Patsy Whitehead v. Gavin MacKenzie and Patricia MacKenzie ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00383-CV
PATSY WHITEHEAD APPELLANT
V.
GAVIN MACKENZIE AND APPELLEES
PATRICIA MACKENZIE
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FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
This appeal arises from a dispute between appellant Patsy Whitehead and
appellees Gavin and Patricia Mackenzie over the Mackenzies’ authority to use a
strip of land on Whitehead’s property to access their own adjacent property. In
two issues, Whitehead contends that the trial court erred by denying her motion
for summary judgment and by granting the Mackenzies’ motion for summary
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See Tex. R. App. P. 47.4.
judgment, finding that an easement for ingress and egress exists on Whitehead’s
property to access the Mackenzies’ property. We will affirm.
II. BACKGROUND
The Mackenzies are the owners of an approximate thirty-acre tract of land
located within Mansfield, Tarrant County, Texas. Since the purchase of their
property in 1998, the Mackenzies have accessed their property via an existing
paved roadway which travels west across the southern portion of Whitehead’s
property and terminates at the eastern edge of the Mackenzies’ property. No
one has particular recollection as to exactly when the roadway came into
existence, but it is known that the roadway has existed in excess of fifty years.
By one neighbor’s account, the roadway was gravel until the 1960s but was later
paved. After it was paved, neighbors aver that the City of Mansfield maintained
the roadway, even repairing potholes.
Aside from being utilized by the Mackenzies, it was also the main path of
ingress and egress by the Mackenzies’ predecessors in title. Additionally, public
servants of various kinds have used the roadway over the years, beginning in at
least the 1950s, when Tarrant County used the road to obtain gravel from a pit
previously located on what is now the Mackenzies’ property, and continuing until
approximately 2000, when the City of Mansfield employees ceased using the
road for maintenance purposes. According to neighbors and a previous owner,
the Mackenzies’ property was a dairy farm in the 1950s and milk trucks regularly
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accessed the Mackenzies’ property, using the disputed roadway for ingress and
egress to the farm and a neighboring dairy farm.
The Mackenzies maintain that this roadway has been the exclusive means
of ingress and egress to their property since the purchase of their property in
1998. In June 2006, Whitehead began constructing a fence along the southern
portion of her property line. Believing that this was an attempt by Whitehead to
prevent further use of the roadway, the Mackenzies filed this suit.
In their complaint, the Mackenzies sought injunctive relief to prevent
Whitehead from continuing construction of the fence, and they also sought
declaratory relief. The trial court granted a temporary restraining order,
preventing further construction. Whitehead filed a countersuit. In her
countersuit, Whitehead made claims for trespass to try title and abuse of
process. The Mackenzies filed their motion for summary judgment, contending
that no genuine issues of material fact exist that the Mackenzies, by prescriptive
easement, enjoy the right to use the roadway. Alternatively, the Mackenzies
argued that they have the right to use the roadway because it is a public roadway
by way of an implied dedication.
Whitehead countered with her own no-evidence and traditional motions for
summary judgment. Whitehead contended that the Mackenzies failed to provide
any evidence that they have a right to use the roadway through either
prescriptive easement or dedication to the public and that the Mackenzies had
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abused process as a matter of law. The trial court denied Whitehead’s motion
and granted the Mackenzies’ motion. This appeal followed.
III. DISCUSSION
In two issues, Whitehead contends that the trial court erred by denying her
motion for summary judgment and by granting the Mackenzies’ motion for
summary judgment.
A. Standard of Review
In a summary judgment case, the issue on appeal is whether the movant
met the summary judgment burden by establishing that no genuine issue of
material fact exists and that the movant is entitled to judgment as a matter of law.
Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo.
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
We take as true all evidence favorable to the nonmovant, and we indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor.
20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We consider the
evidence presented in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could and disregarding
evidence contrary to the nonmovant unless reasonable jurors could not. Mann
Frankfort, 289 S.W.3d at 848. We must consider whether reasonable and fair-
minded jurors could differ in their conclusions in light of all of the evidence
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presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.
2006); City of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005).
When a trial court’s order granting summary judgment does not specify the
ground or grounds relied on for its ruling, summary judgment will be affirmed on
appeal if any of the theories presented to the trial court and preserved for
appellate review are meritorious. Knott, 128 S.W.3d at 216; Star-Telegram, Inc.
v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
When both parties move for summary judgment and the trial court grants
one motion and denies the other, the reviewing court should review both parties’
summary judgment evidence and determine all questions presented. Mann
Frankfort, 289 S.W.3d at 848; see Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n,
300 S.W.3d 746, 753 (Tex. 2009). The reviewing court should render the
judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d
at 848.
B. Implied Dedication
In her first issue and in parts of her second issue, Whitehead argues that
genuine issues of material fact exist with regard to whether the roadway in
question is an easement by implied dedication. Common law dedication can
either be express or implied. Gutierrez v. Cnty. of Zapata, 951 S.W.2d 831, 837
(Tex. App.—San Antonio 1997, no writ). Both parties agree that this case does
not involve an express dedication; thus, the question presented is whether the
summary judgment evidence conclusively established an implied dedication of
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the roadway to the public. Specifically, Whitehead argues that there are fact
questions regarding donative intent and no evidence of public usage of the
roadway.
Whether a road has been dedicated to public use is generally a question of
fact. Broussard v. Jablecki, 792 S.W.2d 535, 537 (Tex. App.—Houston [1st Dist.]
1990, no writ). Implied dedication requires both a clear and unequivocal intention
on the part of the landowner to appropriate the land to public use and an
acceptance by the public. Gutierrez, 951 S.W.2d at 838. Because an implied
dedication results in ―the appropriation of private property for public use without
any compensation to the landowner,‖ the Mackenzies bear a heavy burden to
establish an implied dedication. Cnty. of Real v. Hafley, 873 S.W.2d 725, 728
(Tex. App.—San Antonio 1994, writ denied).
The elements of an implied dedication are: (1) the landowner induced the
belief that the landowner intended to dedicate the road to public use; (2) the
landowner was competent to do so; (3) the public relied on the landowner’s
actions and will be served by the dedication; and (4) there was an offer and
acceptance. Las Vegas Pecan & Cattle Co. v. Zavala Cnty., 682 S.W.2d 254,
256 (Tex. 1984); Stein v. Killough, 53 S.W.3d 36, 42 n.2 (Tex. App.—San
Antonio 2001, no pet.). Generally, an owner’s donative intent may not be implied
from evidence showing only that the public used the land without objection from
the landowner. Fazzino v. Guido, 836 S.W.2d 271, 274 (Tex. App.—Houston
[1st Dist.] 1992, writ denied). But ―evidence of long and continued use by the
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public raises a presumption of dedication by the owner when the origin of the
public use and the ownership of the land at the time it originated cannot be
shown, one way or the other, due to the lapse of time.‖ Id.; see also O'Connor v.
Gragg, 161 Tex. 273, 279, 339 S.W.2d 878, 882 (1960).
1. Presumption of Dedication
For the presumption of dedication to apply, the origin of the public use and
the ownership at that time must be ―shrouded in obscurity, and no proof can be
adduced showing the intention of the owner in allowing the use.‖ Fazzino, 836
S.W.2d at 274 (quoting Dunn v. Deussen, 268 S.W.2d 266, 269 (Tex. Civ.
App.—Fort Worth 1954, writ ref'd n.r.e.)); O'Connor, 339 S.W.2d at 882. The
O'Connor Court explained that we analyze whether the open and known acts
―are of such a character as to induce the belief that the owner intended to
dedicate the way to public use, and the public and individuals act upon such
conduct, proceed as if there had been in fact a dedication, and acquire rights
which would be lost if the owner were allowed to reclaim the land, [if so,] then the
law will not permit him to assert that there was no intent to dedicate.‖ O'Connor,
339 S.W.2d at 882–83 (internal quotations omitted).
Thus, we must determine whether the Mackenzies conclusively proved
that the origin of the roadway in question was ―shrouded in obscurity‖ and that
from that time, it was subject to long and continuous use by the public.
Surrounding neighbors testified that the roadway was used by the public
as far back as they could remember, that it was originally paved in the 1960s,
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and that it was later maintained by the City of Mansfield. Multiple witnesses
testified that for as long as they could remember, the roadway was the only
means of access to the Mackenzies’ property. Yet no witness could precisely
recall the exact point in time when the roadway came into existence or the owner
of the property at such time. But long and continued use by the public is evident.
Witness testimony states that milk trucks regularly used the roadway to collect
milk from dairy farms operated on adjacent property and on the Mackenzies’
property by the Mackenzies’ predecessors in title beginning at least in the mid-
1950s. Tarrant County roadway maintenance vehicles utilized the roadway to
collect gravel from a gravel pit located on the Mackenzies’ property and also put
the same gravel on the roadway during the same period of time. In short, a
number of witnesses indicate that this roadway has been in existence for a long
time. Additionally, a four-foot fence separates the roadway from the remainder of
Whitehead’s property. The totality of this evidence merits application of the
presumption of donative intent. See Hatton v. Grigar, 66 S.W.3d 545, 555–57
(Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding similar evidence legally
sufficient to support implied dedication).
While a presumption does not result in shifting the burden of proof, it does
shift the burden of producing or going forward with the evidence to the party
against whom it operates. Gen. Motors Corp. v. Saenz, 873 S.W.2d 353, 359
(Tex. 1993). In the context of a summary judgment, this principle required
Whitehead, as the nonmovant, to produce evidence creating a genuine issue of
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material fact to challenge this element. Bush v. Fayette Cnty., No. 03-05-00274-
CV, 2006 WL 952413, at *3 (Tex. App.—Austin, Apr. 13, 2006, no. pet.). But
Whitehead failed to produce any evidence regarding the element of intent or the
applicability of the presumption of intention to dedicate the area to the public.
Therefore, because the Mackenzies established through their proof that the
presumption applies and Whitehead did not offer evidence to the contrary, we
hold that the Mackenzies satisfied this element of implied dedication.
2. Public Use
Next, Whitehead complains that there is no evidence that the public relied
on the dedication or that the dedication served a public purpose. Specifically,
Whitehead contends that only the Mackenzies and the Whiteheads now use the
roadway. But, as discussed above, there was ample testimony from witnesses
who had either used the road or seen the road used by the public since the
1950s. Evidence of long, continued, unquestioned use of a road supports a
finding that the public relied on an implied dedication of that road. Supak v.
Zboril, 56 S.W.3d 785, 791 (Tex. App.—Houston [14th Dist.] 2001, no pet.)
(holding that public use element of implied dedication was met when evidence
demonstrated public had used roadway for more than fifty years and roadway
had been separated from adjoining property by fences); Graff v. Whittle, 947
S.W.2d 629, 638–39 (Tex. App.—Texarkana 1997, writ denied) (holding public
use element met when multiple witnesses testified to long, continued use of
roadway). Furthermore, Whitehead’s complaint that the public allegedly no
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longer uses the roadway is not evidence that it is not a public road. Baker v.
Peace, 172 S.W.3d 82, 90 (Tex. App.—El Paso 2005, pet. denied) (―A public
road does not depend upon its length or upon the places to which it leads, nor
upon the number of persons who actually travel upon it. In fact, proof that a road
is only slightly traveled by the public is not proof that a road is not a public road.‖)
(citations omitted). We conclude that the Mackenzies established public use of
the roadway.
We therefore hold that the trial court did not err by granting the
Mackenzies’ summary judgment motion predicated on the theory that the
roadway had been impliedly dedicated to the public. See Owens v. Hockett, 151
Tex. 503, 506–07, 251 S.W.2d 957, 959 (Tex. 1952) (implied dedication where
evidence showed roadway was segregated from land by fencing, landowner and
others knew of county maintenance, and public used the road prior to the
landowner obstructing the road). We overrule Whitehead’s first issue and these
portions of her second issue. Furthermore, because we hold that the trial court
properly granted the Mackenzies’ motion for summary judgment, we overrule the
portion of Whitehead’s second issue predicated on her trespass to try title claim.
C. Abuse of Process
In the remainder of her second issue, Whitehead argues that the trial court
erred by not granting her motion for summary judgment because, according to
Whitehead, the Mackenzies as a matter of law had abused process.
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Abuse of process is the malicious use or misapplication of process in order
to accomplish an ulterior purpose. Hunt v. Baldwin, 68 S.W.3d 117, 129 (Tex.
App.—Houston [14th Dist.] 2001, no pet.); Detenbeck v. Koester, 886 S.W.2d
477, 480 (Tex. App.—Houston [1st Dist.] 1994, no writ). To prove a claim for
abuse of process, Whitehead needed to show that (1) the Mackenzies made an
illegal, improper or perverted use of the process, a use neither warranted nor
authorized by the process; (2) the Mackenzies had an ulterior motive or purpose
in exercising such illegal, perverted, or improper use of the process; and
(3) damage occurred as a result of such illegal act. See Hunt, 68 S.W.3d at 129.
Texas law recognizes a cause of action for abuse of process where the original
process has been used to accomplish an end other than that which it was
designed to accomplish. Id. at 130. In other words, the original issuance of the
legal process was justified, but the process itself was subsequently used for a
purpose for which it was not intended. See id. When the process is used for the
purpose for which it is intended, even though accompanied by an ulterior motive,
no abuse of process occurs. Baubles & Beads v. Louis Vuitton, S.A., 766
S.W.2d 377, 378–79 (Tex. App.—Texarkana 1989, no writ).
Here, the Mackenzies used the process for the purpose for which it was
intended; namely, the trial court initially granting injunctive relief and ultimately
granting judgment in favor of the Mackenzies that they had the right to use the
roadway. Thus, the trial court did not err by denying Whitehead’s summary
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judgment motion based on her abuse of process claim. We overrule the
remainder of Whitehead’s second issue.
IV. CONCLUSION
Having overruled both of Whitehead’s issues, we affirm the trial court’s
order.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
DELIVERED: July 14, 2011
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