Hamrick v. Ward

• Decision Date: 29 December 2011
• Docket Number: No. 14–10–00560–CV.,14–10–00560–CV.
• Citation: 359 S.W.3d 770
• Parties: David HAMRICK, Maggie Hamrick, Sue Bertram, and Steve Bertram, Appellants/Cross–Appellees, v. Tom WARD and Betsey Ward, Appellees/Cross–Appellants.
• Court: Texas Court of Appeals

359 S.W.3d 770

David HAMRICK, Maggie Hamrick, Sue Bertram, and Steve Bertram, Appellants/Cross–Appellees,

v.Tom WARD and Betsey Ward, Appellees/Cross–Appellants.

No. 14–10–00560–CV.

Court of Appeals of Texas, Houston (14th Dist.).

Dec. 29, 2011.Rehearing and Rehearing En Banc

Overruled March 21, 2012.

T. Brooke Farnsworth, Bennett S. Bartlett, Houston, for Appellants/Cross–Appellees.

Steven Michael Vanasse, Millard A. Johnson, Houston, for Appellees/Cross–Appellants.

Panel consists of Justices FROST, JAMISON, and McCALLY.

OPINION

MARTHA HILL JAMISON, Justice.

This case involves cross-appeals from the trial court's grant of summary judgment favoring appellees/cross-appellants Tom and Betsey Ward. The trial court held that the Wards had an easement across the property of appellants/cross-appellees, David and Maggie Hamrick and Sue and Steve Bertram (“appellants”).¹ In their appeal, appellants challenge the trial court's easement finding and its rejection of their various affirmative defenses. In their cross-appeal, the Wards contend that the trial court did not issue a final and appealable judgment and erred in (1) failing to designate a width for the easement, (2) failing to adjudicate disposition of the Wards' injunction bond, and (3) awarding attorney's fees to appellants. We affirm in part and reverse and remand in part.

I. Background

Appellants originally filed suit against the Wards seeking injunctive relief to prevent the Wards from using a dirt roadway running along the edge of appellants' two lots to a two-acre tract owned by the Wards. At the time, construction equipment was being moved along the dirt road to build a home on the Wards' tract. The dirt road is fenced off from the remainder of appellants' lots. The Wards subsequently filed a counterclaim seeking declaratory judgment that they owned an easement across appellants' property for access to their two-acre tract.

The easement in question was allegedly established in 1953 when Paul L. Bourgeois deeded a two-acre portion of a 41.1–acre tract to Alvin and Cora Bourgeois. At that time, the dirt road was the only means of accessing the two-acre tract from a public thoroughfare, Richardson Road.²

In 1957, the two-acre tract was conveyed to Henry Gomez, who lived on it with his wife Anna Bell. After Henry died,³ Mrs. Gomez became the sole owner of the property until she sold it to the Wards in February 2004. After the sale, she continued to live on the property under a life tenancy. In 2005, the Wards began constructing a home for themselves on the tract.

In the late 1990s, real estate developer William L. Cook, Jr. purchased other portions of the original 41.1–acre tract owned by Paul Bourgeois, including the tracts now owned by appellants. Cook began developing the land into the Barrington Woods Subdivision. At one point, a representative of Cook's informed Mrs. Gomez that they were intending to close off the dirt road access to her property. In exchange, they offered to provide her with access to a newly-constructed public thoroughfare that terminated at her property line, Barrington Gardens Street. However, apparently because her property had not been platted, Harris County required a one-foot reserve and a physical barricade be erected between the street and Mrs. Gomez's property, thus preventing Mrs. Gomez from accessing Barrington Gardens Street from the two-acre tract.

Cook drafted a “special restriction” for the Barrington Woods Subdivision and filed it as an appendix to the subdivision's deed restrictions. This document, signed only by Cook, stated that Mrs. Gomez had an “access easement” along the dirt road, permitting access to her property from Richardson Road. According to the special restriction, Mrs. Gomez was permitted to use a fifteen-foot-wide strip for herself, “her family and social guests.” Her use was further limited to “domestic, not-for-hire, passenger and utility service vehicles of less than 6,200 pounds total weight.”

After appellants filed their application for injunctive relief, the Wards counter-claimed, seeking to establish their right to an easement across appellants' two lots. The trial court granted a temporary injunction against the Wards in April 2006. The parties filed a number of motions for summary judgment. The trial court ruled that the Wards had established an easement by implied grant, the elements of which are (1) unity of ownership between the dominant (the Wards' property) and servient (appellants' property) estates; (2) apparent use of the easement at the time the dominant estate was granted; (3) continuous use of the easement, so that the parties must have intended its use to pass by grant with the dominant estate; and (4) reasonable necessity of the easement to the use and enjoyment of the dominant estate. Bickler v. Bickler, 403 S.W.2d 354, 357 (Tex.1966). As will be discussed in detail below, the court also denied appellants' motion for summary judgment based on their affirmative defenses. The trial court further awarded attorney's fees of $215,000 to the Wards and $200,000 to appellants.

In their appeal, the Wards initially contend that the trial court's judgment is interlocutory, and thus, we do not have jurisdiction to consider the cross-appeals. Appellants contend that the trial court erred in granting summary judgment because (1) there is no evidence of beneficial use prior to severance; (2) the Wards failed to prove the continuing necessity of the easement; (3) appellants were bona fide purchasers without notice who thus took the property free from the unrecorded easement; (4) the Wards are estopped from asserting the easement because they expressly adopted inconsistent rights; and (5) the Wards' predecessor in interest, Mrs. Gomez, waived any right to the easement. In the remainder of their appeal, the Wards argue that the trial court erred in (1) failing to specify the width of the easement awarded; (2) failing to adjudicate disposition of the Wards' injunction bond; and (3) awarding attorney's fees to appellants.

II. Finality

In the first issue in their appeal, the Wards contend that the trial court's judgment is not final and thus we do not have jurisdiction to consider the cross-appeals. The Wards base their assertion on the fact that the court never expressly addressed certain issues.

The question of the finality of a judgment, however, is not answered by determining whether a trial court expressly addressed all of the issues or claims raised in the case. A judgment is considered final for purposes of appeal if it disposes of all parties and claims in the case, except as necessary to carry out the decree. Lehmann v. Har—Con, Corp., 39 S.W.3d 191, 195 (Tex.2001). The language of an order or judgment will make it final—even if arguably it should have been interlocutory—provided the language unequivocally expresses an intent to finally dispose of all claims and all parties in the case. Id. If such an intent is clearly expressed, then the order or judgment is final and appealable, “even though the record does not provide an adequate basis for rendition of a final judgment.” Id.

The order issued by the trial court on May 25, 2010 contains language indicating that it was intended to be a final judgment: “All relief requested in this case and not expressly granted is denied. This judgment finally disposes of all parties and claims and is appealable.” Consequently, the May 25 order is final and appealable. We overrule the Wards' first issue.

III. Appellants' Appeal

As mentioned, the trial court held that the Wards owned an easement by implied grant across appellants' two parcels of land. In their appeal, appellants challenge the trial court's grant of summary judgment favoring the Wards, both by challenging the evidence on certain elements required for establishing such an easement and by asserting that at least a fact question exists on certain affirmative defenses appellants raised below. We conclude that the trial court did not err in holding that the Wards conclusively proved the elements required for establishing an easement or in holding that appellants failed to establish their affirmative defenses as a matter of law. We also conclude, however, that appellants presented a material issue of fact on one of their affirmative defenses.

A. Summary Judgment Standards

Although the parties filed multiple motions for summary judgment, responses, and replies, making both no-evidence and traditional arguments for summary judgment, only traditional grounds are at issue in this appeal. In proceedings on a traditional motion for summary judgment, the movant has the burden to show that there is no genuine issue of material fact and he or she is entitled to judgment as a matter of law. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam). If the movant satisfies this requirement, the burden shifts to the non-movant to raise a fact issue sufficient to defeat summary judgment. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996).

In determining whether a fact issue exists precluding summary judgment, evidence favorable to the non-movant is taken as true, and all reasonable inferences are carried in the non-movant's favor. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005). We review a trial court's summary judgment de novo. Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex.2009). We must affirm a summary judgment if any ground in the motion that would support the judgment is meritorious. Progressive Cty. Mut. Ins. Co. v. Kelley, 284 S.W.3d 805, 806 (Tex.2009).

B. Implied Easements

Implied easements are an exception to the rule that easements appurtenant to land must generally be created or transferred in writing. See Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 203 (Tex.1963). Put succinctly, the circumstances surrounding an owner's conveyance of part of a previously unified tract of land may create an easement benefitting...