Marcelo Galvan Jr. and Analicia R. Galvan v. Cledson MacEdo De Carvalho, Kristina Carvalho and Jagaland Co., LLC

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00747-CV
Marcelo GALVAN, Jr. and Analicia R. Galvan,
Appellants
v.
Cledson Macedo de CARVALHO, Kristina Carvalho and Jagaland Co., LLC,
Appellees
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2018CVH001835-D1
Honorable Jose A. Lopez, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: February 19, 2020
AFFIRMED
Marcelo Galvan, Jr. and Analicia R. Galvan appeal two summary judgment orders and a
severance order. With regard to the severance order, the Galvans contend the trial court erred in
granting the motion to sever filed by Cledson Macedo de Carvalho, Kristina Carvalho, and
Jagaland Co., LLC because “[t]he severed claim could not stand on its own and is inextricably
interwoven with the remaining issues in the” original cause. With regard to the summary judgment
orders, the Galvans contend the trial court erred in granting the summary judgments declaring they
do not have fee simple title to a 1.859 acre access road commonly referred to as Alta Mira Drive
04-18-00747-CV
and that the road was impliedly dedicated to the public for permanent public use. We affirm the
trial court’s orders.
BACKGROUND
In 2016, the Carvalhos sued Jagaland asserting various claims relating to their purchase of
a tract of unimproved real property in 2014. The lawsuit alleged the Carvalhos attempted to sell
the property to a third party; however, the title company “was unable to issue a title policy, based
upon claims by Galvan of a third-party ownership interest in the only roadway connecting the
Subject Property to a public road.” The roadway referred to in the petition is the 1.859 acre access
road commonly referred to as Alta Mira Drive (the “Road”). Jagaland filed a third party claim
against the Galvans.
In 2017, Jagaland filed a motion for partial summary judgment asserting the Road was
created by a Grant of Easement executed by the then owners of the Road on March 8, 1979, which
created a perpetual easement and right-of-way across the 1.859 acre tract of land for purposes of
ingress and egress. The Grant of Easement was attached to the motion as an exhibit. Although
Jagaland’s motion acknowledged the Galvans have the right to use the Road based on the perpetual
easement, the motion asserted the Grant of Easement did not give the Galvans any ownership
interest in the Road. With regard to the Galvans’ claimed ownership of the Road by chain of title
based on a 1996 sheriff’s deed resulting from an ad valorem tax foreclosure against Roger Gilpin,
the motion alleged Gilpin did not have any ownership interest in the Road; therefore, the sheriff’s
deed was void. The Carvalhos filed a motion adopting Jagaland’s motion. After a hearing, the
trial court granted Jagaland’s motion and entered an order declaring the Galvans “do not have fee
simple title in and to the subject 1.859 acre roadway and do not possess any type of ownership
interest whatsoever in and to the subject 1.859 acre roadway.” The order further declared,
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however, that the Galvans “have a perpetual easement and right-of-way for the purpose of ingress
and egress across the subject 1.859 acre tract.”
In 2018, Jagaland filed a second motion for partial summary judgment alleging the owners
of the Road expressly and impliedly dedicated the Road for public use. Attached to Jagaland’s
motion were various recorded plats dedicating portions of the Road to public use and later adding
to the Road by increasing the right-of-way on one or both sides of the Road. The Carvalhos filed
a motion adopting Jagaland’s motion. After a hearing, the trial court granted Jagaland’s motion
and declared the Road was impliedly dedicated to the public for permanent public use. In its order,
the trial court noted the following:
The Court finds that James L. Humphries, J. Thomas Ashely, III, Dean Haley,
and Roland Nanez and Beeann Nanez were the fee simple owners of the 1.859 acre
access road and had fee simple title of said 1.859 acre access road at the time they
granted a right of way and easement in the Grant of Easement dated March 8, 1979,
and at the time they dedicated portions of the 1.859 acre access road for public use
via various plats that were created, executed, and recorded.
The Court find that the dedication of the subject 1.859 acre access road to the
public serves a public purpose, that it has been used by the public for over thirty-
nine years as their only means of ingress and egress to and from Alta Mira
Subdivision and surrounding subdivisions and that it provides the only means of
ingress and egress to and from Alta Mira Subdivision and Alta Mira Estates
Subdivision.
The court further finds that the subject 1.859 acre access road is used and has
been used by the City of Laredo to provide emergency services, waste disposal, and
fire and police protection to persons in the Alta Mira and Altamira [sic] Estates
Subdivisions.
The Court finds that the fee simple owners of the subject 1.859 acre access road
made an express and implied tender of dedication of said 1.859 acre access road
and have executed various plats that expressly dedicated portions of the road.
The Court finds that the City of Laredo is willing to accept the tender of the
subject 1.859 acre access road and has impliedly accepted dedication by continuous
use of said road for over thirty[-]nine years. 1
1
Because the trial court granted a summary judgment, we note the trial court’s findings were made as a matter of law.
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After the trial court granted the second partial summary judgment, the Carvalhos and
Jagaland moved to sever the partial summary judgments into a separate cause number. Following
a hearing, the trial court granted the motion and severed the orders. The Galvans appeal.
SEVERANCE
In their first issue, the Galvans contend the trial court erred in granting the severance
because “[t]he severed claim could not stand on its own and is inextricably interwoven with the
remaining issues in the” original cause.
“Any claim against a party may be severed and proceeded with separately.” TEX. R. CIV.
P. 41. “Trial courts have broad discretion to sever claims, and a severance is improper only if the
trial court abused its discretion in ordering the severance.” State v. Morello, 547 S.W.3d 881, 889
(Tex. 2018). “Severance is proper when (1) the controversy involves more than one cause of
action, (2) the severed claim is one that would be the proper subject of an independently asserted
lawsuit, and (3) the severed claim is not so interwoven with the remaining action that the actions
involve the same facts and issues.” Id.
Although the Galvans assert the second and third requirements for a severance were not
met, the Galvans provide no record citations in their brief to guide this court in comparing the
severed claims with the claims that remained pending in the original cause after severance.
Accordingly, the Galvans have inadequately briefed this issue. See TEX. R. APP. P. 38.1(i) (“The
brief must contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.”). From the trial court’s orders, it appears to this court
that claims seeking a declaration regarding the ownership of the Road and a declaration that the
Road was dedicated for public use are claims that would be the proper subject of an independently
asserted lawsuit. In the absence of any analysis identifying the remaining claims and the facts and
issues that remain pending with regard to those claims, the Galvans have not shown that the trial
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court abused its discretion in granting the motion to sever. See Dove v. Graham, 358 S.W.3d 681,
685 (Tex. App.—San Antonio 2011, pet. denied) (holding complaint regarding severance was not
properly presented where brief offered no clear and concise argument or citations to the record in
support of complaint); see also Niera v. Frost Nat’l Bank, No. 04-09-00224-CV, 2010 WL 816191,
at *3 (Tex. App.—San Antonio Mar. 10, 2010, pet. denied) (mem. op.) (noting “appellate court
has no duty to brief issues for an appellant” and holding issue waived “[i]n the absence of legal
analysis supported by record citations”). The Galvans’ first issue is overruled.
SUMMARY JUDGMENTS
In their second and third issues, the Galvans contend the trial court erred in granting the
summary judgments. The only argument made in support of these issues is that the Galvans
presented evidence establishing they are the owners of the Road. In support of this argument, the
Galvans rely on the chain of title from the 1996 sheriff’s deed executed in connection with the ad
valorem tax foreclosure against Roger Gilpin and the related foreclosure judgment finding Gilpin
to be the owner of the foreclosed property which was described to include the Road. The Galvans’
brief, however, does not address the summary judgment evidence establishing the only interest
Gilpin owned in the Road at the time of the foreclosure was a right to use the perpetual easement.
“We review summary judgments de novo.” Tex. Workforce Comm’n v. Wichita County,
548 S.W.3d 489, 492 (Tex. 2018). “Summary judgment is proper when no genuine issues of
material fact exist and the movant is entitled to judgment as a matter of law.” Id. (citing TEX. R.
CIV. P. 166a(c)). In reviewing a summary judgment, we take as true all evidence favorable to the
nonmovant and indulge every reasonable inference in the nonmovant’s favor. Helix Energy Sols.
Grp., Inc. v. Gold, 522 S.W.3d 427, 431 (Tex. 2017).
As previously noted, on March 8, 1979, the record owners of a 25.234 acre tract of land,
which included the 1.859 acre Road, executed a Grant of Easement granting a perpetual easement
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and right of way for purposes of ingress and egress across the 1.859 acre tract of land which is the
Road. Dean Haley was one of the record owners of the land who executed the Grant of Easement.
On March 23, 1979, Haley conveyed to Roger Gilpin the surface of a tract of land “[t]ogether with
the free and uninterrupted use, liberty, privilege and easement of passing and along” the 1.859 acre
tract of land constituting the Road “with free ingress, egress, and regress.” Accordingly, the only
interest in the Road conveyed to Gilpin was the right to use the perpetual easement.
“An easement, unlike a possessory interest in land, is a nonpossessory interest that
authorizes its holder to use the property for only particular purposes.” State v. Brownlow, 319
S.W.3d 649, 652 (Tex. 2010) (internal quotation marks omitted). “An easement does not convey
title to property.” Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007).
Furthermore, a deed executed pursuant to a foreclosure “vests good and perfect title in the
purchaser or the purchaser’s assigns to the interest owned by the defendant in the property subject
to the foreclosure.” TEX. TAX CODE ANN. § 34.01(n). Because the only interest Gilpin had in the
Road was the perpetual easement right, the perpetual easement right was the only right that vested
in the two individuals who purchased Gilpin’s property at the foreclosure and who were conveyed
Gilpin’s interest by the sheriff’s deed executed in furtherance of that foreclosure. See Sanchez v.
Hillyer-Deutsch-Jarratt Co., 27 S.W.2d 634, 635 (Tex. Civ. App.—San Antonio 1930, writ ref’d)
(noting sheriff’s deed at a tax sale conveys only interest owned by tax debtor and “does not affect
the title of persons not parties to the suit”). Accordingly, the summary judgment evidence
conclusively established the Galvans did not own the Road through the chain of title from the
sheriff’s deed, and the trial court did not err in granting the summary judgments.
The Galvans attempt to rely on the trial court’s finding that Gilpin was the owner of the
Road in the judgment authorizing the foreclosure on Gilpin’s property. The trial court’s finding,
however, was based on the appraisal records which do not establish title to property but only
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indicate who the tax assessor collector believes owns the property. See Telfer v. Adams, No. 05-
17-01387-CV, 2019 WL 494023, at *4 (Tex. App.—Dallas Feb. 8, 2019, no pet.) (mem. op.) (“The
Collin County Appraisal District’s record does not establish title to the Property. Rather, it merely
indicates whom the appraisal district believes the owners to be.”). Furthermore, “[a] trial court’s
judgment foreclosing a tax lien is valid against the parties joined in the suit, but interested parties
not joined are not bound by the judgment.” Sec. State Bank & Tr. v. Bexar County, 397 S.W.3d
715, 722 (Tex. App.—San Antonio 2012, pet. denied). Accordingly, the trial court’s recital of
ownership in the foreclosure judgment was not binding in the instant case.
The Galvans’ second and third issues are overruled.
CONCLUSION
The orders of the trial court are affirmed.
Rebeca C. Martinez, Justice
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