Holstrom v. Lee
| Decision Date | 10 August 2000 |
| Citation | 26 S.W.3d 526 |
| Parties | (Tex.App.-Austin 2000) Jon Holmstrom, Appellant v. Edward R. Lee and Josephine R. Lee, Appellees NO. 03-99-00433-CV |
| Court | Texas Court of Appeals |
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 274TH JUDICIAL DISTRICT NO. 98-0-090, HONORABLE JACK H. ROBISON, JUDGE PRESIDING
[Copyrighted Material Omitted] Before Chief Justice Aboussie, Justices Kidd and B. A. Smith BEA ANN SMITH, Justice.
Appellant Jon Holmstrom appeals from the district court's order denying his motion for summary judgment and granting partial summary judgment in favor of appellees Edward and Josephine Lee. We will affirm the summary judgment in favor of the Lees in part, reverse and render summary judgment in favor of Holmstrom in part, and remand the issue of attorney's fees to the district court.
Holmstrom owned forty-three acres of land in Caldwell County. In 1986, he signed a deed of trust covering two acres to secure a loan to build a house on that tract. The two-acre tract is land-locked by Holmstrom's remaining forty-one acres. To ensure access to a public roadway, the lending bank required Holmstrom to create a fifty-foot wide road easement across his other property to give the two-acre tract access to County Road 103 ("CR 103") along the property line between Holmstrom's property and his neighbor's land. The two-acre tract is separated from the neighbor's land only by the fifty-foot easement. On the two acres, Holmstrom built a house that is fully equipped with sinks, toilets, baths, and showers. Because there is no water supply located on the two-acre tract, Holmstrom connected the house to water lines that ran across the easement and his other forty-one acres and piped water into the house. The house uses a septic drain field that extends slightly beyond the two acres to Holmstrom's otherproperty.
In 1993 the bank foreclosed on the two-acre tract, and in 1997 the Lees bought the property from the bank, intending to use it as their residence. About nine months later, the Lees bought eighteen acres separated from their property only by the fifty-foot road easement. After a number of disagreements about their use of the easement, the Lees sued Holmstrom, seeking in large part a declaratory judgment that they were entitled to run water lines and to travel from their house to their eighteen acres by crossing the road easement. The following graphic illustrates the position and relationship of the properties concerned.
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Third Party's Holmstrom's
Property Remaining
41 Acres
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/ / /
/ /
/ / ________
/ / / /
/ / / /
/ / /
/ / / \
/ / / / / \
/ / / / / \
/ / /____/__ \
/ / / \
/ / / The Lees'
/ / 2 Acres
/ __/___
/ \
/ \
Lees' / \
18 Acres bought/ \
from Third Party Road Easement
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County Road 103
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Holmstrom moved for a no-evidence summary judgment, arguing the Lees could not support any of their claims. Holmstrom also asserted the affirmative defenses of estoppel and estoppel by deed, and asked for a declaratory judgment and injunction barring the Lees from taking "unilateral actions" against Holmstrom's property. The Lees moved for partial summary judgment, seeking (1) a declaratory judgment that they be allowed to use the septic field serving the house even though it extended onto Holmstrom's property and to use the road easement to run water lines and to travel between their house and their other property, (2) a temporary injunction forbidding Holmstrom from interfering with the Lees' use of the easement during the pendency of the lawsuit, and (3) attorney's fees.
The district court denied Holmstrom's motion and granted the Lees' motion, declaring that (1) the Lees have the right to access the two-acre tract from their eighteen acres by going across the easement, (2) the Lees have the right to use the existing water lines on and under Holmstrom's property, (3) the Lees have the right to use the septic system drain field that lies partially within Holmstrom's property, and (4) the Lees have the right to use, alter, repair, and maintain telephone and electric lines that currently serve the two-acre tract.1 The order permanently enjoined Holmstrom from interfering with the Lees' use of and access to the two-acre tract and provided that the Lees had the right to go onto Holmstrom's property as needed to see that water was provided to their property. Finally, the order granted the Lees $16,535.08 in attorney's fees. The district court severed the partial summary judgment into a separate cause, thus rendering it a final, appealable judgment.
A traditional motion for summary judgment is properly granted only when the movant establishes that there are no genuine issues of material fact to be decided and that he is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Memorial Med. Ctr. v. Howard, 975 S.W.2d 691, 692 (Tex. App.--Austin 1998, pet. denied). A defendant seeking summary judgment must negate as a matter of law at least one element of each of the plaintiff's theories of recovery or plead and prove as a matter of law each element of an affirmative defense. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If the defendant establishes a right to summary judgment, the burden shifts to the plaintiff to present evidence raising a fact issue. See id.
A party may also move for a "no-evidence" summary judgment. See Tex. R. Civ. P. 166a(i). Such a motion asserts there is no evidence of one or more essential elements of claims upon which the opposing party would have the burden of proof at trial. See id.; McCombs v. Children's Med. Ctr., 1 S.W.3d 256, 258 (Tex. App.--Texarkana 1999, no pet.). Unlike a movant for traditional summary judgment, a movant for a no-evidence summary judgment does not bear the burden of establishing a right to judgment by proving each claim or defense. See McCombs, 1 S.W.3d at 258. A no-evidence summary judgment is essentially a pretrial directed verdict, to which we apply the same legal sufficiency standard of review. See Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex. App.--Austin 1998, no pet.). A no-evidence summary judgment is properly granted if the non-movant fails to produce more than a scintilla of probative evidence raising a genuine issue of fact as to an essential element of a claim on which the non-movant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Jackson, 979 S.W.2d at 70-71.
In reviewing the grant of summary judgment, we view the evidence in the light most favorable to the non-movant and make every reasonable inference and resolve all doubts in favor of the non-movant. See Centeq Realty, 899 S.W.2d at 197; Jackson, 979 S.W.2d at 70. When the trial court grants one party's motion for summary judgment and denies the other, we review both motions and if we find the trial court erred, we will reverse and render the judgment the trial court should have rendered. See Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999); Howard, 957 S.W.2d at 693.
The water lines and septic drain field
In his first issue on appeal, Holmstrom contends that the Lees do not have any easements to obtain water.2 He also argues that in granting the Lees use of the existing water lines, the district court erroneously granted relief not requested by the Lees and created sua sponte a new cause of action.
Did the water lines and drain field create an implied easement?
Holmstrom argues that the existence of the water lines and drain field did not give rise to any kind of easement appurtenant. He contends that because the Lees bought the property "as is" and the real estate listings stated there was no water or sewer on the property, they were on notice that there was no water supply or septic system. However, whether there was an easement for the existing water lines and septic drain is determined by examining the conveyance from Holmstrom in exchange for the loan, not the conveyance from the bank to the Lees. We will therefore examine Holmstrom's intent at the time he built the house and created the deed of trust.
The deed of trust...
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