property,
purported to convey all of the property to the defendant. The Lopez court
found that a holder of another 1/9th interest did not have standing to bring
18 The plaintiff could have asserted a statutory claim for fraudulent conveyance, but
failed to plead such a claim. Id. at 925, 927.
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suit to set aside the deed based on fraud because the grantor was the only
one who was cheated out of his property. The Court pointed out that the
deed, no matter what it purported to convey, could only convey whatever
interest the grantor had, which was a 1/9th interest, and thus the deed did
not affect the plaintiff’s 1/9th interest. Id. at *11. In this case, Plaintiffs’
ownership interest in their easement is affected by the invalid DWW.
BMA’s interest is also affected. Both parties clearly have standing to bring
this suit.
Defendants made the same argument regarding Plaintiffs’ standing to
this Court in the first appeal. Lance v. Robinson, 2013 WL 820590 at *4
(“The Lances repeatedly assert that Appellees have no claim under the
Franks deed and no right to set it aside.”) In response, this Court held,
correctly, that an easement is a real property interest, and that a holder of
an easement interest has standing to seek injunctive relief under section
12.003(a)(8). Id. at 5; Tex. Civ. Prac. & Rem. Code § 12.001, et. seq.
(allowing a person who holds an interest in real or personal property to
bring a claim against one who makes, presents or uses a fraudulent claim
against real or personal property in order to cause them to suffer injury).
Defendants did not appeal this Court’s decision. Since this Court has
already specifically addressed Defendants’ standing argument, there is no
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need to revisit the issue now. Elliott v. Moffett, 165 S.W.2d 911, 912 (Tex.
Civ. App.—Texarkana 1948, writ ref’d w.o.m.)(questions of law decided by a
court of ultimate resort govern the case through all subsequent stages of the
proceeding).
c. The Trial Court Did Not Make a Determination of
Title in Holding the DWW Conveyed No Interest
Defendants mischaracterize the trial court’s summary judgment
ruling in arguing that he made a determination of title while the ownership
of the .282-acre tract “remained in dispute.” Appellants’ Brief at 19-21. The
trial court expressly declined to rule that BMA had title to the .282-acre
tract. CR 412 at ¶ 3. Next, the trial court’s declaration that the bogus DWW
was ineffective to convey any interest in the .282-acre tract to the Lances
was permitted under both the declaratory judgment act and equitable
claims of removal of a cloud on Plaintiffs’ interest. The trial court did not
adjudicate, as between two parties with a possessory right, who had the
superior right of possession. Wilhoite, 401 S.W.3d at 759.
C. Plaintiffs’ Express Easement to Use and Enjoy the .282-
Acre Tract was Conclusively Established
In issue 4, Defendants urge this Court to invalidate Plaintiffs’ long-
standing, long-utilized express easement of use and enjoyment of the .282-
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acre tract for “a host of reasons.” However, their arguments should be
dismissed by this Court as summarily as they are made.
1. The 1917 Spettle Deed is Not Void
Defendants argue that the 1917 Spettle Deed is void based on this
Court’s holding in Bexar-Medina-Atascosa Counties Water Improvement
District No. 1 v. Wallace, 619 S.W.2d 551 (Tex. App.—San Antonio 1981,
writ ref’d n.r.e.). Defendants have not requested relief setting aside the
Spettle Deed. Even assuming that the validity of the Spettle Deed is
properly before the Court, Defendants mirepresent this Court’s holding in
Wallace. They claim that Wallace stands for the general proposition that
every deed bearing similar language to the deed at issue in that case is void.
This is decidedly not the holding of Wallace.
Wallace involved a 1917 deed to MVICO, BMA’s predecessor in title,
but it was not the Spettle Deed that reserved the easement at issue in this
case: different deed, different land. The court held that BMA had failed to
prove a sufficient description of a 13.76-acre tract of land, because it was
unclear where the starting point of the metes and bounds description
(“point 2”) was located on the ground. BMA’s surveyor failed to show that
the deed contained sufficient information to permit location of the point on
the ground with reasonable certainty. Id. at 554-55. Whatever the fate of
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the 13.76-acre tract in Wallace, the case says nothing about the sufficiency
of the property description at issue in this case.19 However, the case does
recognize that BMA is MVICO’s successor in title, and that the dividing line
between BMA land and adjoining private lands is the “high water mark” of
Elevation 1084; to this extent the case is instructive. Id. at 552 & nn.1, 2;
553.
Contrary to Defendants' intimation, the description in the Spettle
Deed is not insufficient because it's language permits the contours of the
property conveyed to MVICO to be located on the ground. Mr. Sinclair's
uncontroverted testimony at the temporary injunction hearing identified
the purpose of the Spettle Deed as the creation of a reservoir. CR 70. He
also stated that he was able to determine the boundary line for BMA's
property by referring to the top of the dam (elevation 1084'). CR 71-72.
Both the purpose of the grant and the geographical marker, the dam, are
19 In Wallace, the problematic tract, is referred to as being "off of the South side of
Survey No. 288 -- E. Pennington", and is described by metes and bounds as follows:
Beginning at point '2', thence: N. 3 deg. 50' E. 250' N. 16 deg. 55' W.126' . . . S. 80 deg.
54' W.1231' to point of beginning.” Id. at 553. In this case, Lem Sinclair testified at the
temporary injunction hearing that the Redus Point subdivision is adjacent to a 104.6-
acre tract, which is described in the deed as: “104.5 acres, more of less, of land off the
west end of Survey No. 231 Adams, Beaty & Moulton, Medina County, Texas, more
particularly described by metes and bounds as follows:— Commencing at point "01",
thence ... to place of beginning.” CR 70, RR Exhibit PX4 at 316. Defendants have not
controverted Mr. Sinclair’s testimony or otherwise identified any issue with the property
descriptions relevant to this case. The reference in the Spettle Deed description to the
“west end” is more specific than the “south side” reference in the Wallace deed. End is a
fixed point, whereas a point on a “side” or a “line” may need further description to locate
oit on the ground.
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referenced in the language of the Spettle Deed. PX4 (page 319 of the deed).
Even if there is a deficiency in the calls contained in the Spettle Deed, the
summary judgment evidence more than adequately demonstrated that the
deed's language permitted a surveyor to ascertain the boundaries of the
grant. Placke v. Lee-Fayette Counties W.C.I.D. #1, NO. 03-04-00096-CV,
2005 WL 1034075, 2005 Tex. App. LEXIS 3411, *8-15 (Tex. App.—Austin
May 5, 2005, pet. denied) (citing Vinson v. Brown, 80 S.W.3d 221, 227
(Tex. App.—Austin 2002, no pet.)) (note that Tex. Prop. Code § 5.021, the
statute of frauds applies to both easements and grants). The evidence
demonstrated that the boundary of the Spettle Deed could be located on the
ground using the very language of the deed, it is not void for lacking a
description of the land.
2. Plaintiffs Have an Appurtenant Easement by Reservation
Which Runs with the Land and Burdens Property Conveyed
to MVICO in 1917
Plaintiffs have an express easement originating in the 1917 Spettle
Deed from Theresa Spettle et al. to MVICO. RR Exhibits PX 4 .pdf 44-49.
Defendants erroneously assert that this deed is not in Plaintiffs’ chain of
title. The Spettle Deed reserved an express easement to use the lands
conveyed to MVICO (now owned by BMA) which the owners of lots in the
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Redus Point Addition subdivision, including the Plaintiffs and Defendants,
now own as successors in title.
The testimony of Lemuel Sinclair, expert surveyor for the Plaintiffs,
establishes that the Spettle Deed is in Plaintiffs’ chain of title. CR 69-77.
Defendants offered no evidence contradicting Sinclair’s expert testimony.
Defendants’ assertion that Sinclair testified that the Spettle Deed was not in
the Plaintiffs’ chain of title is imaginary and not supported by the record.
Defendants have cited no case supporting their assertion that
Plaintiffs’ express easement by reservation is not in their chain of title. The
cases they cite for the proposition that a purchaser is bound by every
instrument in their chain of title do not support this argument. Even if the
express easement was “outside” Plaintiffs’ chain of title (which it is not),
that does not mean it is not a binding contract as between the owners of the
land below Elevation 1084 and Plaintiffs. No purchaser of the servient
estate is claiming they did not have notice of the express easement because
they could not find it in their own chain of title.
The other case cited by Defendants, Greenwood v. Lee, 420 S.W.3d
106 (Tex. App.—Amarillo 2012, pet. denied), also does not support
Defendants’ position. The Amarillo court of appeals in fact relied on the old
1964 deed to determine the scope of the express easement in that case, and
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did not rely on the easement holder’s current 2009 deed alone. Id. at 113.
The scope of the easement by reservation owned by Plaintiffs is set out in
the Spettle Deed, the easement passed to the heirs and assigns of the
grantors. Smith v. Reid, 2015 Tex. App. LEXIS 6387 *27-28 (Tex. App.—
San Antonio 2015, Rule 53.7(f) motion filed) (“heirs and assigns” language
evidences intent for covenant to run with the land). Plaintiffs are successors
in interest to the Spettle grantors’ easement by reservation. Defendants
offered no evidence showing a lack of intent on the part of the parties to the
Spettle Deed to have the easement run with the land. Plaintiffs were
entitled to summary judgment confirming their express easement.
3. The Express Easement in the Spettle Deed is Valid for a
Host of Reasons
Defendants next toss out a “host of reasons” they claim Plaintiffs’
express easement is invalid, like so much word salad. Appellants’ Brief at
25-29.
a. The Easement Satisfies the Statute of Frauds
Defendants worry that the language of the easement is insufficient to
satisfy the statute of frauds due to an inadequate description. Their concern
is misplaced. As long as the tract of land that will be burdened by the
easement is sufficiently identified, it is unneccessary for the express
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easement to contain an exact designation of its location. Placke, 2005 Tex.
App. LEXIS 3411, *8-13.
In this case Defendants have not demonstrated any defect in the
descriptions in the Spettle Deed. The contours of the burdened estate are
clear—the relevant boundary of the entire conveyance is Elevation 1084. CR
20. The first four pages of the deed (315-318) constitute detailed metes and
bounds property descriptions. Then at the top of page 319, the deed states:
To be used forever as a reservoir for storing water above the
dam constructed by the Medina Valley Irrigation Company
across the Medina River below said lands, for use in the
maintenance and operation of the Irrigation System heretofore
constructed by the Medina Valley Irrigation Company and now
in use by it, and the right to submerge any or all lands by
backing water from its dam over said lands; the grantors
covenant and agree to forever hold said grantee, its successors
and assigns harmless from all claims, demands or damages to
them growing out of incident to such use of the above
described lands or the flooding of the same with waters. But
it is distinctly understood and agreed that the grantors, their
heirs and assigns herein have reserved and do hereby reserve to
themselves…[the right to use the waters in the reservoir and the
right to construct upon the edges of the reservoir such
improvements necessary to enable them to enjoy the waters].
RR Exhibits PX4 at 319 (.pdf p. 48). The bracketed language is the
easement language. It is simply false to state that the express easement
does not reference a property description or identify its location. The
easement attaches to any land between Elevation 1084 and the reservoir
that was conveyed to MVICO in the Spettle Deed, and described by metes
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and bounds. There is no uncertainty concerning which land is subject to the
easement; it is the “said lands,” “above described lands,” and the “acreage
above described.” CR 70. As stated earlier herein with respect to the Spettle
Deed, the description of the land conveyed to MVICO is sufficient to statisfy
the statute of frauds. This Court must resist Defendants’ urging to strike the
entire deed and easement based on a faint possibility that one call
regarding one tract might be off. The easement is sufficiently described.
b. The Easement has a Dominant and Servient Estate
The dominant estate is the land held by the Spettle Deed grantors
adjacent to the lands conveyed to MVICO (the lake). The servient estate is
the land conveyed to MVICO. As the Court in Drye v. Eagle Rock Rd., 364
S.W.2d 196 (Tex. 1952), cited by Defendants, explained:
The easement attaches to the land of the dominant estate and
not merely for the convenience of the owner thereof
independent of the use of his land. The servient estate is subject
to the use of the dominant estate to the extent of the easement
granted or reserved. It generally takes the form of a negative
easement: the owner of the servient estate simply may not
interfere with the right of the owner of the dominant estate to
use the servient estate for the purpose of the easement.
Id. at 207. Defendants have pointed to no case requiring magic words such
as “dominant” and “servient” in the creation of an express easement.
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c. The Easement is an Easement Appurtenant
Plaintiffs’ easement is an express easement appurtenant to the land
belonging to the Spettle grantors and their assigns to land adjacent to the
land below Elevation 1084 conveyed to MVICO in the Spettle Deed. It is
not an easement in gross or a license. The Court in Drye recognized that a
right to go on land for pleasure and recreation can be: (1) a license, (2) an
easement in gross, or (3) “an easement appurtenant to the land, a right
which is attached to the land itself and passing with it.” Id. at 203.
Defendants mentioned (1) and (2) but not (3) in their three sentence
argument on this point. Appellants’ Brief at 27-28. As explained earlier, the
“heirs and assigns” language makes clear that the easement was intended to
be appurtenant to the land and run with the land. Smith, 2015 Tex. App.
LEXIS 6387 *27-28.
d. The Easement Language is Explicit
Defendants next complain that the trial court’s ruling did not contain
the terms or location of the easement. The terms of the easement are
contained in the trial court’s ruling at paragraph 4, and track the language
in the Spettle Deed. The particular location at issue in this case is the .282-
acre tract, as paragraph 6 of the ruling states. CR 413.
e. No Rights are Being Implied
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Plaintiffs did not move for summary judgment on an implied
easement claim. The trial court’s rulings do not mention implied easement
rights, hence any question of implied easement rights is not before this
Court. This seems to be an argument regarding the scope of the express
easement. This argument, like most of the “host of reasons” arguments is
inadequately briefed and is waived.
f. The Easement Runs with the Land and Plaintiffs are
Entitled to Enforce their Rights against Any Servient
Estate Owner
Defendants have yet to cite a case that supports their argument that
the lack of express easement language in Plaintiffs’ recent deeds somehow
extinguishes the easement. Again, the language of the easement clearly
indicates that it is an easement appurtenant, running with the land. The
Plaintiffs’ deeds each expressly state they take their property “to have and
to hold the above described premises, together with all and singular the
rights and appurtenances in anywise belonging…” RR Exhibits PX4, Deeds
7, 8, 9 (listed on PX6).
D. Summary Judgment was Proper on Elements of Plaintiffs’
Chapter 12 Claims that were Conclusively Established
Defendants’ fifth issue pertains the the declarations the trial court
made with respect to Plaintiffs’ claims under Texas Civil Practices and
Remedies Code chapter 12. This Court discussed the cause of action under
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chapter 12 in its first opinion in this case. Lance, 2013 WL 820590 *3-5 &
n.3. As it applies in this case, Chapter 12 makes it unlawful for a person to
“make, present, or use a document or other record” with (1) knowledge that
the “document or other record is a fraudulent lien or claim against real or
personal property or an interest in real or personal property,” (2) intent
that the “document or other record be given the same effect as a court
record … evidencing a … claim against real or personal property or an
interest in real or personal property, and (3) intent to cause a person to
suffer physical, financial, or emotional injury. Id. at n.3; Tex. Civ. Prac. &
Rem. Code § 12.002(a)(1)-(3).
The trial court made the following declarations: (1) the DWW is a
“deed or other record” for purposes of section 12.002(a); (2) Defendants
used and/or presented the DWW with intent to create the appearance of
actual conveyance of ownership in the disputed area pursuant to section
12.002(a)(2); and (3) Plaintiffs own an express easement in the disputed
area and have standing under section 12.003(a)(8).
The summary judgment evidence conclusively established these
declarations and Defendants submitted no evidence raising a material issue
of fact otherwise. With respect to standing, this Court has already ruled that
Plaintiffs have standing as a person who owns an interest in real or
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personal property to bring a chapter 12 claim based on an easement right.
The DWW constitutes a deed or other record for purposes of section
12.002(a). This is self-evident and there is no proof to the contrary. Section
12.002 “expressly applies to any document or record that is ‘a fraudulent
lien or claim’ against real or personal property and that is intended to be
‘given the same legal effect’ as a court record or document ‘evidencing a
valid lien or claim against real [or personal] property.’” Centurion Planning
Corp. v. Seabrook Venture II, 176 S.W.3d 498, 505 (Tex. App.—Houston
[1st Dist.] 2004, no pet.). In this case, the evidence is undisputed that
Defendants used the DWW to create the appearance of ownership with the
same legal effect as a properly filed and recorded deed. CR 98, 102-03.
Franks’ admission at the temporary injunction hearing that there had never
been any conveyance to him of the .282-acre tract (i.e., that the DWW was
created out of thin air, as the Court observed20), that Franks had never paid
taxes on the disputed area, CR 113-14, 143, and the fact that Defendants not
only filed and recorded the DWW but used it to claim ownership to a
sheriff’s deputy, proves that the Defendants made, presented and used the
invalid deed.
20 “I do not believe a person can just, out of thin air, create ownership.” CR 140.
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Defendants complain on appeal that a DWW can never convey an
“appearance of ownership” because by definition the grantor makes no
promise of title. However, chapter 12 claims apply to any document that
has no legal effect, yet is presented as if it did. Tex. Civ. Prac. & Rem. Code
§ 12.002. A chapter 12 claim may only be maintained if the document at
issue has no legal effect, like a void deed. See Gordon v. West Houston
Trees, Ltd., 352 S.W.3d 32, 46-47 (Tex. App.—Houston [1st Dist.] 2011, no
pet.) (quiet title and chapter 12 claims asserted against quitclaim deed
which purported to convey a tract of land in which the grantor had no
interest). As in Gordon, Plaintiffs in this case allege that a deed which
passed no interest to the grantee was used in a fraudulent manner with the
intent to injure. Id.
While the trial court refrained from finding that Defendants used the
DWW in a fraudulent manner, the undisputed evidence is that they
unabashedly recorded and displayed the DWW in an attempt to force
Plaintiffs to abandon their easement. They relied on the DWW to justify
destruction of Plaintiffs’ improvements on the easement. Further, the
DWW conveyed no interest in either Defendant as a matter of law—because
Franks, despite his protestations that he wasn’t sure if BMA owned the land
below Elevation 1084, had no possessory interest to convey to the Lances.
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This is undisputed. Whether they had requisite fraudulent intent is an issue
reserved for a jury. The trial court had discretion to make rulings by way of
summary judgment on certain elements of Plaintiffs’ claims.
E. The Attorney’s Fee Award is Based on Sufficient Evidence of
Reasonable and Necessary Fees, and the Award is Equitable
and Just
In issues 7 and 8, Defendants attack the trial court’s award of
attorney’s fees to Plaintiffs. However, they have waived their legal and
factual sufficiency arguments relating to the attorney’s fee award;
moreover, the evidence presented to the trial court was more than adequate
justification for the fee award. The central issues resolved by the summary
judgment: 1) whether Plaintiffs held an easement over the disputed tract
and 2) the validity of Defendants’ DWW were both proper declaratory
judgments and their resolution permits the award of attorney’s fees under
the Declaratory Judgment Act.
1. Defendants Have Waived their Complaints Regarding the
Fee Award
Defendants have failed to challenge the trial court’s findings of fact
and conclusions of law, did not raise their complaints regarding the award
pursuant to the declaratory judgment act at the trial level, and inadequately
briefed their legal and factual sufficiency complaints. This Court must
accept the trial court’s findings of fact as true in the event it does not
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conclude Defendants have waived their complaints regarding attorney’s
fees on appeal.
The trial court issued findings of fact and conclusions of law
pertaining to the bench trial of Plaintiffs’ and BMA’s attorney’s fees in this
case. CR 515-516. When findings of fact and conclusions of law are present
in the record, they must be specifically attacked on appeal lest they bind the
appellate court. Cass v. Stephens, 156 S.W.3d 38, 77 (Tex. App.—El Paso,
2004, pet. denied); Lopez v. State Farm Mut. Auto. Ins. Co., No.
13-06-276-CV, 2008 WL 2744609, 2008 Tex. App. LEXIS 7643 *19 (Tex.
App.—Corpus Christi, June 30, 2008, no pet.) (mem. op.); De Arrellano v.
State Farm Fire & Cas. Co., 191 S.W.3d 852, 855 (Tex. App.—Houston
[14th Dist.], 2006, no pet.). Defendants do not cite to the findings of fact
and conclusions of law in their brief. They do not discuss the findings they
challenge and do not discuss how the evidence relates to the findings with
any specificity. Appellants’ Brief at 31-36. This Court should accept the
findings of fact and conclusions of law as true in light of Defendants’
waiver.
Defendants also complain that the declaratory judgment claims
resolved by summary judgment in this case are merely disguised trespass to
try title claims, for which attorney’s fees may not be recovered. Defendants’
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Brief at 36. This complaint was first raised on appeal; Defendants’
numerous and forceful complaints at the trial level did not bring this issue
to the trial court’s attention. They have waived this issue on appeal.
Krabbe v. Anadarko Petroleum Corp., 46 S.W.3d 308, 320-21 (Tex. App.—
Amarillo, 2001, pet. denied); Tex. R. App. P. 33.1(a).
Defendants’ waiver extends beyond the findings of fact and
encompasses their argument against attorney’s fees generally as a result of
inadequate briefing. Tex. R. App. P. 38.1(i). The transcript of the bench
trial held on Plaintiffs’ and BMA’s attorney’s fees takes up 136 pages which
memorialize extensive testimony from attorneys Stephan Rogers, Edward
Hecker, and Cynthia Payne. Several exhibits were admitted as well.
Defendants direct this Court to just seven pages from this record.21
Appellants’ Brief at 35. These cursory citations relate only to BMA’s
evidence, and Defendants present no analysis regarding the evidence
presented to the trial court in the cited pages. Id. Defendants’ failure to
adequately direct this Court to the portions of the bench trial record which
support its legal and factual insufficiency arguments invites this Court to
conduct an independent review of the record, impermissibly becoming
Of the pages cited from the bench trial record, three relate to an objection made by
21
Defendants that the trial court did not rule on. RR AF 25-27.
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Defendants’ advocate. Valadez v. Avitia, 288 S.W.3d 843, 845 (Tex. App.—
El Paso, 2007, no pet.).
2. The trial court was presented with sufficient evidence
that the fees were reasonable and necessary; the court’s
award was equitable and just
At the bench trial held September 17, 2014, Plaintiffs and BMA
presented evidence in support of their claims for attorney’s fees, including
itemized invoices. This evidence, with every reasonable inference indulged
in favor of the trial court’s determination, supports the judgment; it is
legally sufficient. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.
2005). The evidence is also factually sufficient; the trial court’s judgment is
not against the overwhelming weight of the evidence. Maritime Overseas
Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998). The trial court’s
determination that the attorney’s fee award pursuant to Texas Civil Practice
& Remedies Code § 37.009 was reasonable, necessary, equitable, and just
was well within its discretion. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.
1998).
Plaintiffs’ lead counsel, Stephan B. Rogers, testified to the attorney’s
fees they incurred. Mr. Rogers testified to the total amount of Plaintiffs’
legal bill, and estimated that 85% of the work related to the issues resolved
in the summary judgment order severed into cause number
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CV-12-0100209. RR AF 34-36. Mr. Rogers rounded his estimate down to
$140,000.00. RR AF 36. He explained that this number resulted from the
extraordinary amount of work that had been put into the case, given
Defendants’ unflagging and voluminous briefing, their incessant motions
for rehearing, and their overall dedication to proving that you can draw a
deed out of thin air. RR AF 37-41. Further, he prognosticated regarding the
likely costs for both this appeal ($30,000) and any later review by the Texas
Supreme Court. RR AF 36-37. The underlying fee invoices were admitted
into evidence. RR AF 91, PX 3.
When Defendants cross-examined Mr. Rogers, the only challenge
they brought to the amount came through the introduction of a settlement
offer they sent over near this case’s inception. RR AF 57, DX1. Defendants
contrasted their offer of $34,000 for a license over the disputed tract to the
bill presented to Plaintiffs for the legal cost of defending their easement
over the disputed tract and the valuable improvements threatened by
Defendants’ DWW. RR AF 52-59. The trial court correctly concluded the
comparison did not flatter Defendants.
Edward Hecker, attorney for BMA, bolstered Mr. Roger’s testimony.
Mr. Hecker presented the legal bills incurred by BMA. RR AF 68-76, IX 1.
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He also supported Mr. Rogers’ explanation of why the case had been so
costly: the sheer volume of Defendants’ pleadings. RR AF 70-75.
Finally, the Defendants contested Mr. Rogers’ and Mr. Hecker’s
testimony through Cynthia Payne, their counsel. Mrs. Payne testified that
25-30 hours of work at $150-200 per hour would be a reasonable fee for
summary judgment over an express easement. RR AF 99-100. She further
testified that Plaintiffs’ attorney’s fees were unreasonable in light of
Defendants’ settlement offer. RR AF 106-07.
On cross examination, Mrs. Payne indicated that Defendants had
spent more than $30,000 on the lawsuit. RR AF 113. Her explanation for
why this number is so low is quite reasonable; she does not read every filing
or review every case cited by the parties. RR AF 15-20. Her commendable
efforts to save her clients money extends to her briefing as well, where she
makes a practice of reusing older motions when appropriate. RR AF 120.
She also conceded that the license Defendants’ offered in settlement was
based on a void deed (colorfully described by Mr. Hecker as a “bill of
goods”). RR AF 109.
With inferences favoring Plaintiffs and BMA, the evidence before the
trial court was legally sufficient to support the attorney’s fee award. City of
Keller, 168 S.W.3d at 827. The billing records and testimony presented by
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Plaintiffs supported an award of $140,000 with $30,000 in the event of an
appeal along with added costs for a petition for review. 6 RR 34-36. The
trial court ultimately awarded Plaintiffs $90,000 in attorney’s fees for trial,
$10,000 for an appeal, and $5,000 for a petition for review despite the fact
that the evidence supported a larger award. BMA’s more modest award was
similarly justified as discussed in its brief.
The evidence presented by Defendants contesting the fee award was
hardly overwhelming; the fee award was factually sufficient. Maritime
Overseas, 971 S.W.2d at 406-07. At most, Mrs. Payne’s testimony
established what would be an appropriate fee for her work on a motion for
summary judgment pertaining only to an express easement. RR AF
99-100. Further, her estimate was likely depressed by her concern for
minimizing her client’s costs. RR AF 15-20.
While the amount testified to by Mrs. Payne was considerably less
than the fees incurred by Plaintiffs and BMA, this case pertained to far
more than a simple express easement. While Plaintiffs quieted title in their
easement by way of summary judgment, they also secured a declaration
from the trial court that Defendants’ DWW was invalid. CR 44-49.
Crucially, this declaration was meant to protect Plaintiffs’ property on the
disputed tract, which Defendants threatened to destroy based on their
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claim to own the disputed tract. RR TI 40-53, RR Exhibits PX1. Mrs.
Payne’s testimony demonstrated a range of reasonable fees for a portion of
the relief pleaded for and obtained by Plaintiffs, but it provided no guidance
with regard to the remainder of the work performed in the case. It does not
overwhelmingly demonstrate that the fee award was unreasonable.
Furthermore, the fee award was equitable and just. Attorney’s fees
are appropriately awarded pursuant to the declaratory judgment act for
both determining a deed’s validity, quiet title, and defending an easement
so long as the lawsuit is not essentially a trespass to try title claim. Tex. Civ.
Prac. & Rem. Code § 37.009; Fairfield Fin. Group, Inc. v. Synnott, 300
S.W.3d 316, 323 (Tex. App.—Austin, 2009, no pet.). When a declaratory
judgment is used to determine a party’s rights under a deed pertaining to a
non-possessory interest in land, an attorney’s fee award is appropriate.
Roberson v. City of Austin, 157 S.W.3d 130, 136-37 (Tex. App.—Austin,
2005, pet. denied) (discussing the effect of Martin v. Amerman, 133 S.W.
3d 262, 264 (Tex. 2004) on cases where title is not at issue and concluding
the Declaratory Judgment Act may be used to interpret how a deed affects
rights to an easement lest part of the act be rendered meaningless); accord
City of China Grove v. Morris, No. 04-10-00763-CV, 2011 Tex. App. LEXIS
9260, *2-10 (Tex. App.—San Antonio, Nov. 23, 2011, pet. denied). Another
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use for declaratory judgment is declaring a deed invalid or void; again,
attorney’s fees are appropriate pursuant to § 37.009. Korenek v. Korenek,
No. 13-07-00111-CV, 2008 Tex. App. LEXIS 5652, *14, 2008 WL 2894906
(Tex. App.—Corpus Christi, July 29, 2008, no pet.) (mem. op.); Wilhoite,
401 S.W.3d at 759-60 (noting that a suit for cancellation of a deed, in the
absence of a conveyance, was not equivalent to trespass to try title).
Plaintiffs have not asked for, nor has there been an award of, title to the
disputed tract; this case does not sound in trespass to try title. The award
of attorney’s fees was justified under § 37.009.
The trial court considered Plaintiffs’ and BMA’s discussion of their
arduous path to judgment in this case. Indeed, the record of this case
stands as a testament to the complexity of the arguments raised by the
parties and the tenacity of Defendants. The trial court properly considered
the record and found that the fee award was reasonable and necessary; the
law makes it clear that the award was equitable and just.
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Prayer
Plaintiffs request that this Court affirm the judgment of the trial court
in all respects, and award Plaintiffs their attorney’s fees and court costs.
Plaintiffs further request any other relief to which they have shown
themselves justly entitled.
Respectfully submitted,
// Stephan B. Rogers
Texas Bar No. 17186350
Kelly P. Rogers
Texas Bar No. 00788232
Ross S. Elliott
Texas Bar No. 24080685
ROGERS & MOORE PLLC
309 Water St., Suite 201
Boerne, TX 78006
(830) 816-5487
Fax: (866) 786-4777
steve@rogersmoorelaw.com
kelly@rogersmoorelaw.com
ross@rogersmoorelaw.com
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Certificate of Compliance
I certify, pursuant to TRAP 9.4 that the number of words used in this
document, not including the contents excluded by Rule 9.4(i)(1), according
to the word count of the computer program used to prepare the document,
is 11,723.
// Kelly P. Rogers
Certificate of Service
I certify that a copy of this brief was served on the following persons
pursuant to the Texas Rules of Appellate Procedure on July 15, 2015.
Dan Pozza
Law Office of Dan Pozza
239 E. Commerce Street
San Antonio, TX 78205
(210) 226-8888 – Phone
(210) 224-6373 – Fax
danpozza@yahoo.com
Edward Hecker
GOSTOMSKI & HECKER
607 Urban Loop
San Antonio, Texas 78204
ed@ghlawyers.net
// Kelly P. Rogers
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Appendix A