Lance v. Robinson

542 S.W.3d 606

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

v.Judith and Terry ROBINSON, Gary and Brenda Fest, Judith and Terry Robinson, Gary and Brenda Fest, Virginia Gray and Butch Townsend, Appellees

No. 04–14–00758–CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: January 13, 2016

Review Granted June 23, 2017

Kelly Rogers, Stephan B. Rogers, Ross Elliott, Rogers & Moore, Boerne, TX, Edward T. Hecker, Gostomski & Hecker, San Antonio, TX, for Appellees.

Dan Pozza, Law Offices of Dan Pozza, San Antonio, TX, Cynthia Cox Payne, John D. Payne, Bandera, TX, for Appellants.

Sitting: Sandee Bryan Marion, Chief Justice, Karen Angelini, Justice, Jason Pulliam, Justice

Opinion by: Jason Pulliam, Justice

FACTUAL BACKGROUND

On October 13, 2011, John and Debra Lance purchased Lot 8 in the Redus Point Addition Subdivision located on Medina Lake. While considered a waterfront property, its property line does not extend to the lakefront. Rather, Lot 8 extends to a point identified as "Elevation 1084", which is the elevation of the top of the Medina Lake dam.

Lot 8 was transferred to the Lances by F.D. and Helen Franks by way of a Warranty Deed. At the same time, and by way of a Deed Without Warranty, the Franks also conveyed to the Lances a .282 acre tract of land below Lot 8, or between Lot 8 and the lakefront. This .282 acre tract ("the subject land") begins at the property line of Lot 8, at "Elevation 1084", and ends at "Elevation 1072", or what is typically the lakefront.¹ It is undisputed that the Franks held title to Lot 8, and this title was legally transferred to the Lances. It is also undisputed the Franks did not hold title to the subject land, nor did they hold any deed or other instrument from which an ownership or possessory interest in the subject land was derived. Rather, the Franks created the Deed Without Warranty and thereby transferred any purported interest held in the subject land to the Lances.

Judith Robinson is the owner of Lot 1, which is adjacent to the Lances' Lot 8. Ms. Robinson's property line on Lot 1 also extends to "Elevation 1084". For many years, the homeowners in Redus Point Addition Subdivision have all used as common property the beachfront area that sits below Elevation 1084 corresponding to Lots 1 and 8. The homeowners in Redus Point Addition Subdivision collectively improved the common beachfront area with a wooden pier, a deck, and boat ramp. These improvements are all on the subject land below the Lances' Lot 8.

In April 2012, the Lances sent a letter to Judith Robinson informing her they were going to fence off the subject land, and if Robinson did not remove the deck and pier within 30 days, the Lances would remove them. In June 2012, the Lances began building a permanent wooden fence around the subject land, blocking access to the beachfront. The Lances also cut trees, posted "no trespassing" signs, and precluded all use of the common beachfront area within the subject land.

Judith Robinson, joined by other neighbors in the Redus Point Addition Subdivision (the Robinson parties) filed suit alleging the Deed Without Warranty which purportedly transferred the subject land from the Franks to the Lances was fraudulent and recorded in violation of Chapter 12 of the Texas Civil Practice and Remedies Code. The Robinson parties alleged the Franks did not own any property below Elevation 1084 to convey to the Lances, as legal title to the property belongs to BMA (subject to any express and implied easements appurtenant). The Robinson parties alleged the Lances conspired with the Franks and intended to use the fraudulent deed to assert a bogus claim to the subject land and infringe the express and implied easement allowing the use and enjoyment of the subject land by the other property owners in the subdivision. The Robinson parties contend this express and implied easement is derived from a 1917 deed from Theresa Spettle to a predecessor of the BMA (the Spettle Deed), and through the Spettle Deed, they hold "at least an equitable interest in the subject property in the form of an implied easement appurtenant and other equitable and littoral/riparian rights." The Robinson parties asserted several causes of action and damages for injury to property and nuisance, as well as a claim for declaratory relief on multiple issues.

The trial court issued a temporary injunction, precluding the Lances from preventing use of the subject land pending litigation. This court affirmed this injunction on interlocutory appeal. Lance v. Robinson, No. 04-12-00754-CV, 2013 WL 820590, at *1 (Tex.App.—San Antonio Mar. 6, 2013, no pet.).

In the continuing litigation and based upon the Fifth Amended Petition, the Robinson parties moved for partial summary judgment on some of the requested declaratory relief. Following a hearing, the trial court entered an amended order on June 11, 2014, in which it granted in part the Robinson parties' motion for partial summary judgment, awarding the following declaratory relief:

(1) The Franks–to–Lance Deed dated October 13, 2011 did not convey any ownership or other interest in the .282 acre property to the Lances;

(2) The Franks never acquired ownership or other possessory interest in the .282 acre property by deed or other written instrument, and therefore had no fee ownership of the land to convey to the Lances;

(3) ...;²

(4) The Spettle Deed expressly reserves an easement in the lands conveyed to MVICO (BMA predecessor) in the grantors under this deed. The easement gave the grantors the following rights:

a. The right to use the lake water for domestic purposes;

b. The right to use the lake water 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 to 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 the 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.;

(6) The Lances do not own the .282 acre tract, but do have appurtenant easement rights in the area as lot owners in the Redus Point Addition Subdivision, along with the plaintiffs and other lot owners, 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;

(7) The Deed Without Warranty referenced in Paragraph 1 is an invalid 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;

(8) The Deed Without Warranty is a "deed or other record" for purposes of Chapter 12 of the CPRC, § 12.002(a) ;

(9) The defendants Franks and Lances made, used, and/or presented the Deed Without Warranty with the intent to create the appearance of an actual conveyance of ownership in the .282 acre property, pursuant to CPRC § 12.002(a)(2) ;

(10) ...;

(11) Plaintiffs own an express easement in the .282 acre property, and have standing under CPRC § 12.003(a)(8).

Following entry of this order granting partial summary judgment, the trial court severed all other causes of action. Subsequently, the Robinson parties and BMA filed motions for attorney fees. The trial court held a hearing on these motions, and on October 29, 2014, signed an Amended Award of Attorney's Fees and Final Judgment. The trial court entered Corrected Proposed Findings of Fact and Conclusions of Law with regard to the attorney-fee award only, on November 18, 2014. The Lance parties perfected this appeal from the following: (1) Amended Order on Plaintiffs' Motion for Partial Summary Judgment, dated June 11, 2014, and (2) Amended Award of Attorney's Fees and Final Judgment dated October 29, 2014.

ANALYSIS

Standard of Review

Declaratory judgments rendered by summary judgment are reviewed under the same standards that govern summary judgments generally. Hourani v. Katzen, 305 S.W.3d 239, 248 (Tex.App.—Houston [1st Dist.] 2009, pet. denied). We review the trial court's grant of a summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007) ; Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

To prevail on a motion for summary judgment, the movant must show "there is no genuine issue as to any material fact and the [movant] is entitled to judgment as a matter of law." TEX. R. CIV. P. 166a(c) ; accord Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). Thus, a plaintiff moving for summary judgment on its claims for affirmative relief must conclusively prove each element of its cause of action as a matter of law and must produce evidence that would be sufficient to support an instructed verdict at trial. See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972) ; Schuhardt Consulting Profit Sharing Plan v. Double Knobs Mountain Ranch, Inc., 468 S.W.3d 557, 566 (Tex. App.—San Antonio 2014, no pet.).

Every reasonable inference must be indulged in favor of the non-movant and all doubts must be resolved in its favor, crediting evidence favorable to the nonmovant if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not.

City of Keller v. Wilson, 168 S.W.3d 802, 824–25 (Tex. 2005) ; see Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). Because all doubts as to the existence of a genuine issue of a material fact are resolved against the movant, if resolution of the summary judgment motion involves "the credibility of affiants or...