John A. Lance, Debra L. Lance, F.D. Franks and Helen Franks v. Judith and Terry Robinson, Gary and Brenda Fest, Virginia Gray and Butch Townsend

ACCEPTED
04-14-00758-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
4/7/2015 8:28:38 PM
KEITH HOTTLE
CLERK

NO. 04-14-00758-CV
FILED IN
IN THE COURT OF APPEALS 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
FOURTH COURT OF APPEALS DISTRICT OF TEXAS
4/7/2015 8:28:38 PM
SAN ANTONIO, TEXAS
KEITH E. HOTTLE
Clerk

JOHN A. LANCE, DEBRA L. LANCE,
F.D. FRANKS AND HELEN FRANKS
APPELLANTS
V.
JUDITH AND TERRY ROBINSON, GARY AND BRENDA FEST,
VIRGINIA GRAY, BUTCH TOWNSEND AND
BEXAR-MEDINA-ATASCOSA COUNTIES WATER CONTROL AND
IMPROVEMENT DISTRICT NO. 1

APPELLEES
th
From the 198 District Court of Bandera County, Texas
Trial Court No. CV-12-0100209
Honorable M. Rex Emerson, Judge Presiding
BRIEF OF APPELLANTS,
JOHN A. LANCE, DEBRA L. LANCE,
F.D. FRANKS AND HELEN FRANKS
Dan Pozza Cynthia Cox Payne
State Bar No. 16224800 State Bar No. 24001935
Attorney at Law P.O. Box 1178
239 East Commerce Street 1118 Main Street
San Antonio, Texas 78205 Bandera, Texas 78003
(210) 226-8888 – Phone (830) 796.7030 – Phone
(210) 224-6373 – Fax (830) 796.7945 – Fax
danpozza@yahoo.com cpayne@paynelawfirm.net

ATTORNEY FOR APPELLANTS,
JOHN A. LANCE, DEBRA L. LANCE, F.D. FRANKS AND HELEN FRANKS
ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

Appellants Appellate Counsel

John A. Lance, Debra L. Lance, F.D. Dan Pozza
Franks and Helen Franks State Bar No. 16224800
Attorney at Law
239 East Commerce Street
San Antonio, Texas 78205
(210) 226-8888 – Phone
(210) 224-6373 – Fax
danpozza@yahoo.com

Appellate and Trial Counsel

Cynthia Cox Payne
State Bar No. 24001935
P.O. Box 1178
1118 Main Street
Bandera, Texas 78003
(830) 796.7030 – Phone
(830) 796.7945 – Fax
cpayne@paynelawfirm.net

Trial Counsel

John D. Payne
Texas Bar No. 15658500
P.O. Box 1178
1118 Main Street
Bandera, Texas 78003
(830) 796.7030 – Phone
(830) 796.7945 – Fax
jpayne@paynelawfirm.net

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Appellees Appellate and Trial Counsel

Judith and Terry Robinson, Gary and Stephan B. Rogers
Brenda Fest, Virginia Gray, and Butch State Bar No. 17186350
Townsend Ross S. Elliott
State Bar No. 24080685
Rogers & Moore
309 Water Street, Suite 114
Boerne, Texas 78006
(830)-816-5487 – Phone
(830)- 786-4777 – Fax
srogerslaw@gmail.com
rors@rogersmoorelaw.com

Bexar-Medina-Atascosa Counties Water Edward Hecker
Control and Improvement District No. 1 State Bar No. 00787668
Gostomski & Hecker
607 Urban Loop
San Antonio, Texas 78204
ed@ghlawyers.net

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 TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iv
INDEX OF AUTHORITIES................................................................................... vii

STATEMENT OF THE CASE ................................................................................ xi

STATEMENT REGARDING ORAL ARGUMENT ............................................ xii
ISSUES PRESENTED........................................................................................... xiii
1. Because the Plaintiffs did not meet their burden of conclusively
establishing each element of their causes of action, the trial court
should not have rendered a summary judgment for the Plaintiffs............... xiii

2. Because there is no summary judgment evidence of any of the deeds
that are necessary to an adjudication of the motion for summary
judgment, the trial court should not have rendered a summary
judgment for the Plaintiffs. .......................................................................... xiii

3. The trial court had no legal or factual basis to render a summary
judgment for the Plaintiffs declaring that the Deed Without Warranty
did not convey ownership or that the Franks had no ownership interest
to convey to the Lances or that the Lances do not own the disputed
area or that the Deed Without Warranty is an invalid cloud and burden
on an easement. ............................................................................................ xiii

4. The trial court had no legal or factual basis to render a summary
judgment for the Plaintiffs declaring that the Plaintiffs had an express
easement in the disputed area. ..................................................................... xiii

5. The trial court had no legal or factual basis to find that any element of
a Civil Practice & Remedies Code, Chapter 12 claim was conclusively
established.................................................................................................... xiii

6. The evidence does not support the trial court’s award of attorney’s
fees to either or both the Plaintiffs and BMA.............................................. xiii

-iv-
7. The trial court’s award of attorney’s fees to the Plaintiffs and BMA is
neither equitable nor just. ............................................................................ xiii

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENT ......................................................................11

ARGUMENT ...........................................................................................................12
I. The Plaintiffs had the burden to conclusively establish each element
of their causes of action. ............................................................................... 12

II. There is no summary judgment evidence of any of the deeds that are
necessary to an adjudication of the motion for summary judgment. ........... 14

III. Trespass to Try Title is the only procedural vehicle available for
determining title; the Declaratory Judgment Act will not support this
summary judgment order. ............................................................................. 16

IV. Only the grantor may seek to have a deed set aside. .................................... 18
V. The ownership of the disputed area remains disputed and as long as
that dispute remains, there can be no determination of title......................... 19

VI. The Spettle Deed is void because it does not contain the nucleus of a
valid description............................................................................................ 22

VII. There can be no express easement based on language in a conveyance
that is not in the Plaintiffs’ chain of title. ..................................................... 23

VIII. For a host of reasons, the Spettle Deed does not establish an express
easement in the lands conveyed to MVIC. ................................................... 25

i. The language does not comply with the Statute of Frauds. ................26

ii. There is no language creating a dominant and servient estate. ...........27

iii. At best, the language creates a nontransferable license or
easement in gross.................................................................................27

iv. The language does not contain explicit terms of the easement. ..........28
v. Rights under an express easement are not implied. ............................28

-v-
 vi. None of Plaintiffs’ deeds contain any easement language..................29

IX. A deed cannot be a cloud on an easement. ................................................... 29

X. The Plaintiffs did not obtain a summary judgment on their CPRC
Chapter 12 claim, but there is no support for the favorable findings the
Plaintiffs received in the trial court’s summary judgment order. ................. 30

XI. There is legally and factually insufficient evidence to support the fees
awarded to the Plaintiffs and BMA; nor is it equitable and just to
award them.................................................................................................... 31

CONCLUSION ........................................................................................................37
PRAYER ..................................................................................................................38

CERTIFICATE OF SERVICE ................................................................................39

CERTIFICATE OF COMPLIANCE .......................................................................40

APPENDIX

Tab A Amended Order on Plaintiffs’ Motion for Partial Summary Judgment

Tab B Plaintiffs’ Motion for Partial Summary Judgment
Tab C Supplement to Plaintiffs’ Motion for Partial Summary Judgment

Tab D Order on Plaintiffs’ Motion for Severance, Attorney’s Fees, and Final
Judgment
Tab E Amended Award of Attorney’s Fees and Final Judgment

Tab F Motion for New Trial of John A. Lance, Debra L. Lance, F.D. Franks
and Helen Franks

Tab G Corrected Proposed Findings of Fact and Conclusions of Law

Tab H Lance v. Robinson, 2013 WL 820590 (Tex. App.—San Antonio
March 6, 2013, no pet.)

Tab I Plaintiffs’ Fifth Amended Petition

-vi-
 INDEX OF AUTHORITIES

Cases Page

Aland v. Martin,
271 S.W.3d 424 (Tex. App.—Dallas 2008, no pet.) ............................... 30

Alley v. Carleton,
29 Tex. 74 (1867) .................................................................................... 27

Amedisys, Inc. v. Kingwood Home Health Care, LLC,
437 S.W.3d 507 (Tex. 2014) ................................................................... 13

Archaelogical Conservancy v. Wilson Land and Cattle Co.,
2010 WL 1253576 (Tex. App.—Austin 2010, no writ) (mem. op.) . 16, 18

Basley v. Adoni Holdings, LLC,
373 S.W.3d 577 (Tex. App.—Texarkana 2012, no pet.) ........................ 36

Beaumont Bank v. Buller,
806 S.W.2d 223 (Tex. 1991) ................................................................... 32
Bexar-Medina-Atascosa Counties
Water Improvement District No. 1 v. Wallace,
619 S.W.2d 551 (Tex. App.—San Antonio 1981, writ ref’d n.r.e.) ........ 22
Bocquet v. Herring,
972 S.W.2d 19 (Tex. 1998) ..................................................................... 33
Cain v. Bain,
709 S.W.2d 175 (Tex. 1986) ................................................................... 34
City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671 (Tex. 1979) ................................................................... 13

City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) ................................................................... 33

Coinmatch Corp. v. Aspenwood Apt. Corp.,
417 S.W.3d 909 (Tex. 2013) ................................................................... 36
Coleman v. Forister,
514 S.W.2d 899 (Tex. 1974) ................................................................... 28

-vii-
Cooksey v. Sinder,
682 S.W.2d 252 (Tex. 1984) ................................................................... 23

Cummins v. Travis County Water Control and Improvement District No. 17,
175 S.W.3d 34 (Tex. App.—Austin 2005, no pet.) ........................... 27, 28

Drye v. Eagle Rock Ranch, Inc.,
364 S.W.2d 196 (Tex. 1962) ....................................................... 27, 28, 29
Ferrara v. Moore,
318 S.W.3d 487 (Tex. App.—Texarkana 2010, pet. denied) .................. 25

Florey v. Estate of McConnell,
212 S.W.3d 439 (Tex. App.—Austin 2006, pet. denied) ........................ 36

Ford v. Exxon Mobil Chem. Co.,
235 S.W.3d 615 (Tex. 2007) ................................................................... 19
Fry v. Commission for Lawyer Discipline,
979 S.W.2d 331 (Tex. App.—Houston [14th Dist.] 1998, pet. denied)... 13

Goode v. Shoukfeh,
943 S.W.2d 441 (Tex. 1997) ................................................................... 32
Gorman v. Gorman,
966 S.W.2d 858 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) ..... 33

Greenwood v. Lee,
420 S.W.3d 106 (Tex. App.—Amarillo 2012, pet. denied) .................... 24
Hahn v. Love,
321 S.W.2d 517 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) ..... 29

Inwood N. Homeowners’ Assoc’n v. Harris,
736 S.W.2d 632 (Tex. 1987) ................................................................... 23

Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150 (Tex. 2004) ................................................................... 13

Kearney & Son v. Fancher,
401 S.W.2d 897 (Tex. Civ. App.—Fort Worth 1966, writ ref’d n.r.e.) .. 25

-viii-
Lopez v. Morales,
2010 WL 3332318 (Tex. App.—San Antonio) ................................. 18, 19

M.D. Anderson Hosp. & Tumor Inst. v. Willrich,
28 S.W.3d 22 (Tex. 2000) ....................................................................... 13

Mar. Overseas Corp. v. Ellis,
971 S.W.2d 402 (Tex. 1998) ................................................................... 34

Martin v. Amerman,
133 S.W.3d 262 (Tex. 2004) ................................................................... 17

MBank Brenham, N.A. v. Barrera,
721 S.W.2d 840 (Tex. 1986) ................................................................... 15

MBM Fin. Corp. v. Woodlands Operating Co., L.P.,
292 S.W.3d 660 (Tex. 2009) ............................................................. 16, 17
Meekins v. Wisnoski,
404 S.W.3d 690 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ......... 36

MMP, Ltd. v. Jones,
710 S.W.2d 59 (Tex. 1986) ............................................................... 13, 22
Nobles v. Marcus,
533 S.W.2d 923 (Tex. 1976) ................................................................... 18

Noland v. Allstate Insurance Company,
429 S.W. 2d 653 (Tex. Civ. App.—Houston [1st Dist.] 1968, no writ) .. 15

Provident Life & Acc. Ins. v. Knott,
128 S.W.3d 211 (Tex. 2003) ................................................................... 13

Sani v. Powell,
153 S.W.3d 736 (Tex. App.—Dallas 2005, pet. denied) ........................ 36

Segal v. Bock, 2011 WL 6306623
(Tex. App.—Houston [1st Dist.] December 15, 2011, no pet.) ......... 14, 15

Severance v. Patterson,
370 S.W.3d 705 (Tex. 2012) ................................................................... 26

-ix-
Sorrells v. Giberson,
780 S.W.3d 936 (Tex. App.—Austin 1989, writ denied) ....................... 14

Southwest Guar. Trust Co. v. Hardy Road 13.4 Joint Venture,
981 S.W.2d 951 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) ..... 36

Sudan v. Sudan,
199 S.W.3d 291 (Tex. 2006) ................................................................... 12

Tex. Parks & Wildlife Dep’t v. Sawyer Trust,
354 S.W. 3d 384 (Tex. 2011) .................................................................. 17

Trimble v. Gulf Paint & Battery, Inc.,
728 S.W.2d 887 (Tex. App.—Houston [1st Dist.] 1987, no writ) ........... 14

Valence Operating Co. v. Dorsett,
164 S.W.3d 656 (Tex. 2005). ............................................................ 12, 13

Vrabel v. Donahoe Creek Watershed Authority,
545 S.W.53 (Tex. Civ. App.—Austin 1977, no writ) ............................. 26

Wesson v. Jefferson S&L Ass’n,
641 S.W.2d 903 (Tex. 1982) ............................................................. 13, 22

Westland Oil Development Corp. v. Gulf Oil Corp.,
637 S.W.2d 903 (Tex. 1982) ................................................................... 24

Williams v. Harris County Houston Ship Channel Navigation District
99 S.W.2d 276 (Tex. 1936) ..................................................................... 24

Zarges v. Bevan,
652 S.W.2d 368 (Tex. 1983) ................................................................... 15

Statutes and Rules
Tex. R. App. P. 38.1(e) ...................................................................................... xii
Tex. R. App. P. 39.1(d). ..................................................................................... xii
Tex. R. Civ. P. 166a(c) ...................................................................................... 13
Tex. Civ. Prac. & Rem. Code § 12.002(a)(3) ................................................... 30
Tex. Civ. Prac. & Rem. Code § 12.003(a)(8) ................................................... 30
Tex. Civ. Prac. & Rem. Code § 18.001 ................................................................9
Tex. Prop. Code § 22.001(a) .............................................................................. 17

-x-
 STATEMENT OF THE CASE

Nature of the case. Plaintiffs sued Defendants under the Declaratory
Judgments Act and Chapter 12 of the Civil Practice &
Remedies Code to determine title, set aside a deed and
establish an easement. Tab I. This case was previously
before this Court on another issue. Tab H.

Course of proceedings. The Plaintiffs moved for summary judgment. CR 44-
51. Tab B. Tab C. After judgment was entered, the
Defendants filed a motion for new trial on the
attorney’s fee award. CR 490-92. Tab F. The trial
court filed findings of fact and conclusions of law. CR
514-16. Tab G.

Trial court disposition. The Honorable Keith Williams granted the motion for
summary judgment (by an amended order) on June 11,
2014. CR 412-14. Tab A. The Honorable M. Rex
Emerson signed an order of severance on June 12,
2014. CR 251-52. Tab D. The Amended Award of
Attorney’s Fees and Final Judgment was signed by
Judge Emerson on October 30, 2014. CR 505-06. Tab
E.

-xi-
 STATEMENT REGARDING ORAL ARGUMENT

Certain procedural oddities may complicate the straightforward factual and

legal picture presented by this case. The Court should grant oral argument because

oral argument would significantly aid the Court in deciding this case. See Tex. R.

App. P. 38.1(e), 39.1(d).

-xii-
 ISSUES PRESENTED

1. Because the Plaintiffs did not meet their burden of conclusively establishing
each element of their causes of action, the trial court should not have
rendered a summary judgment for the Plaintiffs.

2. Because there is no summary judgment evidence of any of the deeds that are
necessary to an adjudication of the motion for summary judgment, the trial
court should not have rendered a summary judgment for the Plaintiffs.

3. The trial court had no legal or factual basis to render a summary judgment
for the Plaintiffs declaring that the Deed Without Warranty did not convey
ownership or that the Franks had no ownership interest to convey to the
Lances or that the Lances do not own the disputed area or that the Deed
Without Warranty is an invalid cloud and burden on an easement.

4. The trial court had no legal or factual basis to render a summary judgment
for the Plaintiffs declaring that the Plaintiffs had an express easement in the
disputed area.

5. The trial court had no legal or factual basis to find that any element of a
Civil Practice & Remedies Code, Chapter 12 claim was conclusively
established.

6. The evidence does not support the trial court’s award of attorney’s fees to
either or both the Plaintiffs and BMA.

7. The trial court’s award of attorney’s fees to the Plaintiffs and BMA is
neither equitable nor just.

-xiii-
TO THE HONORABLE FOURTH COURT OF APPEALS:

Appellants, John A. Lance, Debra L. Lance, F.D. Franks and Helen Franks

(referred to herein as “Defendants” or as “Lances” or as “Franks”), file this their

Brief of Appellants, and respectfully show the Court as follows:

STATEMENT OF FACTS

The Plaintiffs moved for summary judgment based on the Declaratory

Judgments Act and Chapter 12 of the Texas Civil Practice and Remedies Code.

The Plaintiffs asserted that “[t]he testimony and documentary evidence presented

to the Court at the temporary injunction held on July 16, 2012 establish the

foregoing as a matter of law.” Tab B.

The Summary Judgment evidence before the trial court was expressed in the

following manner by the Plaintiffs: “The transcript of the hearing and the exhibits

admitted at the hearing are referenced and specified as evidence in support of this

motion.” Tab B.

In its supplement to their motion for summary judgment, the Plaintiffs

attached the “sworn testimony given at the temporary injunction hearing held on

July 16, 2012.” Tab C. The Plaintiffs stated that they were offering “this record

in support of their motion for partial summary judgment.” Tab C. For some

reason, the Plaintiffs never attached the exhibits from that hearing. Rather, the

Plaintiffs simply stated that they “also offer the exhibits that were admitted at the
hearing, which are currently in the possession of the court reporter.” Tab C.

(emphasis supplied). The exhibits were never filed and are not contained in the

summary judgment record.

Accordingly, the Defendants will describe the facts that were addressed in

the hearing on the temporary injunction.

At the hearing, counsel for the Plaintiffs described the circumstances that

brought the parties to the trial court that day. Counsel described a dispute among

the neighbors in the Redus Point Subdivision on Medina Lake. The Plaintiffs are

the owners of Lots 1, 2 and 3. The Lances own Lot 8. CR 58.

The area below and to the side of Lot 8 is “a beachfront area, that’s below

what’s called Elevation 1084. 1084 elevation is the approximate location—or

elevation at the top of Medina Dam.” CR 58. Counsel for the Plaintiffs asserted

that elevation 1084 is the “dividing line between privately-owned property and

property that’s owned by the water district, Bexar-Medina-Atascosa County Water

Improvement District No. 1. The water district, BMA, owns everything below

Elevation 1084, and the private landowners own everything that’s above Elevation

1084.” CR 58.1

1
Plaintiffs’ counsel has taken the opposite position in a similar suit. CR 254, 274-
89 (“The land between elevations 1072 and 1084 is subject to occasional flooding.
Most of this land…is owned and controlled by private landowners, subject to
BMA’s right to flood the land in connection with its storage of water for irrigation
purposes.” CR 280).

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 Plaintiffs’ counsel further described to the trial court that when the Lances

bought Lot 8 from the Franks, the Lances “also bought another piece of property,

.282 acres below the 1084 line.” CR 60. Counsel’s complaint to the trial court

was that the Lances were claiming this area below elevation 1084 as their own.

CR 60.

Counsel for the Defendants explained to the trial court that the Plaintiffs

want to “cross the street, come around behind my clients’ property, and they’re

asking you for the right to maintain improvements there, put their boats there,

party, leave beer cans, do whatever it is that they want to on another side of—

entire opposite side of this subdivision and peninsula.” CR 63. On the contrary,

said counsel for the Defendants, the “Spettle deed was totally for the purpose for

folks to preserve those rights with respect to BMA. That far predates the

conveyance of these individual lots, which have no such reservation of rights.

There are no reservations of easement or anything of that sort in the lots

conveyed—or in the deeds conveying these lots to the individual lot owners.” CR

63-64.

Finally, Defendants’ counsel noted that “[w]hen the Lances bought the

property from the Franks in 2011, they also obtained the quitclaim deed 2 to this

property. The Lances took this dilapidated chain fence that was falling down in

2
The Deed Without Warranty.

-3-
some places and began erecting a new fence, a new fence that would actually

improve the value of the property, improve the aesthetic qualities of the

neighborhood, and that’s when all of this became an issue.” CR 64.

Lemuel Sinclair, a land surveyor, testified at the hearing on behalf of the

Plaintiffs. CR 67-88. Sinclair discussed the Spettle deed, a 1917 deed from

Theresa Spettle to Medina Valley Irrigation Company, (MVIC, BMA’s

predecessor). CR 69-71.

Sinclair also discussed a different and distinct deed, the Spettle Partition

deed. The land that this subdivision was built on in 1950 came from the lands

partitioned to Mathilda Spettle Redus in 1917. CR 72-73. Sinclair testified that

the Plaintiffs’ lots, Lots 1, 2 and 3 in the subdivision, were successors in title to the

lands partitioned to Spettle Redus. CR 73.

Spettle was asked his opinion as to whether the reservation contained in the

Spettle deed to MVIC passed to subsequent owners such as the Plaintiffs. The trial

court sustained the objection to this opinion. CR 74-75. Again, Sinclair was asked

to confirm that “the owners of Lots 1, 2 and 3 have those three rights that were

reserved in the Spettle deed because they are successors in title to the partition

lands…” Again, the objection to that testimony was sustained. CR 76. There was

no testimony presented on this issue.

-4-
 In discussing the Deed Without Warranty, Sinclair agreed that such a deed

means that the grantor makes no promise of title to the grantee.

Q. So the grantor, basically, doesn’t guarantee that
they’re giving anything to the grantee, right?

A. Right.

CR 81.

On cross-examination, Sinclair admitted that there are houses on Medina

Lake below elevation 1084. CR 82. Sinclair also confirmed that the Plaintiffs

have lake access from their own property. CR 84-87.

Several of the Plaintiffs testified. Gary Fest testified that the Lances’

activity in denying access to the .282-acre area interfered with the use of the dock.

CR 91. Fest stated that the .282-acre area had been fenced since the 1970s, but that

this fence had become dilapidated and the neighbors were used to being able to get

through the fence easily. The Lances were replacing that fence. CR 96. On cross-

examination, Fest said that although he was not claiming ownership of the .282-

acre area, he believes he has access to any property below the 1084 line. CR 105,

109-100.

Defendant, John A. Lance, testified that there had always been a clear fence

and boundary line over the .282-acre area. CR 122-23. Once the Deed Without

Warranty was filed, Lance paid taxes on this tract. CR 124-25. Lance testified

-5-
that BMA did not own the property below elevation 1084, but only that the land

below 1084 was subject to flooding. CR 127-130.

Defendant, F.D. Franks, testified that he and his wife had owned Lot 8 since

1995. CR 133. Franks had been told by his predecessor, Prado, that the .282-acre

area was Franks “to control.” CR 134. Prado gave him the key to the gate. CR

135. On cross-examination, Franks described his reasoning for having the deed

without warranty prepared. “A quitclaim deed has been done in several areas of

Medina Lake on adjoining property below the 1084.” CR 138.

Q. Mr. Franks, was it simply your intent to convey
whatever rights you did own to the Lances?

A. Yes, sir.
Q. And you understand that there may be some
dispute regarding property below the 1084 line?

A. Yes, sir.
Q. And that’s why quitclaim deeds were commonly
used with respect to properties that fall below that
line?

A. Yes, sir.

CR 139.

At the conclusion of the evidence, the trial court noted that “[o]bviously,

there is going to need to be some other research, maybe some depositions taken as

to whether or not the 1084 line is treated differently as shoreline property around

-6-
the lake, but this is a hearing for temporary orders, temporary injunction.” CR

140-41.

The trial judge, based on his prior experience in these Medina Lake disputes,

noted as well that

Obviously, there is inconsistency, and I know Mr. Miller
knows this because he’s been in court on Medina Lake
issues with me before, but there does not appear to be
consistency on the enforcement of shoreline rights.
There is a lot of metes and bounds disputes and issues,
and my guess is we can go around the boundary of
Medina Lake and find people who have done just what
the Lances have done and people who have done just like
the Plaintiffs have done.

CR 142.

On January 16, 2013, the Plaintiffs filed their motion for partial summary

judgment. CR 44-49. The following day, the Plaintiffs filed their supplement to

that motion attaching the reporter’s record from the hearing on the temporary

injunction, but not attaching the exhibits from the reporter’s record. CR 50-51.

On April 5, 2013, the Defendants filed their response to the motion for

summary judgment subject to a previously filed motion to compel and motion to

continue the summary judgment hearing. CR 167-181. On October 14, 2013, the

Honorable Keith Williams signed the first order granting the motion for summary

judgment in part. CR 182-84. In the initial order, Judge Williams found that BMA

owned the land below elevation 1084 in fee. CR 182.

-7-
 On November 20, 2013, the Defendants filed a motion for re-hearing of the

summary judgment motion. CR 185-229. With respect to the motion for re-

hearing, on February 14, 2014, the Defendants filed a notice of intent to use

discovery. CR 254-61. This evidence showed that the Plaintiffs had admitted in

discovery responses that private property owners and BMA have ownership and/or

easement rights in the area below elevation 1084. CR 256. Plaintiffs answered

interrogatories that formal legal title to the .282-acre area is “unclear.” CR 260.

Also on February 14, 2014, the Defendants filed a supplement to their motion for

re-hearing. CR 262-405.

On April 22, 2014, the Defendants supplemented the motion for re-hearing

(CR 406-411) and attached an affidavit from Mike Grogan, a professional land

surveyor. Grogan testified that he had reviewed the two Spettle deeds and found

that the chain of title of Redus Point subdivision goes back to the Spettle Partition

deed and not to the Spettle deed to Medina Valley Irrigation Company. Grogan

also found that “the Spettle Deed describes a 1,568.82 acre tract by metes and

bounds, with no reference to the water line, flow-line or Medina Lake boundary

line, and the Spettle Partition Deed does reference the water…” CR 409. Based

on the review of these deeds, it is Grogan’s “opinion that the title to land conveyed

by the Spettle Partition Deed, based on the reference to ‘backwater’ or ‘flow-line’

conveys land to the spillway elevation (BMA= 1072’, USGS –1064’) inasmuch

-8-
and [as] (sic) the Spettle Deed says the land will be used to ‘store water.’ And

water is stored behind the dam up to the spillway elevation.” CR 410.

Having considered this additional evidence, on June 14, 2014, the trial court

deleted its “declaration” 3, deleting the finding that the .282-acre area is owned in

fee by BMA. CR 412-15.

The motion for entry of final judgment and the hearing on attorney’s fees

was conducted on September 17, 2014. RR 1. Before the hearing began, counsel

for Defendants objected to a hearing on BMA’s claim for fees because BMA did

not file a motion for summary judgment and had not been awarded any relief in the

summary judgment order. RR 6, 25-27. Defendants objected to the affidavit of

counsel for the Plaintiffs in that neither the Rogers affidavit or its supplement

comported with Section 18.001 of the Civil Practice and Remedies Code. RR 7-8.

Defendants also objected to the Plaintiffs’ failure to comply with discovery

requests to produce their attorney contract and fee invoices. The fee invoices were

received the day before the hearing rather than 30 days or more before the hearing.

RR 8-11. All objections were overruled. RR 21.

Stephen Rogers, the attorney for the Plaintiffs, testified that reasonable and

necessary attorney’s fees incurred by the Plaintiffs was $171,039.17 (RR 34) and

that 85% of that sum was attributable to services provided in procuring the

summary judgment order. RR 35-36. Rogers testified that the work necessary to

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obtain the summary judgment order included responding to numerous special

exceptions, an appeal on standing and a motion to disqualify counsel. These were

testified to as examples of the work that was necessary. RR 36-41.

On cross-examination, Rogers again testified that 85% of the fees were

“attributable to the issues that were decided in the summary judgment and severed

into this case that we are here today on.” RR 41-44. Rogers admitted that

Plaintiffs’ claims were based on law questions. RR 49-52.

Ed Hecker testified as the attorney for BMA. RR 64. Hecker redacted work

he perfomed on the Chapter 12 claims from work performed on the declaratory

judgment action. RR 76-78. On cross-examination, Hecker acknowledged that the

Defendants had not sued BMA (RR 79), and it was BMA that chose to file an

intervention in the case. RR 82. Hecker admitted that the relief granted in the

summary judgment was based on the Plaintiffs’ motion, not based on any filing by

BMA. RR 83-85. Hecker stated that some of his billing was responding to the

Defendants’ motion for re-hearing of the initial summary judgment ruling. He

conceded that the Defendants were successful on re-hearing. The trial court

reversed itself on the issue of BMA’s fee interest in the disputed .282-acre area.

RR 86-89.

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 SUMMARY OF THE ARGUMENT

This is an odd summary judgment. It is based on a very thin traditional

motion for summary judgment. The summary judgment evidence consists of an

early temporary injunction hearing, at the conclusion of which the trial court

remarked on the various fact questions that were presented. The summary

judgment motion references the deeds and other documents that were admitted at

the temporary injunction hearing. But those exhibits, including the deeds that form

the basis of the motion and resulting judgment, were never presented to the trial

court as part of the summary judgment evidence. Those exhibits remained in the

possession of the court reporter from the temporary injunction hearing. The deeds

are not part of the summary judgment record.

The Plaintiffs sought to determine an issue of ownership without filing a

trespass to try title action. The Plaintiffs sought to set aside the subject “Deed

Without Warranty,” without filing a suit to set aside the deed. Tab I. But beyond

these procedural errors, the Plaintiffs failed to prove the issue of ownership as a

matter of law. The summary judgment evidence (the testimony elicited at the

temporary injunction hearing) does not establish title to the disputed area. Nor did

the trial court determine ownership. Indeed, the trial court struck through its

ownership finding. Tab A.

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 Nor can the summary judgment be affirmed based on findings of an express

easement. The Deed from Spettle to MVIC (which contains the language relied on

by Plaintiffs) is void for lack of a valid legal description. The Deed from Spettle to

MVIC is not in Plaintiffs’ chain of title; hence as a stranger to that deed, the

Plaintiffs cannot rely on anything contained, referenced, reserved or granted

therein. Aside from these dispositive principles, the language in the deed does not

create an express easement because (1) the language does comply with the statute

of frauds (there is no description of the easement’s location or degree of certainty

such that it can be located on the ground); (2) no dominant or servient estate is

identified in the language; (3) the language is consistent with the creation of a

license or an easement in gross; (4) nothing in the Spettle Deed mentions the right

to cross over or linger on and the deed does not give any rights with regard to

anybody else’s property; and, (5) the Plaintiffs’ own deeds are silent as to any

easement rights.

ARGUMENT

I. The Plaintiffs had the burden to conclusively establish each element of
their causes of action.

Appellate courts review a trial court’s decision to grant no evidence and

traditional motions for summary judgment de novo. Sudan v. Sudan, 199 S.W.3d

291, 292 (Tex. 2006); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

(Tex. 2005). Whether reviewing a traditional or no evidence summary judgment,

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courts consider all the evidence in the light most favorable to the nonmovant and

resolve any doubts in the nonmovant’s favor. See Valence Operating, 164 S.W.3d

at 661; Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004).

The movant for summary judgment must show (1) there is no genuine issue

of material fact and (2) the movant is entitled to judgment as a matter of law. Tex.

R. Civ. P. 166a(c); Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437

S.W.3d 507, 511 (Tex. 2014); Provident Life & Acc. Ins. v. Knott, 128 S.W.3d 211,

215-16 (Tex. 2003); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d

22, 23 (Tex. 2000). Even if the nonmovant does not file a response and the motion

for summary judgment is uncontroverted, the movant must still carry the burden of

proof. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.

1979).

When, as here, plaintiffs move for summary judgment on their own causes

of action, plaintiffs must prove they are entitled to summary judgment by

establishing each element of their respective claims as a matter of law. MMP, Ltd.

v. Jones, 710 S.W.2d 59, 60 (Tex. 1986); Fry v. Commission for Lawyer

Discipline, 979 S.W.2d 331, 334 (Tex. App.—Houston [14th Dist.] 1998, pet.

denied). If plaintiffs do not conclusively establish all the elements necessary to

their causes of action, summary judgment is not proper. See e.g., Wesson v.

Jefferson S&L Ass’n, 641 S.W.2d 903, 906 (Tex. 1982) (because plaintiff did not

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prove it was defendant’s duty to procure insurance, an essential element, summary

judgment was improper).

II. There is no summary judgment evidence of any of the deeds that are
necessary to an adjudication of the motion for summary judgment.

The Spettle Deed is not attached to Plaintiffs’ Motion for Partial Summary

Judgment or to any affidavit attached to Plaintiffs’ Motion. None of the deeds are

part of the summary judgment record.

The trial court is charged only with the duty of considering the record as it

properly appears before the court at the time the summary judgment motion is

heard. Trimble v. Gulf Paint & Battery, Inc., 728 S.W.2d 887, 888 (Tex. App.—

Houston [1st Dist.] 1987, no writ). In Sorrells v. Giberson, 780 S.W.3d 936 (Tex.

App.—Austin 1989, writ denied), the promissory note, like the deeds in this case,

was completely absent from the summary judgment record. The court held that the

complete absence of the note from the summary judgment record could not serve

as a basis for summary judgment. Id. at 937-38 (“Neither the trial court nor this

Court is free to speculate as to its contents”).

Cases like this one, where there is the complete absence of the summary

judgment evidence, are distinguishable from cases where, for instance, the needed

document is referenced in the summary judgment motion and is actually on file,

albeit attached to a different document. Segal v. Bock, 2011 WL 6306623 (Tex.

App.—Houston [1st Dist.] December 15, 2011, no pet.).

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 The court in Segal v. Bock explained the distinction thusly:

In Sorrels, the lender of a promissory note moved for
summary judgment against the borrower, but did not
attach the note to either the summary judgment motion or
any other properly filed instrument in the
record. [citation omitted]. The court held that, because
the note was completely absent from the record, it could
not serve as a basis for summary judgment and that the
borrower's failure to object was irrelevant to the issue of
sufficiency of summary judgment evidence. [citation
omitted]. The complete lack of evidence in Sorrels was
the substantive defect, however, not the failure to
physically attach it to the motion.

Id. at *5

Nor is this a case where a copy of the needed document is attached to an

affidavit and the affiant avers that the copy is a true and correct copy. Zarges v.

Bevan, 652 S.W.2d 368, 369 (Tex. 1983). Here vital documents are missing from

the summary judgment record. The Plaintiffs want to establish rights under a deed,

but there is no evidence of the deed. The Plaintiffs want to void a quitclaim deed

(the Deed Without Warranty), but there is no evidence of the quitclaim deed.

There is no evidence of the Spettle deed or the Spettle Partition deed.

The summary judgment motion is fatally defective because the deeds were

not attached or otherwise made a part of the summary judgment record. MBank

Brenham, N.A. v. Barrera, 721 S.W.2d 840, 842 (Tex. 1986); See Noland v.

Allstate Insurance Company, 429 S.W. 2d 653, 654 (Tex. Civ. App.—Houston [1st

Dist.] 1968, no writ) (absence from summary judgment record of entire insurance

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policy sued on prevented determination of the term “commercial automobile” and

thus required reversal of the summary judgment).

III. Trespass to Try Title is the only procedural vehicle available for
determining title; the Declaratory Judgment Act will not support this
summary judgment order.

The Plaintiffs are seeking a declaratory judgment on an issue of ownership

that can only be determined in a trespass to try title cause of action. A trespass to

try title claim is the method in Texas for adjudicating disputed claims of title to

real property. Archaelogical Conservancy v. Wilson Land and Cattle Co., 2010

WL 1253576 at *4 (Tex. App.—Austin 2010, no writ) (mem. op.); see also MBM

Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 and n. 48 (Tex.

2009) (describing in dicta, property code’s trespass-to-try-title action as the

“exclusive remedy” for adjudicating title disputes). Id.

“Any suit that involves a dispute over the title to land is, in effect, an action

in trespass to try title, whatever its form and regardless of whether legal or

equitable relief is sought.” Archaelogical Conservancy, 2010 WL 1253576 at *5.

In pursuit of a declaratory judgment, in Archaelogical Conservancy, the

Conservancy sought construction of the terms of a Gift Deed. The Conservancy

presented the issue as whether it had violated the terms of a Gift Deed. If the

Conservancy had not violated the terms, then the reverter clause would not be

operative and it would retain title to the disputed land. But the court held that

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deciding whether the terms of the Gift Deed had been complied with was not a

separate stand-alone controversy. The Conservancy’s request for judicial

construction of the Gift Deed’s reverter clause was, in essence, a means to

determine title to the disputed property covered by the gift deed. The court held

that the Conservancy had to pursue its claims in a trespass to try title action.

Although the existence of another adequate remedy does not necessarily

preclude a declaratory judgment that is otherwise appropriate, the Act cannot be

invoked when it would interfere with some other exclusive remedy. MBM Fin.

Corporation v. Woodlands Operating Co., L.P., 292 S.W.3d at 669; see, e.g.,

Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004) (noting that the Property

Code describes trespass-to-try-title actions as the method for determining title to

real property). The Texas Supreme Court has continually reaffirmed that trespass

to try title is the exclusive method for determining title in Texas.

“Generally, a trespass to try title claim is the exclusive method in Texas for

adjudicating disputed claims of title to real property. See TEX. PROP. CODE §

22.001(a). “A trespass to try title action is the method of determining title to

lands, tenements, or other real property.” Tex. Parks & Wildlife Dep’t v. Sawyer

Trust, 354 S.W. 3d 384, 389 (Tex. 2011).

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 Any suit that involves a dispute over the title to land is, in effect, an action in

trespass to try title, whatever its form and regardless of whether legal or equitable

relief is sought. Archaeological Conservancy, 2010 WL 1253576 at *5.

IV. Only the grantor may seek to have a deed set aside.

To find title in a party other than the grantee, a court must first set aside the

grantee’s deed. Plaintiffs did not bring a suit to set aside the Deed Without

Warranty from the Franks to the Lances. Tab I. They have not cleared the way

for a determination of title in BMA. Nor did the trial court find that BMA has title

to the disputed area. The Deed Without Warranty has not been set aside and

remains a valid deed.

More importantly, the Texas Supreme Court has made it clear that only the

grantor in a deed may seek to have it set aside. Plaintiffs cannot avoid this

requirement by asking the Court for a finding that the Deed Without Warranty

conveyed no ownership interest without first challenging the validity of the Deed

Without Warranty.

Until there is a successful suit to set aside a deed, it is valid and represents

prima facie evidence of title. Nobles v. Marcus, 533 S.W.2d 923, 926 (Tex. 1976).

Only the grantor has a right to seek to have a deed set aside for fraud. Id. at 927;

Lopez v. Morales, 2010 WL 3332318 at *3 (Tex. App.—San Antonio).

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 The Texas Supreme Court in Ford v. Exxon Mobil Chem. Co., 235 S.W.3d

615, 618 (Tex. 2007) reaffirmed its holding that deeds are valid until set aside.

This Court has also addressed who may bring a cause of action for fraud in

connection with a deed. This Court held that where the complaining party was not

the grantor, he had no standing to pursue a claim in connection with the

complained-of deed. Lopez, 2010 WL 3332318 at *4.

Under the trial court’s order, Plaintiffs can challenge anyone’s deed. Under

this order, Plaintiffs do not have to be the grantor in a deed to challenge a deed.

Any person can challenge the deed of another property owner to have themselves

declared owner. But Texas law does not allow a non-grantor to bring a cause of

action to have a deed set aside. Plaintiffs are entitled to bring a claim for an

express easement to the disputed tract, but they are not entitled to have the deed

from the Franks to the Lances set aside. And until such a suit to set aside a deed is

successful, a declaration of title is unavailable.

V. The ownership of the disputed area remains disputed and as long as
that dispute remains, there can be no determination of title.

What facts were conclusively proved at the hearing on the temporary

injunction?

There was testimony that the Plaintiffs have constructed or placed their

personal property below elevation 1084 in an area of the lake that is partially

enclosed with a fence constructed by the Defendants’ predecessor. There was

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testimony that the Lances intended to replace the dilapidated fence and that doing

so would effectively keep the Plaintiffs from making use of that area of the lake

below elevation 1084.

There was testimony that the Plaintiffs have lake access from their own lots

but that access to the lake from their own lots is more difficult than from the

Defendants’ lot. There was testimony that there is no lake to access from any lots

because of the drought.

There was testimony from land surveyor, Lemuel Sinclair, Plaintiffs’ expert,

that described the parties’ subdivision as having originated from lands in a

partition deed not from lands conveyed in the deed from Spettle to MVIC. Sinclair

was not permitted to testify as to whether, in his opinion, any reservations passed

to subsequent owners such as the Plaintiffs.

Although there was a lot of lawyer talk about the Defendants’ inability to

assert exclusive control to the area below elevation 1084, Sinclair testified that

there are a number of homes that have been built below elevation 1084 along

Medina Lake’s (former) shoreline. The fact that property is being exclusively

controlled by private property owners below elevation 1084, rather than by BMA,

conflicts with the Plaintiffs’ testimony that they believe they have access to lake

property at any location if the property is below elevation 1084. These facts also

corroborate Mr. Franks’ testimony that homes have been built below elevation

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1084. Based on his own experience handling Medina Lake cases, Judge Williams

also appreciated that this was an ongoing, and not yet resolved, controversy.

Sinclair testified that the Deed Without Warranty, like a quitclaim deed,

conveys no promise of title. Mr. Franks understood this definition and testified

that it was his intent to convey whatever rights, if any, he had to that area to the

Lances. Mr. Franks understood that that was a common practice at Medina Lake

with respect to properties that fall below elevation 1084. Judge Williams

acknowledged as much after the hearing.

It is obvious that a deed-without-warranty could not be intended to create an

appearance of a conveyance of ownership because the very definition of a deed-

without-warranty precludes such intent. And such a deed could not be used or

presented with an intent to injure because, again, a deed-without-warranty is, by

definition, not a statement that title is being promised.

Nothing was conclusively proven at the hearing on the issues of ownership

to the disputed area or the easement rights of the Plaintiffs to the disputed area.

Judge Williams acknowledged as much after the hearing. CR 67-142.

The hearing established nothing and the deeds are not part of the summary

judgment record. Because the Plaintiffs failed to prove they were entitled to

summary judgment by establishing each element of their respective claims as a

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matter of law, this summary judgment must be reversed. MMP, Ltd. v. Jones, 710

S.W.2d at 60; Wesson v. Jefferson S&L Ass’n, 641 S.W.2d at 906.

VI. The Spettle Deed is void because it does not contain the nucleus of a
valid description.

The validity of the 1917 deed from the Spettles to BMA, through which

Plaintiffs claim an express easement, is controlled by the finding of this Court

which construed another 1917 deed from the Spettles to BMA’s predecessor. The

holding, in that opinion, is that the deed is void because the deed did not contain

“….the nucleus of a valid description.” Bexar-Medina-Atascosa Counties Water

Improvement District No. 1 v. Wallace, 619 S.W.2d 551, 554 (Tex. App.—San

Antonio 1981, writ ref’d n.r.e.).

In Wallace, the Fourth Court explained that:

[T]he Warranty Deed from Joseph F. Spettle, et al to The
Medina Valley Irrigation Company, dated January 18,
1917, and of record in Volume G-1, Pages 308-313,
Deed Records of Bandera County, Texas, which is an
indispensable link in Plaintiff's chain of title, is not
sufficient to satisfy the Statute of Frauds. The beginning
point of such tract is described merely as “point ‘2’ ” and
there are no means or data contained in the description by
which such point may be located on the ground with
reasonable certainty. The remaining calls comprising the
description is for courses and distances without reference
to any objects, monuments or existing writings. None of
such calls can be located on the ground without reference
to the beginning point. Because of the insufficiency of
the field notes, the only descriptive data contained in the
Deed are that the tract contains 13.76 acres, more or less,
and is off the South side of Survey No. 288, E.

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 Pennington, in Bandera County, Texas. Such description
does not furnish within itself, or by reference to some
other existing writing, the means or data by which the
tract may be identified with reasonable certainty.
Because the Deed does not contain the nucleus of a
valid description, it is void.

Id. at 554 (emphasis supplied).

The description of land in the subject Spettle Deed to BMA employs an

identical technique and description as contained in the deed this Court found to be

void. The description in the subject Spettle Deed to BMA used, as points of

beginning, “point 0,” “point 1,” “point 2,” etc. The remaining calls are for course

and distances without references to any object, monuments or existing writings.

And, like the previously adjudicated Spettle Deed, no calls for the Spettle Deed to

BMA can be located on the ground without reference to the beginning point.

Voiding this deed precludes the need to consider whether the language in the deed

gives rise to an easement.

VII. There can be no express easement based on language in a conveyance
that is not in the Plaintiffs’ chain of title.

A purchaser is bound by the terms of instruments in his chain of title.

Inwood N. Homeowners’ Assoc’n v. Harris, 736 S.W.2d 632, 635 (Tex. 1987)

quoting Cooksey v. Sinder, 682 S.W.2d 252, 253 (Tex. 1984). “A purchaser is

bound by every recital, reference and reservation contained in or fairly disclosed by

any instrument which forms an essential link in the chain of title under which he

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claims.” Westland Oil Development Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 908

(Tex. 1982). See also Williams v. Harris County Houston Ship Channel

Navigation District, 99 S.W.2d 276 (Tex. 1936).

Plaintiffs’ chain of title goes back to the Spettle Partition deed, not the

Spettle Deed that conveyed land to MVIC, BMA’s predecessor, as Plaintiffs’

expert testified at the Temporary Injunction hearing (CR 69-73) and as further

explained in Mike Grogan’s affidavit. (CR 409-10). Said Partition Deed contains

no reference to any type of reservation, grant or license with regard to usage of

water, access to the Lake or any other such matter. There is nothing to support

Plaintiffs’ claim to an express easement based on a deed which is not in their chain

of title.

Focusing on the importance of a property owner seeking to claim rights of

an express easement from an earlier document, Greenwood v. Lee, 420 S.W.3d

106, 109 (Tex. App.—Amarillo 2012, pet. denied) is instructive. In construing the

easement rights of the current holder, the Amarillo court of appeals looked at a

1964 document creating the express easement, and examined each conveyance in

the chain of title leading up to the current easement holder’s 2009 deed. Id. at 109-

110.

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 Plaintiffs have identified no law to support their claim to an express

easement based on language in a conveyance that is not in their chain of title. This

is fatal to their claim of an express easement.

VIII. For a host of reasons, the Spettle Deed does not establish an express
easement in the lands conveyed to MVIC.

The basic principles of contract construction and interpretation are applied

when considering an express easement’s terms. Ferrara v. Moore, 318 S.W.3d

487, 490 (Tex. App.—Texarkana 2010, pet. denied).

“Where an easement is created by express grant or reservation, the extent of

the right acquired depends not upon user, as in the case of easements created by

prescription, ... but upon the terms of the grant or reservation properly construed.”

Kearney & Son v. Fancher, 401 S.W.2d 897, 905 (Tex. Civ. App.—Fort Worth

1966, writ ref’d n.r.e.).

The language in the Spettle Deed on which Plaintiffs rely for their express

easement is:

(a) The right to use the waters in the reservoir for
domestic purposes;
(b) The right to use the waters in the reservoir for
bathing, boating, fishing, and hunting; and,

(c) The right to construct upon the edges of the
reservoir at their own peril and expense and
without any liability of the grantors for the
destruction thereof by water or otherwise, such
improvements as may be necessary and incident to

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 the exercise of the privileges above reserved by the
grantors, their heirs and assigns, which privileges
are to be exercised by said parties only to the
extent and in the proportion which the acreage
above described bears to the total acreage under
the flow line of said reservoir.

i. The language does not comply with the Statute of Frauds.
The first deficiency in the above language creating an express easement is

that is does not comply with the statute of frauds. Express easements must comply

with the statute of frauds, which requires a description of the easement’s location.

Severance v. Patterson, 370 S.W.3d 705, 736 (Tex. 2012).

The description of an easement requires a sufficient degree of certainty such

that a surveyor can go upon the land and locate the easement from such

description. Vrabel v. Donahoe Creek Watershed Authority, 545 S.W.53, 54 (Tex.

Civ. App.—Austin 1977, no writ). If the easement does not sufficiently identify a

description of its location, then it must fail and will be declared void. Id. The

language relied upon by Plaintiffs is devoid of any description as to where the

easement lies. Worse, there is no description that would enable a surveyor to

locate the easement.

For the statute of frauds to be satisfied, the intent of the parties, the essential

terms of the easement, and an adequate description of the easement’s location must

be apparent from the face of the document, without reference to extrinsic evidence.

If the court cannot determine these elements with reasonable certainty, then no

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express easement is conveyed. Cummins v. Travis County Water Control and

Improvement District No. 17, 175 S.W.3d 34, 51 (Tex. App.—Austin 2005, no

pet.).

The language relied upon by Plaintiffs in the Spettle deed is silent as to

where the claimed easement is located. The language does not even attempt to

locate the easement to the degree where a surveyor could go upon the land and

locate the easement. For these reasons alone, Plaintiffs’ claim for an express

easement fails.

ii. There is no language creating a dominant and servient estate.
To create an express easement that runs with the land, “there must be a

dominant estate and a servient estate….. This concept is in contrast to an easement

in gross which attaches to an individual and is not dependent upon the existence of

a dominant estate in land. Alley v. Carleton, 29 Tex. 74 (1867).” Drye v. Eagle

Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex. 1962). The language relied upon by

Plaintiffs contains no reference to a dominant or servient estate.

iii. At best, the language creates a nontransferable license or
easement in gross.
The right to go upon the land of another for pleasure and recreation, such as

sought in the subject suit, is most typically classified as either (1) a license, as a

license to picnic or to hunt, or (2) an easement in gross, which is an interest in

land, usually attached to a person but not attached or appurtenant to the land of the

-27-
owner of the right. Ordinarily licenses are revocable; and ordinarily, easements in

gross are not transferable or assignable. Drye v. Eagle Rock Ranch, Inc. 364

S.W.2d at 203 (Tex. 1963). The language relied upon by Plaintiffs creates a

license or an easement in gross, not an easement appurtenant.

iv. The language does not contain explicit terms of the easement.
An express easement must be explicit as to the essential terms of the

easement, and an adequate description of the easement's location must be apparent

from the face of the document. Cummins v. Travis County Water Control and

Improvement District No. 17, 175 S.W.3d at 51.

In contrast, the trial court’s ruling simply states: “Plaintiffs own an express

easement in the disputed area.” Perhaps, understandably, no mention is made of

the terms of the easement or its location since none of such is identified in the

purported easement granting language in the Spettle deed.

v. Rights under an express easement are not implied.
No rights under an express easement are implied. Coleman v. Forister, 514

S.W.2d 899, 903 (Tex. 1974). Therefore, since the language relied upon by

Plaintiff is silent as to any rights to use, cross, recreate on or ingress and egress

over any real property, no such rights may be implied. There is no support for the

trial court’s holding that Plaintiffs have an easement in the disputed area.

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 vi. None of Plaintiffs’ deeds contain any easement language.
Critically, none of Plaintiffs’ deeds contain any easement language which

the Texas Supreme Court would find relevant. Drye v. Eagle Rock Ranch, Inc.,

364 S.W.2d at 200-01 (“It is significant however, that none of the deeds purported

to grant the purchaser any rights or easement over the ranch or over any property

outside the purchaser’s own lot.”).

Any one of the above reasons defeats the Plaintiffs’ claim of an express

easement. No construction of the language proferred by the Plaintiffs provides any

assistance to their easement claim. Indeed, every construction fails. The Plaintiffs

have no claim of an express easement.

IX. A deed cannot be a cloud on an easement.

In addition to the errors of fact and law contained in the declarations in the

trial court’s summary judgment order, the order also contains its share of

absurdities. For instance, declaration 7 states: “The Deed Without Warranty is an

invalid cloud and burden on the easement rights of plaintiffs.” CR 413.

Defendants find no such cause of action in Texas jurisprudence. A cloud on

title exists when an outstanding claim or encumbrance is shown, which on its face,

if valid, would affect or impair the title to the owner of the property. Hahn v. Love,

321 S.W.2d 517, 531 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The

Plaintiffs are not claiming to be the owners of the disputed area. If an easement is

-29-
valid, it is irrelevant who owns the land. Because it is irrelevant who owns the

land, there is no such thing as a deed causing an invalid cloud on an easement.

X. The Plaintiffs did not obtain a summary judgment on their CPRC
Chapter 12 claim, but there is no support for the favorable findings the
Plaintiffs received in the trial court’s summary judgment order.

“The party asserting a claim under Section 12.002 has the burden to prove

the requisite elements of the statute.” Aland v. Martin, 271 S.W.3d 424, 430 (Tex.

App.—Dallas 2008, no pet.). The summary judgment order does not find for the

Plaintiffs on every element of their Chapter 12 claim. CR 414. The order does not

find that the Defendants intended the Plaintiffs to suffer financial injury in

violation of CPRC Section 12.002(a)(3). But there is also no support for

declarations the judgment makes as to other elements of this claim. In the interest

of judicial economy, this Court should make that determination now so that the

Defendants, on remand, will not be met with having to defend a Chapter 12 claim.

The Plaintiffs do not own an express easement in the disputed area,

therefore, they do not have standing under CPRC Section 12.003(a)(8). But for the

reasons discussed in Section IX of the Argument, even if the Plaintiffs did have an

express easement, they would not have standing under Chapter 12. The Plaintiffs’

easement rights cannot be impaired by any owner or by any deed. Who owns the

disputed area does not matter.

-30-
 The trial court found that as a matter of law the Defendants intended to

create the appearance of an actual conveyance of ownership in the disputed area.

CR 414. But it is undisputed that the Deed Without Warranty, like a quitclaim

deed, makes no promise of title. That is definitional, not factual. The very nature

of a deed without warranty negates the trial court’s finding. The Plaintiffs’ own

expert corroborates this understanding.

Q. A deed without warranty means that the grantor
makes no promise of title to the grantee, right?
A. That’s right.
Q. So the grantor, basically, doesn’t guarantee that
they’re giving anything to the grantee, right?
A. Right.

CR 81.

Given that no promise or guarantee of ownership is being made, how can it

be that the Defendants intended to convey ownership as a matter of law? As noted

by Judge Williams, he assumes many people along the Medina Lake shoreline

have done the same and there was testimony as well to this effect. CR 138-39,

142. None of the trial court’s findings with regard to Chapter 12 were established

as a matter of law.

XI. There is legally and factually insufficient evidence to support the fees
awarded to the Plaintiffs and BMA; nor is it equitable and just to award
them.

On June 12, 2014, the trial court granted the Plaintiffs’ Motion for

Severance, Attorney’s Fees, and Final Judgment. Tab D. In that order, the trial

-31-
court stated that the matters addressed in the Plaintiffs’ summary judgment motion

were severed. The matters addressed in the summary judgment motion pertain

solely to the temporary injunction hearing.

The trial court also ordered that the reasonable and necessary attorney’s fees

connected with the severed matter were to be set for a hearing. Tab D. Thus, the

attorney’s fees that were subject to being awarded would be fees for professional

services connected with the preparation for and attendance at the temporary

injunction hearing and the preparation of the motion for summary judgment. All

other issues, and the professional services the parties have required for those other

issues, remain pending in the original cause number or were unnecessary for this

summary judgment proceeding.

The Supreme Court has described the proper analysis for awarding fees

under the Declaratory Judgments Act. The Act entrusts attorney fee awards to the

trial court's sound discretion, subject to the requirements that any fees awarded be

reasonable and necessary, which are matters of fact, and to the additional

requirements that fees be equitable and just, which are matters of law. It is an

abuse of discretion for a trial court to rule arbitrarily, unreasonably, or without

regard to guiding legal principles, e.g., Goode v. Shoukfeh, 943 S.W.2d 441, 446

(Tex. 1997), or to rule without supporting evidence, Beaumont Bank v. Buller, 806

S.W.2d 223, 226 (Tex. 1991). Therefore, in reviewing an attorney fee award under

-32-
the Act, the court of appeals must determine whether the trial court abused its

discretion by awarding fees when there was insufficient evidence that the fees were

reasonable and necessary, or when the award was inequitable or unjust.

Unreasonable fees cannot be awarded, even if the court believed them just, but the

court may conclude that it is not equitable or just to award even reasonable and

necessary fees. This multi-faceted review involving both evidentiary and

discretionary matters is required by the language of the Act. Bocquet v. Herring,

972 S.W.2d 19, 21 (Tex. 1998).

Unlike CPRC Chapter 38, a party seeking to recovery attorney’s fees under

Chapter 37 enjoys neither a presumption of reasonableness nor the availability of

judicial notice. Gorman v. Gorman, 966 S.W.2d 858, 867 (Tex. App.—Houston

[1st Dist.] 1998, pet. denied). The Plaintiffs were required to prove that their fees

were reasonable and necessary for the matters for which the Plaintiffs obtained

summary judgment.

The test for legal sufficiency is “whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review.” City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Although appellate courts

consider the evidence in a light most favorable to challenged findings of fact,

indulging every reasonable inference that supports them, reviewing courts may not

disregard evidence that allows only one inference. Wilson, 168 S.W.3d at 822.

-33-
 When considering a factual sufficiency challenge, appellate courts consider

and weigh all of the evidence, not just that evidence which supports the trial

court’s judgment. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex.

1998). The judgment is set aside only if it is so contrary to the overwhelming

weight of the evidence that it is clearly wrong and unjust. Ellis, 971 S.W.2d at

407; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The summary judgment order served as the predicate for the subsequent

award of attorney’s fees. Had there been no summary judgment, it is hard to

imagine the Plaintiffs and BMA moving for their attorney’s fees. But in weighing

all the evidence, this Court must look at the work that would have been necessary

to develop the evidence that was used to support the Plaintiffs’ motion for

summary judgment. The only evidence that was used was the reporter’s record

from the hearing on the temporary injunction. The documents that would have

been before the trial court on the motion for summary judgment had they been

filed, were, as Mr. Rogers testified, already in the possession of the Plaintiffs at the

time they filed suit.

Both the attorney for the Plaintiffs and the attorney for BMA acknowledged

the need to segregate their fees and both of them testified that they did so. Rogers

testified that 85% of his fees were for services related to the summary judgment

issues. Hecker testified that he redacted any work he did related to claims under

-34-
CPRC Chapter 12. RR 76-78. But how can it be equitable and just for these

parties to recover for the professional services of their attorneys that played no part

in the motion for summary judgment?

The only services that would be reasonable and necessary would be the

services provided in developing the evidence and preparing for the temporary

injunction, the preparation of the motion and supplemental motion for summary

judgment and the temporary injunction and summary judgment hearings

themselves. The motion for summary judgment is based solely on the temporary

injunction hearing. The fee statements and attorney testimony upon which the trial

court based its award envelop a much larger litigation universe than the work that

was necessary for the motion for summary judgment.

In the case of BMA, the equities and justness of the fee award on its behalf

are wholly lacking. On numerous occasions, trial counsel for the Plaintiffs

objected to the trial court hearing testimony from counsel for BMA about BMA’s

attorney’s fees. RR 6, 25-27. After all, BMA had chosen to intervene in the

lawsuit. The Defendants had not sued BMA. RR 82. BMA was not yet a party at

the time of the temporary injunction hearing. BMA did not file the motion for

summary judgment that led to the summary judgment order and subsequent

hearing on attorney’s fees. BMA, in fact, has yet to obtain any relief from the trial

court.

-35-
 Even some of the issues subsumed within the summary judgment order

pertain to claims that cannot be brought under the Declaratory Judgments Act. The

claims to set aside the Deed Without Warranty and claims concerning the

Defendants’ ownership can only be brought as a Trespass to Try Title. Attorney’s

fees are not recoverable for a claim to quiet title. See, e.g., Florey v. Estate of

McConnell, 212 S.W.3d 439, 448 (Tex. App.—Austin 2006, pet. denied); Sani v.

Powell, 153 S.W.3d 736, 745 (Tex. App.—Dallas 2005, pet. denied); Southwest

Guar. Trust Co. v. Hardy Road 13.4 Joint Venture, 981 S.W.2d 951, 957 (Tex.

App.—Houston [1st Dist.] 1998, pet. denied). A declaratory judgment claim

cannot be used to recover attorney’s fees in a dispute governed by a trespass to try

title claim for which attorney’s fees are not recoverable. Coinmatch Corp. v.

Aspenwood Apt. Corp., 417 S.W.3d 909, 926 (Tex. 2013); Meekins v. Wisnoski,

404 S.W.3d 690, 701 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Basley v.

Adoni Holdings, LLC, 373 S.W.3d 577, 587 (Tex. App.—Texarkana 2012, no

pet.). As noted in an earlier section of this argument, a trespass to try title claim is

“the method for determining title” to property, and a party may not proceed

alternatively under the Declaratory Judgments Act to recover their attorney’s fees.

Coinmatch Corp., 417 S.W.3d at 926.

-36-
 CONCLUSION

The Plaintiffs believe they have easement rights to the area below elevation

1084 at Lot 8. Disputing the title to that area is unnecessary to the adjudication of

the asserted easement. Indeed, the Plaintiffs do not have standing to set aside the

deed between the Franks and the Lances. Issues of ownership are of no legal

consequence to a holder of easement rights. Unfortunately, the parties have had to

engage in needless litigation because of the Plaintiffs’ insistence on asserting these

irrelevant claims.

The relevant question is whether the Plaintiffs have easement rights, not who

is the owner of the disputed area. BMA’s presence, therefore, is not needed nor

was it solicited. Again, it is unfortunate that the Defendants have had to expend

time and resources engaged in a dispute with BMA.

But the Defendants have shown that the Plaintiffs do not have easement

rights because the relevant deed is void for lack of a valid legal description,

because the relevant conveyance is not in the Plaintiffs’ chain of title and because

the language does not comply with the statute of frauds, does not create a dominant

and servient estate, does not contain explicit terms of an easement and does not

contain easement language.

The attorney’s fees awarded to the Plaintiffs and BMA cannot be justified

either based on a review of all of the evidence or as a matter of equity and justness.

-37-
The summary judgment order itself is something less than a model of coherence

when due consideration is given to the applicable law and facts. Nothing has been

conclusively proven. The Plaintiffs have not met their burden of proof and the

summary judgment order cannot stand.

PRAYER

For all of these reasons, the Defendants pray that the summary judgment be

reversed and rendered, or in the alternative, remanded, that the order awarding

attorney’s fees, court costs and interest be reversed and rendered, or in the

alternative, remanded, and that the Defendants have such other and further relief to

which they are entitled at law or in equity.

Respectfully submitted,

Cynthia Cox Payne
Texas Bar No. 24001935
1118 Main Street
Bandera, Texas 78003
(830) 796-7030 – Phone
(830) 796-7945 – Fax
cpayne@paynelawfirm.net
/s/Dan Pozza
Dan Pozza
State Bar No. 16224800
239 East Commerce Street
San Antonio, Texas 78205
(210) 226-8888 – Phone
(210) 224-6373 – Fax
danpozza@yahoo.com
ATTORNEY FOR APPELLANTS
JOHN A. LANCE, DEBRA L. LANCE,
F.D. FRANKS AND HELEN FRANKS

-38-
 CERTIFICATE OF SERVICE

I hereby certify that a true copy of the above and foregoing Brief of
Appellants was served via electronic transmission, on this the 8th day of April,
2015, to:

Stephan B. Rogers
Ross S. Elliott
Rogers & Moore
309 Water Street, Suite 114
Boerne, Texas 78006
Attorney for Plaintiffs
srogerslaw@gmail.com
rors@rogersmoorelaw.com

Edward Hecker
Gostomski & Hecker
607 Urban Loop
San Antonio, Texas 78204
ed@ghlawyers.net

/s/Dan Pozza

-39-
 CERTIFICATE OF COMPLIANCE

1. The undersigned certifies that this Brief of Appellants complies with the
type-volume limitation of Tex. R. App. P. 9.4(i)(2)(D) because this brief
contains 8,980 words, excluding parts of the brief exempted by Tex. R. App.
P. 9.4(i)(1).
2. This brief complies with the typeface requirement of Tex. R. App. P. 9.4(e)
because this brief has been prepared in a conventional typeface of 14-point
font in the text.

/s/Dan Pozza

-40-
TAB A
 CAUSE NO. CV-12-209

. JUDITHAND TERRY ROBINSON, § 198TH DISTRICT COURT
GARYAND BRENDA FEST, §
VIRGINIA GRAY and BUTCH §
TOWNSEND, Plaintiffs §
§
vs. §
§
,JOHN A. LANCE & DEBRA J,. §
IANCE, & F •. D. AND HELEN §
FRANKS; Defendai:tts § BANDERA COUNTY, TEXAS

AMENDED ORDER ON PLAINTIFFS'
MOTION FOR PARTIAL SUMMARY JUDGMENT·

On May 30, 2014, this Court reconsidered the Plaintiffs' Motion for

Partial Summary Judgment, the summary judgment evidence, the

pleadings on file, and the arguments of counsel.

The Court hereby GRANTS in part and DENIES in part the motion

for partial summary judgment, and declares as follows:

1. The Deed Without Warranty dated October 13, 2011, from the Franks as
. grantors to the Lances as grantees (recorded in Volume 915, Page 86, of
the Bandera County real property records) ("Deed Without Warranty"),
purporting to convey the Franks' interest in a described .282-acre parcel
of land ("disputed area") to the Lances, did not convey any ownership or
other interest in the described property to the Lances.

2. The Franks never acquired ownership or other possessory interest in the
disputed area by deed or other written instrument, and therefore had no
fee ownership of the land to convey to the Lances.

3. The disputed area is part &f the land o·Nned in fee by tho Beirnr Medina
f,taseosa Counties lA'ater Control & Imprwlement Distrie:: No. 1
("RMA"), as sueeessor · to the Medina Valley Irrigation CompQRj'
("l\MCO"), gpantee underthe w&raney deed. dated. January 22, 191]',

AMENDED ORDER Pagel

412
............ = ..... ~ ,...,._.,,,. ,..,_..,,....,, . . " ' ' ' " ' WtU!..>t"' ,_,_._.__

from graators Theresa Spettlc, et al. (recorded in Volume G 1, Page 315,
of too Band;;ra Comity real properly records), refeFi'ed to herein as the
"Spettle Deed."

4. The Spettle Deed expressly reserves an easement in the lands conveyed · ·
to MVICO in the grantors under said deed. The easement gives said
grantors, and their heirs and assigns, the following rights to use the land .
below the flow line of Medina Lake and the waters of said reservoir:

(a) The right to use the waters in the reservoir for domestic purposes;

(b) The right to use the waters in the reservoir for bathing, boating,
fishing, and hunting; and,

(c) The right to construct upon the edges of the reservoir at their own
peril and expense and without any liability of the granters for the
destruction thereof by water or otherwise, such improvements as may
be necessary and incident to the exercise of the privileges above
reserved by the grantors; their heirs and assigns, which privileges are
to be exercised by said parties only to the extent and in the proportion
which the acreage above described bears to the total acreage under
the flow line of said reservoir.

5. The land comprising the Redus Point Addition Subdivision is part of the
land partitioned to Mathilda Spettle Redus in the partition deed dated
July 18, 1917, signed by Theresa Spettle, et al. (recorded at Volume G-1,
Page 558, of the Bandera County property records).

6. The Lances do not own the disputed area, but do have appurtenant
easement rights in the disputed area as lot owners in the Redus Point
Addition Subdivision, along with the plaintiffs and other lot owners in
the subdivision, under the express easement reserved in the Spettle
Deed. These easement rights do not give the Lances the right to exclude
other lot owners from using any portion of ·the land below the flow line
of the lake. ~ ;.v ~ l ""'..i
7. The Deed Without WarrantyC.nvalid cloud and burden on the
easement rights of the plaintiffs. The county clerk is ordered to file a
copy of this amended order in the deed records of Bandera County.

AMENDBD ORDER Page 2

413
....... "'"'"''-''' "'°'-', ,,..uo•u"" ..::u. , ... uu ~'-'"'•I

8. The Deed Without Warranty is a "deed or other record" for purposes of
Chapter 12 of the Civil Practice & Remedies Code ("CPRC"), § 12.002(a).

9. The defendants Franks and Lances made, used, and/or presented the
Deed Without Warran& with the intent to create the appearance of an
actual conveyance of ownership in the disputed area, pursuant to CPRC
§ 12.002(a)(2).

10. The defeadants FFanlts aad Laaees, ia malting, using, and/er presenting y)
the Deed '&.'ithout VlaITanty, intended the plaintiffs to suffer finaneial N'{
injury, pursuant to CPRC § 12.002(a)(3).

11. Plaintiffs own an express easement in the disputed area, a1id have
standing under CPRC § 12.003(a)(8).

SIGNED on-k_\I_, 2014.

·.L.U>.iv.S, DISTRICT JUDGE
2- u, 11.J ~·' .. c.. 0, t1<1'la'

.. '-~-~.,,.,,,
··''"

~··

· AMENDED ORDER Page 3

414
 ,...,._,,,,. " ' ' " ' " ' " ' ' ' " . . ,,.., ,,,,.,._,,.., .-L.<...'-...

.. ,.

Agreed as to fo1·m:

·Ross S. Elliott
Attorney for Plaintiffs

----------
Cynthia Cox Payne
Atto1•ney for Defendants

Ed Hecker
Attorney /01· Bandera-Medina-Atascosa Counties
Water Control & Improvement District No. J

Janna Lindig
Bandera Count!J Attorney

AMl!NP80 0 RDBR Pagc4

415
---·----------------------------
TAB B
 FILED
13 January 16 P3:06
Tammy Kneuper
District Clerk
NO. CV-12-209 Bandera District
llnaRamos
JUDITH AND TERRY ROBINSON § IN THE 216TH DISTRICT COURT
& GARY AND BRENDA FEST & §
VIRGINIA GRAY AND BUTCH §
TOWNSEND §
§
vs. §
§
JOHN A. AND DEBRA L. LANCE & §
F.D. AND HELEN FRANKS § BANDERA COUNTY, TEXAS

PLAINfIFFS' MOTION
FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs Judith and Terry Robinson, Gary and Brenda Fest, and
,,
Virginia Gray and Butch Townsend move for partial summary judgment

against defendants John A. and Debra L. Lance ("Lances") and F.D. and
) '
Helen Franks\ ("Franks"), bai;ed on the evidence presented and referenced,

and on the pleadings and other documents on file with the Court. TRCP

166a(c). Granting this motion will simplify the issues for trial and resolve legal

questions as to which there is no genuine issue of material fact,

A. Declaratory Judgments Act

1. Pursuant to Chapter 37 of the Texas Civil Practice & Remedies Code,

Plaintiffs ask the Court to declare the following:

(a) The Deed Without Warranty dated October 13, 2011, from the Franks
as grantors to the Lances as grantees (recorded in Volume 915, Page
86, Cff the Bandera County real property records; attached to
Plaintiffs' Original Petition as Exhibit A), conveying the Franks'
interest in a describeif.282-acre parcel of land to the Lances, did not
convey any ownership or other interest in the described property to
theLil.hces.

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT Page I

44
 (b) The Franks never acquired an ownership or other interest in the ,
282-acre parcel by deed or other written instrument, and therefore
had.·:Jno interest in the land to convey to the Lances.
·f, .
(c) The ,282-acre parcel is part of the land owned in fee by the Bexar-
Me;&.na-Atascosa Cqunties Water Control & Improvement District
No. :~1 ("BMA"), as successor to the Medina Valley Irrigation
Company, grantee under the warranty deed dated January 22, 19171
from grantors Theresa Spettle, et al. (recorded in Volume G-1, Page
315, ,of the Bandera County real property records), referred to herein
as the "Spettle Deed."

(d) The Lances do not own the .282-acre parcel of land (but do have
easement rights in the parcel as assigns under the Spettle Deed and
the easement rights reserved therein).

(e) The deed without warranty is an invalid cloud on the ownership
rights of the plaintiffs and BMA in the disputed area, and the deed is
hereby declared removed and fee title in the disputed property is
hereby quieted in EMA. The county clerk is ordered to remove the
deed without warranty from the public records .
•ji·

The tes{(mony and doc~~entary evidence presented to the Court at the
.. ~ .. ·'
temporary injunction held on'July 16, 2012 establish the foregoing as a matter
fr
oflaw. The transcript of the hearing and the exhibits admitted at the hearing

are referenced and specified as evidence in support of this motion. The

Spettle Deed was introduced without objection, as was expert testimony that
J

the deed reserved easement rights in the disputed area appurtenant to the

plaintiffs lots, and that the current owner of the disputed area is EMA. RR-TI

18-25, 38, 65. The expert explained that the property above Elevation 1084 is

private property owned. by the plaintiffs and other lot owners in the Redus
.,

,
PLAINTIFFS' MO~ON FOR PARTIAL SUMMARY JUDGMENT Page2
.i_,.

45
 Point Addition Subdivision, and the land below Elevation 1084, including the

disputed area, is owned by BMA (subject to the lot owner's appurtenant rights

in the land below Elevation 1084).

Frank Franks admitted that he has no "deed or any other kind of

document that shows [him] obtaining rights to the .282-acre tract." Id. at 87.
·r .
He has nothipg in writing to indicate he had any rights in the tract. Id. A
..r-~ '•,

conveyance qfreal property must be in writing in order to be legally effective.

Tex. Bus. Com. Code § 26.01.

B. Chapter 12, Texas Civil Practice & Remedies Code

Plaintiffs may sue under Texas Civil Practice & Remedies Code §

i2.003(a)(8) and defendants have presented a document which exposes them

to possible liability under § 12.002. Plaintiffs own an easement in the

disputed area, an interest sufficient to authorize the plaintiffs to pursue relief

under § 12.003(a)(8). There is no issue of material fact controverting
'
plaintiffs' ability to invoke Chapter 12, therefore summary judgment is
,<

appropriate. !r n

Chaptei' 12 applies to the making, presentation or using of a "document

or other record," which certainly describes a deed without warranty. §

12.002(a); Gordon v. West Houston Trees, Ltd., 352 S.W.3d 32, 46 (Tex. App.

-Houston [1st Dist.] 2011, no pet.),

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT Page3

ll
46
 The evidence before this Court conclusively demonstrates that the

defendants made, presented, and used a document, satisfying § 12.002(a).

The Franks ,conveyed a deed without warranty to the Lances, which the

Lances then used and presented in an effort to claim ownership of the

disputed tract. The evidence before this Court demonstrates there is no issue

of material fact regarding § 12.002(a).

The Franks made and used the deed without warranty to create the

appearance of a conveyance to the Lances. RR-TI 71-72, 82-84, 87-88. The

Lances recorded the deed with the county clerk, and presented it to a Bandera

County depufy sheriff as justification for excluding their neighbors from the

disputed area! Id. 52, 71-72, 74, 82-84, 87-88. The evidence also conclusively

proves that the Franks and Lances intended the deed to create the appearance

of an actual conveyance of interest in the property, for the purpose of

depriving thefr neighbors of the use and benefit of the disputed area.

· Plaintiffs ask the Court to rule and declare as follows with respect to

their claims under Chapter 12 (and the Declaratory Judgments Act):

(a) The d'eed without warranty is a "deed or other record."§ i2.002(a).

(b) The liranks and Lances made, used, and/or presented the deed
withqµt warranty wij:p the intent to create the appearance of an
actmW conveyance of ownership in the .282-acre tract. § 12.002(a)
(2).

PLAINTIFFS' MOTION FOR P ARTJAL SUMMARY JUDGMENT Page4
'"

47
 ,.

(c) The Franks and Lances, in making, using, and/or presenting the
deed without warranty, intended the plaintiffs to suffer financial
injury. § 12.002(a)(3).
1:
(d) Plaintiffs owned an express easement in the disputed area, and are
autl¥>rized to pursue recovery under § 12.003(a)(8).

The issues of~hether the d~tendants knew that the deed was fraudulent, and

whether defendants intended to cause mental anguish or emotional distress,

are reserved for trial. §§ 12.002(a)(1), i2.006.

Plaintiffs ask the Court to grant partial summary judgment on the issues

discussed herein, based on the evidence presented and referenced, and for

any other appropriate relief.

Respectfully submitted,

ROGERS & MOORE, PLLC
. ,

Stephan B. Rogers
State Bar No. 17186350
Ross S. Elliott
State Bar No. 24080685
309 Water St., Suite 114
Boerne, TX 78006
t'· (830) 816-5487
Fax: (866) 786-4777

Attorneys for Plaintiffs

..,

. \_, ;/
PLArNTIFFS' MOTION POR PARTIAL SUMMARY JUDGMENT Page S

48
 CERTIFICATE OF SERVICE

A copy of this document has been served on the following persons in
accordance with the Texas Rules of Civil Procedure, on the 16th day of
January, 2013.

Cynthia Cox Payne
P.O. Box 1178
Bandera, Texas 78232
Fax: (830) 796-7945

, ..
"'

•\'l

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT Page6

)t
49
TAB C
 FILED
13 January 17 P2:00
FILED Tammy Kneuper
District Cler11
CAUSE NO. cv-wrrJl~ 18 AM 8: 12
Bandera Distrtct
Tina Ramos

JUDITH AND TERRY ROBINSON,§
GARY AND BRENDA FEST, §
VIRGINIA GRAY and BUTCH §
TOWNSEND, Plaintiffs §
§
vs. §
§
JOHN A. LANCE & DEBRA L. §
LANCE, & F. D. AND HELEN §
FRANKS, Defendants § BANDERA COUNTY, TEXAS

SUPPLEMENT TO PLAINTIFFS'
MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs Judith and Terry Robinson, Gary and Brenda Fest, and

Virginia Gray and Butch Townsend file this supplement to their motion for
" ·~,t

partial summ!lry judgment.
i
Attach~ is the reporter's record of the sworn testimony given at the

temporary irrjunction hearing held on July 16, 2012. Plaintiffs offer this

record in support of their motion for partial summary judgment. Plaintiffs

also offer the exhibits that were admitted at the hearing, which are currently

in the possession of the court reporter.

Respectfully submitted,
j
ROGERS & MOORE, PLLC

SUPPLEMENT TO,i:'LAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT Page 1

50
 State Bar No. 17186350
Ross S. Elliott
State Bar No. 24080685
309 Water St., Suite 114
Boerne, TX 78006
(830) 816-5487
Fax: (866) 786-4777

Attorneys for Plaintiffs

''
CERTIFICATE OF SERVICE

A copy of this document has been served by fax and email on the
following persons on January 17, 2013.

Cynthia Cox Payne
P.O. Box 1178
Bandera, Texas 78232
Fax: (830) 796-7945

Edward T. Hecker
Gostomski & Hecker, PC
607 Urban Loop
San Antonio, TX 78204-3117
(210) 222-9529
Fax: (210) 222-9540

SUPPLEMENT TO }'LAINTIFFS' MOTION FOR p ARTIAL SUMMARY JUDGMENT Page 2

51
TAB D
 CAUSE NO. CV-12-209

JUDITH AND TERRY ROBINSON, § 19STH DISTRICT COURT
GARY AND BRENDA FEST, §
VIRGINIA GRAY and BUTCH §
TOWNSEND, Plaintiffs §
§
vs. §
§
JOHN A. LANCE & DEBRA L. §
LANCE,&F.D.ANDHELEN §
FRANKS, Defendants § BANDERA COUNTY, TEXAS

ORDER ON PLAINTIFFS'
MOTION FOR SEVERANCE,
ATTORNEY'S FEES. AND FINAL JUDGMENT

On the 12th day of June, 2014, this Court considered the Plaintiffs' Motion

for Severance, Attorney's Fees, and Final Judgment. After hearing argument and

considering the motion, the Court hereby:

GRANTS the Motion for Severance, Attorney's Fees, and Final Judgment.

The matters addressed in the Amended Order on Plaintiffs' Motion for

Partial Summary Judgment are to be severed into cause number CV-12-209-B in

the 198th District Court. It is ordered that in cause number CV-12-209-B a

hearing on the reasonable and necessary attorney's fees incurred by the Plaintiffs

and the Intervenor, Bexar-Medina-Atascosa Water Control and Improvement

District No. 1, be set on a date agreeable to all parties. Following that hearing,

Plaintiffs are ordered to submit a proposed final judgment to this Court in cause

number CV-12-209-B.

ORDER ON MOTION FOR SEVERANCE Pagel

251
 SIGNED this I.,__ day of :-&: '2014.

L.
RExfuIBRsONDisTRlCT JUDdlf
'
Stephan B. Rogers, Attorney for Plaintiffs
Fax: (866) 786-4777
·-~rl''i ·.··e. ·D·
. g,---:- I-;:,_' '
Cynthia Cox Payne, Attorney for Defendants
Fax: (830) 796-7945 ZOI~ Jl:lN 12 PH •if11 si.
rA.Mt~;i' ltHE.·tlPER.OIST. eLf$:J\ , ,, ,.., '',' :.
Edward Hecker, Attorney for Intervenor S~rtOERA C©S!HY.1\EX~S
Fax: (210) 222-9540 lii(ltw 0.J)tn;p ~...Jwv .
OEPtlTY
Janna Lindig, Attorney for Intervenor
Fax: (830) 796-8218

ORDER ON MOTION FOR SEVERANCE Page 2

252
TAB E
Oct. 28. 2014 10:43AM R.E/MAX Boerne No. 1527 P. 2
,..

CAUSE NO. CV-12·0100209
JUDITH ANll TF:RRY R.OlHNSON, § 19STH DISTRICT COURT
GAR.Y AND BRENDA FEST, §
'VIRGINIA GRAY and BUTCH §
TOWNSEND, Plaintiffs §
§
vs. §
§
JOHN A. LANCE & DE)'J'.titA L, §
LA.NCI!:, ))efendants § BANDEU COUNIY, TEXAS

Al.14li:NDRD AWARD OF ATI'ORNEY'S FRES AND
FINAf. JUDGMENT

On September 17, 2014, the Court held a hearing on Plaintiffs' and Interested

Third Party BMA's motions for attorney's fees and final judgm.ent. Based on the

arguments of the parties and the evidence presented, the Court finds the awarded

attorneys fees to be reasonable and necessary and just and equitable;
The Court awards attorney's fees In the amount of ___19=0.,.o=o=o_ _ _ __

to the Plaintiffs ag~inst the Defendants John A. Lance, Debra L. Lance, F.D. Franks

and Helen Franks, jointly and severally.

The Court awards attorney's fees in the amount of_~$,,..3_1.""0=25,,,.o=o..____ to

the Interested Third Party BMA against said Defendants, jointly and severally.

The Court awards the following attorney's fees for appeal, conditioned on success

on appeal:

Plaintiffs BMA

Appeal to court of appeals; $10,000 $io.ooo

Add if motion for rehearing filed:

Award ofAttorney's Fees and Final Judgment Page I

505
Ocl. 28. 2014 10:43AM RE/MAX Boerne No. 1527 P. 3

Petition, fpr review to supreme court

If no response is requested:

lf a response is requested: $5,000 $s,ooo
If merits briefing is requested:
Add if oral argument is granted:

Defendants, jointly and severally, are ordered to pay the costs of court and

post-judgment interest on the sum of non-conditional fees awarded to each party at

the annual rate of 5%, to run from the date of this Court's original judgment signed

September 30, 2014.
All requests for relief in this severed case that have not been granted are
hereby denied. This order disposes of aII remaining issues with respect to all the
parties in this severed case, and is therefore a final, appeal.able judgment.

Signed on the2f-.- day of October, R014.

P111.l!lD
A'f /:5'-o'OLOoK.f.Jn.oN
OCT 3 O 2014
TAMMY KNEUPER, 198TH DISTRICT CLGRK

BY~~A~~~EPUTY

Award ofAttorney's Fees and Final Judgment Page2

506
TAB F
 Electronically Filed
10/29/201411:52:07 AM
Tammy Kneuper, District Clerk
Bandera County, Texas
Isl Alma Baker
CAUSE NO. CV-12-0100209

JUDITH AND TERRY ROBINSON § IN THE 198rn DISTRICT COURT
GARY AND BRENDA FEST, §
VIRGINIA GRAY and BUTCH §
TOWNSEND, §
§
Plaintiffs §
§
vs. §
§
JOHN A. LANCE & DEBRA L. LANCE §
§
Defendants § BANDERA COUNTY, TEXAS

MOTION FOR NEW TRIAL OF JOHN A. LANCE,
DEBRA L. LANCE, F.D. FRANKS AND HELEN FRANKS

TO nm HONORABLE JUDGE OF SAID COURT:
Defendants, JOHN A. LANCE, DEBRA L. LANCE, F.D. FRANKS and HELEN

FRANK.S, ask the Court to grant a new trial.

I.

The Court granted in part Plaintiffs' summary judgment motion on June 11, 2014, the

Honorable Keith Williams, Presiding, in Cause No. CV-12-209. On June 12, 2014, the

Honorable Rex Emerson signed an order severing the matters addressed in the summary

judgment order and the issue of attorney fees into a new cause number. On September 30, 2014,

Judge Emerson signed a final judgment and award of attorney fees in the severed case, No.

CV-12-0100209. The Defendants seek a new trial on the award of attorney fees,

II.

The Court should grant a new trial because it erred by making the following rulings:

The Court erred in awarding $90,000 as attorney fees to the
Plaintiffs and against the Dcfondants and in awarding $31,025 as
attorney fees to Third Party BMA against the Defendants because
there is no evidence or insufficient evidence to support this award.
The evidence is insufficient to find that the amounts awarded are

Motion for New Trial Page 1

490
 reasonable or were necessary in the prosecution of this lawsuit.
The conclusory nature of the evidence presented will not support
the attorney fees award.

Similarly, there is no evidence, or insufficient evidence, to suppott
the award of appellate attorney fees because the evidence
presented was conclusory and the award is speculative. The
evidence is insufficient to find that the amount of appellate
attorney fees awarded are reasonable or necessary.

The court erred in admitting, over proper objection, the
documentary and other evidence used by the Plaintiffs and BMA to
support the award of attorney fees.

For these reasons, the Defendants ask the Court to grant a new trial.

Respectfully submitted,

Cynthia Cox Payne
Texas Bar No. 24001935
P.O. Box 1178
1118 Main Street
Bandera, TX 78003
(830) 796.7030 - Phone
(830) 796.7945 - Fax
cpayne@paynelawfinn.net

John D. Payne
Texas Bar No. 15658500
P.O. Box 1178
1118 Main Street
Bandera, TX 78003
(830) 796.7030-Phone
(830) 796.7945 -Fax
jpayne(iil,paynelawfinn.net

LAW OFFICE OF DAN POZZA
239 E. Commerce Street
San Antonio, TX 78205
(210) 226-8888 - Phone
(210) 224-6373 - Fax
danpozza@yahoo.com

/s/Dan Pozza
State Bar No. 16224800

Motion for New Trial Page 2

491
 CERTIFICATE OF SERVICE

I hereby ce1tify that a true and correct copy of the foregoing Motion for New Trial of
John A. Lance, Debra L. Lance, F.D. Franks And Helen Franks was forwarded via e-mail
transmission, on the 29'" day of October, 2014, to:

Stephan B. Rogers
Ross S. Elliott
Rogers & Moore
309 Water Street, Suite 114
Boerne, Texas 78006
Attorney for Plaintiffs
srogerslaw@gmail.com

Edward Hecker
GOSTOMSKI & HECKER
607 Urban Loop
San Antonio, Texas 78204
ed@ghlawvers.net
Attorney for Bexar-Medina-Atascosa Counties Water Control and Improvement District No. I

/s/Dan Pozza

Motion for New Trial Pago 3

492
TAB G
 NO. CV-12-0100209

JUDITH AND TERRY ROBINSON § IN THE i98th DISTRICT COURT
& GARY AND BRENDA FEST & §
VIRGINIA GRAY AND BUTCH §
TOWNSEND & SAMUEL PRIDE §
§
vs. §
§
JOHN A. AND DEBRA L. LANCE & §
F.D. AND HELEN FRANKS § BANDERA COUNTY, TEXAS
CORRECTED PROPOSED FINDINGS OF FACT
AND CQNCWSIQNS OF LAW
The Court enters the following findings of fact and conclusions of law

in support of the amended final judgment it signed on October 29, 2014.

The amended final judgment incorporates the issues severed from cause
number CV-12-209 resolved by partial summary judgment and the facts
presented at the hearing on plaintiffs' motion for attorney's fees held on

September 17, 2014.
"Plaintiffs" are Judith Robinson, Terry Robinson, Gacy Fest, Brenda

Fest, Virginia_ Gray, Butch Townsend, and Samuel Pride. "BMA" is
intervenor Bexar-Medina-Atascosa Counties Water Control & Improvement
District No. 1. Defendants are John A Lance, Debra L. Lance, F.D. Franks

and Helen Franks.

FINDINGS OF FACT AND CONCLUSIONS OF LAW Page 1

514
 To the extent a finding of fact states or implies a legal conclusion, it is

a conclusion of law. To the extent a conclusion of law states or implies s

factual finding, it is a finding of fact.

Findin,gs of Fact

1. The amount of segregated, reasonable and necessary attorney's fees
attributable to and incurred by plaintiffs in prosecuting their severed
claims against the defendants under the Texas Uniform Declaratory
Judgments Act is $90,000.00.

2. The amount of segregated, reasonable and necessary attorney's fees
attributable to and incurred by BMA in prosecuting its severed claims
against the Defendants under the Texas Uniform Declaratory
Judgments Act is $g1,025.oo.

3. If any defendant appeals, both plaintiffs and BMA will each incur
$10,000.00 in reasonable and necessary attorney's fees responding to
the appeal in the Fourth Court of Appeals.

4. If any. defendant files a petition for review with the Texas Supreme
Court and a response is requested, plaintiffs and BMA will each incur an
additional $s,ooo.oo in reasonable and necessary attorney's fees.

Conclusions of T.aw

1. The Court has jurisdiction over this matter, and plaintiffs and BMA have
standing to seek the relief requested. Intervenor BMA is an interested
party under the Texas Uniform Declaratory Judgments Act.

2. Plaintiffs are entitled to recover attorney's fees in the amount of
$90,000.00, and appellate attorney's fees in the amounts stated above
contingent on their success on appeal. These amounts are equitable and
just pursuant to Texas Civil Practice & Remedies Code § 37.009 and
other applicable law.

3. BMA is entitled to recovery attorney's fees in the amount of $g1,025.oo,
and appellate attorney's fees in the amounts stated above contingent on

FINDINGS OF FACT AND CONCLUSIONS OF LAW Page2

515
 its success on appeal. These amounts are equitable and just pursuant to
Texas Civil Practice & Remedies Code§ 37.009.
4. Plaintiffs and BMA are entitled to post-judgment interest in the amount
of 5% per annum, compounded annually.
5. Defendants must pay all costs of court.
6. Plaintiffs and BMA are entitled to all available processes of law to
execute upon, enforce and collect the amounts awarded in the court's
judgment.

Signed on theL day ofNovember, 2014.

,,·. ,.,.:,,..,......,,,.i.,

FILED
201 ~ NOV " AM II 1 51i
TAl'l1h!J'f. .Hf'liP.&ll. DIST. cu;iti·
BMhiE 'A ClltllHY. rrnAs
ay::...JC~~~d'lk~

FINDINGS OF FACT AND CONCLUSIONS OF LAW Page3

516
TAB H
Lance v. Robinson, Not Reported in S.W.3d (2013)

Lot 8, a waterfront property in the Redus Point Addition
Subdivision located on Medina Lake in Bandera County.
2013 WL 820590
Lot 8 was transferred to the Lances by F.D. and Helen
Only the Westlaw citation is currently available.
Franks by way of a Warranty Deed With Vendor's Lien.
SEE TX R RAP RULE 47.2 FOR DESIGNATION The Franks also conveyed to the Lances a Deed Without
AND SIGNING OF OPINIONS. Warranty With Vendor's Lien to a .282-acre tract ofland
on the lakefront to the east of Lots 8 and I, below
MEMORANDUM OPINION Elevation 1084. Adjacent to Lot 8 are Lots I, 2, and 3,
Court of Appeals of Texas, owned by Judith Robinson, Brenda Fest, and Virginia
San Antonio. Gray, respectively. All lots are waterfront property. The
.282-acre tract of land lies between Lot I and Medina
John A. LANCE and Debra L. Lance, Appellants Lake and includes all or part of a wooden pier, deck, and
v. boat ramp belonging to Judith and Terry Robinson, Gary
Judith and Terry ROBINSON, Gaiy and Brenda and Brenda Fest, Virginia Gray, and Butch Townsend'
Fest, Virginia Gray, and Butch Townsend, (hereinafter, Appellees), and other waterfront prope1iy
Appellees. owners in the Subdivision. In April 2012, the Lances sent
a letter to Judith Robinson informing her that they were
No. 04-12-00754-CV. I March 6, 2013. going to fence off the .282 acres and that if Robinson did
not remove the deck within 30 days, the Lances would
remove it. In June 2012, the Lances began building a
From the 216th Judicial District Comi, Bandera County,
permanent wooden fence around the .282-acre area,
Texas, Trial Court No. CV-12-209, N. Keitl1 Williams,
blocking access to the beachfront. The Lances also cut
Judge Presiding.
trees, posted "no trespassing" signs, and told their
Attorneys and Law Firms neighbors they were not allowed to use the disputed area.

Cynthia Cox Payne, Bandera, TX, for Appellant. On June 13, 2012, Appellees filed their "Original Petition
and Application for Temporary Restraining Order."
Stephan Bruce Rogers, Boerne, TX, for Appellee. Appellees asked for "a temporary restraining order
pursuant to TRCP 680 and a temporary and permanent
Sitting: CA THERINE STONE, Chief Justice, REBECA injunction, pursuant to TEX. CIV. PRAC. & REM.CODE
C. MARTINEZ, Justice, LUZ ELENA D. CHAPA, ANN. § 12.003 and other applicable law." The petition
Justice. alleged that the Deed Without Warranty from the Franks
to the Lances is fraudulent and was recorded in violation
of Chapter 12 of the Texas Civil Practice and Remedies
Code. See TEX. CIV. PRAC. & REM.CODE ANN. §§
12.002-.03 (West Supp.2012). Specifically, Appellees
alleged that the Franks did not own any property below
MEMORANDUM OPINION Elevation I 084 to convey to the Lances and that record
legal title to the properly belongs to the
Opinion by REBECA C. MARTINEZ, Justice. Bandera-Medina-Atascosa Counties Water Control and
Improvement District No. I (subject to any implied
*1 In this interlocutory appeal, we consider whether the easements appurtenant, littoral/riparian 1·ights, and other
trial cou11 abused its discretion in overruling a motion to common law or equitable rights that may exist in favor of
dissolve a temporary injunction. Because we conclude the the waterfront properly owners). Appellees alleged that
trial court did not abuse its discretion, we affirm the the Lances conspired with the Franks and intended to use
judgment of the trial court. the fraudulent deed to assert a bogus claim to the land and
infringe on the use and enjoyment of the land by
Appellees and other waterfront property owners in the
Subdivision. The petition alleged that Appellees have "at
least an equitable interest in the subject property in the
BACKGROUND form of an implied easement appurtenant and other
equitable and littoral/riparian rights." Appellees also
On October 13, 2011, John and Debra Lance purchased alleged claims for injury to property and nuisance and

tJ.S_ Govz4rnrnont VVofl