Graff v. Berry, No. 06-07-00058-CV (Tex. App. 2/20/2008)

• Decision Date: 20 February 2008
• Docket Number: No. 06-07-00058-CV.,06-07-00058-CV.
• Citation: Graff v. Berry, No. 06-07-00058-CV (Tex. App. 2/20/2008), No. 06-07-00058-CV. (Tex. App. Feb 20, 2008)
• Parties: STANLEY GRAFF, Appellant, v. VERNON BERRY, ET AL., Appellees.
• Court: Texas Court of Appeals

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STANLEY GRAFF, Appellant, v. VERNON BERRY, ET AL., Appellees.

No. 06-07-00058-CV.

Court of Appeals of Texas, Sixth District, Texarkana.

Submitted: January 16, 2008.

Decided: February 20, 2008.

On Appeal from the 6th Judicial District Court, Red River County, Texas, Trial Court No. CV01133.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

MEMORANDUM OPINION

Memorandum Opinion by Justice CARTER.

When Red River County began making improvements to a road crossing Stanley Graff's property, Graff brought suit against Vernon Berry; M. D. Whittle, individually and in his official capacity as county commissioner; Rufus Ward, Jr., in his official capacity as county commissioner; Elmer Caton, in his official capacity as county commissioner; and Josef Hausler, in his official capacity as county commissioner.¹ Graff claimed the commissioners court erred in declaring the road was a first-class road with a right-of-way of sixty feet. Graff sought an injunction prohibiting the commissioners from making improvements to the road in question. In the alternative, Graff sought damages for inverse condemnation. The commissioners claimed the road in question was a public road because it was the same road that was found to be a public road in Graff v. Whittle, 947 S.W.2d 629, 641 (Tex. App.-Texarkana 1997, writ denied) (Graff I). In addition, the commissioners claimed the public road included a sixty-foot right-of-way. The trial court denied Graff's motion for a temporary injunction, and this Court affirmed the trial court's denial. See Graff v. Berry, No. 06-06-00065-CV, 2006 Tex. App. LEXIS 8541 (Tex. App.-Texarkana Sept. 11, 2006, no pet.) (mem. op.) (Graff II). After we issued our opinion in Graff II, the trial court granted the commissioners' motions for summary judgment, rendered a take-nothing judgment in favor of the commissioners, and awarded the commissioners attorney's fees.

Graff argues the trial court erred by granting summary judgment and erred in awarding attorney's fees to the commissioners. We hold: 1) the trial court erred in taking judicial notice of the court records which had not been attached to the summary judgment motion and had been destroyed; 2) Graff has failed to show our conclusion in Graff II that the trial court's judgment in Graff I contained an adequate description was clearly erroneous; and 3) there are genuine issues of material fact.² Because there are genuine issues of material fact, the trial court erred in granting summary judgment in favor of the commissioners.

Factual Background

In December 1995, a jury found a road crossing Graff's property to be a public road and found that Whittle and Berry had acquired easements by prescription and necessity. This Court, while noting a private easement is inconsistent with a finding the road was public,³ affirmed the portion of the trial court's judgment finding that the road was a public road by implied dedication. See Graff v. Whittle, 947 S.W.2d at 641.

Despite the resolution of the lawsuit, there continued to be disputes between Graff and his neighbors over the road. In 1998, Red River County hired a surveyor, Royce Hammett, to provide a metes and bounds description of the road. Hammett was the same surveyor who had prepared the 1981 plat relied on in Graff I. Hammett's plat was accepted by the county in 1998.⁴ In April 2006, the parties allege the commissioners⁵ ordered the road to be classified as a first-class county road, denoted 2118 and 2119, with a sixty-foot right-of-way.⁶ As noted above, the parties have not directed this Court to where the record contains evidence establishing that the commissioners classified the road in dispute as a first-class road. During the construction, the county employees cut down approximately twenty to thirty trees on Graff's property. Graff sought a temporary injunction, which was denied by the trial court. Graff brought an interlocutory appeal to this Court; we affirmed the trial court's order. See Graff v. Berry, 2006 Tex. App. LEXIS 8541. This Court held that Graff had failed to show he had an inadequate remedy at law. Id. This Court noted that the description of the road was adequate and the county had the authority to improve the road. Id. As such, the county was not a naked trespasser and "[i]f the county expands the road beyond the width dedicated as a public road, monetary damages will be sufficient." Id. at *16.

In his amended petition, Graff sought a declaratory judgment declaring, among other things, that Graff I was "vague and unenforceable," that the road the commissioners had constructed was "not, in whole or in part, within the metes and bounds of the public road," that the tax rolls be "adjusted to reflect the change in ownership of the road in question," and that Red River County is obligated to replace the gates it removed. In addition, Graff brought a trespass to try title and an inverse condemnation claim.

In their traditional motions for summary judgment, the commissioners claimed they were entitled to judgment as a matter of law. The commissioners argued the road was the same road that was declared a public road in Graff I. The commissioners argued Graff II became "the rule of the case and is res judicata on any question regarding the sufficiency of the description." In support of their motions, the commissioners presented summary judgment affidavits from Hammett, Whittle, and James R. Rogers. The commissioners also requested the trial court take judicial notice of the entire file of "Cause No. 134-CV-5-93 including all pleadings, the judgment, all testimony and exhibits."

In his response, Graff again claimed the judgment in Graff I was unenforceable due to an inadequate description. Graff argued the 1901 commissioners court minutes merely established a third-class road. Graff objected to the commissioners' summary judgment evidence as hearsay and legal conclusions. Graff also objected to the court taking judicial notice of cause number 134-CV-5-93 and argued the trial court could not take judicial notice as a procedural alternative for summary judgment evidence and could not take judicial notice of the file because the file has been destroyed. Graff introduced affidavits from the Red River County District Clerk and the clerk of this Court that the file had been destroyed. Graff filed a summary judgment affidavit from Ruben Gregg Saxon, a licensed surveyor. Graff also filed excerpts from Hammett's deposition and excerpts from the hearing on the temporary injunction as summary judgment evidence.

At the hearing on the summary judgment motions, the trial court took judicial notice of the "entire file that's on file in this court in cause number 134-CV-5[-]93." The trial court overruled Graff's objections and granted the commissioners' motions for summary judgment. The trial court awarded the commissioners attorney's fees in the amount of $30,860.00, plus an additional $15,000.00 if appealed to this Court and an additional $10,000.00 if appealed to the Texas Supreme Court.

I. The Trial Court Erred In Taking Judicial Notice of Court Records Which Were Not Attached to the Summary Judgment Motion and Had Been Destroyed

The trial court took judicial notice of the "entire file that's on file in this court in cause number 134-CV-5[-]93." Graff claims the trial court erred because the documents being judicially noticed were not attached to the summary judgment motion, and the file being judicially noticed no longer exists.

Under the Texas Rules of Evidence, judicial notice may be taken at any stage of the proceeding. Tex. R. Evid. 201(f). A "judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." See Tex. R. Evid. 201(b). Under the common law, a trial court could take judicial notice of records of its own court in a case concerning the same subject matter and between the same or practically the same parties. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961); Musgrave v. Brookhaven Lake Prop. Owners Ass'n, 990 S.W.2d 386, 401 (Tex. App.-Texarkana 1999, pet. denied). A fact of which judicial notice can be taken is "a matter of evidence and knowledge on the part of courts which requires no formal proof." Harper v. Killion, 162 Tex. 481, 348 S.W.2d 521, 523 (1961) (quoting Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, 830 (1950)).

The Texas Supreme Court has held that compliance with Rule 166a requires that certified copies of the documents referred to, including court records, be attached to the summary judgment motion. Gardner, 345 S.W.2d at 276-77. The relevant portion of the current Texas Rules of Civil Procedure is essentially identical to the applicable rule interpreted in Gardner. Compare Tex. R. Civ. P. 166a with Tex. R. Civ. P. 166-A, 241-242 S.W.2d (Tex. Cases) pp. xxxvi-xxxvii (1952, superseded 1967). The Fort Worth Court of Appeals has recently relied on Gardner in concluding certified copies of court records must be attached to the summary judgment motion in order for the court records to be admissible as evidence in support of a motion for summary judgment. Souder v. Cannon, 235 S.W.3d 841, 848 (Tex. App.-Fort Worth 2007, no pet.).

The commissioners cite Sierad v. Barnett, 164 S.W.3d 471, 481 (Tex. App.-Dallas 2005, no pet.), in support of their proposition that the documents do not have to be attached. The Dallas Court of Appeals concluded the documents being noticed were not required to be attached.

Although the court references Gardner, the court does not attempt to distinguish Gardner. Gardner and its progeny hold that attachment is only necessary if the notice is being taken during summary judgment proceedings.⁷

Absent summary judgment proceedings, there is no requirement that the documents be attached. Sierad is distinguishable from the current case because it was not a summary judgment. The judgment...