Double Diamond, Inc. and the Cliffs Property Owners' Association, Inc. v. Forest C. Barber, Jr. Carla Hunter Limbaugh Jennifer HunterJones Pamela Hunter Tippen Richard R. Bailey James C. May And Patricia A. May

• Court: Court of Appeals of Texas
• Decided: August 7, 2003
• Docket: 11-02-00277-CV
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

Double Diamond, Inc. and The Cliffs Property

Owners= Association, Inc.

            Appellants

Vs.                   No. 11-02-00277-CV B Appeal from Palo Pinto County

Forest C. Barber, Jr.; Carla Hunter Limbaugh; Jennifer

Hunter Jones; Pamela Hunter Tippen; Richard R. Bailey;

James C. May; and Patricia A. May

Appellees

This is an appeal from the trial court=s ruling on competing motions for summary judgment in an easement case.   We reverse the trial court=s judgment, and we render judgment that the alleged agreement violates the Statute of Frauds.  We remand the case to the trial court for resolution of appellees= other causes of action.

This suit arises out of an easement dispute and the attempted settlement of that dispute.  Appellees are owners of certain properties in ANeely=s Slough@ and ABobwhite Bluffs@ on Possum Kingdom Lake.  Appellees, along with others, held easements across other property for ingress and egress to and from their individual properties.  This easement was known as ABrakeen Road.@  Appellants owned property on Possum Kingdom Lake which consisted, in part, of a gated subdivision known as AThe Cliffs.@ Subsequent to the creation of the Brakeen Road easement, appellants purchased the property upon which such easement existed. In an effort to curtail vandalism which had been occurring at AThe Cliffs,@ appellants notified those who were using the Brakeen Road easement that they intended to limit the use of the easement by placing a chain across the entrance.  Appellants maintained that vandals had been using Brakeen Road to enter AThe Cliffs@ for the purpose of committing criminal activities.  Appellants offered to allow appellees and others similarly situated to obtain access to their individual property across AThe Cliffs@ property. Appellants ultimately wanted to limit or stop the use of Brakeen Road, and they entered into negotiations toward that end.  In exchange, appellants offered to provide a new easement to appellees= property, entering Athrough The Cliffs= main entrance@ and then continuing across AThe Cliffs= property.@  During an agreed trial period of the arrangement, appellants placed a chain across Brakeen Road, and the parties continued to negotiate.  After negotiations stalled, appellants installed Aone-way spikes@ in the exit lane of Brakeen Road, and they also installed an electronic gate across Brakeen Road.  The gate would not open without the proper access code; appellants made this code available to appellees and others similarly situated.

Appellees brought suit, asserting causes of action for breach of the original easement agreement, civil trespass, and nuisance.  After appellees filed the lawsuit, the parties entered into settlement negotiations regarding the lawsuit.  A trial was set for November 5, 2000.  On November 2, 2000, the parties executed a letter in which they stated that they would relocate the easement Athrough The Cliffs= main entrance and through The Cliffs= property to [appellees=] respective subdivisions.@  They also stated in the letter that the Brakeen Road easement would remain in effect but that access would be controlled by an electronic gate.  The letter also contained additional details relating to other things, including maintenance, access codes, and future owners.  The letter further contained provisions for a 60-day continuance of the November 5, 2000, trial date so that they might prepare the appropriate documents.  In the final paragraph, the parties stated that either party had the option to cancel the Amoratorium@ and request that the court set the matter for trial at the first available trial setting.  Because the settlement documents had not been completed, appellants sent another letter dated January 5, 2001, the purpose of which was to extend the deadline for an additional 60 days.  Both parties agreed to this continuance.   By letter dated January 31, 2001, appellants cancelled the extended 60-day moratorium and notified appellees that it was their position that no enforceable settlement agreement existed.  Appellees then changed their petition to add a cause of action for breach of the settlement agreement.  Each party filed a motion for summary judgment. Although the trial court did not specifically refer to the settlement agreement in its judgment on the competing motions for summary judgment, it is clear to us that the judgment  recognizes the validity of the settlement agreement.  In the judgment, the trial court established an easement across AThe Cliffs,@ established requirements pertaining to the Brakeen Road easement, established certain other provisions pertaining to the easement across AThe Cliffs,@ and also addressed other matters not involved in this appeal. 

Appellants assert that the trial court erred in basically granting appellees= summary judgment on their claim for breach of a settlement agreement.  Appellants contend that the trial court erred in failing to grant their summary judgment on appellees= claim of breach of the settlement agreement.  In the alternative, appellants assert that the trial court erred in basically enforcing the settlement agreement after appellants had revoked their consent.  Finally, appellants argue that the trial court erred in failing to sustain appellants= objections to appellees= summary judgment evidence.

 A trial court must grant a motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). Once the movant establishes a right to a summary judgment, the non-movant must come forward with evidence or law that precludes summary judgment.  City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979).  When reviewing a summary judgment, the appellate court takes as true evidence favorable to the non-movant.  Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.  American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985).  A trial court properly grants summary judgment for a defendant if the defendant establishes all the elements of an affirmative defense.  American Tobacco Company, Inc. v. Grinnell, supra.   In competing motions for summary judgment, where the trial court grants one motion but denies the other, the reviewing court should review each side=s summary judgment evidence and determine all questions presented.  This court will render the judgment that should have been rendered by the trial court.  Bradley v. State ex rel. White, 990 S.W.2d 245 (Tex.1999).

Appellants allege in their appeal that the November 2 letter is not an enforceable settlement agreement because the language of the letter is an agreement to agree to a future agreement, because each party had the option to opt out, and because the remedy after the Aopt out@ clause was initiated was to proceed with trial.  Further, appellants argue that the letter is unenforceable because it violated TEX. BUS. & COM. CODE ANN. ' 26.01 (Vernon 2002).  See also TEX. PROP. CODE ANN. ' 5.021 (Vernon 1984)(Statute of Frauds). 

We agree with appellants that the letter does not comply with the Statute of Frauds.  An easement is an express interest in land that is subject to the Statute of Frauds.  Pick v. Bartel, 659 S.W.2d 636 (Tex.1983).  Whether a particular agreement is subject to the Statute of Frauds is a question of law.  West Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 265 (Tex.App. B Austin 2002, no pet=n).  To comply with the Statute of Frauds, the easement must show, either in the writing itself or by referring to some other existing writing, the means or data by which the land that is to be conveyed may be identified with reasonable certainty.  The easement must provide enough information from which the court can determine the intent of the parties, as well as the essential terms of the easement, and must also provide an adequate description of the location of the easement without resort to extrinsic evidence. West Beach Marina, Ltd. v. Erdeljac, supra.  Even in those instances in which extrinsic evidence may be appropriate, it should not be used to supply the location or description of the easement.  The location or description of the easement is an essential term of the agreement and should be expressed with clarity to show the intention of the parties.  Pick v. Bartel, supra.  If an easement does not sufficiently describe the interest conveyed, then the conveyance is void.  Pick v. Bartel, supra.

Even assuming that there was an agreement between the parties in the November 2 letter,  the description of the easement was inadequate.  The November 2 letter contained the following language:

[S]hall grant to the property owners in Neeley=s Slough and Bobwhite Bluffs Subdivisions a perpetual, free, nonexclusive easement of ingress and egress (via an agreed, acceptable route) through The Cliffs= main entrance and through The Cliffs= property to their respective subdivisions on the same terms as the owners of property in The Cliffs.

There was clearly not an identifiable location of the easement.  A[V]ia an agreed, acceptable route@ does not sufficiently describe the conveyance and does not sufficiently show the intention of the parties.  This agreement violated the Statute of Frauds.  A proposed draft of the settlement  agreement was attached as summary judgment evidence.  This draft contained markings which changed the terms of the written agreement.  Furthermore, it was not signed by any party.  Moreover, later communications between the parties clearly showed that the easement route was not settled upon and that there was no adequate description of the easement in the November 2 letter.  While appellees contend that there is a description of the location of the easement attached to the judgment, that writing did not exist at the time of the November 2 letter.  Further, it was not offered as summary judgment evidence.  Nothing in the summary judgment record sufficiently described the proposed route for the new easement.  We sustain appellants= first and second issues on appeal.

Appellants claim that appellees= claims for breach of the original easement agreement, trespass, and nuisance were abandoned when appellees filed their ASupplemental Petition.@  Appellees claim that the petition is, in reality, an amended petition because it asserts a new cause of action.

In determining the nature of a pleading, we must look to the substance of the pleading and not just to the title given to the pleading.  J.M. Huber Corporation v. Santa Fe Energy Resources, Inc., 871 S.W.2d 842 (Tex.App. B Houston [14th Dist.] 1994, no pet=n). A supplemental petition is a response to the last preceding pleading by the other party and repeats allegations previously pleaded only when necessary.  TEX.R.CIV.P. 69.  An amended petition, on the other hand, adds to or withdraws from that which was previously pleaded, such as a new cause of action.  TEX.R.CIV.P. 62.  An amended petition also supersedes all prior petitions.  See Hawkins v. Anderson, 672 S.W.2d 293 (Tex.App. B  Dallas 1984, no writ).

The appellees filed a pleading titled ASupplemental Petition.@  This petition alleged a new cause of action: breach of settlement agreement.  In addition, the petition incorporated by reference the prior allegations in the original petition.  While appellees= incorporation of the original causes of action by reference to the original petition was improper, such procedure was not void but, rather, was a pleading defect that required that the opposing parties specially except to the alleged defects under TEX.R.CIV.P. 90.  Hawkins v. Anderson, supra.  Appellants did not specially except to the ASupplemental Petition.@  Appellants raised the alleged defect for the first time on appeal.  Therefore, under the facts of this case, claims for breach of the original easement agreement, trespass, and nuisance, as alleged in the original pleading, are still pending.  We remand those claims to the trial court.   We need not consider appellants= remaining issues on appeal.  TEX.R.APP.P. 47.1.

The judgment of the trial court is reversed, and judgment is rendered that the alleged agreement violated the Statute of Frauds and is unenforceable as a matter of law.  The remainder of appellees= claims made in the trial court are remanded to the trial court for resolution.

JIM R. WRIGHT

JUSTICE

August 7, 2003

Not designated for publication.  See TEX.R.APP.P. 47.2(a).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.