Joel A. Kolb and Tracey A. Kolb v. Edward C. Scarbrough, Individually and as Trustee for ECS Trust, ECS Trust and Cheryl Scarbrough

Opinion issued March 26, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00671-CV
———————————
JOEL A. KOLB AND TRACEY A. KOLB, Appellants
V.
EDWARD C. SCARBROUGH, INDIVIDUALLY AND AS TRUSTEE FOR
ECS TRUST, ECS TRUST AND CHERYL SCARBROUGH, Appellees
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Case No. 13-DCV-205374
MEMORANDUM OPINION
The Kolbs sued their neighbors, the Scarbroughs, alleging that the
Scarbroughs’ underground drainage system and other property improvements
caused excessive erosion on their lower-elevation lot. The Kolbs’ petition included
claims for negligence, gross negligence, violations of the Water Code, nuisance,
and trespass. In addition to monetary damages, the Kolbs sought a permanent
injunction requiring the Scarbroughs to “implement a plan to alter the grade” of
their property “to avoid future flooding.”
The Scarbroughs moved for summary judgment on all claims. They
contended that the previous owners of the Kolb property gave them permission to
install the drainage system before the property was sold to the Kolbs, thereby
creating an easement by estoppel to which the Kolbs continued to be bound. They
also asserted that the Kolbs had no evidence of causation or damages.
The trial court granted the Scarbroughs’ summary-judgment motion without
specifying the grounds for the ruling and entered a final judgment dismissing all
claims against the Scarbroughs.
In two issues, the Kolbs contend that the trial court erred by (1) granting
summary judgment to the Scarbroughs on the trespass claim because discrepancies
between the affidavit and earlier deposition testimony of David Easterling, who
sold his property to the Kolbs, created a fact issue and (2) granting final judgment
against them on their remaining claims because the Scarbroughs’ summary-
judgment motion did not address those claims.
We affirm.
2
Background
The Scarbroughs purchased their residential lot in 2001, began building a
home in 2005, and moved into the home in 2009. Their neighbors, the Easterlings,
owned the lot next door, which was at a lower elevation. In 2011, the Easterlings
sold their lot to the Kolbs.
The entire neighborhood is situated on naturally sloping terrain, and rain-
water runoff is an issue. The rain water naturally flows from higher lots, through
the Scarbrough lot, to the Kolb lot, and down into a natural ravine within the
Kolbs’ property. The Kolb lot is within a designated 100-year flood zone. When
the Kolbs bought it, though, the area was experiencing a “drought.”
David Easterling testified that the ravine appeared as through it had been
there for many years. Tree roots near the edge of the ravine were exposed and had
grown bark, indicating that the soil had been washed away a long time ago.
Easterling also testified that the Easterling/Kolb lot had a low spot that would hold
water after each rain. The “bog,” which was approximately 10 feet in diameter,
became a breeding ground for mosquitoes.
Ed Scarbrough installed various drainage inlets and pipes on his property to
address water runoff and erosion. Some pipes drained towards a river behind his
house; others drained in the opposite direction towards the ravine on the Kolb
property. Ed testified that he had concerns about the bog next door and persistent
3
mosquito problem. He also was concerned that the ravine on the Easterling/Kolb
lot was steadily expanding towards his property line and would, eventually,
encroach on his land. Due to these concerns, in 2011, Scarbrough approached
Easterling and offered to install a drainage system on the Easterling lot, at the
Scarbroughs’ expense, if Easterling agreed. Easterling told Scarbrough that he
“could do whatever he wanted on my property to make the drainage improvements
that he envisioned making, as long as he was paying for the cost.” These
conversations occurred shortly before the Easterlings sold their property to the
Kolbs.
When the Kolbs were doing a pre-sale “walk-through” of the property, they
saw Ed Scarbrough using wooden forms and concrete to construct a bulkhead at
the ravine. Joel Kolb testified that, on that day, he also saw two underground pipes
draining into the ravine. Kolb admitted that Ed told him he was doing the work on
the Easterling—soon to be Kolb—land to address drainage issues and erosion. The
Kolbs did not object to the work.
After the Kolbs moved in, their initially friendly relationship with the
Scarbroughs deteriorated. The property line between their lots was within a gas-
pipeline easement, and, due to easement restrictions, was not marked by a fence.
Disputes arose concerning the exact location of the property line. The Kolbs
believed that the Scarbroughs were physically entering their property without
4
permission and adding landscaping on the Kolbs’ side of the property line.
Additionally, the Kolbs began to question whether the underground drainage pipes
the Scarbroughs installed were harming their property.
There were two drainage pipes that were of particular concern. One began
and ended within the Kolbs’ property—it drained the standing water from the bog
to the ravine. The other pipe was connected to the Scarbroughs’ underground
irrigation system, ran across the property line between the two lots, and emptied
into the ravine near the bulkhead the Kolbs saw Scarbrough building.
Eventually—though without discussing the issue with the Scarbroughs—
Tracey Kolb dug up the two pipes, broke them apart, and filled them with concrete.
For a short time afterwards, Scarbrough brought his drainage system up to the
surface and added an exit point to the piping about 10 feet on his side of the
property line. That exit point was later capped at the Kolbs’ insistence. Once the
two pipes were plugged or capped, the water runoff returned to the surface-level
and again flowed across the Scarbrough property, down to the Kolb property, and
into the Kolbs’ ravine. The bulkhead remained.
After the Kolbs disabled the two underground drainage pipes, they sued the
Easterlings and Scarbroughs, asserting that the Scarbroughs’ diversion of water
caused damage to their property, including flooding and excessive erosion. David
Easterling was deposed. The Easterlings were later nonsuited. Several months after
5
that, the Scarbroughs filed a motion for summary judgment, combining no-
evidence and traditional summary-judgment challenges in the same motion. They
included within their summary-judgment evidence an affidavit from David
Easterling stating that he gave the Scarbroughs permission to install the
underground drainage system. The trial court granted the Scarbroughs’ summary-
judgment motion without specifying the basis for its ruling.
The Kolbs timely appealed.
Standard of Review
The standard for reviewing a summary judgment is de novo. Provident Life
& Accident Ins. Co .v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); see TEX. R. CIV. P.
166a. “The movant for summary judgment has the burden of showing that there is
no genuine issue of material fact and it is entitled to judgment as a matter of law.”
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). “In deciding
whether there is a disputed material fact issue precluding summary judgment,
evidence favorable to the non-movant will be taken as true.” Id. at 548–49. “Every
reasonable inference must be indulged in favor of the non-movant and any doubts
resolved in its favor.” Id. at 549.
When a defendant moves for summary judgment, he must either disprove at
least one essential element of the plaintiff’s cause of action or plead and
conclusively establish each essential element of his affirmative defense. Cathey v.
6
Booth, 900 S.W.2d 339, 341 (Tex. 1995); Centeq Realty, Inc. v. Siegler, 899
S.W.2d 195, 197 (Tex. 1995). If a defendant conclusively establishes his
affirmative defense, the burden shifts to the nonmovant to raise a genuine issue of
material fact to defeat summary judgment. Centeq Realty, 899 S.W.2d at 197;
Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.—Houston [1st
Dist.] 2014, no pet.); see Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425
(Tex. 1997).
The evidence raises a genuine issue of fact if reasonable and fair-minded
jurors could differ in their conclusions in light of all of the summary-judgment
evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.
2007) (per curiam); Lujan, 433 S.W.3d at 704. To determine if the nonmovant has
raised a fact issue, we review the evidence in the light most favorable to the
nonmovant, crediting favorable evidence if reasonable jurors could do so, and
disregarding contrary evidence unless reasonable jurors could not. See City of
Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor. Sw. Elec. Power Co. v.
Grant, 73 S.W.3d 211, 215 (Tex. 2002).
Normally, when a party includes both traditional and no-evidence points in
his summary-judgment motion, we review the no-evidence points first. Ford Motor
Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Brookshire Katy Drainage
7
Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 307 (Tex. App.—Houston [1st Dist.]
2010, pet. denied); see TEX. R. CIV. P. 166a(i). If no-evidence summary judgment
was properly granted, we do not reach the traditional summary-judgment
arguments. Brookshire Katy Drainage Dist., 333 S.W.3d at 307. Thus, in
reviewing whether summary judgment was properly granted to the Scarbroughs,
we start with whether the Kolbs produced more than a scintilla of evidence on each
element of their asserted causes of action.
No-Evidence Summary Judgment
The Kolbs asserted five causes of action against the Scarbroughs:
negligence, gross negligence, violations of the Water Code, nuisance, and trespass.
In their summary-judgment motion, the Scarbroughs argued that the Kolbs “have
no evidence that they have suffered injury[,] as the damage caused by the natural
flow of water was actually stopped by the drainage improvements.” Additionally,
they argue that the Kolbs “have no evidence that increase in the flow of water
allegedly related to the construction of the Scarbrough home . . . caused any
erosion . . . or . . . damages to the Kolbs at all.” Thus, for those causes of action
that require evidence of causation and damages, we must determine whether the
Kolbs presented more than a scintilla of evidence of those two elements.
8
A. Negligence and gross negligence
A negligence cause of action has three elements: (1) a legal duty owed by
one person to another, (2) a breach of that duty, and (3) damages proximately
caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002);
Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 310 (Tex. App.—Houston [1st Dist.]
2007, no pet.).
The Scarbroughs argued in their summary-judgment motion that the Kolbs
presented no evidence of causation or damages. The Kolbs responded by
referencing a report prepared by their retained expert, which stated as follows:
Erosion has taken place in the gully on the owners’ property. This
erosion is likely to have been caused from the concentration of
stormwater runoff from the sub-surface drainage system while it was
functional. In addition, the headwall has caused overland sheetflow to
back up behind it and flow over, producing a waterfall effect. These
factors would contribute to increased runoff within the gully
compared to runoff allowed to flow across the ground surface and
produce serious erosion issues.
According to the Kolbs, “This clearly establishes that Defendants’ conduct in
installing the drainage system and the headwall caused substantial and continued
erosion.”
The Scarbroughs argue that the “unsworn hearsay report” is no evidence and
that the Kolbs failed to provide any other evidence of causation or damages. They
raise this issue for the first time on appeal. We, therefore, must consider whether
the Scarbroughs have waived their argument that the expert report is not competent
9
summary-judgment evidence. See TEX. R. APP. P. 33.1(a); Bushnell v. Dean, 803
S.W.2d 711, 712 (Tex. 1991).
The resolution of this issue depends on whether the alleged defect is one of
form or substance. Form defects must be objected to at the trial court or are waived
on appeal. TEX. R. CIV. P. 166a(f); Seaprints, Inc. v. Cadleway Prop., Inc., 446
S.W.3d 434, 441 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Bastida v.
Aznaran, 444 S.W.3d 98, 104–05 (Tex. App.—Dallas 2014, no pet.). Substantive
defects, however, may be raised for the first time on appeal. Seaprints, 446 S.W.3d
at 441; Bastida, 444 S.W.3d at 105.
“The absence of an affidavit verifying a copy of the instrument attached as
summary judgment proof amounts to no proof.” In re Estate of Guerrero, No. 14–
13–00580–CV, 2014 WL 4377465, at *10 (Tex. App.—Houston [14th Dist.] Sept.
4, 2014, no pet.) (mem. op.). Thus, unverified summary-judgment evidence is a
substantive defect that can be raised for the first time on appeal. Mansions in the
Forest, L.P. v. Montgomery Cnty., 365 S.W.3d 314, 317 (Tex. 2012) (per curiam)
(stating that “an unverified copy of a promissory note offered as summary
judgment evidence, which was complained about for the first time on appeal” will
not support summary judgment); Perkins v. Crittenden, 462 S.W.2d 565, 568 (Tex.
1970) (reversing summary judgment because copy of promissory note included in
summary-judgment evidence was unverified, after holding that complaint
10
regarding substantive defect could be raised for first time on appeal); see Blanche
v. First Nationwide Mtg. Corp., 74 S .W.3d 444, 451 (Tex. App.—Dallas 2002, no
pet.) (stating that “complete absence of authentication is a defect of substance”);
see also Judge David Hittner & Lynne Liberato, Summary Judgments in Texas:
State and Federal Practice, 46 Hous. L. Rev. 1379, 1470 (2010) (“Non-summary
judgment evidence, such as unsworn witness statements, expert’s reports, or
unauthenticated documents . . . is not proper summary judgment evidence and
cannot defeat a no-evidence summary judgment motion.”).
Accordingly, the Kolbs’ failure to attach an affidavit or otherwise
authenticate their expert report is a substantive defect that the Scarbroughs can
raise for the first time on appeal. See Perkins, 462 S.W.2d at 568; Guerrero, 2014
WL 4377465, at *10; accord Mansions, 365 S.W.3d at 317. Because the expert
report is not verified, it is not competent summary-judgment evidence and cannot
defeat the Scarbroughs’ no-evidence motion. Perkins, 462 S.W.2d at 568. The
Kolbs point to no other summary-judgment evidence on causation or damages and,
without any, we conclude that the trial court did not err in granting summary
judgment to the Scarbroughs on the negligence cause of action.
Because there was no evidence to support the negligence claim, the gross
negligence claim also fails. See Garay v. G.R. Birdwell Const., L.P., No. 01-13-
01088-CV, 2014 WL 6680347, at *9 (Tex. App.—Houston [1st Dist.] Nov. 25,
11
2014, no pet.) (mem. op.); Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex.
App.—Houston [14th Dist.] 1994, writ denied).
B. Violations of Texas Water Code section 11.086
Section 11.086, “Overflow Caused by Diversion of Water,” provides:
(a) No person may divert or impound the natural flow of surface
waters in this state, or permit a diversion or impounding by him
to continue, in a manner that damages the property of another
by the overflow of the water diverted or impounded.
(b) A person whose property is injured by an overflow of water
caused by an unlawful diversion or impounding has remedies at
law and in equity and may recover damages occasioned by the
overflow.
TEX. WATER CODE ANN. § 11.086 (West 2013). “The elements of the statutory
cause of action are (1) a diversion or impoundment of surface water which
(2) causes (3) damage to the property of the plaintiff landowner.” Kraft v.
Langford, 565 S.W.2d 223, 229 (Tex. 1978); accord Bily v. Omni Equities, Inc.,
731 S.W.2d 606, 611 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.).
Similar to the negligence claim, the only evidence the Kolbs offered that the
Scarbroughs’ diversion of water caused damage to their property was the
unverified expert report. Because the report is not competent summary-judgment
evidence, we conclude that the trial court did not err in granting summary
judgment to the Scarbroughs on this cause of action.
12
C. Nuisance
“A private nuisance is a nontrespassory invasion of another’s interest in the
private use and enjoyment of land.” Lethu Inc. v. City of Houston, 23 S.W.3d 482,
489 (Tex. App.—Houston [1st Dist.] 2000, pet. denied); Bily, 731 S.W.2d at 611.
Conduct that is “abnormal” and “out of place in the surroundings” will support a
claim of private nuisance; the defendant’s actions need not be negligent. City of
Tyler v. Likes, 962 S.W.2d 489, 504 (Tex. 1997).
“[A] nuisance occurs in one of three ways: by (1) physical harm to property,
such as by the encroachment of a damaging substance or by the property’s
destruction; (2) physical harm to a person [on his] property . . . ; and (3) emotional
harm to a person from the deprivation of the enjoyment of [his] property . . . .”
Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 99 (Tex. App.—
Houston [1st Dist.] 1994, writ denied). The Kolbs alleged only the first variety.
Thus, to survive summary judgment on their claim, they were required to present
more than a scintilla of evidence that the alleged nuisance caused physical harm to
their property. See id.
Like with the other causes of action, the only evidence the Kolbs offered on
causation and damages was the unverified expert report; therefore, the trial court
did not err in granting summary judgment on this claim.
13
D. Trespass
There are three elements to a trespass claim: (1) entry (2) onto the property
of another (3) without the property owner’s consent or authorization. Envt’l.
Processing Sys., L.C. v. FPL Farming Ltd., No. 12-0905, 2015 WL 496336, at *4
(Tex. Feb. 6, 2015) Stated differently, “[e]very unauthorized entry upon land of
another is a trespass even if no damage is done.” Coinmach Corp. v. Aspenwood
Apts. Corp., 417 S.W.3d 909, 920 (Tex. 2013) (quoting Watson v. Brazos Elec.
Power Coop., 918 S.W.2d 639, 645 (Tex. App.—Waco 1996, writ denied));
Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 12 n.36 (Tex.
2008). The lack of damages evidence that resulted in no-evidence summary
judgment on the Kolbs’ other claims does not also defeat the trespass claim.
We overrule the Kolbs’ second issue challenging summary judgment on all
claims other than trespass. We turn next to whether the trial court erred in granting
traditional summary judgment on that claim.
Traditional Summary Judgment
The Scarbroughs contend that they are not liable to the Kolbs for trespass
because they received permission to install the drainage system from the previous
owner, David Easterling. According to the Scarbroughs, the Easterlings’ consent to
the drainage system created an easement by estoppel, and the Kolbs—who
purchased the land from the Easterlings—are bound by the easement.
14
A. Elements of easement by estoppel
Generally, the grant of an easement must be made in writing and cannot be
created by a parol agreement. Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983);
Stallman v. Newman, 9 S.W.3d 243, 247 (Tex. App.—Houston [14th Dist.] 1999,
pet. denied). The equitable doctrine of easement by estoppel is an exception to the
writing requirement. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 209 (Tex.
1962); Horner v. Heather, 397 S.W.3d 321, 325 (Tex. App.—Tyler 2013, no pet.).
“The owner of land, under some circumstances, may be estopped to deny the
existence of an easement by making representations which have been acted upon
by a purchaser to his detriment.” Drye, 364 S.W.2d at 209–10 (noting that doctrine
has been applied when party allows other party to expend money erecting drainage
ditch across his land).
There are three elements to an easement by estoppel: (1) the owner of the
servient estate (here, the Easterling/Kolb property) communicated a representation,
either by words or conduct, to the promisee (here, Scarbrough); (2) the promisee
believed the communication; and (3) the promisee relied on the communication.
See Storms v. Tuck, 579 S.W.2d 447, 452 (Tex. 1979); Mitchell v. Garza, 255
S.W.3d 118, 122 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).
An easement by estoppel may be imposed against a subsequent purchaser for
value if the subsequent purchaser had notice—actual or constructive—of the
15
easement claimed, Mitchell, 255 S.W.3d at 122–23, or if reliance upon the
existence of the easement continued after the sale. Whaley v. Cent. Church of
Christ of Pearland, No. 01-02-01354-CV, 2004 WL 1405701, at *4 (Tex. App.—
Houston [1st Dist.] June 24, 2004, no pet.) (mem. op.). The grant of an easement
by estoppel “depend[s] on the unique facts of each case.” Holden v. Weidenfeller,
929 S.W.2d 124, 131 (Tex. App.—San Antonio 1996, writ denied); see Mack v.
Landry, 22 S.W.3d 524, 528 (Tex. App.—Houston [14th Dist.] 2000, no pet.);
Drye, 364 S.W.2d at 209.
B. Scarbroughs’ evidence that an easement by estoppel was created
In support of their assertion that Easterling gave them permission to
construct the drainage system, the Scarbroughs included in their summary-
judgment evidence Easterling’s affidavit. He averred as follows:
I specifically gave permission for Ed Scarbrough . . . . to install any
drainage pipes or drainage inlets on the Scarbrough property that
would then cross over onto my property and discharge water into the
ravine. In short, Ed Scarbrough had my full and explicit permission to
construct all of the drainage improvements that he built on both his
property and my property and he had my explicit permission that he
could direct water into the ravine from his property or my property in
whatever fashion he designed . . . .
C. The Kolbs’ challenges to Easterlings’ affidavit
The Kolbs contend that Easterling is an interested witness and, therefore, his
affidavit cannot support summary judgment unless “(1) it is uncontroverted; (2) it
is clear, positive, and direct; (3) it is otherwise credible and free from
16
contradictions and inconsistencies; and (4) it could have been readily
controverted.” RRR Farms, Ltd. v. Am. Horse Prot. Ass’n, Inc., 957 S.W.2d 121,
132 (Tex. App.—Houston [14th Dist.] 1997, pet. denied), modified on other
grounds, Baty v. ProTech Ins. Agency, 63 S.W.3d 841 (Tex. App.—Houston [14th
Dist.] 2001, pet. denied) (setting forth requirements for affidavit from interested
witness to support summary judgment). According to the Kolbs, the affidavit fails
on all accounts.
1. Whether Easterlings’ affidavit is free from contradictions
The Kolbs’ first challenge is that Easterling’s affidavit contradicts his earlier
deposition testimony. Specifically, they contend that the following portion of his
deposition demonstrates that he could not have given the “explicit permission” his
affidavit discusses:
Q: Do you know whether the black pipe or the white pipe
connected to Ed’s property?
A: No. All I know is: The one that was right there where the
pooling was—and that was the French drain, we’ll call it, I
guess—that’s the only one I remember seeing.
....
Q: You didn’t see any that ran to his property?
A: I didn’t notice any. I mean, all I saw was just the one that he
had dug there. I didn’t know if there were any other going there.
The only one I remember seeing is just that one channel going
from the drain over to the bulkhead.
17
According to the Kolbs, if Easterling did not realize that one of the pipes drained
from the Scarbrough property, it is impossible that Easterling gave Scarbrough
“explicit permission” to drain water onto his land.
While we agree that the affidavit deals more directly and in greater detail
with Easterling’s knowledge about the drainage pipes than his earlier deposition
testimony, we do not agree that the two are inconsistent. Nothing in Easterling’s
deposition states that he did not authorize drainage from the Scarbroughs’
property. In fact, it indicates the opposite. Easterling explained that, due to the
slope of the terrain, rain runoff was flowing from higher lots, including the
Scarbroughs’ lot, onto his own. Ed Scarbrough’s drainage project took the existing
surface-level runoff, moved it underground, and released it into the naturally
created ravine, in a manner that both the Scarbroughs and Easterlings described as
an improvement to the previous, more erosive process.
In his deposition, Easterling acknowledged that he knew there were two
pipes and only one of the two drained from his low spot. He knew the pipes were
pulling rain water underground so that it would not cross the surface of his lot on
its way to the ravine. That he could not describe in his deposition exactly where the
pipes were positioned is not inconsistent with him giving Scarbrough express
permission to lay pipes. He told Scarbrough that he had permission to do what he
felt was necessary to address the surface-level runoff, bring it underground, and
18
minimize erosion. He left the details of the project to Scarbrough, but he expressly
authorized the work.
We conclude that the affidavit and deposition testimony are not inconsistent
and, therefore, overrule this challenge to the summary-judgment evidence.
Next, we address the Kolbs’ contention that Easterling is an interested
witness.
2. Whether Easterling is an interested witness
The Kolbs’ original petition named the Scarbroughs and the Easterlings as
defendants. David Easterling was deposed in September 2013. The Kolbs
nonsuited their claims against the Easterlings one month later. The affidavit from
Easterling that was attached to the Scarbroughs’ summary-judgment motion was
executed nine months after Easterling was nonsuited.
At the time he executed his affidavit, Easterling no longer had an interest in
the outcome of the litigation. See Nicholson v. Smith, 986 S.W.2d 54, 59 (Tex.
App.—San Antonio 1999, no pet.) (holding that deponent was not interested
witness “because he did not have a stake in the litigation or a material interest in its
outcome.”); see also Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 877 (Tex.
App.—Dallas 1990, no writ). He also no longer had an interest in the property
underlying the claims. Cf. Hayes v. E.T.S. Enter. Inc., 809 S.W.2d 652, 656 (Tex.
App.—Amarillo 1991, writ denied) (stating that individual who has stake in other
19
litigation involving subject matter of lawsuit in question qualified as interested
witness). Accordingly, Easterling does not qualify as an interested witness.
The Kolbs respond that Easterling should be considered an interested
witness, nonetheless, because the Scarbroughs previously helped him get a job at
AFLAC—where both of the Scarbroughs worked—which, the Kolbs allege, made
Easterling “beholden” to the Scarbroughs.
The record contains deposition testimony from the Scarbroughs and David
Easterling to the effect that they were friendly neighbors. According to Cheryl
Scarbrough, Easterling was unemployed for a time and was having difficulty
finding new employment. To assist him with his financial situation, she mentioned
that AFLAC was looking for salespeople. In February 2010—before the drainage
pipes were installed and three years before this litigation—Easterling took the
Scarbroughs’ advice and pursued a position at AFLAC. He stayed with the
company until 2012. By the time the Kolbs sued him in 2013, he had left AFLAC
and had been working at Home Depot for over a year.
The Kolbs cite no authority for the proposition that a friendly gesture to aid
a neighbor looking for employment causes one neighbor to be “beholden” to the
other such that he may be considered an “interested witness” in his neighbor’s
litigation. In our view, it does not.
Accordingly, we overrule this challenge to David Easterling’s affidavit.
20
D. Whether the evidence established reliance
The Kolbs’ next challenge whether the summary-judgment evidence
established the element of reliance to create an easement by estoppel. The Kolbs
argue that Scarbrough could prove reliance only through evidence that he paid
consideration to the Easterlings for the use of their land or that he incurred
expenses creating the drainage system. They contend there is no evidence of either.
We disagree.
The record contains evidence that Scarbrough relied on Easterling’s consent
to the use of his land for drainage. Ed Scarbrough testified that he approached the
Easterlings about the possibility of adding a drainage system on their property and
had several conversations with them before reaching an agreement. David
Easterling specifically agreed to allow Scarbrough to build the concrete headwall
and install underground pipes on his land, but his consent was conditioned on
Scarbrough agreeing to pay for the project and do the work himself.
Scarbrough testified that he bought pipe as needed for specific projects. He
stated that he did not buy the pipe he used for this project until after Easterling
agreed to allow the drainage system. Further, Scarbrough, along with a paid helper,
performed the manual labor to pour the concrete forms, dig the ditches, and lay the
pipe.
21
For his part, Easterling averred that Scarbrough was a “good neighbor” who
expended his own money “to buy the materials and to install the concrete headwall
and drainage pipes” and “paid for the labor of a helper that aided him in the
installation.” Easterling stated his belief that “Scarbrough would not have spent the
time and money to construct these drainage improvements if he did not have
[Easterling’s] explicit permission to enter my property to install” them. Easterling
added that he “was pleased with the results.”
Scarbrough presented evidence that he expended funds and performed
manual labor in reliance on Easterling’s representation. See LaTaste Enter. v. City
of Addison, 115 S.W.3d 730, 736–37 (Tex. App.—Dallas 2003, pet. denied)
(noting that reliance can be shown by expending funds to improve the dominant
estate). We conclude that the Scarbroughs established that they relied on David
Easterling’s communication in constructing the drainage system on the
Easterling/Kolb land. Evidence that Scarbrough paid consideration was not
required.
E. Whether grant of use of land can be clear and specific enough to create
an easement by estoppel as matter of law
The Kolbs’ final challenge concerns whether a landowner’s permission can
be specific and certain enough to support judgment as a matter of law on the
creation of an easement by estoppel. The Kolbs suggest that the imposition of an
easement by estoppel necessarily requires a trial and cannot be resolved by a
22
summary disposition. However, none of the cases cited by the Kolbs suggest that
an easement by estoppel cannot be granted as a matter of law. Instead, to the extent
those courts denied judgment as a matter of law, it was because, under the facts of
each particular case, the opposing party successfully raised a fact issue. See, e.g.,
McClung v. Ayers, 352 S.W.3d 723, 731 (Tex. App.—Texarkana 2011, no pet.)
(holding that conflicting evidence prevented judgment as matter of law on
easement by estoppel). It does not follow that every subsequent case must also
contain a fact issue to prevent judgment as a matter of law.
We overrule this challenge to the trial court’s order granting summary
judgment.
Having reject each of the Kolbs’ challenges, we overrule their first issue.
Conclusion
We affirm the judgment of the trial court.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
23