Opinion issued=20
April 3, 2008
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-06-00457-CV
SAMPSON THOMPSON, JR., EARLINE THOMPSON, =
and=20
GORDON RAY JOHNSON, Appellants
V.
SAM A. WINKELMANN, JR., INDIVIDUALLY AND =
AS=20
TRUSTEE OF THE FANNIE GAYLE WINKELMANN TRUST, JOHN WINKELMANN, =
GINGER=20
WINKELMANN, and MANUEL VARGAS, JR., Appellees
On Appeal from the =
County=20
Court of Law No. 3 and Probate Court
Brazoria County,=20
Texas
Trial Court Cause =
No.=20
17918A
MEMORANDUM=20
OPINION
<=
/SPAN>Appellants=20
Sampson Thompson, Jr., Earline Thompson, and Gordon Ray Johnson=20
(collectively =E2=80=9Cthe Thompsons=E2=80=9D), appeal from the =
trial court=E2=80=99s judgment=20
declaring that a right of ingress and egress to Island Cemetery =
exists=20
over real property that the Thompsons do not own, but in which =
they have=20
an interest. The Thompsons =
filed suit=20
against appellees, Sam=20
A. Winkelmann, Jr., inividually and as Trustee of the Fannie Gayle =
Winkelmann Trust, John Winkelmann, Ginger Winkelmann, and Manuel =
Vargas,=20
Jr. (collectively =E2=80=9Cthe =
Winkelmanns=E2=80=9D), (1) seeking a declaration of the right =
of=20
ingress and egress over the property owned by the Winkelmann Tust =
and the=20
right for their family to make future burials in the cemetery and =
(2)=20
asserting claims for damages for intentional infliction of =
emotional=20
distress, invasion of privacy, trespass, assault, tortious =
interference=20
with an existing contract, breach of fiduciary duty, and negligent =
misrepresentation. In three =
issues,=20
the Thompsons assert that the trial court erred (1) by granting =
partial=20
summary judgment prior to trial in favor of the Winkelmanns =
because the trial court granted relief =
on grounds=20
not mentioned in the Winkelmanns=E2=80=99 motion for summary =
judgment; (2) by=20
admitting evidence that had not been produced during discovery or=20
supplemented prior to the trial; and (3) by granting relief to the =
Winkelmanns that was not =
authorized=20
by law. We conclude that the trial court did not have authority to =
enter=20
the judgment encumbering the Thompsons=E2=80=99 land with the =
right of ingress and=20
egress to Island Cemetery. We reverse=20
and remand to the trial court.
BackgroundThis dispute concerns =
access to=20
Island Cemetery. Island Cemetery is approximately one acre in size =
and is=20
located on land that was purchased by Ned Thompson in 1879. =
Relatives and=20
descendants of Ned Thompson are buried in Island Cemetery. In =
1951, a=20
portion of the Ned Thompson land, including Island Cemetery, was =
sold to=20
Fannie Gayle Winkelmann and is currently owned by the Fannie Gayle =
Winkelmann Trust, of which appellee, Sam Winkelmann, Jr., is =
trustee. The=20
remaining Ned Thompson land is owned by the Ned Thompson Estate, =
in which=20
the Thompsons and other relatives have an interest.
<=
/SPAN>There=20
is no public ingress or egress available for the cemetery. In the =
past,=20
visitors to the Island Cemetery used a route through the =
Winkelmanns=E2=80=99=20
property. The past route to the cemetery began at the =
Winkelmanns=E2=80=99 gate on=20
County Road 450 in Brazoria county, went past the houses of Sam =
Winkelmann=20
and his brother, past some barns, and through a pasture that led =
to the=20
cemetery.
<=
/SPAN>Prior=20
to appellee, Sam Winkelmann, Jr., acting as trustee for the =
Winkelmann=20
Trust, his father, Sam Winkelmann, Sr., held that position. Sam=20
Winkelmann, Sr., allowed =
reasonable=20
access to Island Cemetery until the father of appellant, Sampson =
Thompson,=20
filed suit against him in 1988. Access to the cemetery was later=20
restricted. In 2003, the Thompsons and others attempted to visit =
Island=20
Cemetery by setting out across the Winkelmann=E2=80=99s property. =
However, Sam=20
Winkelmann, Jr., blocked access to the cemetery by driving a large grader into the path =
appellants were attempting to take. One of the people attempting =
to visit=20
the cemetery called the sheriff=E2=80=99s office, which resulted =
in permission for the Thompsons and the =
other=20
visitors to make a brief visit to the cemetery.
<=
/SPAN>This=20
suit was filed in December 2004 by the Thompsons and other=20
plaintiffs, ![3DFootnote](3D"")
seeking a declaration under the =
Uniform=20
Declaratory Judgments Act
and section 711.041 of the Texas =
Health and=20
Safety Code.
Specifically, the Thompsons =
sought the=20
right of ingress and egress to the cemetery through the historic =
route=20
that traversed over the Winkelmann property and the right to =
conduct=20
future burials at the cemetery. The Thompsons also sought damages =
for=20
intentional infliction of emotional distress, invasion of privacy, =
trespass, assault, tortious interference with an existing =
contract, breach=20
of fiduciary duty, and negligent misrepresentation.
<=
/SPAN>The=20
Winkelmanns counterclaimed =
for a=20
declaratory judgment, common law fraud, an action to quiet title,=20
intentional infliction of emotional distress, and abuse of =
process. In=20
their counterclaim for declaratory judgment, the Winkelmanns =
asserted that=20
the Thompsons=E2=80=99 request for ingress and egress to and use =
of the cemetery=20
=E2=80=9Cvastly exceeds Texas law,=E2=80=9D and requested a =
declaration that (1) set out=20
=E2=80=9Creasonable ingress and egress for the purpose of visiting =
the private=20
burial grounds=E2=80=9D; (2) limited the =E2=80=9Cright of access =
extends only to=20
visitation during reasonable hours and only for purposes usually=20
associated with cemetery visits=E2=80=9D; and (3) allowed the =
Winkelmanns to=20
designate =E2=80=9Cthe route for reasonable ingress and egress to =
the burial=20
grounds . . . [as] the owner of the land surrounding the burial =
site.=E2=80=9D In=20
their prayer for relief, the Winkelmanns asked the court to deny =
the=20
Thompsons=E2=80=99 =E2=80=9Crequest for an easement on the =
Winkelmann property=E2=80=9D and=20
=E2=80=9C[d]eclare that the Winkelmanns have the right to =
determine the location=20
for ingress and egress to the burial sites.=E2=80=9D
<=
/SPAN>The=20
Winkelmanns filed a motion for summary judgment on the issue of =
the right=20
to future burials, which the trial court granted. However, the =
trial=20
court=E2=80=99s summary judgment order also stated, =E2=80=9CIT IS FURTHER ORDERED that=20
Defendants/Counter-Plaintiffs, Sam A. Winkelmann, Jr., in his =
individual=20
capacity, Ginger Winkelmann and Manuel Vargas, Jr. are dismissed =
and are=20
no longer parties to this lawsuit.=E2=80=9D After the partial =
summary judgment,=20
but before trial on the remaining claims, appellants nonsuited all =
claims=20
except for the request for declaratory judgment and the claim for=20
intentional infliction of emotional distress.
<=
/SPAN>At=20
trial on March 22, 2006, the Thompsons requested a declaratory =
judgment=20
for the court to declare a route, either route A or route B, to =
allow them=20
access to Island Cemetery. The Thompsons presented evidence that =
the=20
traditional access to Island Cemetery was across the historic =
route taken=20
over the Winkelmann =
property, as=20
described above. The historic route was designated at trial as =
route A.=20
The Thompsons also presented an alternate route, =
designated route B, which reached Island Cemetery =
through a=20
route along the Winkelmann property, but without passing close to =
the=20
residences or barns on the Winkelmann property.
<=
/SPAN>Although=20
the trial began with only routes A and B as the possible routes, =
the=20
Winkelmanns offered, mid-trial, a third option that was identified =
as=20
route C. During the Thompsons=E2=80=99 case-in-chief, Sampson =
Thompson, Jr., was=20
the first witness. During the cross-examination of Sampson =
Thompson,=20
Jr., the =
Winkelmanns=E2=80=99 trial counsel=20
asked Thompson if visitors to Island Cemetery could access the =
cemetery by=20
coming down the land owned by the Ned Thompson Estate and then =
turning=20
onto the Winkelmann land. Counsel also asked Thompson why he did =
not want=20
to use the land owned by the Ned Thompson Estate to access the cemetery. This was the =
first time=20
the issue of a right of ingress or egress over the land owned by =
the Ned=20
Thompson Estate was raised. =
After the=20
Thompsons rested, the Winkelmanns presented Sam Winkelmann, Jr., =
as a=20
witness. Winkelmann described a route for ingress and egress to =
the=20
cemetery, later identified as route C, that began at County Road =
450, went=20
through the land owned by the Ned Thompson Estate in a straight line to the back of the =
tract, and=20
then cut across the tract toward the cemetery in the Winkelmann=20
tract. The Thompsons did =
not object=20
to this testimony.
<=
/SPAN>After=20
Sam Winkelmann, Jr.=E2=80=99s testimony, the trial was continued =
for three weeks,=20
until April 12, 2006, when the Winkelmanns presented evidence from =
a=20
licensed surveyor, Randy Stroud. Stroud testified that he had =
examined and=20
surveyed the cemetery and the Winkelmann tract. He made plats =
showing the=20
cemetery and its dimensions. Stroud=E2=80=99s plats showed route =
A, which was the=20
route used in the past; route B, the alternate route along the =
Winkelmann=20
property; and route C, described by Winkelmann as the route that =
traversed=20
over the land owned by the Thompson trust. Stroud also determined the length of =
each of the=20
proposed routes. The Thompsons objected on the basis that the =
Winkelmanns=20
had not disclosed the maps, plats, or mental impressions of =
Stroud, a=20
testifying expert, prior to trial. The trial court overruled the =
objection=20
by explaining that the Thompsons were not surprised because the =
issue of=20
the location of the cemetery access was the key issue in the =
trial. The=20
trial court did, however, allow the Thompsons two hours to review =
Stroud=E2=80=99s=20
plats.
<=
/SPAN>The=20
Thompsons presented the testimony of Sampson Thompson, Jr. during =
their=20
rebuttal. Thompson testified that he and the other plaintiffs were =
not the=20
owners of the Ned Thompson tract, which he said was owned by the =
Ned=20
Thompson Estate. He further stated that not all of those with an =
interest=20
in the property were parties before the court.
<=
/SPAN>After=20
the trial, but before entering a final written judgment, the trial =
court=20
found that the Thompsons were entitled to reasonable rights of =
ingress and=20
egress to Island Cemetery. The court also found that the =
Winkelmanns=E2=80=99=20
proposal, route C, was the reasonable alternative and that the =
issue had=20
been tried by consent. The trial court also acknowledged that =
while the=20
Thompsons were not =E2=80=9Cthe owner[s] in fee=E2=80=9D of the =
property through which=20
route C traversed, the court had the authority to designate route =
C over=20
the Thompson tract as the means of reasonable access to Island =
Cemetery.=20
The trial court rendered a final written judgment declaring that=20
the reasonable route of =
ingress and=20
egress was route C.
The =
Health and=20
Safety Code
<=
/SPAN>In=20
their third issue, the Thompsons contend that =E2=80=9C[t]he trial =
court=E2=80=99s=20
decision to order a route to the cemetery across Appellants =
Thompsons=E2=80=99=20
property does not comport with Texas law and results in an=20
unconstitutional taking of said land.=E2=80=9D
<=
/SPAN>The=20
trial court applied section =
711.041 of the Texas Health =
and=20
Safety Code,. Section 711.041,=20
entitled =E2=80=9CAccess to Cemetery,=E2=80=9D =
provides,
(a)Any person who wishes to visit a =
cemetery or=20
private burial grounds for which no public ingress or egress is =
available=20
shall have the right to reasonable ingress and egress for the =
purpose of=20
visiting the cemetery or private burial grounds. This right of =
access=20
extends only to visitation during reasonable hours and only for =
purposes=20
usually associated with cemetery visits.
(b)The owner or owners of the lands =
surrounding=20
the cemetery or private burial grounds may designate the routes of =
reasonable ingress and egress.
Tex. Health=20
& Safety Code Ann. =C2=A7 711.041 (Vernon =
2003).
<=
/SPAN>Section=20
711.041 is applicable to property that surrounds, is adjacent to, =
or is=20
contiguous with the actual cemetery grounds. Compare=20
Davis v. May, 135=20
S.W.3d 747, 749 (Tex. App.=E2=80=94San Antonio 2003, pet. denied) =
(holding=20
imposition of easement was not unconstitutional taking because =
Davis=E2=80=99s=20
property surrounded cemetery) and=20
Meek v. Smith, 7 S.W.3d =
297, 301=20
(Tex. App.=E2=80=94Beaumont =
1999, no pet.)=20
(holding imposition of easement did result in improper taking =
because=20
=E2=80=9Cactual cemetery grounds involved are not surrounded by, =
adjacent to, nor=20
contiguous with the Meeks=E2=80=99 property=E2=80=9D). Section=20
711.041 is applicable to older cemeteries previously controlled by =
common=20
law. According to an =
attorney general=20
opinion responding to an inquiry regarding the application of =
chapter 711=20
of the Health and Safety Code to older cemeteries dedicated under =
the=20
common law, the attorney general stated that =E2=80=9CSection =
711.041 requires the=20
owner of a cemetery or private burial ground to provide =
reasonable=20
public access for visiting purposes.=E2=80=9D Op. Tex. =
Att=E2=80=99y Gen. No. JC-0355=20
(2001) (emphasis added).
<=
/SPAN>The=20
underlying authority for the decision in Davis and the =
attorney=20
general opinion is Houston Oil Co. v. Williams. 57 S.W.2d =
380,=20
384=E2=80=9385 (Tex. Civ. App.=E2=80=94Texarkana 1933, writ =
ref=E2=80=99d). In Williams,=20
the court described the common law rights associated with=20
cemeteries:
It appears to be the rule that, where =
property has=20
been actually appropriated either as a private family burying =
ground or as=20
a public cemetery, it cannot in either instance be inherited or =
conveyed=20
as other property is done so as to interfere with the use and =
purposes to=20
which it has been devoted. . . . =E2=80=9CWhen once dedicated to =
burial purposes,=20
and internments have there been made, the then owner holds the =
title to=20
some extent in trust for the benefit of those entitled to burial =
in it,=20
and the heir at law, devisee, or vendee takes the property subject =
to this=20
trust.=E2=80=9D
Id. (quoting Hines v. Tennessee, 149 =
S.W. 1058,=20
1059 (Tenn. 1911)).
In pertinent part, the trial =
court=E2=80=99s findings of=20
fact determined,
1.A cemetery exists on land owned by the =
Fannie=20
Gayle Winkelmann Marital Trust . . .
3.The land on which the Cemetery is =
located was=20
historically part of a tract of land that was acquired by Ned =
Thompson in=20
1879. That tract of land is . . . referred to herein as the =
=E2=80=9CNed Thompson=20
Tract.=E2=80=9D The Ned Thompson Tract has historically been used =
for cemetery=20
purposes, including ingress and egress.
4.The portion of the Ned Thompson Tract =
not=20
presently owned by the Fannie Gayle Winkelmann Marital Trust is =
owned by=20
the heirs of Ned Thompson, including The Reverend Sampson =
Thompson, Jr., a=20
plaintiff in this case.
Further, the trial court stated in a =
conclusion of=20
law, as follows,
4.The Ned Thompson Tract, by its =
historic use and=20
devotion for cemetery purposes including ingress and egress, =
became=20
burdened with the easements, licenses, and similar rights and =
restrictions=20
applicable to lands used for cemetery purposes.
One of the trial court=E2=80=99s other =
conclusions of law=20
was that section 711.041 of the Health and Safety Code controls =
the=20
disposition of the issues related to access to Island Cemetery.=20
<=
/SPAN>The trial court ordered a right of =
access to=20
Island Cemetery over land owned by the Winkelmann Trust, which was =
land=20
that was adjacent to and contiguous with the cemetery and =
therefore=20
subject to the access rights guaranteed by the Health and Safety =
Code.=20
See Davis, 135 S.W.3d at 749;=20
Meek, 7 S.W.3d at 301.=20
However, the trial court also ordered access to that route over =
the=20
Thompsons=E2=80=99s land, which does not surround and is not =
adjacent to or=20
contiguous with the cemetery. See Davis, 135 S.W.3d at=20
749; Meek, 7 S.W.3d =
at=20
301; Op. Tex. Att=E2=80=99y Gen. No. =
JC-0355. It is=20
undisputed that neither the appellees nor the Thompson Trust own the cemetery. =
Cf. Op.=20
Tex. Att=E2=80=99y Gen. No. JC-0355 (stating=20
that owner of cemetery must provide access). Because the Thompson =
tract=20
does not surround, is not =
adjacent=20
to, and is not contiguous with the actual cemetery =
grounds, and the Thompsons do not own the =
cemetery, we=20
conclude that the trial court had no authority to order a right of =
ingress=20
or egress over the Thompson tract. See Davis, 135 S.W.3d at =
749; Meek, 7 S.W.3d =
at=20
301; Op. Tex. Att=E2=80=99y Gen. No. =
JC-0355.
<=
/SPAN>We sustain that portion of the=20
Thompsons=E2=80=99 third =
issue concerning the=20
trial court=E2=80=99s authority to enter the judgment declaring a =
right of ingress=20
and egress over the land of the Ned Thompson Estate.
Summary=20
Judgment
<=
/SPAN>In=20
their first issue, the Thompsons contend that the trial court =
erred by=20
granting summary judgment on the Thompsons=E2=80=99 personal =
injury claims and=20
=E2=80=9Cdismissing appellees Ginger Winkelmann, Manuel Vargas, =
Jr., and Sam=20
Winkelmann, in his individual capacity, as parties to the lawsuit =
when=20
said issues/claims were not expressly presented in the =
Appellees=E2=80=99 Motion=20
for Summary Judgment.=E2=80=9D
<=
/SPAN>Generally,=20
a summary judgment motion =E2=80=9Cmust stand or fall on the =
grounds expressly=20
presented in the motion.=E2=80=9D McConnell v. Southside Indep. =
Sch. Dist.,=20
858 S.W.2d 337, 341 (Tex. 1993). Although =E2=80=9C[g]rounds may =
be stated=20
concisely, without detail and argument[,] . . . they must at least =
be=20
listed in the motion.=E2=80=9D Id. at 340=E2=80=9341.=20
=
=
Prior=20
to trial, the Winkelmanns moved for summary judgment on the =
Thompsons=E2=80=99=20
claim for the right to conduct future burials at the Island =
Cemetery and=20
on the claim for access to Island Cemetery, which the trial court =
granted.=20
Thus, the Thompsons are correct that the Winkelmanns did not move =
for=20
summary judgment on the Thompsons=E2=80=99 various tort claims =
against the=20
individual appellees, on which the trial court nevertheless ruled =
in=20
granting partial summary judgment to the Winkelmanns. However, =
after the=20
summary judgment was entered and prior to trial, the Thompsons =
nonsuited=20
all of their tort claims except the intentional infliction of =
emotional=20
distress claim based on Sam Winkelmann, Jr.=E2=80=99s having =
blocked their access=20
to the cemetery with the grader.
<=
/SPAN>The=20
Texas Supreme Court has addressed the rights of plaintiffs to take =
a=20
nonsuit after entry of partial summary judgment against them, =
stating:=20
In Texas, our general rule is that =
plaintiffs have=20
the right to take a nonsuit at any time until they introduce all =
evidence=20
other than rebuttal evidence. Such a nonsuit may have the effect =
of=20
vitiating earlier interlocutory orders. A decision on the merits, =
such as=20
a summary judgment, however, is not vitiated. This includes =
partial=20
summary judgments.
. . . . To give any force to the partial =
summary=20
judgment provisions, those judgments must withstand a nonsuit. A =
partial=20
summary judgment is a decision on the merits unless set aside by =
the trial=20
court. It becomes final upon the disposition of the other issues =
of the=20
case. Once a judge announces a decision that adjudicates a claim, =
that=20
claim is no longer subject to the plaintiff=E2=80=99s right to =
nonsuit. A nonsuit=20
sought after such a judicial pronouncement results in a dismissal =
with=20
prejudice as to the issues pronounced in favor of the=20
defendant.
Hyundai Motor Co. v. Alvarado, =
892 S.W.2d=20
853, 854=E2=80=9355 (Tex. 1995) (citations omitted). Because the Thompsons nonsuited their =
personal=20
injury claims after the trial court had adjudicated the claims, =
those=20
issues decided for the Winkelmanns were dismissed with prejudice. =
See=20
id.
<=
/SPAN>We=20
overrule the Thompsons=E2=80=99 first issue.
<=
/SPAN>Because=20
of our disposition of the first and third issues, we do not reach =
the=20
second issue that concerns a challenge to the admission of=20
evidence.
Conclusion
=
We reverse that =
portion of=20
the judgment declaring that the Thompsons must use land owned by =
the Ned=20
Thompson Estate to access the cemetery. We remand this =
cause to the=20
trial court for further proceedings not inconsistent with this =
opinion.=20
All pending motions are dismissed as moot.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Elsa=20
Alcala
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Justice
Panel consists of Justices Taft, Keyes, =
and=20
Alcala. |