Texas Judiciary Online - HTML Opinion

MEMORANDUM=20 OPINION

Appellant Paul = Bradley=20 challenges a no-evidence summary judgment rendered in favor of = appellees=20 Milton Peters, Rodney Rice, and Laura Rice. Peters and the = Rices=20 move to dismiss the appeal for want of jurisdiction, alleging that = Bradley=92s notice of appeal was untimely filed. Bradley = moves for an=20 extension of time. As to the merits, Bradley contends in two = issues=20 that the trial court erred in granting summary judgment, and erred = in=20 denying his motion to strike certain summary judgment = evidence. We=20 conclude that we have appellate jurisdiction, grant Bradley=92s = motion for=20 extension, and deny the motion to dismiss. We further = conclude that=20 the trial court did not grant more relief than requested in the = motion for=20 summary judgment and therefore affirm.

Background

=20 This is an easement dispute involving adjoining land owned by the = parties=20 in Washington County. The properties are situated off a = private=20 roadway known as Renn Lane, which intersects public road F.M. = 1370. =20 Bradley=92s property is located past the Peters and Rice = properties on Renn=20 Lane, further from F.M 1370. This dispute arose when Peters = and the=20 Rices locked an iron gate across Renn Lane, preventing Bradley = from using=20 it to access his property. Appellees contend that Bradley = can access=20 F.M. 1370 and his property by a different route, which does not = involve=20 the use of Renn Lane.

Bradley sued, = claiming an=20 =93easement by implication=94 along Renn Lane. Appellees = counterclaimed=20 and moved for summary judgment. Although it was a = no-evidence=20 motion, appellees attached evidence, including a photo of another = access=20 road and mailbox, a map of the property showing an access road, = and=20 affidavits from landowners on Renn Lane. Bradley objected to = this=20 evidence and filed a response, attaching numerous deed records = that he=20 contends show unity of title, and his affidavit stating that = access via=20 Renn Lane is necessary. The trial court granted summary = judgment=20 against Bradley on July 14, 2006. On August 17, 2006, = Bradley moved=20 for a new trial. Following a bench trial on appellees=92=20 counterclaims, on October 17, 2006, the trial court signed a final = judgment, making the interlocutory summary judgment final and = disposing of=20 appellees=92 counterclaims. Bradley filed his notice of = appeal, along=20 with a motion for an extension of time to file the notice of = appeal, on=20 January 24, 2007.

Appellate=20 Jurisdiction

As an initial matter, = appellees=20 contest our jurisdiction over the appeal. Specifically, they = argue=20 that Bradley=92s motion for a new trial, filed before final = judgment, but=20 after the trial court granted its interlocutory summary judgment, = was=20 overruled by operation of law and thus, was =93no longer a live = pleading=20 capable of extending the appellate deadline for filing a Notice of = Appeal.=94 We disagree. A prematurely filed motion for = new trial=20 extends the deadline to file a notice of appeal under Rule 306c of = the=20 Texas Rules of Civil Procedure and Rule 27.2 of the Texas Rules of = Appellate Procedure, as long as the motion complains of error = brought=20 forward in the subsequent judgment. Tex. R. Civ. P. = 306c; Tex R. App. P. = 27.2.

Generally, a party = must file=20 its notice of appeal within thirty days after the trial court = signs its=20 final judgment. Tex R. App. P. 26.1. = If a=20 party timely moves for a new trial, however, the deadline to file = the=20 notice of appeal extends to ninety days after the judgment is=20 signed. Tex. R. = App.=20 P. 26.1(a)(1). An appellate court must =93treat = actions taken=20 before an appealable order is signed as relating to an appeal of = that=20 order and give them effect as if they had been taken after the = order was=20 signed.=94 Tex. R. App. = P.=20 27.2. Such actions include motions for new trial. =20 Houston County Hosp. Dist. v. Estrada, 831 = S.W.2d=20 876, 878 (Tex App.=97Houston [1st Dist.] 1992, no writ). In=20 particular, a motion for new trial prematurely filed =93shall be = deemed to=20 have been filed on the date of but subsequent to the time of = signing of=20 the judgment the motion assails.=94 Tex. R. Civ. P. = 306c. Thus,=20 =93a motion for new trial that complains of error brought forward = in a=20 subsequent judgment preserves those complaints on appeal to the = extent=20 they are applicable to that judgment.=94 Wilkins v. = Methodist=20 Health Care Sys., 160 S.W.3d 559, 562 (Tex. 2005). Such = a motion=20 will extend the appellate timetable on the judgment it = assails. =20 See id.; see also Nuchia v. = Woodruff, 956 S.W.2d 612, = 614=20 (Tex. App.=97Houston [14th Dist.] 1997, pet. denied). =

=20 Here, = the trial=20 court granted appellees=92 motion for summary judgment on July 14, = 2006. Bradley moved for a new trial on August 17, 2006. = The=20 trial court never expressly overruled the motion. Had the = summary=20 judgment been a final judgment, the motion for new trial would = have been=20 overruled by operation of law on September 27, 2006. See=20 Tex. R. Civ. = P.=20 329b. But here, the trial court signed and filed its final = judgment=20 on October 17, 2006, which disposed of the remaining claims in the = case.=20 Thus, the motion for new trial did not become =93live=94 until = that moment.=20 Bradley=92s motion for new = trial=20 complains of error brought forward in the subsequent = judgment.[1]=20 Because the motion assails the final judgment, we treat it = as=20 relating to this appeal, and give effect to it as if it had been = filed=20 after the trial court signed the final judgment. = Wilkins, 160=20 S.W.3d at 567. We hold that Bradley=92s premature motion for = new trial=20 extends the notice of appeal deadline to ninety days after the = trial court=20 signed the final judgment in this case, or January 15, = 2007.

Bradley noticed his = appeal on=20 January 24, 2007, nine days after the deadline for filing = it. =20 According to the Rules of Appellate Procedure, an appellate court = may=20 extend the deadline for a party to file the notice of appeal if = the party,=20 within 15 days after the original deadline, files the notice of = appeal in=20 the trial court and moves for an extension of time in the = appellate court.=20 Tex. R. App. P. = 10.5(b),=20 26.3. A motion to extend time to file the notice of appeal, = under=20 Rule 10.5(b), must state (1) the original deadline for filing the = notice,=20 (2) facts which reasonably explain the need for an extension, (3) = the=20 identity of the trial court, (4) the date of the trial court=92s = judgment,=20 and (5) the case number and style of the case. Tex. R. App. P. = 10.5(b). =20 Under the rule, =93reasonable explanation means =91any plausible = statement of=20 circumstances indicating that failure to file within the = [required] period=20 was not deliberate or intentional, but was the result of = inadvertence,=20 mistake or mischance.=92=94 Smith v. Houston Lighting = & Power=20 Co., 7 S.W.3d 287, 289 (Tex. App.=97Houston [1st Dist.] 1999, = no pet.)=20 (quoting Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 = (Tex.=20 1989)). Unless it is found that an appellant=92s conduct was = deliberate or intentional, =93the court of appeals should = ordinarily accept=20 the appellant=92s explanations as reasonable.=94 Hone v. = Hanafin,=20 104 S.W.3d 884, 887 (Tex. 2003). Bradley=92s motion for an = extension=20 stated facts reasonably explaining his need for one. See=20 Smith, 7 S.W.3d at 289. We therefore grant Bradley=92s = motion for=20 extension of time to file notice of appeal, overrule appellees=92 = motion to=20 dismiss the appeal, and consider the merits of the = appeal.

Summary=20 Judgment

=20 Bradley contends that his original petition pleaded an easement by = necessity. He further contends that appellees=92 no-evidence = summary=20 judgment attacks a claim for an implied easement, not an easement = by=20 necessity, and thus is facially defective. As a result, Bradley = asserts,=20 the trial court erred in granting final summary judgment, because = the=20 court granted relief on a claim (easement by necessity) that = appellees did=20 not attack in their motion. To support his argument, Bradley = directs=20 us to allegations in his original petition, which, he contends, = imply=20 (without using the term) that his cause of action is for an = easement by=20 necessity, and not simply for an implied easement. Appellees = respond=20 that Bradley=92s petition expressly pleaded an implied easement = and failed=20 to give fair notice of Bradley=92s unpled intent to also claim = easement by=20 necessity. They further note that their no-evidence motion = for=20 summary judgment challenges the specific claims made in = Bradley=92s=20 petition, and thus encompasses Bradley=92s necessity claim to the = extent it=20 was made in the petition.

Summary Judgment = Standard of=20 Review

In a = Rule 166a(i)=20 no-evidence motion for summary judgment, the movant represents = that no=20 evidence exists as to one or more essential elements of the = non-movant=92s=20 claims, upon which the non-movant has the burden of proof at = trial. =20 Tex. R. Civ. P.=20 166a(i). The non-movant then must present evidence raising a = genuine=20 issue of material fact on the challenged elements. = Id. =20 A no-evidence summary judgment is essentially a pre-trial directed = verdict. Bendigo v. City of Houston, 178 = S.W.3d 112,=20 113=9614 (Tex. App.=97Houston [1st Dist.] 2005, no pet.); = Jackson v.=20 Fiesta Mart, 979 S.W.2d 68, 70=9671 (Tex. App.=97Austin 1998, = no pet.).=20 The respondent need not marshal its proof; = it need=20 only point out evidence that raises a fact issue on the challenged = elements. Tex. R. = Civ.=20 P. 166a(i) cmt.

Law of Easements=20

Easements=20 by necessity arise by implication. See Othen v.=20 Rosier, 226=20 S.W.2d 622, 626, 148 Tex. 485, 491 (Tex. 1950) (stating that = easement by=20 necessity =93necessarily=20 can arise only from an implied grant or implied=20 reservation=94); Ward v. Bledsoe, 105 S.W.2d = 1116, 1117=20 (Tex. Civ. App.=97Waco 1937, no writ) (=93A=20 way of necessity does not arise merely because of = inconvenience. It=20 is dependent upon an implied grant or reservation . . . .=94); = Jordan v.=20 Rash, 745 S.W.2d 549, 553 (Tex. App.=97Waco 1988, no writ) = (=93An easement=20 of necessity can only arise between a grantor and grantee through = an=20 implied grant or reservation.=94). If a grantor conveys = property=20 surrounded by land owned by others, Texas law presumes that the = grantor=20 intended to grant a roadway to enable full enjoyment of the = conveyed=20 property, and =93the failure to grant a passageway was an = oversight and will=20 be implied in the grant.=94 Grobe v. Ottmers, 224 = S.W.2d 487,=20 489 (Tex. Civ. App.=97San Antonio 1949, writ ref=92d n.r.e.); = see also=20 Machala v. Weems, 56 S.W.3d 748, 755 (Tex. = App.=97Texarkana=20 2001, no pet.).

To establish an = easement by=20 necessity, a landowner must show: (1) unity of ownership before = severance;=20 (2) that access is a necessity and not a mere convenience; and (3) = the=20 necessity existed at the time of severance of the two = estates. Koonce=20 v. Brite Estate,=20 663 S.W.2d 451, 452 (Tex. 1984); Crone v. Brumley, 219 S.W.3d 65, 68 (Tex. App.=97San = Antonio 2006, pet.=20 denied). To=20 establish an implied easement, a party must show (1) unity of = ownership=20 between the dominant and servient estates at the time of = severance; (2)=20 apparent use of the easement at the time of the grant; (3) = continuous use=20 of the easement before the severance of the dominant and servient = estates;=20 and (4) that the easement is reasonably necessary to the use and = enjoyment=20 of the dominant estate.[2] = Houston Bellaire, Ltd. v. TCP LB Portfolio I, L.P., 981 = S.W.2d 916,=20 919 (Tex. App.=97Houston [1st Dist.] 1998, no pet.). Some = overlap thus=20 exists in the requisite elements for an easement by necessity and = an=20 easement implied from the severance of title. Common to = both, a=20 party must show unity of ownership between the dominant and = servient=20 estates at the time of severance, and that the easement is = reasonably=20 necessary to the use and enjoyment of the dominant estate. =20 Id.

Sufficiency of the = No-Evidence=20 Summary Judgment

In his petition, = Bradley did=20 not expressly state a separate cause of action for easement by=20 necessity. Instead, he requested a declaratory judgment=20 =93establishing that a valid easement by implication exists in = favor of=20 BRADLEY with regards to his right to go upon Renn Lane to access = his real=20 property located off of Renn Lane.=94 Bradley claimed that = his right=20 to use Renn Lane =93arises by operation of law through the = doctrine of=20 easement by implication.=94 Bradley contends that, liberally = construed, his petition contains all the elements of an easement = by=20 necessity; therefore, the trial court should not have granted = summary=20 judgment on an implied easement claim. In his brief, = Bradley=20 does not contend that he raised a fact issue in the trial court so = as to=20 defeat the motion, but instead maintains that the defendant=92s = motion was=20 facially defective in that it did not address a claim for easement = by=20 necessity.

The defendants=92 = no-evidence=20 summary judgment asserts that Bradley failed to provide evidence = of unity=20 of ownership and that the easement was reasonably necessary, two = elements=20 of a claim for easement by necessity. Assuming that Bradley = pleaded=20 an easement by necessity, the defendants=92 no-evidence motion = challenged=20 two of its elements: =93(1) There is no evidence of unity of title = between=20 the Bradley Property and either of the Peters Property of the Rice = Property. . . (4) There is no evidence that the use of Renn Lane = is=20 reasonably necessary to the use of the Bradley Property.=94 = This=20 required Bradley to respond, and he did respond, with evidence of = (1)=20 unity of title and (2) necessary use. Thus, the issue as to = these=20 elements was properly joined in the trial court. As Bradley = does not=20 challenge the substantive merit of the motion, we do not evaluate = its=20 substantive merit. We merely conclude that the no-evidence = motion=20 fairly challenged two elements of the cause of action set forth in = Bradley=92s petition. Accordingly, the trial court did not = err in=20 granting more relief than was requested.[3]=20 See Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 584, = 592 (Tex.=20 App.=97Houston [1st Dist.] 2005, no pet.) (summary judgment may be = proper=20 when ground asserted in motion conclusively negates common element = of=20 newly and previously pleaded claims); see also Judwin Props., = Inc. v.=20 Griggs & Harrison, 911 S.W.2d 498, 502=9603 (Tex. = App.=97Houston [1st=20 Dist.] 1995, no pet.).

Conclusion

We conclude that we = have=20 jurisdiction over this appeal. We further conclude that the = trial=20 court did not grant more relief than requested in the no-evidence = motion=20 for summary judgment. We therefore grant Bradley=92s motion = for=20 extension, deny the appellee=92s motion to dismiss, and affirm the = judgment=20 of the trial court.

&= nbsp; &n= bsp; &nb= sp; =20 =20 =20 =20 Jane=20 Bland

&= nbsp; &n= bsp; &nb= sp; =20 =20 =20 =20 = Justice

Panel consists of = Chief Justice=20 Radack and Justices Alcala and Bland.