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OPINION
No. 04-08-00021-CV
Xavier REYES and Wife Maria del Rosario T. Reyes,
Appellants
v.
Eligio E. SAENZ, Jr. and Wife Martha Saenz,
Appellees
From the 229th Judicial District Court, Duval County, Texas
Trial Court No. DC-06-287
Honorable Alex W. Gabert, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: July 9, 2008
REVERSED AND REMANDED
This is an appeal from the trial court’s summary judgment rendered in favor of appellees.
Because appellees did not establish their entitlement to summary judgment as a matter of law, we
reverse and remand.
04-08-00021-CV
BACKGROUND
Appellants, Xavier Reyes and Maria del Rosario T. Reyes own sixty acres of land, which
they acquired in 1978 from Francisca Thrash. Appellees, Eligio E. Saenz, Jr. and Martha Saenz own
approximately eighty-seven acres of land, which they acquired in 1970 from the previous owners,
who in turn had acquired the land from Francisca Thrash in 1965. There is no dispute that the land
owned by the Saenzes is landlocked. However, a road exists that passes from a public road that
leads across Mrs. Thrasher’s land and across the Reyeses’ land to the Saenzes’ land. In October
2006, the Saenzes sued the Reyeses asking for a declaratory judgment on their right of way across
the Reyeses’ property for the purpose of accessing the Saenzes’ property. The Saenzes also asked
that the Reyeses be permanently enjoined from interfering with their use and enjoyment of the
roadway across the Reyeses’ property. In their petition, the Saenzes based their request for relief
on five theories: implied easement appurtenant, easement by implication, easement by necessity,
easement by estoppel, and easement by prescription. The Saenzes later moved for summary
judgment on three of their five theories: implied easement appurtenant, easement by implication, and
easement by necessity. The trial court rendered summary judgment in favor of the Saenzes “under
the various legal theories pled by them.” This appeal by the Reyeses ensued.
NO-EVIDENCE SUMMARY JUDGMENT
The Saenzes moved for both a no-evidence summary judgment and a traditional summary
judgment. The basis of the Saenzes’ no-evidence motion was that the Reyeses had “failed to
produce any evidence to negate or disprove the essential elements of [the Saenzes’] claims.”
Although the trial court did not state whether it was granting the no-evidence motion or the
traditional motion or both, we construe the court’s statement that the Saenzes were entitled to
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summary judgment “under the various legal theories pled by them” as granting a traditional
summary judgment. We also note that the Saenzes, as plaintiffs, were not entitled to a no-evidence
summary judgment on their own claims. The Texas Rules of Civil Procedure allow a party to move
for summary judgment “on the ground that there is no evidence of one or more essential elements
of a claim ... on which an adverse party would have the burden of proof at trial.” TEX. R. CIV. P.
166a(i) (emphasis added). The Saenzes had the burden of proof on their easement claim; therefore,
they were not entitled to a no-evidence summary judgment on that claim.
TRADITIONAL SUMMARY JUDGMENT
The Saenzes’ petition asserted five theories as the basis for their requested relief; however,
they moved for a traditional summary judgment on only three of those grounds: implied easement
appurtenant, easement by implication, and easement by necessity. Accordingly, to the extent the
trial court rendered judgment in favor of the Saenzes on the two grounds not raised in their motion,
the Saenzes were not entitled to summary judgment on the theories of easement by estoppel and
easement by prescription. We thus narrow our review to whether the Saenzes established their
entitlement to summary judgment as a matter of law under the remaining three grounds.
A plaintiff, as movant, must conclusively prove all essential elements of his or her claim to
be entitled to summary judgment. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). The movant
bears the burden of showing there are no genuine issues of material fact and that he or she is entitled
to judgment as a matter of law. Id.; TEX. R. CIV. P. 166a(c). An essential element common to all
three theories under which the Saenzes sought relief is the element of necessity. See Drye v. Eagle
Rock Ranch, Inc., 364 S.W.2d 196, 207-08 (Tex. 1962) (stating an easement is appurtenant when
it is necessary and essential to the enjoyment of the dominant estate; to prove an easement by
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implication, the use must be necessary to the use of the dominant estate); Koonce v. J.E. Brite
Estate, 663 S.W.2d 451, 452 (Tex. 1984) (stating one of the required elements to establish an
easement by necessity is that “access must be a necessity and not a mere convenience”).
In their motion for summary judgment, the Saenzes asserted “the use of the road was
necessary because it was, and still is, the only practicable way to reach [the Saenzes’] landlocked
property. There is no other practicable means of access.” There is no dispute that the Saenzes must
cross property owned by another in order to access their acreage. However, no summary judgment
evidence was offered to support, or explain, their contention that access across the Reyeses’ property
was the “only practicable way” to reach the Saenzes’ property. Conclusory statements contained
in a motion for summary judgment do not constitute summary judgment evidence. See TEX. R. CIV.
P. 166a(c) (prohibiting oral evidence in summary judgment determination); Laidlaw Waste Sys.
(Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (noting pleadings are not
competent summary judgment evidence); Madeksho v. Abraham, Watkins, Nichols & Friend, 57
S.W.3d 448, 455 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (noting conclusions in motion
for summary judgment or response are not summary judgment evidence).
Also, in their response to the Saenzes’ motion, the Reyeses point to the testimony of Xavier
Reyes, which the Saenzes attached to their motion for summary judgment, in which Xavier is
questioned as follows:
Q. All right. And are you aware of whether or not Eligio [Saenz] has any other
method of getting to a public roadway, other than through Mrs. Thrash’s
property and through your property?
A. He’s even going through my, my easement that I bought outright several
times, and also through the ranch, through other places. [Emphasis added]
Q. Through what other places sir?
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A. Through mine and Bazans and Manuel Reyes too. He’s been using it, not
right now because he locked the gates. [Emphasis added]
Xavier Reyes’ testimony raises a genuine issue of material fact on whether the Saenzes have other
means of access to their property and on whether access across the Reyeses’ property is a necessity,
as opposed to a mere convenience. Therefore, we conclude the Saenzes failed to conclusively prove
an essential element common to all three of the claims on which they moved for summary judgment.
Accordingly, the trial court erred in rendering summary judgment in favor of the Saenzes.
CONCLUSION
We reverse the trial court’s judgment and remand for further proceedings.1
Sandee Bryan Marion, Justice
1
We decline to address the Reyeses’ first and third issues as they are not dispositive to this appeal. TEX.
R. APP. P. 47.1.
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