Opinion
No. 07-16-00360-CV
04-11-2018
GARY MEHAN, APPELLANT v. DANIEL BABBEL AND SARAH L. BABBEL, APPELLEES
On Appeal from the 78th District Court Wichita County, Texas
Trial Court No. 175,939-B; Honorable W. Bernard Fudge, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
This is an appeal from a summary judgment rendered by the trial court in a suit seeking to construe and enforce an "access easement" burdening .074 acres (the "disputed tract") of land. Appellant, Gary Mehan, is the owner of a 5.415-acre tract of land (the "Mehan tract") located in Wichita County, Texas, and lying immediately west of and adjacent to a tract of land (the "Babbel tract") owned by Appellees, Daniel Babbel and Sarah L. Babbel. The disputed tract abuts the eastern boundary of the Mehan tract and overlays the Babbel tract. The trial court granted summary judgment in favor of the Babbels, finding Mehan was not the owner of an easement burdening the disputed tract and awarding the Babbels recovery of attorney's fees. Presenting four issues, Mehan contends the trial court erred in granting the Babbels' motion for summary judgment (issues one, two, and three) and in denying his motion for summary judgment (issue four). We affirm.
Originally appealed to the Second Court of Appeals, this case was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Second Court of Appeals and that of this court on any relevant issue. See TEX. R. APP. P. 41.3.
The Mehan tract is more fully described as:
5.415 acres out of Robert Evans Survey, Abstract No. 74, Wichita County, Texas, described by metes and bounds as follows:
BEGINNING at the Southeast Corner of Lot 24, Section "B" Tanglewood Hollow, an Addition to the City of Wichita Falls, Texas;
THENCE S 74° 59' W 140.6 feet to the Northeast corner of Woodcrest Circle Street Dedication;
THENCE S 15° 01' E 50.0 feet to Southeast corner of Woodcrest Circle Street Dedication;
THENCE with South line of Woodcrest Circle and with curve to the left having a radius of 88.3 feet for a distance of 77.05 feet to point of reverse curvature;
THENCE with South line of Woodcrest Circle and with curve to the right having a radius of 50 feet for a distance of 38.75 feet to Northern Northeast corner of Lot 7, Block 2, Tanglewood Hollow Section "B";
THENCE S 20° 36' E 40.8 feet to Southern Northeast corner of Lot 7, an iron rod at Southwest corner of an 81.44 acre tract; Vol. 845, Page 326, Wichita County Deed Records;
THENCE with South line of 81.44 acres, S 83° 20' E 505.25 feet to iron rod for Southeast corner of this tract;
THENCE N 17° 58' E 448.6 feet to iron rod;
THENCE N 1 ° 10' E 144.2 feet to Southeast corner of Lot 22, Block 1, Tanglewood Hollow Section "A";
THENCE West 351.78 feet to Northeast corner of Lot 24, Block 1, Tanglewood Hollow Section "B";
THENCE S 17° 15' W 330.5 feet to the PLACE OF BEGINNING.
The Babbel tract is more fully described as:
Lot Twenty-six "A" (26-A), Block Ten (10), Tanglewood Hollow, Section J, an Addition to the City of Wichita Falls, Wichita County, Texas, according to plat of record in Volume 27, Page 1119, Wichita County, Plat Records.
BACKGROUND
On April 21, 1994, Allen C. Sharp and Marsha Sharp were the owners of the Mehan tract, while Earth Homes, Inc., doing business as R.J. Wachsman Building Corporation, was the owner of the Babbel tract. By an untitled instrument dated April 21, 1994, recorded at volume 1718, page 496, of the Official Public Records of Wichita County, Texas, R.J. Wachsman, acting as President of R.J. Wachsman Building Corporation, conveyed to the Sharps an "access easement" of approximately 25 feet in width and 130 feet in length, consisting of .074 acres, described as follows:
BEGINNING at a point in the East line of a 5.415 acre tract of land conveyed to Allen C. and Marsha Sharp at Volume 1157, Page 423, Wichita County Deed Records, said point, also being in the West line of a 20.342 acre tract of land conveyed to R.J. Wachsman Bldg. Corp. in Volume 1590, Page 331, Wichita County Deed Records, said point bears N 17° 58' E 215.9 feet from the Southeast corner of said 5.415 acre tract and the Southwest corner of said 20.342 acre tract;
THENCE along said East line of 5.415 acre tract and West line of 20.342 acre tract, N 17° 58' E 25.3 feet;
THENCE leaving said East line of 5.415 acre tract and West line of 20.342 acre tract, S 81° 25' E 130.7 feet to a point in a curve to the left;
THENCE along curve to the left with a radius of 50 feet, a central angle of 29.610°, a length of 25.8 feet and a chord of S 20° 31' W 25.6 feet;
THENCE N 81° 25' W 129.5 feet to the PLACE OF BEGINNING and containing .074 acre.
Concerning the purpose of that easement, the instrument of conveyance provided as follows:
It is understood that this access easement is to remain open and unobstructed, and that Grantee shall have the right to construct, reconstruct, and maintain improvements within this access easement. Said improvements shall include, but not be limited to, water lines, sewer lines, driveways, sidewalks, and drainage facilities.
Almost four years later, without constructing any improvements upon the easement, the Sharps conveyed their interest in the 5.415-acre tract to Mehan via a Special Warranty Deed, dated February 27, 1998, recorded in volume 1986, page 61, of the Official Public Records of Wichita County, Texas. The deed identified the .074-acre easement in an attachment identified as "Reservations from and Exceptions to Conveyance and Warranty."
In 2011, R.J. Wachsman Building Corporation built a two-story dwelling on the Babbel tract. As part of those improvements, it constructed a driveway on that portion of its property burdened by the easement previously granted to the Sharps. It later conveyed those improvements to the Babbels by a Warranty Deed with Vendor's Lien, dated July 22, 2011, recorded in volume 3633, page 160, of the Official Public Records of Wichita County, Texas.
Considering the driveway to be an encroachment of the easement favoring his property, Mehan notified the Babbels of the conflict and demanded removal of the existing driveway. When the Babbels refused to comply with Mehan's request, he filed suit under the provisions of the Texas Uniform Declaratory Judgments Act; TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a) (West 2015), seeking construction and enforcement of the 1994 easement. Specifically, Mehan sought a declaratory judgment that the Babbels' driveway constituted an infringement of his rights under the easement and a declaration that their use of the property burdened by the easement did not constitute a waiver or forfeiture of his rights under that easement.
Mehan subsequently filed a motion for summary judgment that was denied by the trial court on November 5, 2014. On February 6, 2015, the Babbels filed their own motion for summary judgment seeking a declaration that Mehan was not the owner of the easement in question and was, therefore, not entitled to enforce its provisions. On March 11, 2015, the trial court issued a letter ruling finding, in part, that the easement had not been lawfully transferred to Mehan because it was specifically excepted from the Sharps' deed to him.
In response, on May 12, 2015, Mehan obtained a Correction Warranty Deed from Marsha Sharp, individually and as Trustee of the Sharp Family Living Trust, the successor in interest to Allen C. Sharp. While the correction deed did remove the description of the easement in question as an "exception" from the conveyance, it did not explicitly transfer the easement to Mehan. In other words, the property description in the correction deed described only the 5.415-acre tract and it did not describe the .074-acre easement. The correction deed was duly recorded at volume 4079, page 317, of the Official Public Records of Wichita County, Texas, and its existence was brought to the attention of the trial court.
Mehan then filed a motion asking the trial court to reconsider his motion for summary judgment. The Babbels responded to Mehan's motion by arguing that the easement had terminated and could not be revived. Notwithstanding the existence of the correction warranty deed, on July 21, 2016, the trial court granted the Babbels' motion for summary judgment and awarded them recovery of reasonable and necessary attorney's fees. Mehan filed a timely motion for new trial and a request for findings of fact and conclusions of law. This appeal followed.
Because this matter was decided on summary judgment and not a trial, Mehan's request for findings of fact and conclusions of law was improper. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997); Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994) (per curiam) (holding "findings of fact and conclusions of law have no place in a summary judgment proceeding"); In re Jackson, No. 07-16-00193-CV, 2016 Tex. App. LEXIS 5300, at *2 (Tex. App.—Amarillo May 18, 2016, no pet.) (orig. proceeding) (mem op.).
STANDARD OF REVIEW
The standard of review for a traditional summary judgment under Rule 166a(c) of the Texas Rules of Civil Procedure is well established. See Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548 (Tex. 1985). Under that standard, we review de novo the trial court's ruling on a motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The moving party carries the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). Evidence favorable to the nonmovant will be taken as true in deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). All reasonable inferences, including any doubts, must be resolved in favor of the nonmovant. Id. A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of every cause of action alleged or if it conclusively establishes all elements of an affirmative defense. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once a defendant establishes a right to summary judgment as a matter of law, the burden shifts to the plaintiff to respond to the motion and present evidence raising a genuine issue of material fact. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex. 1979).
When, as here, a party seeking summary judgment presents multiple grounds for relief and the order does not specify the ground on which the trial court rendered summary judgment, the appellant must negate all grounds on appeal. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993). That is, the summary judgment must be affirmed on appeal if any of the grounds presented in the motion are meritorious. Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
The facts of this case are undisputed, and the parties agree that the instruments involved are unambiguous. Therefore, the substance of the dispute comes down to a determination of the legal status of the Sharps' "access easement."
ISSUES ONE—EASEMENTS APPURTENANT
By his first issue, Mehan contends the trial court erred in granting summary judgment in favor of the Babbels because the 1998 warranty deed he received from the Sharps was "ineffective as either a reservation or an exception," and therefore, it operated to transfer the easement to him as an easement appurtenant. In response, the Babbels contend that even if the easement in question were an easement appurtenant, the conveyance from the Sharps to Mehan contained a provision entitled "Reservations from and Exceptions to Conveyance and Warranty," which specifically listed the easement in question, thereby reserving the easement to the Sharps and terminating the easement.
Generally, an easement may be classified as either an "easement appurtenant" or an "easement in gross." An easement in gross is an easement that attaches to an individual; to be contrasted with an easement appurtenant, which is an easement that benefits a specific tract of land commonly known as the "dominant estate." McWhorter v. Jacksonville, 694 S.W.2d 182, 184 (Tex. App.—Tyler 1985, no writ). Generally, easements in gross are not favored and an easement will normally be construed to be an easement appurtenant when it can fairly be construed to be appurtenant or attached to some other estate. Id. The question of whether an easement is "in gross" or "appurtenant" is determined by an interpretation of the grant or reservation creating that easement. Id.
A deed passes to the grantee all the rights, appurtenances, and interests the grantor holds in the property being conveyed unless there is language in the instrument that clearly shows an intention to convey a lesser interest. Farm & Ranch Inv'rs, Ltd. v. Titan Operating, LLC, 369 S.W.3d 679, 681 (Tex. App—Fort Worth 2012, pet. denied) (citing Cockrell v. Gulf Sulfur Co., 157 Tex. 10, 299 S.W.2d 672, 675 (1957)). Therefore, an easement appurtenant passes with the dominant estate, even if it is not specifically identified in the description of the property being conveyed in the transfer instrument. Aery v. Hoskins, Inc., 493 S.W.3d 684, 700 (Tex. App.—San Antonio 2016, pet. denied).
Here, the document creating the easement was the untitled instrument dated April 21, 1994, recorded at volume 1718, page 496, of the Official Public Records of Wichita County, Texas. By that instrument, the servient estate (here, the Babbel tract) was encumbered by the right of the Sharps to construct and maintain improvements ("includ[ing], but not limited to, water lines, sewer lines, driveways, sidewalks, and drainage facilities") benefiting the dominant estate (here, the Mehan tract). Therefore, a plain reading of that instrument shows it to be an easement appurtenant.
That being said, however, here, the original deed from the Sharps to Mehan specifically excepted the easement from the property being conveyed. An express exception controls over an implied transfer. Accordingly, the exception contained in the original deed from the Sharps to Mehan was effective and ownership of the easement did not pass by implication to Mehan as an easement appurtenant. Issue one is overruled.
An "exception" contained in a document of conveyance operates to exclude the interest described from the interest being conveyed, so as to either retain title in the grantor or eliminate any warranty with respect to an interest which is owned by another. See Klein v. Humble Oil & Refining Co., 67 S.W.2d 911, 915 (Tex. Civ. App.—Beaumont 1964), modified on other grounds, 126 Tex. 450, 86 S.W.2d 1077 (1935).
While "reservations" and "exceptions" are different legal concepts in the context of a real estate conveyance, that distinction does not control the outcome of this case.
ISSUES TWO—CORRECTION WARRANTY DEED
By his second issue Mehan contends that, if the reservations and exceptions clause operated to prevent the easement from implicitly passing to him as an easement appurtenant at the time of the original deed, any deficiency was cured when he obtained a correction warranty deed which deleted the easement from any reservation or exception. In response, the Babbels contend the easement terminated upon execution of the original deed and could not be revived by the correction warranty deed.
Prior to entering summary judgment in favor of the Babbels, the trial court issued a letter ruling finding that the Babbels were without legal notice of any easement because section 5.030(c) of the Texas Property Code prevented the correction warranty deed from relating back to the date of the original deed. See TEX. PROP. CODE ANN. § 5.030(c) (West 2014) (providing that a correction instrument is subject to the property interest of a subsequent purchaser for valuable consideration without notice acquired on or after the date the original instrument was filed and before the correction instrument has been filed). Mehan counters this position by contending that the Babbels had constructive notice of the easement by virtue of the fact that the easement was filed of record and appeared in their chain of title. This counterargument ultimately fails, however, because, as of the date the Babbels acquired title to the Babbel tract, the easement would have terminated as a matter of law.
By specifically excepting the easement from conveyance in the original deed, the Sharps retained all rights and Mehan acquired no interest in the easement. The rights of one holding an easement in the lands of another are measured by the nature and purpose of the easement. Because the express purpose of the easement was to grant the Sharps an "access easement" to construct and maintain improvements for the benefit of the Mehan tract, when the Sharps no longer owned an interest in the Mehan tract there was no longer a need for any access and the purpose of the easement ceased to exist. See Kearney & Son v. Fancher, 401 S.W.2d 897, 906 (Tex. Civ. App.—Fort Worth 1966, writ ref'd n.r.e.) (stating that "an easement granted for a particular purpose terminates as soon as such purpose ceases to exist, is abandoned, or is rendered impossible to accomplish"). See also Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849, 852 (1950) (stating that it appears to be "well-settled that an abandonment . . . occurs when the use for which property is dedicated becomes impossible . . . or where the object of the use for which the property is dedicated wholly fails"); Shaw v. Williams, 332 S.W.2d 797, 800 (Tex. Civ. App.—Eastland 1960, writ ref'd n.r.e.).
This principle, known as the cessation of purpose doctrine, is based on the assumption that an easement should terminate upon the cessation of its purpose, and it serves to eliminate meaningless burdens upon a servient estate. Because the Babbels were entitled to rely upon this principle of law when they acquired their interest, particularly considering the fact that the original deed to Mehan specifically excepted the easement as part of the conveyance, it cannot be said that the Babbels acquired title with notice of Mehan's claim. Accordingly, because the Babbels did not have actual or constructive notice of the claimed easement, the correction deed did not have the effect of relating back to the date of the original deed and it did not cure the deficiencies of the original deed. See TEX. PROP. CODE ANN. § 5.030(c) (West 2014). Issue two is overruled.
ISSUES THREE—STANDING
By his third issue, Mehan contends that if he lacked a property interest in the easement, then the trial court lacked subject matter jurisdiction to grant any relief. In essence, Mehan attempts to introduce the issue of standing to avoid the consequence of his raising an issue concerning the validity of the easement. Standing requires that a party bringing a lawsuit must have a sufficient relationship with the lawsuit so as to have a justiciable interest in the lawsuit's outcome. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). In Texas, standing requires that there be (1) a real controversy between the parties that (2) will be determined by the judicial declaration sought. Id. at 849. Further, the issue of standing focuses on who may bring an action. M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001). Unless standing is conferred by statute, the question of whether a plaintiff possesses standing to assert a particular claim depends on the facts pleaded and the cause of action asserted. Id. at 707-08.
Here, Mehan filed this declaratory judgment cause of action seeking a construction of the access easement granted to the Sharps by R.J. Wachsman Building Corporation in 1994. As such, he claimed that a justiciable controversy existed between him and the Babbels that would be resolved by the judicial declaration sought. Accordingly, there is no question that the trial court had jurisdiction to issue the declaration that it did. Issue three is overruled.
ISSUES FOUR—MEHAN'S MOTION FOR SUMMARY JUDGMENT
By his fourth and final issue, Mehan contends that if the court were to find he has title to the easement, then this court should proceed to consider questions presented by his original motion for partial summary judgment. Because we have found the contrary to be true, it is unnecessary for us to consider this issue. See TEX. R. APP. P. 47.1.
CONCLUSION
The judgment of the trial court is affirmed.
Patrick A. Pirtle
Justice