Opinion issued December 6, =
2007
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In The
Court of Appeals
For The
First District of =
Texas
NO. 01-06-00959-CV
__________
ROBERT =
AND LETA=20
MITCHELL, Appellants
V.
ARTURO=20
GARZA, Appellee
On =
Appeal from=20
the 129th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2004-08468
O P I =
N I O=20
N
<=
/SPAN>We withdraw our opinion and =
judgment=20
issued on October 18, 2007 and issue this one in its=20
stead. We deny appellants=E2=80=99 motion =
for=20
rehearing.
<=
/SPAN>Robert=20
and Leta Mitchell appeal the trial court=E2=80=99s grant of a =
take-nothing=20
judgment in favor of Arturo Garza. In three issues, the Mitchells =
contend=20
that the trial court erred in (1) refusing to declare the =
existence of an=20
easement by estoppel, (2) refusing to issue a permanent injunction =
to=20
remove the fence that interferes with their easement, and (3) denying their request for =
attorneys=E2=80=99 fees. We affirm.
Background
<=
/SPAN>The=20
Mitchells purchased the house located at 7823 Capitol =
(=E2=80=9Cthe Mitchell=20
property=E2=80=9D) in 1959. Robert=E2=80=99s mother and stepfather =
had been living in the=20
house since at least 1954 and continued to do so after the =
Mitchells=E2=80=99=20
acquisition. A single, shale-covered driveway was located between =
the=20
Mitchell property and the adjacent house at 7827 Capitol =
(=E2=80=9Cthe adjacent=20
property=E2=80=9D). In =
order to use their=20
portion of the driveway, the Mitchells believe that they had to =
use part=20
of the driveway on the adjacent property.
<=
/SPAN>Robert=E2=80=99s=20
mother and stepfather continued to live in the Mitchell property =
until=20
Robert=E2=80=99s mother died and his stepfather was moved to a =
nursing home. For a=20
couple of years after =
that,=20
Robert=E2=80=99s step-grandfather lived in the house and also used =
the driveway.=20
When Robert=E2=80=99s step-grandfather died, tenants began =
occupying the Mitchell=20
property. Around 1980, the Mitchells stopped renting the =
Mitchell=20
property, and it was vacant. While vacant, the Mitchells often =
visited to=20
make repairs, and, in=20
1986, they began storing furniture in the house. They generally =
made=20
monthly trips to the Mitchell property with six months being the =
longest=20
period without a visit. Also, at one point, the owner of =
the=20
adjacent property had a portion of the driveway asphalted, during =
which=20
some asphalt spilled over and covered a portion of the driveway on =
the=20
Mitchell property.
<=
/SPAN>In=20
1989, the City of Houston replaced the curb in front of the =
Mitchell=20
property. In the process of replacing the curb, the City neglected =
to=20
leave an opening to the driveway. The Mitchells wrote a letter =
requesting=20
that the City fix the curb opening to the driveway. Soon =
thereafter, the=20
City restored the opening.
<=
/SPAN>Garza=20
lived in the neighborhood since 1988 and bought the adjacent =
property in=20
2002. He testified that he thought the Mitchell property was =
abandoned=20
because the =E2=80=9Cthe grass [was] high=E2=80=9D and he =
=E2=80=9Chardly=E2=80=9D saw anyone there. Garza=20
also testified that, when he did see people at the Mitchell =
property, they=20
were parked on the street. He indicated that he never talked to =
anyone=20
that lived at the Mitchell property about their using the part of =
the=20
driveway that was located on his=20
property. Around 2003, Garza built a chain link fence on =
his=20
portion of the driveway. The fence left the Mitchells unable to =
drive a=20
vehicle to the back of the Mitchell property or to open a car door =
when=20
parked between the house =
and the=20
fence. The Mitchells cannot legally park on the street because of =
a nearby=20
fire hydrant and also cannot legally park in the front of the =
driveway=20
because they would be partially on the sidewalk. Around 2005, =
the=20
Mitchells began renting out the Mitchell property again, and their =
tenants, as of the time of trial, were parking on the sidewalk.=20
<=
/SPAN>The=20
Mitchells filed suit against Garza, seeking declaratory and =
injunctive=20
relief. Specifically, the Mitchells argued that, because they have =
used=20
the driveway for more than 50 years, they acquired an easement on =
the=20
driveway, either by prescription, express grant, implication, =
necessity,=20
or estoppel. They alleged that by installing the fence on the =
driveway,=20
Garza trespassed onto and violated their use and enjoyment of the=20
easement. The Mitchells sought to have the trial court declare the =
existence of the easement and issue an injunction mandating that =
Garza=20
permanently remove the fence. Following a bench trial, the trial =
court=20
entered a take-nothing judgment on the Mitchells=E2=80=99 claims =
for relief. The=20
Mitchells now appeal.
Easement by=20
Estoppel
<=
/SPAN>In issue one, the Mitchells =
argue that=20
the trial court erred in refusing to declare the existence of an =
easement=20
by estoppel. Specifically, the Mitchells argue that the evidence=20
demonstrated their entitlement to an easement by estoppel and the =
trial=20
court erred by not entering a judgment declaring the existence of =
such an=20
easement. We disagree.
Standard of=20
Review
<=
/SPAN>In=20
a nonjury trial, where no findings of fact or conclusions of law =
are filed=20
or requested, the trial court=E2=80=99s judgment implies all =
findings necessary to=20
support it, provided the necessary findings are raised by the =
pleadings=20
and supported by the evidence. Whaley v. Cent. Church of Christ =
of=20
Pearland, 227 S.W.3d 228, 230=E2=80=9331 =
(Tex. App.=E2=80=94Houston [1st Dist.]=20
2007, no pet.). However, because the record on appeal contains a =
full=20
reporter=E2=80=99s record, the Mitchells may challenge the trial =
court=E2=80=99s implied=20
findings for legal and factual sufficiency, under the same =
standards that=20
govern challenges to a jury=E2=80=99s findings. Id. at 231. =
To prevail, the=20
Mitchells must show that the trial court=E2=80=99s judgment cannot =
be sustained by=20
any theory raised by the evidence. Id.
<=
/SPAN>When a party =
attacks the legal sufficiency of an =
adverse finding on an issue=20
on which it has the burden of proof, the party must =
demonstrate=20
on appeal =E2=80=9Cthat the evidence=20
establishes, as a matter of law, all vital facts in support of the =
issue.=E2=80=9D=20
Dunn v.=20
Dunn, 177=20
S.W.3d 393, 396=E2=80=9397 (Tex. App.=E2=80=94Houston [1st Dist.] =
2005, pet. denied)=20
(quoting Dow=20
Chem. Co. v. Francis, 46 S.W.3d 237, =
241 (Tex.=20
2001)). A matter-of-law challenge requires us first to examine the =
record=20
for evidence that supports the finding, while ignoring all =
evidence to the=20
contrary. Id. If no evidence =
supports the=20
finding, we will then examine the entire record to determine if =
the=20
contrary proposition is established as a matter of law. =
Id. We will sustain =
the=20
matter-of-law challenge only if the contrary proposition is =
conclusively=20
established. Id.
<=
/SPAN>Where=20
a party attacks the factual sufficiency of an adverse finding on =
an issue=20
on which he has the burden of proof, he must demonstrate on appeal =
that=20
the adverse finding is against the great weight and preponderance =
of the=20
evidence. Dow=20
Chem., 46=20
S.W.3d at 242. We must consider and =
weigh all=20
of the evidence and can set aside a verdict only if the evidence =
is so=20
weak or if the finding is so against the great weight and =
preponderance of=20
the evidence that it is clearly wrong and unjust. Id. =
In=20
doing so, the court of appeals must =E2=80=9Cdetail the evidence =
relevant to the=20
issue=E2=80=9D and =E2=80=9Cstate in what regard the contrary =
evidence greatly outweighs=20
the evidence in support of the verdict.=E2=80=9D Id. (quoting Pool =
v. Ford=20
Motor Co.,=20
715 S.W.2d 629, 635 (Tex.1986)).
Analysis
=
To establish the existence of =
an=20
easement by estoppel, sometimes called estoppel in pais, =
the=20
Mitchells had the burden of proving the following=20
elements: =
(1) the =
owner of the =
servient estate=20
[here, the adjacent property] communicated a representation, =
either by=20
words or conduct, to the promisee [here, the Mitchells];=20
(2) the promisee =
believed=20
the communication; and (3) the promisee relied on the =
communication.=20
See Storms v. Tuck, 579 S.W.2d 447, 452 (Tex. 1979). These =
elements=20
apply at the time the communication creating the alleged easement =
is made.=20
See Lakeside =
Launches,=20
Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868,=20
872=E2=80=9373 (Tex. =
App.=E2=80=94Austin 1988,=20
writ denied).=20
=E2=80=9C=E2=80=98[T]he exact nature =
and=20
extent of the doctrine of estoppel in pais have not been clearly=20
defined.=E2=80=99=E2=80=9D=20
See=20
Mack v. Landry, 22 S.W.3d 524, 528 (Tex. =
App.=E2=80=94Houston [14th Dist.]=20
2000, no pet.) (quoting Drye v. Eagle Rock =
Ranch,=20
Inc., 364 S.W.2d 196, =
209=20
(Tex.1962)). Particularly important in our analysis is that no =
easement by=20
estoppel may be imposed against a subsequent purchaser for value, =
who has=20
no notice, actual or constructive, of the easement claimed. =
Lakeside=20
Launches, 750 S.W.2d at 873. Therefore, to assert their right =
to an=20
easement against Garza, the Mitchells had the burden of proving =
that Garza=20
had actual or constructive notice of an existing easement or that =
the=20
easement was created while Garza was the owner of the adjacent =
property.=20
=
We=20
begin by considering the Mitchells=E2=80=99 legal sufficiency=20
challenge.=20
Garza =
testified that=20
he has lived in the neighborhood since 1988 and purchased the adjacent=20
property in 2002, but had only occasionally =
seen the=20
Mitchells at the Mitchell=20
property and=20
was not aware that they or their predecessors were using the=20
driveway. He=20
assumed the=20
house was abandoned due to its unkempt lawn and infrequency of=20
visitors. This=20
is legally sufficient =
evidence=20
to support the =
implied=20
finding that Garza was a purchaser for value without notice of the =
Mitchells=E2=80=99 easement. =
=
We=20
also must determine if there is evidence that an easement by =
estoppel=20
was created during Garza=E2=80=99s ownership of the adjacent =
property. The=20
Mitchells testified that they never discussed their use of the =
driveway=20
with anyone. Likewise, Garza testified that he never talked with =
anyone=20
from the Mitchell property about using the driveway. Furthermore, =
no one=20
complained when Garza was installing the fence, which Leta =
Mitchell=20
admitted was properly placed on Garza=E2=80=99s property line. We =
hold that there=20
was legally sufficient evidence to support the trial =
court=E2=80=99s implied=20
finding that an easement by estoppel was not established while =
Garza was=20
the adjacent property=E2=80=99s owner.
=
We must now =
consider whether=20
there was factually sufficient evidence that Garza did not =
have notice=20
of any existing easement when he purchased the adjacent=20
property.=20
Garza =
testified=20
that he has lived in the neighborhood since 1988. In 1989, =
the Mitchells were =
successful=20
in having the City of Houston restore the curb opening to the =
driveway=20
after =
the =
City paved a curb that blocked =
their access to =
the Mitchell=20
property=E2=80=99s driveway. =
Furthermore, Leta =
testified=20
that they generally made monthly trips to the Mitchell property, =
with six=20
months being the longest period =
without a=20
visit. They continued to make repairs to the Mitchell =
property,=20
including the installation of siding in 1992 and new pipes =
beginning in=20
2001. The Mitchells also =
contend=20
that the asphalt, which covers a portion of their driveway, is =
proof of a=20
common use of the driveway. ![3DFootnote](3D"")
&nbs=
p;In=20
contrast, Garza testified that, in the time he had lived in the =
neighborhood, he=20
had only occasionally =
seen the=20
Mitchells at the Mitchell=20
property, and=20
he was not aware that they or their predecessors were using the=20
driveway.=20
During the years when the Mitchell=20
property was=20
being repaired and used for furniture storage, the driveway was =
not used=20
by the Mitchells each time =
they=20
visited, and=20
they often parked on the street. Garza also =
testified that=20
he believed the Mitchell property was abandoned because of its =
unkempt=20
lawn and infrequency of visitors. Garza testified =
that the=20
previous owner of the adjacent property poured the =
asphalt, and, when he =
bought the=20
adjacent property, the seller told him =
that the=20
driveway belonged to the adjacent property. We hold that =
there is=20
factually sufficient evidence to support the trial court=E2=80=99s =
implied finding=20
that Garza lacked actual or constructive notice of the =
Mitchells=E2=80=99 alleged=20
easement by estoppel.
&nbs=
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next determine if there is factually sufficient evidence to =
support the=20
trial court=E2=80=99s implied finding that the Mitchells did not =
acquire an=20
easement by estoppel while Garza owned the adjacent property. To =
have an=20
easement by estoppel, the Mitchells had the burden of proving that =
Garza=20
communicated a representation, either by words or conduct, =
to them=20
indicating a right to use the driveway and that the Mitchells =
believed in=20
and relied on the communication. See Storms, 579 S.W.2d at=20
452. The evidence =
shows that=20
the Mitchells never had a conversation with =
Garza=20
concerning their use of the driveway.
=
However,=20
acquiescing behavior or the failure to object by a servient estate =
may be=20
conduct that gives rise to a representation, if the dominant =
estate relied=20
on this conduct in a way that should preclude the servient estate =
from=20
denying it. See Wallace v. McKinzie, 869 S.W.2d 592,=20
595=E2=80=9396 (Tex. App.=E2=80=94Amarillo 1993, writ=20
denied). Thus, we look to =
see=20
whether any acquiescence or failure to object on Garza=E2=80=99s =
part represented=20
a right to use the driveway and, if so, whether the Mitchells =
believed in=20
and relied on any such representation.
=
After=20
Garza bought the adjacent property in 2002, the Mitchells =
continued to=20
repair and fix-up the Mitchell property. Garza testified that he =
sometimes=20
came home from work early and saw the Mitchells at the Mitchell =
property. However, =
before the fence was erected, =
when=20
they were visiting, the Mitchells =
usually=20
parked in the street or in the front of the =
driveway, not in the =
driveway.=20
The =
Mitchells=E2=80=99 daughter, Carol=20
Hughes, asked Garza to move his =
vehicles=20
when they were blocking the driveway. Garza moved his vehicles =
once, and=20
he actually drove Carol=E2=80=99s car around his vehicles once, =
but he did not move his vehicles the =
third time he=20
was asked. The evidence is =
factually=20
sufficient to support the trial court=E2=80=99s implied finding =
that Garza=E2=80=99s=20
behavior did not represent to the Mitchells a right to use the =
driveway.=20
Because we hold that a right to use the driveway was not =
represented to=20
the Mitchells, we need not address whether they believed in and =
relied on=20
such a representation. =
=
The=20
evidence is not so contrary to the trial court=E2=80=99s =
take-nothing judgment as=20
to render that judgment clearly wrong or unjust. Accordingly, we =
hold that=20
the trial court did not err in refusing to grant the Mitchells an =
easement=20
by estoppel, and we overrule the Mitchells=E2=80=99 first issue. =
Having overruled=20
issue one, we need not address issues two and =
three.
Conclusion
=
We=20
affirm the judgment of the trial=20
court.
George C. Hanks,=20
Jr.
=
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; Justice
Panel consists of =
Justices=20
Taft, Hanks, and Higley. |