El Caballero Ranch, Inc. A/K/A El Caballero, LLC and Laredo Marine, LLC v. Grace River Ranch, LLC

ACCEPTED
04-15-00127-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/12/2015 4:41:59 PM
KEITH HOTTLE
CLERK

No. 04-15-00127CV
FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS SAN ANTONIO, TEXAS
03/12/2015 4:41:59 PM
FOR THE 4TH JUDICIAL DISTRICT OF TEXASKEITH E. HOTTLE
Clerk

AT SAN ANTONIO

EL CABALLERO RANCH, INC.
AND LAREDO MARINE, L.L.C., Appellants
V.
GRACE RIVER RANCH, LLC, Appellee

Appealed from
the 218th District Court of
La Salle County, Texas

RESPONSE TO MOTION FOR EMERGENCY STAY OF
TEMPORARY INJUNCTION CHALLENGED
IN INTERLOCUTORY APPEAL

MOORMAN TATE HALEY
UPCHURCH & YATES, LLP

By: STEVEN C. HALEY
State Bar No. 08741900
207 E. Main St./P.O. Box 1808
Brenham, Texas 77834-1808
Telephone: (979) 836-5664
Telecopier: (979) 830-0913
shaley@moormantate.com

Attorney for Appellee,
Grace River Ranch, LLC

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 No. 04-15-00127CV

IN THE COURT OF APPEALS

FOR THE 4TH JUDICIAL DISTRICT OF TEXAS

AT SAN ANTONIO

EL CABALLERO RANCH, INC.
AND LAREDO MARINE, L.L.C., Appellants

V.

GRACE RIVER RANCH, LLC, Appellee

Appealed from
the 218th District Court of
La Salle County, Texas

RESPONSE TO MOTION FOR EMERGENCY STAY OF
TEMPORARY INJUNCTION CHALLENGED
IN INTERLOCUTORY APPEAL

TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS:

GRACE RIVER RANCH, LLC (GRACE RIVER), Appellee in this appeal

and Plaintiff below, respectfully files this, its Response to Motion for Emergency

Stay of Temporary Injunction Challenged in Interlocutory Appeal and in support of

same would show this Court the following:

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 STATEMENT OF FACTS

1. Grace River Ranch. GRACE RIVER is the owner of the 6,779.066

acre "Grace River Ranch" located in La Salle County, Texas and more particularly

described by metes and bounds in Special Warranty Deed, Veda Gwen Goodwin

Treat and Kelly Maxwell Goodwin, Co-Trustees of the Roy and Bonnie Goodwin

Family Ranch Trust Dated December 17, 2012 to Rio Gracia Ranch, LLC dated

December 31, 2012 and recorded at Volume 664, Page 227, Official Public

Records, La Salle County, Texas (hereinafter the "Grace River Ranch").

2. El Caballero Ranch. EL CABALLERO is the owner of at least

9,220.993 acres comprising the "El Caballero Ranch" located in La Salle County

and described in Warranty Deed from Knight Oil Tools, Inc. to EL CABALLERO

dated March 30, 1998 and filed of record at Volume 400, Page 83, Deed Records,

La Salle County, Texas (hereinafter the "El Caballero Ranch").

3. 7 C's Ranch. LAREDO MARINE is the owner of a 30,074.41 acre

tract known as the "7 C's Ranch" located in La Salle and Webb Counties, Texas

and more particularly described in Correction General Warranty Deed With

Assumption of Security Documents, Damon Chouest, Inc. to Laredo Marine Dated

April 20, 2011 and filed of record at Volume 572, Page 120, Deed Records, La

Salle County, Texas (hereafter the "7 C's Ranch").

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 4. Common Source of Title of Grace River Ranch, El Caballero

Ranch, and 7 C's Ranch. The Grace River Ranch (owned by GRACE RIVER),

the El Caballero Ranch (owned by EL CABALLERO), and the 7 C's Ranch (owed

by LAREDO MARINE), have a common source of title, being Patrick H. Welder,

Jr. The parent tract was acquired by Patrick H. Welder, Jr. by deed dated January

28, 1963 and recorded at Volume 130, Page 116, Deed Records, La Salle County,

Texas on February 19, 1963. The histories of Grace River Ranch, the El Caballero

Ranch, and the 7 C's Ranch subsequent to that common source of title appear

below in tabular form:

Fi ure 1.
Title History of Grace River Ranch

Document Date Recorded

General Warranty Deed, September 6, Volume 381,
Patrick H. Welder, Jr. to 1995 Page 563, Deed
John T. Mundy and Sue E. Records, La
Mundy Salle County,
Texas on
September 12,
1995

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 Title History of Grace River Ranch

Document Date Recorded
Special Warranty Deed, December 17, Volume 664,
John T. Mundy and Sue E. 2012 Page 219,
Mundy to The Roy and Official Public
Bonnie Goodwin Family Records, La
Ranch Trust (Veda Gwen Salle County,
Goodwin Treat and Kelly Texas on
Maxwell Goodwin, as Co- January 2, 2013
Trustees)

Special Warranty Deed, December 31, Volume 664,
Veda Gwen Goodwin Treat 2012 Page 227,
and Kelly Maxwell Official Public
Goodwin, Co-Trustees of Records, La
the Roy and Bonnie Salle County,
Goodwin Family Ranch Texas on
Trust Dated December 17, January 2, 2013
2012 to Rio Gracia, LLC

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 Figure 2.

Title History of El Caballero Ranch

Document Date Recorded

Vendor's Lien Deed, Patrick February 3, Volume 392,
H. Welder, Jr. to Knight Oil 1997 Page 229, Deed
Tools, Inc. Records, La
Salle County,
Texas on
February 6,
1997

Warranty Deed, Knight Oil March 30, 1998 Volume 400,
Tools, Inc. to El Caballero Page 83, Deed
Ranch, Inc. Records, La
Salle County,
Texas on April
22, 1998

Figure 3.

Title History of 7 C's Ranch

Document Date Recorded

Warranty Deed, Patrick H. October 6, 1999 Volume 407,
Welder, Jr. to E. J. Cop Page 409, Deed
(30,074.41 ac.) Records,
LaSalle County,
Texas

Warranty Deed, E.J. Cop to March 22, 2000 Volume 411,
Dennis J. Wilkerson, Page 179, Deed
Trustee (15,000 ac.) Records,
LaSalle County,
Texas

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 Title History of 7 C's Ranch

Document Date Recorded

Warranty Deed, E.J. Cop to March 22, 2000 Volume 411,
Dennis J. Wilkerson, (Effective Page 208, Deed
Trustee, Samuel H. Vester, March 22, 2000) Records,
Jr. and Joseph P. Gerlich LaSalle County,
(15,074.41 ac.) Texas

Warranty Deed With March 22, 2000 Volume 411,
Vendor's Lien, Dennis J. Page 234, Deed
Wilkerson, Trustee, Samuel Records,
H. Vester, Jr., and Joseph P. (Effective LaSalle County,
Gerlich to Damon Chouest, March 22, 2000) Texas
Inc.

Correction Warranty Deed April 18, 2011 Volume 572,
With Vendor's Lien, Dennis (Effective Page 85, Deed
J. Wilkerson, Trustee, March 22, 2000) Records, La
Samuel H. Vester, Jr. and Salle County,
Joseph P. Gerlich to Damon Texas
Chouest, Inc.

General Warranty Deed December 18, Volume 417,
With Assumption of 2000 Page 11, Deed
Security Documents, Records, La
Damon Chouest, Inc. to Salle County,
Laredo Marine, L.L.C. Texas

Correction General April 20, 2011 Volume 572,
Warranty Deed With (Effective Page 120, Deed
Assumption of Security December 18, Records, La
Documents, Damon 2000) Salle County,
Chouest, Inc. to Laredo Texas
Maine, L.L.C.

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 5. Northerly Grace River Easement. Contemporaneously with the

creation and sale of the present Grace River Ranch by Patrick H. Welder, Jr. on

September 6, 1995, Welder created and granted an "Access Easement Agreement"

for vehicular and pedestrian access in favor of buyers, John T. Mundy and Sue E.

Mundy, to the present Grace River Ranch over and across Welder's retained

property which included the present El Caballero Ranch and 7 C's Ranch and

passing along a prescribed and surveyed route northward from Grace River Ranch

toward FM 624. This Access Easement Agreement (recorded at Volume 382, Page

1, Deed Records, La Salle County, Texas) provided in pertinent part:

(1) the easement was 80 feet in width;

(2) the access was for vehicular and pedestrian access along the
described route of the easement for each owner of the present
Grace River Ranch, their employees, agents, and invitees;

(3) no barriers were to be erected to interfere with the free flow of
vehicular and pedestrian traffic across the present El Caballero
Ranch and/or 7 C's Ranch other than gates through which the
easement owner might pass without assistance;

(4) the servient owner was to provide the easement owner with all
necessary keys to open gates such that all gates could be freely
opened and closed without assistance;

(5) the easement was binding upon and inured to the benefit of all
subsequent owners of the servient and dominant estates;

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 (6) the easement could not be subsequently amended except by a
writing by the owners of the servient and dominant estates and
signed and filed of record in La Salle County;

(7) the easement was appurtenant to the present Grace River
Ranch.

(hereinafter the "Northerly Grace River Easement").

6. Easterly Access Easement. Contemporaneous with the creation and

sale of the present Grace River Ranch by Patrick H. Welder, Jr. on September 6,

1995, Welder also created and granted a second "Access Easement Agreement" for

vehicular and pedestrian access in favor of buyers, John T. Mundy and Sue E.

Mundy, to the present Grace River Ranch over and across Welder's retained

property which included the present 7 C's Ranch property and passing along a

described route eastward from Grace River Ranch eastward towards State

Highway 44. This second Access Easement Agreement (recorded at Volume 382,

Page 9, Deed Records, La Salle County, Texas similarly provided in pertinent part:

(1) the easement was 80 feet in width;

(2) the access was for vehicular and pedestrian access along the
described route of the easement for each owner of the present
Grace River Ranch, their employees, agents, and invitees;

(3) no barriers were to be erected to interfere with the free flow of
vehicular and pedestrian traffic across the present 7 C's Ranch
property other than gates through which the easement owner
might pass without assistance;

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 (4) the servient owner was to provide the easement owner with all
necessary keys to open gates such that all gates could be freely
opened and closed without assistance;

(5) the easement was binding upon and inured to the benefit of all
subsequent owners of the servient and dominant estates;

(6) the easement could not be subsequently amended except by a
writing by the owners of the servient and dominant estates and
signed and filed of record in La Salle County, Texas.

(7) The easement was appurtenant to the present Grace River
Ranch.

(hereinafter the "Easterly Access Easement").

7. Grace River Easements. The Northerly Grace River Easement and

the Easterly Grace River Easement are herein sometimes collectively referred to as

the "Grace River Easements".

8. Grace River Ranch the Successor Dominant Estate Owner of the

Grace River Easements. GRACE RIVER is the successor in title to the dominant

estate of the Grace River Easements per the following chain of title:

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 Figure 4.
Title History of Grace River Easements

Instrument Date Recorded

Access Easement Agreement September 6, Volume 382,
(Northerly), Patrick H. 1995 Page 1, Deed
Welder, Jr. to John T. Mundy, Records, La
et ux Salle County,
Texas on
September 12,
1995

Access Easement Agreement September 6, Volume 382,
(Easterly), Patrick H. Welder, 1995 Page 9, Deed
Jr. to John T. Mundy, et ux Records, La
Salle County,
Texas on
September 12,
1995

Special Warranty Deed, John December 17, Volume 664,
T. Mundy and Sue E. Mundy 2012 Page 219,
to Roy and Bonnie Goodwin Official Public
Family Ranch Trust (Veda Records, La
Gwen Goodwin Treat and Salle County,
Kelly Maxwell Goodwin, as Texas on
Co-Trustees) 1 January 2, 2013

Special Warranty Deed, Veda December 31, Volume 664,
Gwen Goodwin Treat and 2012 Page 227,
Kelly Maxwell Goodwin, Co- Official Public
Trustees of the Roy and Records, La
Bonnie Goodwin Family Salle County,
Ranch Trust of December 17, Texas on
2012 to Rio Gracia, LLC2 January 2, 2013

1 TheGrace River Easements were expressly conveyed as part of this transaction.
2
The Grace River Easements were expressly conveyed as part of this transaction.
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 9. El Caballero and Laredo Marine are the Successor Servient

Owners Under the Grace River Easements. EL CABALLERO, as the owner of

the El Caballero Ranch, is the successor in title to that part of the servient estate

encumbered by the Northerly Grace River Easement and lying within the El

Caballero Ranch per the chain set out in Figure 2.

LAREDO MARINE, as the owner of the 7 C's Ranch, is the successor in

title to that part of the servient estate encumbered by both the Northerly Grace

River Easement and the Easterly Grace River Easement and lying within 7 C's

Ranch per the chain of title set out in Figure 3.

All vesting deeds into EL CABALLERO and LAREDO MARINE, and their

predecessors in title, made after September 6, 1995 (the date the Grace River

Easements were created by Patrick H. Welder, Jr.), as well as all relevant title

policies of Appellants and their predecessors in title expressly made subject to the

Northerly Grace River Easement, the Easterly Grace River Easement, and the La

Salle County Easement3 (as applicable).

10. Additional Private and Public Easements Along the Route of the

Northerly Grace River Easement. The Northerly Grace River Easement is non-

exclusive. Additional parties have valid public and/or private easements along the

3
Refer to Figure 5.
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route of the Northerly Grace River Easement and across El Caballero Ranch and

the 7 C's Ranch, which easements were originally created by the following

instruments:

Fi ure 5.
Additional Easements Along Northerly Grace River Easement

Instrument Date Recorded

Access Easement Agreement, March 31, 1995 Volume 52, Page
Patrick H. Welder, Jr. to Jim 379, Deed
Berry and Bob Berry Records, La
(hereafter the "Berry Salle County,
Easement") Texas on May
15, 1995

Vendor's Lien Deed, Patrick February 3, 1997 Volume 392,
H. Welder, Jr. to Knight Oil Page 229, Deed
Tools, Inc. (hereafter the Records, La
"Welder Easement")4 Salle County,
Texas

Right-of-Way Deed, Ruth February 3, 1939 Volume M-3,
Bradley Watkins, Individually Page 390, Deed
and as Independent Executor Records, La
of the Will and Estate of Salle County,
Griffin Watkins, Deceased, et Texas
al to G.A. Welhausen, County
Judge, La Salle County, Texas
(the "La Salle County
Easement").
These additional easements have not been subsequently revoked, released, or

terminated.

4
This instrument expressly retained an access easement in favor of Patrick H. Welder, Jr.
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 11. Use of the Northerly Grace River Easement. After the creation and

recordation of the Northerly Grace River Easement in favor of John T. Mundy and

Sue E. Mundy (hereinafter collectively "Mundy") Mundy extensively used the

Northerly Grace River Easement for access to the Grace River Ranch (then the

"Mundy Ranch"). Mundy was originally supplied a key to all gates across the

Northerly Grace River Easement by Patrick H. Welder, Jr. The Northerly Grace

River Easement crossed the Nueces River over a low water crossing originally

constructed by La Salle County for the La Salle county Easement decades prior on

the county road lying along the same path as the Northerly Grace River Easement

(hereafter the "Low Water Crossing").

On February 3, 1997, Knight Oil Tools acquired the current El Caballero

Ranch by Vendor's Lien Deed made expressly subject to the Northerly Grace

River Easement, the Berry Easement, and the La Salle County Easement. Knight

Oil Tools, Inc. then conveyed the El Caballero Ranch to a related entity, EL

CABALLERO, on March 30, 1998 expressly subject to the same pre-existing

easements.

Eddie Knight, a principal of both Knight Oil Tools, Inc. and El Caballero

Ranch supplied Mundy with keys to the new gate lock placed by Knight Oil

Tools/Caballero Ranch along the route of the Northerly Grace River Easement.

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Later Knight Oil Tools/Caballero Ranch supplied a second updated key to a

replacement lock along the route of the Northerly Grace River Easement. Mundy

continued to make extensive use of the Northerly Grace River Easement for access

and egress.

Sometime thereafter, there was a washout of 65 feet of the southern

approach of the decades old Low Water Crossing. The majority of the span of the

Low Water Crossing remains intact. This washout caused an interruption of the

use of the Northerly Grace River Easement as a through way to FM 624 by Mundy

while Mundy waited for the repair of the Low Water Crossing by the County.

Mundy temporarily did not travel this way along the entirety of the Northerly

Grace River Easement for this reason only. Mundy utilized alternate access.

However, there was nothing that changed about the road that indicated to Mundy

that any party was attempting to deny Mundy permission to use of the Northerly

Grace River Easement as it crossed either the El Caballero Ranch or the 7 C's

Ranch. There were no visual indications on the road that either servient owner

then failed to recognize the continuity of the Northerly Grace River Easement.

Nothing about the gates or road indicated any change in circumstances. Nothing

indicated that Mundy's key was no longer valid to access the road. Mundy never

intended to relinquish nor did Mundy relinquish Mundy's right to use the

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Northerly Grace River Easement after the washout. No one connected with Knight

Oil Tools, Inc. or EL CABALLERO ever challenged Mundy's right to use the

Northerly Grace River Easement. Mundy would have vigorously opposed any

such effort.

The Northerly Grace River Easement also crosses the present 7 C's Ranch

between Grace River Ranch and the Nueces River to the north along the route

described in the Northerly Grace River Easement. During the time that Damon

Chouest, Inc. and Laredo Marine, L.L.C. owned the 7 C's Ranch, they had a Ranch

Manager running operations there by the name of Chad Edwards. During this

period, all gates lying along the Northerly Grace River Easement on the 7 C's

Ranch were taken down and/or unlocked except one new gate lying several

hundred yards south of the Nueces River. This gate was kept locked with a lock

requiring a key. Mundy was provided with a duplicate copy of this key by Chad

Edwards after the Low Water Crossing washed out and in anticipation of it being

repaired. At all times while Mundy and Mundy-related entities owned the Grace

River Ranch, Mundy had the use of the Northerly Grace River Easement. Mike

Treat, a caretaker for the Mundy Property, utilized the 7 C's Ranch portion of the

Northerly Grace River Easement several times a year each year for the period

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extending between 2000 and 2013. No one connected with 7 C's Ranch ever

disputed that use.

12. Use of Easterly Grace River Easement. After the creation and

recordation of the Easterly Grace River Easement in favor of Mundy, Mundy

extensively used the Easterly Grace River Easement for access to the Grace River

Ranch (then the "Mundy Ranch"). The Easterly Grace River Easement provided

access to the Mundy Ranch from easterly direction across the present 7 C's Ranch

Property. This was one of the preferred routes to reach the Ranch convenient to

Mundy. There was a locked gate where the Easterly Grace River Easement

entered the present 7 C's Ranch. Mundy maintained Mundy's own lock on this

gate to allow them to come and go along the Easterly Grace River Easement.

During the entire time of Mundy's ownership of the Ranch, no one connected with

any of the owners of the present 7 C's Ranch ever attempted to restrict or prohibit

Mundy's use of the Easterly Grace River Easement. Mundy used it frequently and

without protest from anyone. No one connected with the ownership of 7 C's

Ranch ever challenged Mundy's right to use the Easterly Grace River Easement for

as long as Mundy owned the Ranch. If they had, Mundy would have vigorously

opposed any such effort. Representatives of Grace River Ranch have used the

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Easterly Access Easement freely since GRACE RIVER purchased the Grace River

Ranch without complaint or opposition by anyone connected with 7 C's Ranch.

13. Grace River Bought Grace River Ranch. On December 31, 2012

GRACE RIVER bought the Grace River Ranch and appurtenant easements from a

Mundy family trust, inclusive of the Grace River Easements.

14. Grace River Notified El Caballero That Grace River is the

Current Owner of the Northerly Grace River Easement. In February, 2013

GRACE RIVER notified EL CABALLERO that GRACE RIVER was the current

owner of the Northerly Grace River Easement.

15. Grace River Requested Keys and Access to the Northerly Grace

River Easement. Beginning February 22, 2013, GRACE RIVER requested keys

and access to the Northerly Grace River Easement as it traverses El Caballero

Ranch.

16. Grace River Requested Keys and Access to the Northerly Grace

River Easement Through Counsel. Beginning not later than March 7, 2013,

GRACE RIVER by and through its counsel requested EL CABALLERO to

provide keys and access along the Northerly Grace River Easement.

17. El Caballero Refused Access Along the Northerly Grace River

Easement. In response to requests by GRACE RIVER for access along the

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Northerly Grace River Easement, EL CABALLERO refused any access along that

easement.

18. El Caballero Falsely and Unilaterally Attempted to Terminate the

Northerly Grace River Easement, the Berry Easement, and the La Salle

County Easement. In direct response to Grace River's request for access, on or

about March 5, 2013, EL CABALLERO attempted to falsely and unilaterally

terminate the Northerly Grace River Easement, the Berry Easement (now owned

by ROBERT W. BRITTINGHAM), and the La Salle County Easement by

recording in the Official Records of La Salle County, a "Notice of Revocation and

Termination of Easement and Access Easement Agreements" by claims of

abandonment, failure of purpose, and impossibility. Prior to that date neither EL

CABALLERO nor its predecessors in title had taken an action to cancel or

repudiate the Northerly Grace River Easement.

19. The Original Basis for El Caballero's Excluding Grace River

from the Northerly Grace River Easement are Failure of Purpose.

Abandonment, and Impossibility. The original basis of EL CABALLERO's

refusal to allow use of the Northerly Grace River Easement was failure of purpose,

abandonment, and impossibility.

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 20. Suit Filed by Grace River. In April, 2013, GRACE RIVER filed the

present suit against EL CABALLERO seeking to open up and gain access to the

Grace River Easements and the La Salle County Easement and enjoin EL

CABALLERO' s interference with the easements.

21. Traditional and No-Evidence Motion for Summary Judgment

Filed by Grace River. On July 18, 2013, GRACE RIVER filed herein its

Traditional and No-Evidence Motion for Summary Judgment to determine and

declare the validity of the Northerly Grace River Easement and of the public

roadway along the route of the Northerly Grace River Easement against the failure

of purpose, abandonment, and impossibility claims made by EL CABALLERO.

This Motion was set for hearing before the trial court on September 26, 2013.

22. El Caballero Files its First Amended Answer. On or about

September 18, 2013 (approximately seven days prior to the scheduled hearing on

the above [first] Traditional and No-Evidence Motion for Summary Judgment), El

Caballero filed herein its First Amended Answer, Defenses & Counterclaim (the

"Amended Answer"). The Amended Answer raised the additional defense of

adverse possession/limitation to the easements.

23. Intervention by Laredo Marine. Also on or about September 18,

2013, LAREDO MARINE filed herein its Original Petition in Intervention and

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Counterclaim contesting the validity of the Northerly Grace River Easement and

the public road running along the path of the Northerly Grace River Easement on

grounds of abandonment, failure of purpose, and adverse possession/limitations.

24. Grace River's Traditional and No-Evidence Motion for Summary

Judgment Heard and Submitted. The [first] Traditional and No-Evidence

Motion for Summary Judgment filed by GRACE RIVER was heard by the Court

on September 26, 2013. The Motion was extensively and exhaustively argued and

briefed by the Parties on that date with the Court taking the matter under

advisement.

25. Court Issues Letter Ruling. On or about June 12, 2014, the Court

entered its letter ruling that was granting the [first] Traditional and No-Evidence

Motion for Summary Judgment in favor of GRACE RIVER.

26. Order Entered. On July 7, 2014, the Court entered its Order

Granting Traditional and No-Evidence Motion for Summary Judgment in favor of

GRACE RIVER.

27. Amended Order Entered. The Court later entered its Second

Amended Order Granting Traditional and No-Evidence Motion for Summary

Judgment in favor of GRACE RIVER.

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 28. Second Traditional and No-Evidence Motion for Summary

Judgment by Grace River. GRACE RIVER then filed its Second Motion for

Traditional and No-Evidence Motion for Summary Judgment seeking summary

judgment on all issues and against all parties intervening after the filing of the

original Motion (as granted by the Court on July 7, 2014).

29. Second Traditional and No-Evidence Motion for Summary

Judgment Heard and Considered. The Second Traditional and No-Evidence

Motion for Summary Judgment was heard and considered by the Court on

September 18, 2014.

30. Court Issues Letter Ruling. On December 17, 2014, the Court

entered its letter ruling that it was granting the Second Traditional and No-

Evidence Motion for Summary Judgment.

31. Partial Summary Judgment. On March 3, 2015, the Court entered

its Partial Summary Judgment incorporating all of its rulings in favor of GRACE

RIVER on the [first] Traditional and No-Evidence Motion for Summary Judgment

and Second Traditional and No-Evidence Motion for Summary Judgment. A copy

of the Partial Summary Judgment is appended "Exhibit A".

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 The Partial Summary Judgment confirmed the existence of the Grace River

Easements and La Salle County Easement across both El Caballero Ranch and 7

C's Ranch as follows:

1. Private Easement. GRACE RIVER has valid and subsisting
non-exclusive express easements across El Caballero Ranch, 7
C's Ranch, and the Nueces River Crossing for vehicular and
pedestrian access to and egress from Grace River Ranch along
that part of the Grace River Easements lying within El
Caballero Ranch, 7 C's Ranch, and/or the Nueces River
Crossing with the right to use and maintain the road thereon and
any culverts, low water crossings, or bridges lying along the
Grace River Easement in conformity with the rights and
privileges and subject to the requirements set out in the Grace
River Easements and the Miscellaneous Easement.

2. Public Road. There is a valid and subsisting public road across
El Caballero Ranch, 7 C's Ranch, and Nueces River Crossing
along the route and of the width described in the County Road
Easement for that part of the County Road Easement lying
within El Caballero Ranch, 7 C's Ranch, and the Nueces River
Crossing.

The Partial Summary Judgment further enjoined EL CABALLERO and

LAREDO MARINE from interfering with the use of the Grace River Easements

and La Salle County Easement by GRACE RIVER as follows:

1. Private Easements. EL CABALLERO and LAREDO
MARINE are enjoined from:

(a) Erecting or maintaining any barriers, fences, or gates of any
kind that would interfere with or obstruct the free flow of
vehicular or pedestrian access, on, over, or across the Grace
River Easements other than gates currently located on El
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 Caballero Ranch or 7 C's Ranch. All such gates must be
maintained and/or secured such that GRACE RIVER may
pass through them without assistance. LAREDO MARINE
shall remove the fence along the Northerly Grace River
Easement and located within 7 C's Ranch within 30 days of
the date entry of this Partial Summary Judgment.

(b) Maintaining any gate or barrier along or across the Grace
River Easements without providing all necessary keys,
combinations, or codes to GRACE RIVER to open such
gates without assistance. Such keys, combinations, or codes
are to be delivered to GRACE RIVER not later than 3 days
from the entry hereof, and prior to an installation of any
future rekeyed, reconfigured, or recoded lock.

(c) Taking any action to prevent GRACE RIVER from freely
opening and closing any gates in the Grace River Easements
without assistance.

(d) Preventing or obstructing GRACE RIVER from using,
having access across, or undertaking the maintenance or
repair of the roadway, bridges, low water crossings, culverts,
grades, trimming, etc. along the Grace River Easements and
Nueces River Crossing.

2. Public Road. EL CABALLERO and LAREDO MARINE are
permanently enjoined from:

(a) Preventing or obstructing maintenance or repair of the roads,
bridges, culverts, grades, or low water crossings lying along
the County Road Easement.

32. Effect of Partial Summary Judgment. The Partial Summary

Judgment finally and completely adjudicated all claims between GRACE RIVER

and Appellants regarding the validity, continuity, and extent of the Grace River

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Easements and the La Salle County Easement. The Partial Summary Judgment

was interlocutory only in the sense that it did not adjudicate:

(1.) All claims of GRACE RIVER for damages against EL
CABALLERO and LAREDO MARINE claimed to be sustained
by reason of any disruption or blocking of the Grace River
Easements or the La Salle County Easement.

(2.) All claims for attorney's fees and costs.

33. Severance Sought. On December 23, 2014, GRACE RIVER filed

herein its Motion for Severance of Actions seeking to sever the matters finally

determined by the Partial Summary Judgment into a separate suit from remaining

issues of damages and attorney's fees. That Motion for Severance is set for

hearing for April 1,2015.

34. Request for Key(s) or Code(s). On March 4, 2015, counsel for

GRACE RIVER once again requested counsel for EL CABALLERO and

LAREDO MARINE to provide the key(s), code(s), or combination(s) for the gates

across the Grace River Easements and La Salle County Easement as necessary for

GRACE RIVER to access the easements in accordance with the Partial Summary

Judgment.

35. Refusal to Provide Access in Violation of Partial Summary

Judgment. EL CABALLERO and LAREDO MARINE have contumaciously

failed and refused and continue to fail and refuse to provide the necessary key(s),
25

{18705.43065-00374336.DOCX}
code(s), and/or combination(s) to the gates or to provide access to GRACE RIVER

to the Grace River Easements and La Salle County Easement all in violation of the

injunctions provided for by the Partial Summary Judgment.

36. Notice of Interlocutory Appeal. On March 9, 2015, EL

CABALLERO and LAREDO MARINE filed with the trial court an Interlocutory

Notice of Appeal.

37. Motion for Emergency Stay. On March 11, 2015, EL

CABALLERO and LAREDO MARINE filed herein their Motion for Emergency

Stay of Temporary Injunction Challenged in Interlocutory Appeal.

38. Response. To this Motion, GRACE RIVER files this Response.

PRIOR MANDAMUS PROCEEDING

Appellants suggest that the Partial Summary Judgment proceeding "directly

conflicts" with the ruling of this Court in a prior mandamus proceeding.5 This

statement is patently insupportable.

This Court's earlier ruling in the mandamus proceeding depended on the

inability of the Appellants to suspend the enforcement of the Order Granting

Traditional and No-Evidence Motion for Summary Judgment (July 7, 2014) while

obtaining appellate review of the trial court's determination on the validity of the
5
Appellant's Motion for Emergency Stay of Temporary Injunction Challenged in Interlocutory
Appeal (hereinafter simply the "Motion") at 7. The prior mandamus action was styled In re: El
Caballero Ranch, Inc.; No. 04-14-00584-CV, Fourth Court of Appeals at San Antonio.
26

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easements.6 However, since that Memorandum Opinion, the procedural landscape

of this case has dramatically changed. The trial court has now finally determined

against the Appellants as meritless all claims that remained unadjudicated at the

time of the Memorandum Opinion.' Appellants have now sought an Interlocutory

Appeal of the Partial Summary Judgment under TEX. CIV. PRAC. & REM. CODE

ANN. § 51.014(a)(4).8

As a consequence of the present interlocutory appeal, Appellants have the

right to seek to suspend the enforcement of the interlocutory judgment as with a

traditional appea1.9 Appellants have made no attempt to suspend enforcement of

the Partial Summary Judgment under TEX. R. APP. P. Rule 24.1. Nor has the trial

court, consequently, refused to supersede the Partial Summary Judgment. As the

result, Appellants are not entitled to move this Court to review a decision of the

trial court which has not yet been made.1° Appellants, by the Motion, have

provided no evidence that their rights cannot be adequately protected by

supersedeas or other mode under TEX. R. Cw. P. Rule 24.11

6
Memorandum Opinion [Exhibit B] at 5.
7 Memorandum Opinion [Exhibit B] at 5; Partial Summary Judgment at 4.
8 Notice of Appeal [Exhibit C].
9 TEX. R. APP. P. Rule 29.2.
10 TEX. R. APP. Rule 29.2.
11 TEX. R. APP. P. Rule 29.3.
27
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 Appellants' right to seek suspension of the Partial Summary Judgment is

available, but has not been attempted. As a result, the underlying basis of the

Memorandum Opinion is not present in the instant interlocutory appea1.12

PROBABLE RIGHT OF RECOVERY

Appellants suggest (without any elucidation) that GRACE RIVER's Second

Traditional and No-Evidence Motion for Summary Judgment, which providing

hundreds of pages of summary judgment proof, failed to provide any evidence of a

probable right to the Grace River Easements. The voluminous nature of GRACE

RIVER's proof makes in impracticable to scan and transmit its summary judgment

evidence on one day's notice. GRACE RIVER will be scanning and transmitting

to the Court its Second Traditional and No-Evidence Motion for Summary

Judgment and voluminous appended summary judgment proof in the next

succeeding days. GRACE RIVER's summary judgment proof is extensive and

compelling beginning with the deeded, recorded, and written Grace River

Easements never revoked, abandoned, or superceded. The trial court took three

months to carefully read, review, and consider all summary judgment proof of the

parties. The Court considered this evidence conclusive of the existence of the

easements.

12
See Memorandum Opinion at 5.
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 Appellants suggest that GRACE RIVER failed to offer additional summary

judgment proof at the hearing on the Motion for Entry of Partial Summary

Judgment.13 Appellants fail to suggest how such live proof could possibly be

consistent with summary judgment procedure.14

IRREPARABLE INJURY

GRACE RIVER having established conclusively its rights in the Grace

River Easements has conclusively prevailed by summary judgment on all matters

concerning the validity, continuity, and extent of those easements.15 The

establishment of the easements sufficiently establishes irreparable injury.16 The

issue on appeal of a temporary injunction granting a right to use an easement is

whether there is a bona fide proof of the existence of the easement and whether

injunctive relief is required to preserve the continued existence of that right." The

temporary injunction is not dependent upon the merits of the easement claim."

13 Motion at 6; Reporter's Record of Motion for Entry of Partial Summary Judgment.
14 See TEX. R. Civ. P. Rule 166a(c) (prohibiting oral proof). It should be remembered that the
hearing on the Second Traditional and No-Evidence Motion for Summary Judgment was
conducted on September 18, 2014 not March 3, 2015. By the date of the March 3, 2015 hearing
the trial court had already rendered judgment thereon by letter ruling. Refer to Partial Summary
Judgment [Exhibit A]; Letter Ruling [Exhibit D].
15 Partial Summary Judgment [Exhibit A] at 4.
16 Mobil Pipe Line Co. v. Smith, 860 S.W.2d 157, 160 (Tex. App. — El Paso 1993, no writ);
Aimco Properties, L.P. v. Time Warner Entertainment — Advance/Newhouse Partnership, 1997
WL 590675 at *3-4.
17 Richter v. Hickman, 243 S.W.2d 466, 468 (Tex. Civ. App. — Galveston 1951, no writ); Egan v.
Woodell, 720 S.W.2d 169, 171 (Tex. App. — San Antonio 1986, writ red n.r.e.).
18 Egan v. Woodell, supra at 171.
29
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Rather, the question is whether the trial judge abused discretion in preserving the

status quo.19 The status quo is the last actual, peaceable, non-contested status

which preceded the present controversy.20 In this case, the last peaceable status

between the parties was before EL CABALLERO refused access to GRACE

RIVER and unilaterally attempted to revoke the easements with its "Notice of

Revocation and Termination of Easement and Access Easement Agreements."21

Appellants disingenuously suggest that to require them to remove their

"fencing" unreasonably alters the status quo unfair and unjust.22 Appellants

neglect to advise the Court that that fencing was erected by LAREDO MARINE

during the pendency of this suit with full knowledge of the claims of GRACE

RIVER. LAREDO MARINE altered the status quo by erecting IN mid-litigation

fencing along the length of and blocking the Northerly Grace River Easement.

This brinksmanship by LAREDO MARINE should not be the basis of

bootstrapping their legal position.

Appellants suggest that GRACE RIVER is attempting to alter the status quo

by building "a permanent concrete bridge connecting the two ranches."23

19
Id.
20
Id. at 172.
21
In easement cases the typical status quo is when the easement right was last used. See Aimco
Prop. v. Time Warner Entertainment — Advanced/Newhouse, supra at *4•
22
Motion at 10.
23

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Appellants neglect to advise the Court that the Low Water Crossing at issue has

existed at its present location for decades.24 GRACE RIVER, in accordance with

permits/easement obtained from the General Land Office of Texas and U.S. Army

Corps of Engineers has all necessary authorization to repair 65 feet of the southern

approach to the Low Water Crossing pursuant to engineered plans to span a bypass

channel created by a high water event on the Nueces River.25

A FINAL DETERMINATION OF GRACE RIVER'S
EASEMENT RIGHTS HAS BEEN MADE

The Final Summary Judgment finally adjudicated all claims of the parties

regarding GRACE RIVER's private easement claims.26 The adjudication of the

remaining claims of damages and attorney's fees will not have the effect of altering

this final resolution regarding the validity and existence of the Grace River

Easements. While Appellants suggest that there is "ongoing litigation" to

determine the existence of the easements,27 the Partial Summary Judgment is

explicit on this point. There are no remaining unadjudicated claims or defenses to

the private easement rights of GRACE RIVER in the Grace River Easements.28 By

24 Affidavit of Kenney Newville [Exhibit E] at 14. This Affidavit was "Exhibit 1" to GRACE
RIVER' s Second Traditional and No-Evidence Motion for Summary Judgment.
25
Id.
26
Partial Summary Judgment [Exhibit A] at 4.
27 Motion at 3.
28 Partial Summary Judgment [Exhibit A] at 4.
31

{18705.43065-00374336.DOCX}
their Motion, Appellants do not direct the Court to any unadjudicated claims which

remain on the validity, continuity, or extent of the Grace River Easements.

Appellants inexplicably suggest to this Court that the Second Traditional and

No-Evidence Motion for Summary Judgment has not been granted.29 The Second

Traditional and No-Evidence Motion for Summary Judgment was rendered and

granted.3°

INJUNCTIVE RELIEF APPROPRIATE
TO ENFORCE EASEMENT RIGHTS

Injunctive relief is manifestly the appropriate remedy to prevent obstruction

of a private easement by a servient owner.31

MOOTNESS DOCTRINE

Appellants suggest (without elucidation) that enjoining their continued

obstruction of the Grace River Easements renders moot "their remaining claims

that are pending in the underlying case."32 Under the Partial Summary Judgment,

29 Motion at 3. "This [Second Tradition and No-Evidence] Motion [for Summary Judgment] if
granted, like the first summary judgment motion, would not finally dispose of the case..."
30
Letter Ruling [Exhibit D]; Final Summary Judgment [Exhibit A].
31 City of Mission v. Popplewell, 294 S.W.2d 712, 714 (Tex. 1956); Mobil Pipe Line Co. v.
Smith, 860 S.W.2d 157, 160 (Tex. App. — El Paso 1993, no writ); Egan v. Woodell, 720 S.W.2d
169, 171-72 (Tex. App. — San Antonio 1986, writ ref d n.r.e.); Meredith v. Eddy, 616 S.W.2d
235, 241 (Tex. Civ. App. — Houston 11st Dist.] 1981, no writ); Chicago Rock Island and Pacific
Railroad Company v. Spool Stockyards Company, 220 F. Supp. 433, 437 (W.D. Tex. 1963);
Aimco Prop., L.P. v. Time Warner Entertainment — Advanced/Newhouse Partnership, 1997 WL
590675 at *3-4 (Tex. App. — Austin 1997); County of Harris v. Southern Pac. Transp. Co., 457
S.W.2d 336, 341 (Tex. Civ. App. — Houston [is Dist.] 1970, no writ).
32 Motion at 8.
32

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Appellants have no remaining unadjudicated claiming regarding the private

easement claims of GRACE RIVER.33 The claims remaining involve only

GRACE RIVER's claims for damages and attorney's fees.34 It is impossible to

conceive how these remaining claims are rendered moot by allowing GRACE

RIVER to utilize the easement the trial court has now determined that it owns.

Indeed, immediate access would have the salutary effect of mitigating accruing

damages and attorney's fees.

Even further afield are claims by Appellants that the Partial Summary

Judgment renders moot the direct appeal that Appellants intend to bring regarding

the validity of the Grace River Easements. It is rationally inconceivable that

allowing GRACE RIVER access prevents the Appellants in any way from

pursuing an appeal on the validity of the easements.

WHEREFORE, PREMISES CONSIDERED, GRACE RIVER prays that the

Motion be in all things denied.

Respectfully submitted,

MOORMAN TATE HALEY
UPCHURCH & YATES, LLP

33
Partial Summary Judgment [Exhibit A] at 4.
34 1d.
33

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 S -C: HAL
State Bar No. 0874 910
207 East Main
P.O. Box 1808
Brenham, Texas 7J854-
Telephone: (979) 836-5664
Telecopier: (979) 830-0913
shaley@moormantate.com

MONTEZ & PATTERSON
John H. Patterson, Jr.
State Bar No. 24027716
Thornton Plaza
508 Thorton, Suite 4
Cotulla, Texas 78014
Telephone: (830) 483-5191
Telecopier: (830) 483-5192
john@montezandpatterson.com

Attorneys for GRACE RIVER RANCH,
L.L.C.
 CERTIFICATE OF SERVICE

I, Steven C. Haley, do hereby certify that on the 12th day of March, 2015, I
served a true and correct copy of the foregoing Response to Motion for Emergency
Stay of Temporary Injunction Challenged in Interlocutory Appeal to the following,
deposited in a post paid, depository under the care and custody of the United States
Postal Service, duly addressed to such party at the address stated, by certified mail,
return receipt requested, facsimile, e-mail, and/or hand-delivery.

Annalyn G. Smith
Schmoyer Reinhard, LLP
17806 I-10W, Ste. 400
San Antonio, Texas 78257
E-mail: asmith@ar-11p.com

Kimberly S. Keller
Keller Stolarczyk PLLC
234 West Bandera Road, No. 120
Boerne, Texas 78006
E-mail: kim@kellsto.com

STEVEN C. HALEY

35

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