O'Leary v. Coleman , No. 13-07-272-CV (Tex. App. 5/8/2008)
| Decision Date | 08 May 2008 |
| Docket Number | No. 13-07-272-CV.,13-07-272-CV. |
| Parties | TIMOTHY R. O'LEARY, Appellant, v. BRENT J. COLEMAN, M.D., Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 197th District Court of Cameron County, Texas.
Before Chief Justice VALDEZ and Justices GARZA and BENAVIDES.
This suit involves a dispute over the existence of an easement burdening property in the town of South Padre Island. In an attempt to sell a parcel of bay-front property and to extinguish any encumbrances on the property, appellee, Brent Coleman, M.D., filed a declaratory judgment and trespass to try title action against appellant, Timothy O'Leary, seeking to declare O'Leary's alleged easement invalid. In response, O'Leary filed a general denial and a counterclaim requesting a judicial declaration that he had a valid easement over Coleman's property. By three issues, O'Leary contends that the trial court erred in granting Coleman's traditional motion for partial summary judgment because: (1) he raised material fact issues as to his claim for an easement by estoppel; (2) he raised material fact issues with regard to his claim for an easement by implication; and (3) he established an easement as a matter of law within the context of the deed to Coleman's property. We reverse and remand for proceedings consistent with this opinion.
This dispute pertains to three lots and a forty-foot pier located on or near Laguna Madre in South Padre Island, Texas. Coleman is the owner of Lot 1, a bay-front lot on the Laguna Madre. Coleman acquired Lot 1 by warranty deed from Warren Lee Walsh and Carolyn L. Walsh on or about June 1, 1992. On or about January 10, 1997, O'Leary acquired title to Lots 3 and 4—located inland from Lot 1 along Mars Street—by warranty deed from Richard J. O'Leary.
Attached to the southwestern-most corner of Lot 1 is O'Leary's pier, which extends forty feet into the Laguna Madre and is supported by pillars sunk into the sea floor. O'Leary has owned, used, and maintained this pier for at least eighteen years.1 In order to access the pier, O'Leary must walk from Mars Street across the "southwestern-most corner of Lot 1 for about six to ten feet."
On September 29, 1995, Coleman granted O'Leary permission in writing to cross over his property to access the pier. Specifically, Coleman's written permission ("Right of Way agreement") provided, in relevant part:
Mr. Timothy O'Leary has been given Right of Way to the dock extending from the edge of my property to the Laguna Madre. The use, maintenance and liability of this structure is solely his responsibility. . .
The document reflects that it was recorded in the Cameron County public records on August 17, 2004, and that it was received by the Texas General Land Office on May 10, 1996.
This conflict arose on October 29, 2004, when Coleman provided O'Leary with a letter terminating permission to use Lot 1 to access the pier. At this time, Coleman notified O'Leary of his intention to sell the property and his desire to remove any potential encumbrances on the property.
On April 1, 2005, Coleman filed a petition for declaratory judgment and an application for a temporary restraining order and injunction. In his petition, Coleman (1) sought an interpretation of the Right of Way agreement by the trial court; (2) asserted that O'Leary had become a trespasser by continually using his property to access the pier; (3) contended that he lost two sales of the property because O'Leary slandered his title to Lot 1, resulting in at least $100,000 in damages; and (4) argued that he had suffered irreparable harm because O'Leary refused to recognize the revocation of the Right of Way agreement and continued to trespass on his property.2 Coleman also argued that the Right of Way agreement constituted a licensing agreement, not an easement, thereby temporarily allowing O'Leary to cross over his property to access the pier. Because he merely granted O'Leary a license to cross over his property, Coleman asserted that he could revoke the license at any time.
On June 3, 2005, Coleman filed a motion for partial summary judgment as to his declaratory judgment action advancing the same licensing argument made in his petition for declaratory judgment. Further, Coleman noted that as a result of O'Leary's continuing trespass, he suffered irreparable harm that could not be readily calculated but required judicial intervention to mitigate damages.
Subsequently, on July 26, 2005, O'Leary filed his first amended answer and counterclaim, denying all of the allegations contained in Coleman's petition and asserting that he had acquired an easement by estoppel or by implication to cross over Coleman's property to access the pier. O'Leary contended that from 1987 to 2005, he and his family continuously traveled across the southwestern-most corner of Lot 1 for purposes of ingress to and egress from the pier.3 O'Leary also argued that he and his predecessors-in-interest spent money on the State's leasing fees, maintenance costs, taxes, insurance premiums, and improvements for the pier in reliance on promises and assurances made by both the Walshes and Coleman that they could use the southwestern-most corner of Lot 1 to access the pier.
On July 29, 2005, Coleman filed an amended motion for partial summary judgment asserting the same contentions made in his original motion for partial summary judgment and adding grounds addressing O'Leary's counterclaim that he had an easement by estoppel. Specifically, Coleman stated that the trial court could look to the Right of Way agreement to determine the rights of the parties and that the Right of Way agreement contemplated that O'Leary would be responsible for the maintenance and the liability of the dock; therefore, O'Leary "cannot now complain about his reliance on a promise when he assumed responsibility to maintain and insure the dock." Additionally, Coleman contended that (1) O'Leary did not provide sufficient evidence to establish that he was the owner of the dock, and (2) O'Leary did not "allege or prove that the dock itself was constructed by the owner of Lots 3 and 4 in reliance on some promise from the owners of Lots 1 and 2 to grant some kind of access or easement."
On August 3, 2005, the trial court conducted a hearing on Coleman's amended motion for partial summary judgment, Coleman's petition for declaratory and injunctive relief, and O'Leary's amended answer and counterclaim. On January 11, 2006, the trial court granted Coleman's motion for partial summary judgment and made the following findings: (1) the Right of Way agreement was terminated by Coleman's letter dated October 29, 2004; therefore, O'Leary was no longer licensed to use Lot 1 to access the pier; (2) O'Leary was guilty of trespass; (3) O'Leary slandered Coleman's title; therefore, Coleman was entitled to damages to be determined by the finder of fact; and (4) Coleman was entitled to reasonable and necessary attorney's fees in the amount of at least $7,000.
On January 29, 2007, Coleman filed a motion to sever his declaratory judgment action from the underlying slander of title and damages case. The trial court granted Coleman's motion to sever on February 9, 2007, and assigned the declaratory judgment action a new cause number. This appeal ensued.
The function of summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a trial by jury.Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (citing Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989)); Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex. App.-Corpus Christi 2003, no pet.). We review de novo a trial court's grant or denial of a traditional motion for summary judgment. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.7 (Tex. 2005) (citing Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 290 n.137 (Tex. 2004)); Alaniz, 105 S.W.3d at 345.
Under a traditional motion for summary judgment, the movant must establish that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Alaniz, 105 S.W.3d at 345; Mowbray v. Avery, 76 S.W.3d 663, 690 (Tex. App.-Corpus Christi 2002, pet. denied). After the movant produces evidence sufficient to show it is entitled to summary judgment, the non-movant must then present evidence raising a fact issue. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). We "must examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion." Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam); see City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).
In his first issue, O'Leary contends that the trial court erred in granting Coleman's motion for summary judgment because he had established an easement by estoppel burdening Lot 1. Specifically, O'Leary argues that his affidavit chronicling the existence of the alleged easement was sufficient to raise a fact issue. O'Leary further argues that the Right of Way agreement was not a license and was executed for the sole purpose of satisfying the State of Texas's requirement that O'Leary have a property interest in bay-front property before it leased the submerged land upon which the pier sits. Finally, O'Leary asserts that Coleman is estopped from denying the existence of the alleged easement because Coleman cannot ...
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