Opinion
No. 10-05-00398-CV
Opinion delivered and filed August 22, 2007.
Appeal from the 66th District Court, Hill County, Texas, Trial Court No. 37610.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Michael Basham appeals a final judgment which finds the roadway crossing his land to be public, enjoins him from blocking that roadway, and orders Basham to pay attorney's fees. Specially, Basham argues: 1) that each party seeking to enforce the roadway lacks standing; 2) that the trial court erred in granting summary judgment finding the road in question to be public; 3) that the trial court erred in awarding attorney fee's on the declaratory judgment action; and 4) that the trial court erred in issuing a permanent injunction. We will affirm.
This dispute centers on the status of an unpaved road leading from FM 933 to the eastern boundary of land formerly owned by Ron Gardner. The road marks the northern boundary of Basham's property, dividing his land from Leo Roye's. The dispute arose when Basham began building a gate across the road. Gardner filed suit and secured a temporary injunction prohibiting Basham from blocking the road. Basham answered with property damage claims against Gardner and Roye. Roye then sued seeking a declaratory judgment that the road was public. While the suit was pending, Gardner sold his property to the J.J. Griffin Family Limited Partnership (Griffin). Griffin intervened seeking a declaratory judgment and a permanent injunction. Gardner moved for a summary judgment that the road was public which the court granted. Roye and Griffin then moved for summary judgment on the same issue, and the court granted each. The case went to trial on Gardner's property damage and negligence claims against Basham. The court found there was a public roadway by implied dedication, and held that Gardner take nothing on his claims, that Basham take nothing on his claims against Roye and Gardner, that Roye recover attorney's fees on his declaratory judgment action, and that Griffin's permanent injunction be granted.
Standing
Basham argues that neither Roye nor Griffin has standing to enforce the public road because each has alternative routes to access his property. A private landowner may enforce a public roadway if his property rights will be adversely affected in a way distinct from that of the general public. See Brooks v. Jones, 578 S.W.2d 669, 674 (Tex. 1979); Stein v. Killough, 53 S.W.3d 36, 40 (Tex.App.-San Antonio 2001, no pet.). The road in question touches the land of both Roye and Griffin, providing access to a portion of their land. Basham argues this is not an injury different from that of the general public. However, there is no requirement that the disputed road be the only means of access. See Love v. Olguin, 572 S.W.2d 17, 19-20 (Tex.Civ.App.-El Paso 1978, writ ref'd n.r.e.) (affirming landowner's standing where disputed road was not sole means of access to land). Roye and Griffin have a sufficiently distinct injury to support standing. We overrule Basham's complaint that Roye and Griffin lack standing.
With regard to Gardner, Basham contends that upon selling his land, Gardner had no justiciable interest in the road's status. After Griffin intervened, Gardner continued to pursue only those claims relating to damages suffered prior to the sale of his land. His suit was no longer to enforce the public road but to recover damages for injuries suffered from Basham obstructing the road. The selling of his land does not deprive Gardner of standing to sue for damages allegedly incurred when he owned the land. Tex. Mortgage Co. v. Phillips Petroleum Co., 470 F.2d 497, 499 n. 1 (5th Cir. 1972). We overrule Basham's complaint as to Gardner's standing.
Summary Judgment
Next, Basham complains of the trial court granting Gardner's motion for summary judgment that this was a public road by implied dedication and granting the subsequent motions by Roye and Griffin on the same issue.
We conduct a de novo review of a summary judgment. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a summary judgment motion, the movant must demonstrate there is no genuine issue of material fact, and it is entitled to judgment as a matter of law. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). All evidence favorable to the nonmovant is taken as true, and all doubts are resolved in the nonmovant's favor. Valence Operating Co., 164 S.W.3d at 661.
Basham argues that, because the issue of implied dedication is a question of fact, the trial court could not grant summary judgment. However, the summary judgment procedure exists for the resolution of undisputed questions of fact. See Green v. Morris, 43 S.W.3d 604, 608 (Tex.App.-Waco 2001, no pet.). The question of whether there is an implied dedication has been resolved numerous times by a summary judgment See Scown v. Neie, 225 S.W.3d 303 (Tex.App.-El Paso 2006, pet. denied); Bush v. Fayette County, No. 03-05-274-CV, 2006 Tex. App. LEXIS 3052 (Tex.App.-Austin Apr. 13, 2006, no pet.) (mem. op.); Miller v. Elliott, 94 S.W.3d 38 (Tex.App.-Tyler 2002, pet. denied).
Basham also argues that his contravening evidence raised a fact question. The elements of an implied dedication are: (1) the acts of the landowner induced the belief that he intended to dedicate the road to public use; (2) he was competent to do so; (3) the public relied on these acts and will be served by the dedication; and (4) there was an offer and acceptance of the dedication. Las Vegas Pecan Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex. 1984). Chapter 281 of the Transportation Code abolishes the doctrine of implied dedication in counties with a population of less than 50,000, which includes Hill County. TEX. TRANSP. CODE ANN. §§ 281.001, 281.003 (Vernon 1999). The statute, however, does not apply retroactively and therefore, does not affect an implied dedication occurring before its effective date of August 31, 1981. Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985). In determining whether an implied dedication occurred, we look only at actions occurring prior to the statute's effective date.
Gardner's summary judgment evidence included six affidavits of former residents asserting that the public had utilized the disputed road since the 1950s. Gardner provided proof that the road was used as a school bus route, maintained by the county, and admitted to be public by a predecessor in title, all of which are factors identified as supporting an inference of donative intent. Gutierrez v. County of Zapata, 951 S.W.2d 831, 839 n. 8 (Tex.App.-San Antonio 1997, no pet.).
In response, Basham provided copies of his deeds and a personal affidavit as to the road's use since his purchase of the land in the 1990s. However, this evidence cannot be considered. If an implied dedication of a public roadway occurred with a prior owner, a subsequent purchase of the property will not affect the dedication. Baker v. Peace, 172 S.W.3d 82, 87 (Tex.App.-El Paso 2005, pet. denied).
Where the origins of the intent to dedicate a public roadway are "shrouded in obscurity" that intention may be presumed. See Hatton v. Grigar, 66 S.W.3d 545, 555 (Tex.App.-Houston [14th Dist.] 2002, no pet.). The affidavits submitted by Gardner conclusively establish that the road has been public for at least 50 years, meriting the application of the presumption of donative intent. See Bush, 2006 Tex. App. Lexis 3052, at *5-10; Supak v. Zboril, 56 S.W.3d 785, 790-91 (Tex.App.-Houston [14th Dist.] 2001, no pet.). The requirement that the landowner be competent to donate means he held fee simple title to the property. Gutierrez, 951 S.W.2d at 839 n. 10. The same presumption establishes this element. See Bush, 2006 Tex. App. Lexis 3052, at *10-11; Betts v. Reed, 165 S.W.3d 862, 870 n. 4 (Tex.App.-Texarkana 2005, no pet.). This same affidavit evidence of continued, unquestioned use of the road conclusively establishes that the public relied on and accepted the dedication. Supak, 56 S.W.3d at 791. We overrule Basham's complaint that the trial court erred in granting Gardner's motion for summary judgment.
Gardner also moved for a no evidence summary judgment on Basham's counterclaims against him. Because of our disposition of the traditional motion for summary judgment, we need not address the no-evidence motion.
Basham complains of the sufficiency of the evidence in support of the subsequent motions for partial summary judgment filed by Roye and Griffin. Roye and Griffin separately moved for summary judgment relying on only the evidence filed by Gardner and the court's prior ruling. There is no requirement in Rule 166a that a party duplicate summary judgment evidence already in the record if the motion points the court to the supporting evidence. See Steinkamp v. Caremark, 3 S.W.3d 191, 194 (Tex.App.-El Paso 1999, pet. denied). Basham failed to object to Roye's and Griffin's summary judgment motions to the trial court. At the hearing on Griffin's motion, Basham stated that he had no objection beyond that of the court granting Gardner's original motion. Issues not presented to the trial court cannot be used as the basis for a reversal. TEX. R. CIV. P. 166a(c), (f). Therefore, we overrule Basham's complaint as to the trial court granting Roye's and Griffin's motions for summary judgment.
Declaratory Judgment Action
Basham next complains that because the pending litigation concerns the dispute which the declaratory judgment sought to resolve, the action is invalid. Basham originally brought claims against Roye for trespassing and property damage. Following a successful motion for sanctions as to two of these claims, Roye moved for a declaratory judgment that the road was public. At that time, there was no declaratory judgment claim pending. The court granted summary judgment on the issue of the road being public. Roye and Basham then entered into a stipulation that all attorney's fees incurred by Roye through appeal were reasonable, necessary, equitable and just.
Basham failed to preserve the issue of the validity of the declaratory judgment action, itself. The Rules of Civil Procedure state that a party waives appeal for:
[e]very defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by exception in writing and brought to the attention of the judge in the trial court before the instruction or charge to the jury or, in a non-jury case, before the judgment is signed.
TEX. R. CIV. P. 90. When a party fails to make the trial court aware of a complaint that a declaratory judgment action is invalid prior to the signing of the judgment, that issue is not preserved for appeal. Harlingen Irrigation Dist. Cameron County No. 1 v. Caprock Communs., Corp., 49 S.W.3d 520, 534 (Tex.App.-Corpus Christi 2001, pet. denied); Gulf Ins. Co. v. Vantage Props., Inc., 858 S.W.2d 52, 55 (Tex.App.-Houston [14th Dist.] 1993, writ denied). The record before this Court contains no special exceptions to Roye's declaratory judgment claim.
Furthermore, to preserve a complaint for appellate review, an appellant must have presented the complaint to the trial court by a timely request, objection, or motion that "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint." TEX. R. APP. P. 33.1(a)(1)(A). Basham stipulated to attorney's fees in relation to the declaratory judgment action and made no objection to the trial court as to the validity of that cause of action See Double Ace, Inc. v. Pope, 190 S.W.3d 18, 28 (Tex.App.-Amarillo 2005, no pet.); Harlingen Irrigation Dist., 49 S.W.3d at 534.
We find that Basham has failed to preserve for appeal his complaint that declaratory judgment was improper and that attorney's fees should not have been awarded under the Declaratory Judgment Act. Basham's complaint as to the validity of the declaratory judgment action is overruled.
Permanent Injunction
Permanent injunctive relief is appropriate upon a showing of: (1) the existence of a wrongful act, (2) the existence of imminent harm, (3) the existence of irreparable injury, and (4) the absence of an adequate remedy at law. Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass'n, 25 S.W.3d 845, 849 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). We review the decision to grant a permanent injunction for abuse of discretion. Operation Rescue-Nat'l v. Planned Parenthood of Houston Se. Tex., Inc., 975 S.W.2d 546, 560 (Tex. 1998); Vaughn v. Drennon, 202 S.W.3d 308, 313 (Tex.App.-Tyler 2006, no pet.).
Basham complains there is no evidence to support the injunction because Griffin did not participate in the trial. However, summary judgment established the disputed road was public. Only ultimate issues of fact are submitted for jury determination. State v. Tex. Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex. 1979). The jury does not determine the expediency, necessity, or propriety of injunctive relief. Id. Therefore, no fact issue existed to submit to the jury. See id. Discretion to grant an injunction on the facts lies with the trial court, and not with a jury. Id.; Shields v. State, 27 S.W.3d 267, 272 (Tex.App.-Austin 2000, no pet.). The permanent injunction simply prohibits Basham from taking actions inconsistent with the previous factual finding. See Doll v. Hurst, No. 03-02-576-CV, 2003 Tex. App. LEXIS 6921, *24-25 (Tex.App.-Austin, Aug. 14, 2003, pet. denied) (mem. op.). There is ample evidence in the record to support granting the permanent injunction. See id. at *25-26. We overrule Basham's complaint as to the permanent injunction.
Having overruled each of Basham's issues, we affirm the judgment.