Monday, December 10, 2007

Notice of Appeal Was Late, but Extension Saves Appeal for Decision on the Merits

Appeal from summary judgment survives jurisdictional challenge, but appellant loses on the merits in case involving dispute over access to land. Justice Jane Bland's opinion explains the law of implied easements and easements of necessity.

Bradley v. Peters , No. 01-07-00081-CV (Tex.App.- Houston [1st Dist.] Dec. 6, 2007)(Bland)(appellate procedure, deadlines, tardy notice of appeal, Texas real estate case law, easement)
Opinion by Justice BlandBefore Chief Justice Radack, Justices Alcala and Bland
Paul D. Bradley v. Milton Peters, Rodney Rice and Laura Rice
Appeal from 21st District Court of Washington County (Hon. Terrill L. Flenniken)
Disposition: Affirm trial court judgment


Appellant Paul Bradley challenges a no-evidence summary judgment rendered in favor of appellees Milton Peters, Rodney Rice, and Laura Rice. Peters and the Rices move to dismiss the appeal for want of jurisdiction, alleging that Bradley’s notice of appeal was untimely filed. Bradley moves for an extension of time.

As to the merits, Bradley contends in two issues that the trial court erred in granting summary judgment, and erred in denying his motion to strike certain summary judgment evidence. We conclude that we have appellate jurisdiction, grant Bradley’s motion for extension, and deny the motion to dismiss. We further conclude that the trial court did not grant more relief than requested in the motion for summary judgment and therefore affirm.


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

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

Appellate Jurisdiction

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

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

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

Bradley noticed his appeal on January 24, 2007, nine days after the deadline for filing it.

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

Summary Judgment

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

Summary Judgment Standard of Review

In a Rule 166a(i) no-evidence motion for summary judgment, the movant represents that no evidence exists as to one or more essential elements of the non-movant’s claims, upon which the non-movant has the burden of proof at trial. Tex. R. Civ. P. 166a(i). The non-movant then must present evidence raising a genuine issue of material fact on the challenged elements. Id. A no-evidence summary judgment is essentially a pre-trial directed verdict. Bendigo v. City of Houston, 178 S.W.3d 112, 113–14 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Jackson v. Fiesta Mart, 979 S.W.2d 68, 70–71 (Tex. App.—Austin 1998, no pet.). The respondent need not marshal its proof; it need only point out evidence that raises a fact issue on the challenged elements. Tex. R. Civ. P. 166a(i) cmt.

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

To establish an easement by necessity, a landowner must show: (1) unity of ownership before severance; (2) that access is a necessity and not a mere convenience; and (3) the necessity existed at the time of severance of the two estates. Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984); Crone v. Brumley, 219 S.W.3d 65, 68 (Tex. App.—San Antonio 2006, pet. denied).

To establish an implied easement, a party must show (1) unity of ownership between the dominant and servient estates at the time of severance; (2) apparent use of the easement at the time of the grant; (3) continuous use of the easement before the severance of the dominant and servient estates; and (4) that the easement is reasonably necessary to the use and enjoyment of the dominant estate.[2] Houston Bellaire, Ltd. v. TCP LB Portfolio I, L.P., 981 S.W.2d 916, 919 (Tex. App.—Houston [1st Dist.] 1998, no pet.).

Some overlap thus exists in the requisite elements for an easement by necessity and an easement implied from the severance of title. Common to both, a party must show unity of ownership between the dominant and servient estates at the time of severance, and that the easement is reasonably necessary to the use and enjoyment of the dominant estate. Id.

Sufficiency of the No-Evidence Summary Judgment

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

The defendants’ no-evidence summary judgment asserts that Bradley failed to provide evidence of unity of ownership and that the easement was reasonably necessary, two elements of a claim for easement by necessity. Assuming that Bradley pleaded an easement by necessity, the defendants’ no-evidence motion challenged two of its elements: “(1) There is no evidence of unity of title between 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 reasonably necessary to the use of the Bradley Property.” This required Bradley to respond, and he did respond, with evidence of (1) unity of title and (2) necessary use. Thus, the issue as to these elements was properly joined in the trial court. As Bradley does not challenge the substantive merit of the motion, we do not evaluate its substantive merit. We merely conclude that the no-evidence motion fairly challenged two elements of the cause of action set forth in Bradley’s petition. Accordingly, the trial court did not err in granting more relief than was requested.[3] See Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 584, 592 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (summary judgment may be proper when ground asserted in motion conclusively negates common element of newly and previously pleaded claims); see also Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 502–03 (Tex. App.—Houston [1st Dist.] 1995, no pet.).


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

Jane Bland

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

[1] In his motion for new trial, Bradley stated that he “should be granted a new trial because the grounds upon which DEFENDANTS based their summary judgment was inapplicable to the case at bar. Since there was not a valid summary judgment against BRADLEY’S cause of action for an implied easement by necessity and no admissible evidence to support said motion, the Order granting DEFENDANTS’ summary judgment motion should be vacated and this case reinstated.” (emphasis added).[2] The degree of necessity required for the establishment of an implied easement depends on whether it is an easement by implied reservation or implied grant. Here, the relevant degree of necessity is “reasonably necessary to the use and enjoyment of the dominant estate” since, should there be an implied easement, it would arise out of a grant with no reservation by the original grantor. Houston Bellaire, Ltd. v. Tcp LB Portfolio I, L.P., 981 S.W.2d 916, 919 (Tex. App.—Houston [1st Dist.] 1998, no pet.).[3] In his second issue, Bradley asserts that the trial court erred in denying his objections to certain summary judgment evidence. Given our disposition of Bradley’s first issue, we do not address this issue, because Bradley does not attack the merit of the summary judgment beyond contending that the court granted more relief than was requested.

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