Nevins v. Whitley, No. 13-04-486-CV (TX 8/25/2005)
| Decision Date | 25 August 2005 |
| Docket Number | No. 13-04-486-CV.,13-04-486-CV. |
| Parties | JAMES NEVINS, MELISSA NEVINS, EDWARD HEINOLD, AND IRENE HEINOLD, Appellants, v. NEIL WHITLEY, ET AL., Appellees. |
| Court | Texas Supreme Court |
On Appeal from the 135th District Court of Victoria County, Texas.
Before Justices YAÑEZ, CASTILLO, and GARZA.
Appellees (hereinafter collectively "Whitley"),2 the owners of an easement, sought a declaration of rights as to that easement when appellants (hereinafter collectively "Nevins")3 allegedly interfered with Whitley's use and maintenance of the easement. The parties filed competing summary judgment motions. The trial court granted Whitley's motion and denied Nevins's motion. This appeal ensued. By seven issues, Nevins asserts that summary judgment was improper. We affirm.
The underlying dispute centers on a non-exclusive written easement benefitting Whitley and Whitley's land. The easement, granted by Nevins's predecessor in title, granted a 40-foot wide roadway easement over part of the property now owned by Nevins. The easement was originally granted to Val W. Holtz, but it has since been assigned to Whitley. Nevins purchased his properties subject to this easement.
Whitley initially brought an action against Nevins seeking a declaratory judgment to determine (1) the validity of the easement and (2) whether Whitley had the right to use the easement. Whitley sought an injunction barring Nevins from interfering with Whitley's maintenance and use of the easement. Nevins filed a counterclaim.
At the center of the parties' dispute is the following grant of an easement in a deed from W.H. York, Jr. to Val W. Hotz, executed on April 3, 1975:
The easement and right-of-way herewith granted to Grantee is subject to the following terms and conditions:
(1) This easement is confined to Grantee's use of the surface only of the premises described above, for road-way and access purposes. Grantee shall be responsible for the maintenance of said road, and any fences, gaps, gates, or cattle guards used in conjunction with said easement, and road right-of-way. Grantor shall have equal right to use said easement together with Grantee, his heirs and assigns.
(2) This easement and right-of-way shall terminate in the event the Grantee fails to use the same for a period of two consecutive years. This easement is granted as a convenience, and not as a way of necessity.
(3) This easement is granted as a private easement, to Grantee, his heirs, assigns, invitees, licensees, and employees, and is not intended as a public easement, nor as a dedication for public use.
(4) Grantor shall continue to have the right to use said premises fully in every respect, except for Grantee's right to use the surface of same as a way of access.
To have and to hold the above described and conveyed property together with all and singular the rights, improvements and appurtenances to the same in any manner belonging, incident or appertaining unto the said Grantee, his heirs and assigns, forever. And I do hereby bind myself, my heirs, executors, administrators and assigns, to warrant and forever defend all and singular the said land and premises unto the said Grantee, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.
The parties do not dispute that the easement grants a forty-foot wide easement for the purpose of ingress and egress over part of the property now owned by Nevins. The parties also do not dispute that each is the assignee of the grantor and grantee, respectively, of the original conveyance.
Whitley filed a declaratory judgment action against Nevins requesting the trial court to: (1) construe the easement in question and determine its validity; and (2) determine the respective rights of the parties including (a) whether Whitley was entitled to use the easement and reasonably maintain the road, and (b) whether Nevins had the right to interfere with Whitley's use and maintenance of the easement. Whitley sought injunctive relief, alleging interference with his use and maintenance of the easement. Whitley also sought attorney fees under the Uniform Declaratory Judgment Act ("the Act"). TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (Vernon 1997).
In a verified answer, Nevins alleged causes of action for breach of contract and negligence. Nevins also sought declaratory judgment, attorney fees, and injunctive relief. Nevins asserted the affirmative defenses of adverse possession, capacity to sue, and termination of the easement. By his counterclaim, Nevins requested that the trial court determine: (1) the construction, validity, and affirmative conditions Whitley placed on the easement thereby burdening Nevins's land; and (2) that the easement had terminated based on Whitley's failure to maintain.
In his traditional summary judgment motion, Whitley asserted that Nevins interfered with Whitley's rights to the easement by erecting fences in the easement and halting his attempts to repair and maintain the road. By his motion, Whitley requested a declaration of his rights under the easement, injunctive relief, and statutory attorney fees, asserting: (1) the easement is valid; (2) the easement confers a right to (a) use the roadway for ingress and egress and (b) maintain the roadway in the easement; and (3) Nevins has interfered with Whitley's rights to use and maintain the easement. Among other things, Whitley's summary judgment evidence included affidavits from the original grantor and grantee as to the meaning of the word "grantee" in the easement,4 and from counsel as to attorney fees.
Nevins filed a summary judgment response, special exceptions, and objections to Whitley's motion and evidence. Generally, Nevins responded that declaratory judgment by summary proceeding was improper because the action was in essence a trespass to try title, the fence impediment issue was not ripe, maintenance was not a "right," and Nevins adversely possessed the easement. Nevins did not controvert Whitley's summary judgment evidence on attorney fees.
In his traditional summary judgment motion, Nevins asserted as grounds (1) that the easement terminated for non-use and, thus, Nevins was entitled to declaratory relief, (2) the affirmative defense of adverse possession of the easement, and (3) attorney fees. Nevins relied on a letter from Whitley's counsel to support his adverse possession claim.5
The trial court granted Whitley's motion and denied Nevins's motion for summary judgment. The order recites, in part:
It is therefore ORDERED as follows:
1. The Court declares as a matter of law that [Whitley] [is] the owner of the dominant estate and that the [Nevins] [is] the owner of the servient estate under that certain easement conveyed from William York to Val Hotz under instrument dated April 3, 1975 and filed for record at Vol. 868, Page 95 in the deed records of Victoria County, Texas.
2. The Court declares as a matter of law that such easement has not terminated, and is valid and enforceable by [Whitley].
3. The Court declares as a matter of law that the [Nevins] [does] not have the right to construct gates, fences or other barriers across or into such easement.
4. The Court orders that [Nevins] [is] permanently enjoined from interfering with [Whitley's] enjoyment of [his] easement rights, including interfering with [Whitley's] access through the easement, or interfering with [Whitley's] right to maintain the easement. The Court further orders [Nevins] to remove any fence or other barrier he has previously erected within the boundary of the easement owned by the [Whitley]. Such removal shall be completed within thirty days from the date of entry of final judgment in this cause.
5. The Court denies the Motion for Summary Judgment filed by [Nevins].
6. The Court orders that [Nevins] pay to the [Whitley] . . . [attorney fees].6
After examining the pleadings and summary judgment record, we conclude that the order disposes of all pending parties and claims.7 See Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex. 2001) (per curiam); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Alaniz v. Hoyt, 105 S.W.3d 330, 338 (Tex. App.-Corpus Christi 2003, no pet.). Accordingly, we find that the trial court's judgment is a final judgment over which we have jurisdiction. See Conwell, 46 S.W.2d at 863-64; Lehmann, 39 S.W.3d at 195; Alaniz, 105 S.W,3d at 338.
Nevins presents seven issues for review:
Issue 1: The trial court erred in denying Nevins's summary judgment motion because summary judgment evidence established, as a matter of law, that the grantee had not used the easement in a continuous two-year period.
Issue 2: The trial court erred in denying Nevins's summary judgment motion because summary judgment evidence established, as a matter of law, that Nevins adversely possessed the real property at issue for more than ten years.
Issue 3: The trial court erred in granting declaratory relief in an action other than a trespass-to-try-title action.
Issue 4: The trial court abused its discretion by implicitly overruling Nevins's objections to Whitley's summary judgment evidence.
Issue 5: The trial court erred by changing essential terms of the easement and declaring that the easement granted Whitley "rights" rather than imposing obligations.
Issue 6: The trial court erred in granting summary judgment because Nevins raised material questions of fact.
Issue 7: There was no or insufficient evidence to support the relief granted.
The function of a summary judgment is to eliminate patently...
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