Shelton v. Kalbow

• Decision Date: 22 March 2016
• Docket Number: NO. 14–14–00710–CV,14–14–00710–CV
• Citation: 489 S.W.3d 32
• Parties: Nathaniel Shelton and Marcia Shelton, Appellants v. Alfred Kalbow, as Trustee of the Alfred Kalbow Marital Trust Dated August 30, 2007, as Established Under the Kalbow Family Loving Trust Dated June 24, 1991, Dorothy Holle, David Wellmann, Steven Siemglusz, Alison Dreyer, Lindsay Siemglusz, Freddie Wellmann, and Linda Wellmann, Appellees
• Court: Texas Court of Appeals

489 S.W.3d 32

Nathaniel Shelton and Marcia Shelton, Appellants

v.Alfred Kalbow, as Trustee of the Alfred Kalbow Marital Trust Dated August 30, 2007, as Established Under the Kalbow Family Loving Trust Dated June 24, 1991, Dorothy Holle, David Wellmann, Steven Siemglusz, Alison Dreyer, Lindsay Siemglusz, Freddie Wellmann, and Linda Wellmann, Appellees

NO. 14–14–00710–CV

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

Opinion filed March 22, 2016

Mary Jo Holloway, Chappel Hill, TX, Jamie J. Elick, Bellville, TX, for Appellants.

Steven Calen Haley, Brenham, TX, for Appellees.

Panel consists of Justices Boyce, Busby, and Brown.

OPINION

Marc W. Brown, Justice

Appellants Nathaniel and Marcia Shelton attack a final judgment that declares a certain .2–acre roadway to be public, orders them to remove obstructions and permanently enjoins them from blocking that roadway, and orders them to pay attorney's fees to appellees Alfred Kalbow, as Trustee of the Alfred Kalbow Marital Trust dated August 30, 2007, as established under the Kalbow Family Loving Trust dated June 24, 1991, Dorothy Holle, David Wellmann, Steven Siemglusz, Alison Dreyer, Lindsay Siemglusz, Freddie Wellmann, and Linda Wellmann (collectively, the “Kalbow Parties”). The Sheltons argue that the trial court erred in: (1) granting the Kalbow Parties' motion for summary judgment finding the road in question to be public and issuing a permanent injunction; (2) denying the Sheltons' plea to the jurisdiction; (3) denying the Sheltons' motion to strike and their special exceptions and objections to the Kalbow Parties' summary judgment motion; and (4) awarding attorney's fees on the declaratory judgment action. We affirm.

I. Factual and Procedural Background

In 1928, George Green conveyed by warranty deed a certain .2–acre L–shaped plat of land to Sam D.W. Low, County Judge of Washington County, Texas, and his successors in said office.¹ This L-shaped plat contains much of the roadway known as “Big Bird Lane,” which intersects State Highway 105 (formerly, State Highway 90). Big Bird Lane crosses a 30–acre tract purchased by the Sheltons in 2001. This dispute centers on the status of Big Bird Lane.

The Sheltons erected fences and constructed a gate in the right of way of Big Bird Lane. The Kalbow Parties filed suit to regain access to their properties, alleging that Washington County was the owner of Big Bird Lane through express dedication and that the Sheltons had erected fences and barriers obstructing the Kalbow Parties' use of the public road. The Kalbow Parties sought a declaratory judgment, requested injunctive relief for removal of the obstructions placed by the Sheltons, and requested attorney's fees.²

The Kalbow Parties filed a motion for traditional and no-evidence summary judgment, arguing: (1) there was no genuine issue of material fact regarding the continued validity and existence of the county right of way, Big Bird Lane, and any interference of the Kalbow Parties' use of Big Bird Lane by the Sheltons should be enjoined, and (2) there was no evidence that Big Bird Lane had been terminated, abandoned, or ceased to exist. The Kalbow Parties submitted an affidavit by David Wellmann; the warranty deeds granted to each of the Kalbow Parties; the warranty deed with vendor's lien from Benjamin and Eileen Hajovsky to the Sheltons dated March 13, 2001; the warranty deed from George Green to Sam D.W. Low, County Judge of Washington County, Texas, and his successors in said office dated March 8, 1928; an affidavit by Donald Lampe, a registered professional land surveyor, attaching his survey plat of Big Bird Lane; Washington County Commissioners' Court Minutes dated March 18, 1928; Washington County's “E–F–G Grantor” deed index; and an affidavit by Willy Dilworth, chief appraiser for the Washington County Appraisal District. The Kalbow Parties filed a first supplement to their summary judgment motion, which included an affidavit by abstractor Mary Kay Hurta. They filed a second supplement to their summary judgment motion, which included an affidavit by abstractor Kay Larson. They also filed supplemental affidavits by Larson and Lampe.

The Sheltons filed a response and submitted an affidavit by Dilworth; an affidavit by Ronald Bryant, a registered professional land surveyor; an affidavit by Nathaniel Shelton; the warranty deed with vendor's lien from the Hajovskys to the Sheltons dated March 13, 2001; the warranty deed from Jo Ann Murski and Wayne Hajovsky to Freddie and Linda Wellmann dated April 11, 2001; the warranty deed from George Green to Washington County dated March 8, 1928; and the warranty deed from Sam Thornhill to Bone, J. M., and Elias Ferguson dated January 23, 1872. The Sheltons filed two supplemental responses, including two supplemental affidavits by Bryant. The Sheltons also filed a motion to strike, a plea to the jurisdiction, and special exceptions and objections to the Kalbow Parties' summary judgment motion.

The trial court held a hearing and signed an order granting the Kalbow Parties' first amended traditional and no-evidence motion for summary judgment. The trial court also signed an order denying the Sheltons' motion to strike. The Kalbow Parties filed a motion for severance of the Sheltons' counterclaims. The Sheltons filed a motion for new trial. They also requested that the trial court rule on their special exceptions and objections. The trial court held a hearing and signed orders denying the Sheltons' special exceptions and objections, motion for new trial, and plea to the jurisdiction. The trial court also signed an order granting the Kalbow Parties' motion for severance—severing their declaratory judgment claims and creating a new cause number.

The case proceeded to appeal. However, this court abated for the trial court to clarify its summary judgment order. On November 7, 2014, the trial court signed an amended order on the Kalbow Parties' first amended traditional and no-evidence motion for summary judgment, which expressly stated that the November 7 amended order taken together with the severance order was interlocutory pending adjudication of the Kalbow Parties' attorney's-fees claims.

The trial court held a bench trial on attorney's fees. On November 21, 2014, the trial court signed a final judgment declaring Big Bird Lane as described in the 1928 deed to be a dedicated, valid, and subsisting public road;³ ordering the Sheltons to remove obstructions on, and permanently enjoining them from maintaining obstructions on and interfering with the use of, Big Bird Lane by the Kalbow Parties; and ordering the Sheltons to pay attorney's fees, expert fees, and costs.⁴ This court reinstated the Sheltons' appeal.

II. Analysis

A. Plea to the jurisdiction

We first consider the Sheltons' second issue—whether the trial court erred in denying their plea to the jurisdiction. We review a trial court's ruling on a plea to the jurisdiction de novo. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). When a plea to the jurisdiction challenges the pleadings, we determine if the plaintiff has alleged facts affirmatively demonstrating the court's jurisdiction. Id. (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993) ). We construe the pleadings liberally in favor of the plaintiff and look to the pleader's intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate jurisdiction but do not reveal incurable defects, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. at 226–27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. at 227.

The standard of review for a plea to the jurisdiction based on evidence “generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Id. at 228 ; Thornton v. Ne. Harris Cty. MUD 1, 447 S.W.3d 23, 32 (Tex.App.—Houston [14th Dist.] 2014, pet. denied). Under this standard, we take as true all evidence favoring the nonmovant and draw all reasonable inferences and resolve any doubts in the nonmovant's favor. Miranda, 133 S.W.3d at 228. If the movant presents conclusive proof that the trial court lacks subject matter jurisdiction, then the nonmovant must present evidence sufficient to raise a material issue of fact regarding jurisdiction or the plea will be sustained. See id.

The Sheltons' plea challenged both the pleadings and the existence of jurisdictional facts.⁵ We conclude the Kalbow Parties alleged sufficient jurisdictional facts and the Sheltons did not meet their burden to present conclusive proof that the trial court lacks subject matter jurisdiction.

The Sheltons argue that the Kalbow Parties lack standing because only Washington County can make the assertion that Big Bird Lane is a public road. However, private landowners have standing to enforce a public road where they allege an injury to their property rights. See, e.g., Brooks v. Jones, 578 S.W.2d 669, 674 (Tex.1979) (“Public dedications are enforceable by private landowners who have a property interest that will suffer if the publicly dedicated land is obstructed.”); Basham v. Gardner, No. 10–05–00398–CV, 2007 WL 2389990, at *1 (Tex.App.—Waco Aug. 22, 2007, no pet.) (mem.op.) (citing Brooks, 578 S.W.2d at 674 ); Stein v. Killough, 53 S.W.3d 36, 40 (Tex.App.—San Antonio 2001, no pet.) (same). Here, the Kalbow Parties alleged that they are private landowners whose property rights are being adversely affected by the Sheltons' erection of fences and a gate across Big Bird Lane, a roadway expressly dedicated to the public, which the Kalbow Parties used to access State Highway 105 and their properties.⁶ We conclude that the Kalbow Parties alleged a sufficiently distinct property interest to support standing and that the Sheltons did not conclusively prove the Kalbow Parties lack...