In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00511-CV ___________________________
GARRICK D. BROWN, Appellant
V.
MATHEW ROBERT STONE, Appellee
On Appeal from the 96th District Court Tarrant County, Texas Trial Court No. 096-307887-19
Before Sudderth, C.J.; Birdwell and Walker, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION
This case involves a dispute concerning title to real property and the validity of
certain easements. The dispute arose when Appellant Garrick D. Brown constructed a
fence around a strip of land across which Appellee Mathew Robert Stone claimed an
easement (the Alleged Easement). Stone sued Brown, seeking both equitable relief—
an order requiring Brown to take down the fence—and damages. As the litigation
progressed, Stone’s claims evolved such that he eventually sought enforcement of
various other easements and a declaratory judgment establishing his co-ownership of
the Alleged Easement land. Brown asserted various affirmative defenses and
counterclaims based on his argument that the easements were invalid because, among
other things, they had been extinguished by merger.
The trial court dismissed all of Brown’s counterclaims through summary
judgment and special exceptions. The trial court also granted Stone summary
judgment on his title and easement claims. A jury trial was held on Stone’s remaining
claims, including nuisance. The jury found in Stone’s favor on his nuisance claim and
awarded him $6,000 in economic damages plus an additional $250,000 for mental
anguish. The trial court signed a final judgment based on the jury’s verdict and its
prior summary-judgment rulings. In addition to damages, the final judgment granted
Stone a permanent injunction granting him full access to the Alleged Easement and
2 prohibiting Brown from building any permanent structures that would obstruct
Stone’s use of the easement. 1 0
On appeal, Brown argues, inter alia, that the trial court erred by granting Stone
summary judgment on his title and easement claims. Specifically, he asserts that the
trial court erred by concluding (1) that Stone and Brown were co-owners of the
Alleged Easement land and (2) that the Alleged Easement had not been extinguished
by merger. Because we agree that these conclusions were erroneous, we reverse the
trial court’s final judgment, summary judgment, and order granting Stone’s special
exception to Brown’s first supplemental counterclaim; render judgment in Brown’s
favor on the merger issue; and remand the case for a new trial on the remaining
issues.
I. BACKGROUND
When this case began, Brown and Stone owned adjacent tracts of land just
south of Eagle Mountain Lake in Tarrant County. Brown owned two northern lots
that border the lake (collectively, the North Lots) and the Alleged Easement land—a
strip of land that extends from the North Lots south to Wells Burnett Road. Stone
owned two lots that border the Alleged Easement land to the east (collectively, the
East Lots), and Bobby Ray and Jennifer Tiner owned a lot that borders the Alleged
The permanent injunction also granted Stone access to—and prohibited 1
Brown from obstructing—various other disputed easements, including the so-called “L-Shaped Easement.”
3 Easement land to the west (the West Lot). 2 The relative locations of the various lots
are reflected on the following not-to-scale map:
Stone moved into his house in mid-2018, and not long thereafter, he hosted a
party. At around 2:00 a.m., several of his guests walked straight north between
2 The Tiners intervened in the case and sought relief similar to that requested by Stone, but they settled their claims before trial and are not parties to this appeal.
4 Brown’s lots to a boat dock. There, the family that was renting the homes on Brown’s
lots told Stone’s guests that they did not have the right to access the boat dock, and a
verbal altercation ensued.
Stone claimed that before he purchased his property, the seller, Dwayne
Herring, had told him that when he bought the East Lots, he would have the right to
access the boat dock by walking through Brown’s properties. But Brown denied that
Stone had any such right of access.
After the above-described altercation, Brown decided to build a fence along the
Alleged Easement land to secure his property and protect his tenants. In early April
2019, Brown sent Stone a letter notifying him that he planned to build a fence around
the Alleged Easement land in thirty days. On April 26, 2019, Stone’s attorney mailed
Brown a letter (to which he attached numerous recorded instruments) stating that
Brown was prohibited from building the proposed fence because it would interfere
with Stone’s access to the Alleged Easement.
Brown testified that he did not receive the letter from Stone’s counsel within
the thirty-day notice period and that he did not believe that Stone had a valid
easement. Thus, on May 4, 2019, Brown proceeded to build the fence.
On May 10, 2019, Stone obtained an ex parte temporary restraining order
(TRO) directing Brown to remove the fence. Shortly before the temporary-injunction
5 hearing, the parties agreed to the entry of a temporary injunction that allowed the
fence to remain in place pending the litigation’s outcome. 3 2
In October 2019, Brown filed a traditional and no-evidence summary-judgment
motion in which he argued that the easements that Stone sought to enforce—
including the Alleged Easement—had been extinguished by merger when a previous
owner had acquired every dominant and servient estate. Specifically, Brown noted that
Pamela Smallwood had come to own all of the relevant lots—the North Lots
(including the Alleged Easement land), West Lot, and East Lots—in 1997. Brown
argued that under the merger doctrine, Smallwood’s acquisition of all the lots
extinguished any easements between or among them. He also pointed out that the
North and East Lots had been united under a single owner a second time in 2006
when Craig Bordlemay acquired them from Smallwood.
In January 2020, Stone filed a competing summary-judgment motion. He
argued that even though Smallwood and Bordlemay had acquired all of the lots, the
easements had not been extinguished by the merger doctrine. According to Stone,
because both Smallwood and Bordlemay had taken the lots subject to vendor’s
liens—meaning that they held only equitable, not legal, title to the properties—there
was never unity of title as to all of the lots, and thus the easements had never been
merged.
3 The agreed temporary-injunction order provided that Stone and the Tiners could each remove—without damaging—a single fence panel and post closest to Wells Burnett Road.
6 As the litigation progressed and the properties were surveyed, Stone discovered
that his deed description included the Alleged Easement land. Stone’s title claim to
this land is based on events that occurred when Bordlemay purchased the North and
East Lots from Smallwood. Bordlemay financed his purchase of North Lot 6576
through Washington Mutual Bank and financed his purchase of the East Lots through
Accredited Home Lenders, Inc. On August 11, 2006, Bordlemay signed a deed of
trust pledging North Lot 6576 (including the Alleged Easement land) to Washington
Mutual; this deed of trust was recorded on August 28, 2006. On August 15, 2006,
Bordlemay signed a deed of trust pledging the East Lots and the Alleged Easement
land to Accredited; this deed of trust was recorded on August 29, 2006. Both
Washington Mutual’s and Accredited’s deeds of trust provided that their respective
purchase-money loans were secured not only by a deed-of-trust lien but also by a
vendor’s lien assigned by the seller, Smallwood. 4 3
Bordlemay ultimately defaulted on both loans and each bank’s assignee
foreclosed its respective liens. The Washington Mutual deed of trust was foreclosed
on August 7, 2007. The Accredited deed of trust was foreclosed nearly two years later
on April 7, 2009.
In his summary-judgment motion, Stone argued that because Washington
Mutual and Accredited had each been contemporaneously assigned a vendor’s lien in
4 The warranty deeds conveying the lots to Bordlemay likewise reflected that Smallwood had retained vendor’s liens and that she had assigned them to the respective lenders.
7 the Alleged Easement land to secure its indebtedness and because the holder of a
vendor’s lien retains legal title to the property, the banks had each acquired an
undivided one-half ownership interest in the Alleged Easement land. Because he had
acquired his property from Herring, who, in turn, had acquired it from Accredited’s
successor-in-interest following the foreclosure of Accredited’s deed of trust, Stone
claimed that he was a co-owner of the Alleged Easement land, and he sought a
summary declaratory judgment to that effect.
In August 2021, the trial court signed an order granting Stone’s summary-
judgment motion and denying Brown’s summary-judgment motion. In the order, the
trial court declared, among other things, that (1) no easements, including the Alleged
Easement, had been extinguished by merger because both Smallwood and Bordlemay
had taken the properties subject to vendor’s liens and (2) Brown and Stone “are co-
owners of separate, undivided interests” in the Alleged Easement land. Brown filed a
motion to reconsider and modify the summary-judgment order, but the trial court
denied it.
After the trial court ruled on the parties’ summary-judgment motions, Brown
filed a supplemental counterclaim alleging that the deeds upon which Stone relied to
establish the Alleged Easement were defective because of a break in the chain of title.
Stone specially excepted to Brown’s supplemental counterclaim and asked the trial
court to dismiss it on the grounds that it conflicted with the trial court’s prior
summary-judgment rulings. Ultimately, the trial court signed an order granting Stone’s
8 special exceptions and dismissing Brown’s counterclaim as moot in light of its
summary-judgment order.
A jury trial was held on Stone’s invasion-of-privacy and intentional-private-
nuisance claims. Stone also sought mental-anguish damages based on the construction
of the fence. After hearing the evidence, the jury found that Brown had intentionally
created a private nuisance and awarded Stone $6,000 in economic damages and
$250,000 in mental-anguish damages.
On November 29, 2022, the trial court signed a final judgment based on the
jury’s verdict and its prior summary-judgment rulings. Brown filed a motion for new
trial, which the trial court denied after a hearing. This appeal followed.
II. DISCUSSION
Although Brown raises seven issues, we need only address his first three, as
they are dispositive of the appeal. See Tex. R. App. P. 47.1.
A. The Trial Court Erred by Rendering a Summary Judgment Declaring that Brown and Stone Are Co-Owners of the Alleged Easement Land In his first issue, Brown contends that the trial court erred by granting Stone a
summary judgment declaring that Brown and Stone are co-owners of the Alleged
Easement land. We agree.
1. Standard of Review
We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d
860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable
9 to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
could and disregarding evidence contrary to the nonmovant unless reasonable jurors
could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). We indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff
is entitled to summary judgment on its own cause of action if it conclusively proves all
essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710
S.W.2d 59, 60 (Tex. 1986). But to be entitled to summary judgment on a defendant’s
counterclaim, a plaintiff must conclusively negate at least one of the counterclaim’s
essential elements. See EM Bldg. Contractors Servs., LLC v. Byrd Bldg. Servs., LLC,
No. 05-19-00153-CV, 2020 WL 4592791, at *3, *17 (Tex. App.—Dallas Aug. 11,
2020, no pet.) (mem. op.) (citing Adams v. Tri-Cont’l Leasing Corp., 713 S.W.2d 152, 153
(Tex. App.—Dallas 1986, no writ)).
When both parties move for summary judgment and the trial court grants one
motion and denies the other, the reviewing court should review both parties’
summary-judgment evidence and determine all questions presented. Fielding, 289
S.W.3d at 848. We should then render the judgment that the trial court should have
rendered. See Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n, 300 S.W.3d 746, 753 (Tex.
2009); Mann Frankfort, 289 S.W.3d at 848.
10 2. Analysis
Stone’s argument that he and Brown are co-owners of the Alleged Easement
land is based on the flawed premise that Washington Mutual (through whom Brown
claims title) and Accredited (through whom Stone claims title) became co-owners
when they each took assignment of a vendor’s lien covering this parcel. But this
proposition—for which Stone cites no authority—runs counter to established
principles governing liens and other interests in property.
One such principle is that “[i]n a contest over rights or interests in property,
ordinarily the party that is first in time is first in right.” World Help v. Leisure Lifestyles,
Inc., 977 S.W.2d 662, 668 (Tex. App.—Fort Worth 1998, pet. denied) (citing Church v.
W. Fin. Corp., 22 S.W.2d 1074, 1075 (Tex. App.—San Antonio 1929, no writ)); accord
Williams v. Nationstar Mortg., LLC, 349 S.W.3d 90, 93 (Tex. App.—Texarkana 2011,
pet. denied). Thus, when two parties assert competing interests in property, the party
whose instrument was recorded first will generally be considered the holder of the
superior claim. 5 See Anderson v. Barnwell, 52 S.W.2d 96, 101 (Tex. App.—Texarkana 4
1932), aff’d sub nom. Anderson v. Brawley, 86 S.W.2d 41 (Tex. [Comm’n Op.] 1935); see
also Jackson v. Wildflower Prod. Co., 505 S.W.3d 80, 90–91 (Tex. App.—Amarillo 2016,
5 There are exceptions to this general rule. For example, a subsequent lien may be superior to a prior one when (1) the liens are unequal in other respects, (2) the question of priority is governed by a contract between the parties or by statute, (3) the holder of the prior lien agrees to subordinate its lien to a subsequent interest, or (4) the prior lien is subordinated on equitable grounds. 2 James N. Johnson, Texas Practice Guide: Real Estate Transactions § 11:1 (2024–2025 ed.).
11 pet. denied) (discussing the legislature’s enactment of the Texas recording system and
its effect on the “first in time, first in right” rule). The general rule of first in time, first
in right applies both to competing title claimants and to competing lienholders. See
World Help, 977 S.W.2d at 668 (noting that “absent an exception to the general rule,”
appellant’s vendor’s and deed-of-trust liens would be superior to mechanic’s liens
because appellant’s liens were “prior in time”); see also Rosenthal v. Cent. City Corp., 234
S.W.2d 97, 98–99 (Tex. App.—Galveston 1950, writ ref’d n.r.e.) (affirming trial
court’s judgment vesting title to certain lots of land in appellee because appellee held a
deed that had been executed and recorded before the deeds to the individuals through
whom the appellant claimed title).
Here, the warranty deed giving rise to Washington Mutual’s vendor’s lien was
dated August 11, 2006, and signed on August 15, 2006. The accompanying deed of
trust was dated and signed on August 11, 2006. Both instruments were recorded on
August 28, 2006. On the other hand, the warranty deed and accompanying deed of
trust supporting Accredited’s vendor’s lien were dated and signed August 15, 2006,
and were not recorded until August 29, 2006—one day after Washington Mutual’s
instruments were recorded. Thus, Washington Mutual’s instruments were dated first
and recorded first. Accordingly, unless an exception applies, Washington Mutual held
the superior interest. See World Help, 977 S.W.2d at 668; see also Jones v. Bank United of
Tex., FSB, 51 S.W.3d 341, 343–44 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)
12 (concluding that former spouse’s vendor’s lien was inferior to bank’s prior deed-of-
trust lien).
Invoking the “contemporaneous transfer rule,” Stone asserts that the
instruments supporting Washington Mutual’s and Accredited’s respective vendor’s
liens should be considered together and construed as one transaction. Further, he
contends that because the holder of a vendor’s lien retains legal title to the property,
see, e.g., Flag-Redfern Oil Co. v. Humble Expl. Co., 744 S.W.2d 6, 8 (Tex. 1987),
Smallwood’s contemporaneous assignment of vendor’s liens to Washington Mutual
and Accredited, in effect, conferred to each of them an undivided one-half interest in
the Alleged Easement land. But the record does not support Stone’s argument.
Under the contemporaneous transfer rule, “[s]eparate instruments
contemporaneously executed as part of the same transaction and relating to the same
subject matter may be construed together as a single instrument.” Rudes v. Field,
204 S.W.2d 5, 7 (Tex. 1947) (emphasis added). But there is nothing in the record to
suggest that the instruments underlying Washington Mutual’s and Accredited’s
vendor’s liens were executed as part of the same transaction. To support his
contention that the contemporaneous transfer rule applies, Stone points to the fact
that the warranty deeds were executed on the same day, but he ignores the fact that
the instruments underlying Washington Mutual’s vendor’s lien were dated four days
before—and recorded one day before—those supporting Accredited’s vendor’s lien.
These differing dates militate against the conclusion that the instruments were
13 executed as part of the same transaction. Indeed, they undermine Stone’s argument
that the transfers were contemporaneous. Cf. Gen. Elec. Cap. Corp. v. ICO, Inc., 230
S.W.3d 702, 713 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (Frost, J.,
concurring) (noting that appellee had testified that he had entered into final severance
agreement “contemporaneous[ly] with the termination of his employment, not the
following day”); Russell v. City of Fort Worth, No. 2-05-191-CV, 2006 WL 1351485, at
*6 (Tex. App.—Fort Worth May 18, 2006, pet. denied) (“Having occurred the day
after the employee completed his misconduct, the second hiker’s injuries would not
be ‘contemporaneous’ with the misconduct . . . .” (quoting City of Lubbock v. Rule,
68 S.W.3d 853, 860 n.7 (Tex. App.—Amarillo 2002, no pet.))).
The cases Stone cites for the proposition that contemporaneously executed
instruments may be considered together and construed as one transaction involved
actual contemporaneous transactions that furthered a broader agreement between the
executing parties. 6 See Terrell v. Graham, 576 S.W.2d 610, 611–12 (Tex. 1979); Rudes, 5
204 S.W.2d at 7; Hendes v. Gale, 376 S.W.2d 922, 923 (Tex. App.—San Antonio 1964,
writ ref’d n.r.e.). For example, Terrell “involve[d] the construction of reciprocal
instruments executed simultaneously by two brothers” who each owned a one-half
6 In one of the cases Stone cited for this proposition, the Texas Supreme Court concluded that the contemporaneous transfer rule did not apply. See Miles v. Martin, 321 S.W.2d 62, 65–66 (Tex. 1959) (rejecting argument that deed of trust and warranty deed should be construed together as part of the same transaction for purposes of ascertaining the intention of the parties regarding the conveyance of mineral interests because “[t]here [wa]s nothing in the . . . record to suggest that [appellee] participated in the preparation of the deed of trust or knew any of its terms”).
14 interest in the same land, and “[b]oth parties acknowledge[d] that the two instruments
should be considered together and construed as one transaction.” 576 S.W.2d at 611.
Similarly, in Rudes, the relevant parties entered into a written agreement that explicitly
incorporated a warranty deed signed the same day. 204 S.W.2d at 6–7. And in Hendes,
the parties, who were co-tenants in property that they had inherited, executed
reciprocal deeds four minutes apart and recorded both of them at 3:06 p.m. the same
day. 376 S.W.2d at 923.
Thus, the cases relied upon by Stone involved facts very different from those
presented here. In the instant case, the instruments in question were not reciprocal,
nor did they expressly reference or incorporate one another. Indeed, nothing in the
record suggests that the instruments’ signatories intended them to be treated as part
of the same transaction. See Terrell, 576 S.W.2d at 612 (noting that “in
construing . . . instruments, the primary inquiry of the court is directed to ascertaining
the intent of the grantor”). Accordingly, we conclude that the contemporaneous
transfer rule does not apply.
Therefore, Washington Mutual—as the party whose instruments were dated
and recorded first—held the superior interest in the Alleged Easement land. See World
Help, 977 S.W.2d at 668; see also Jones, 51 S.W.3d at 343–44. Further, because
Washington Mutual’s instruments were first in time, even if we were to assume that
Smallwood purported to convey her retained legal title when she assigned her
15 vendor’s liens, 7 legal title to the Alleged Easement land would be vested solely in 6
Washington Mutual, not split equally between Washington Mutual and Accredited. See
Rosenthal, 234 S.W.2d at 98–99; Anderson, 52 S.W.2d at 101. Thus, the only interest in
the Alleged Easement land that Accredited received by its assignment was a junior
vendor’s lien. And as a junior lien, it was extinguished when Washington Mutual’s
successor-in-interest foreclosed its senior lien in August 2007. See Conseco Fin. Servicing
Corp. v. J&J Mobile Homes, Inc., 120 S.W.3d 878, 883 (Tex. App.—Fort Worth 2003,
pet. denied) (“Following the valid foreclosure of a senior lien, junior liens, if not
satisfied from the proceeds of sale, are extinguished.”); see also Jones, 51 S.W.3d at 344
(holding that vendor’s lien had been extinguished by foreclosure of senior lien).
Consequently, Accredited’s successor-in-interest was not vested with title to any
interest in the Alleged Easement land when it foreclosed its lien in April 2009 and
could not have transferred any such interest to Herring, the party through whom
Stone claims title. See Law v. State, 811 S.W.2d 265, 267 (Tex. App.—Houston [1st
7 When a property seller assigns its retained vendor’s lien to a third party, the assignee does not, by the mere fact of such assignment, take legal title to the property. See Farmers’ Loan & Tr. Co. v. Beckley, 54 S.W. 1027, 1029 (Tex. 1900); R.B. Godley Lumber Co. v. Slaughter, 171 S.W. 779, 781 (Tex. App.—Texarkana 1914, no writ); Hatton v. Bodan Lumber Co., 123 S.W. 163, 166 (Tex. App.—Texarkana 1909, writ ref’d). Rather, when a vendor assigns a vendor’s lien without expressly transferring legal title to the assignee, the vendor retains legal title to the property and “holds [it] in trust for the assignee as well as his vendee.” Farmers’ Loan & Tr. Co., 54 S.W. at 1029. Because the warranty deeds underlying both Washington Mutual’s and Accredited’s property interests recite that Smallwood conveyed not only her vendor’s lien but also “superior title” to the lenders and because the parties did not address this issue in their briefing, we assume—without deciding—that Smallwood purported to convey her retained legal title to the lenders.
16 Dist.] 1991, no pet.) (“It is axiomatic that a grantor cannot convey to a grantee a
greater or better title than he holds.”); Extraction Res., Inc. v. Freeman, 555 S.W.2d 156,
159 (Tex. App.—El Paso 1977, writ ref’d n.r.e.) (“It is elementary that one cannot
convey what he does not own.”).
Thus, the trial court erred by rendering a summary judgment declaring that
Stone was a co-owner of an undivided interest in the Alleged Easement land.
Accordingly, we sustain Brown’s first issue.
B. Brown’s First Supplemental Counterclaim Is Not Moot
In his second issue, Brown contends that the trial court erred by sustaining
Stone’s special exceptions to Brown’s first supplemental counterclaim and dismissing
this claim as moot. We agree.
Reviewing a trial court’s dismissal of a cause of action following the sustaining
of special exceptions involves the examination of two distinct rulings: the decision to
sustain the special exceptions and the decision to dismiss the cause of action. Ford v.
Performance Aircraft Servs., 178 S.W.3d 330, 334–35 (Tex. App.—Fort Worth 2005, pet.
denied); accord Perry v. Cohen, 285 S.W.3d 137, 142 (Tex. App.—Austin 2009, pet.
denied) (citing Cole v. Hall, 864 S.W.2d 563, 566 (Tex. App.—Dallas 1993, writ dism’d
w.o.j.) (en banc)). We review a trial court’s decision to sustain special exceptions under
an abuse-of-discretion standard. Ford, 178 S.W.3d at 335 (citing Mowbray v. Avery,
76 S.W.3d 663, 678 (Tex. App.—Corpus Christi–Edinburg 2002, pet. denied)). Thus,
17 we will not reverse such a decision unless the trial court acted arbitrarily,
unreasonably, or without reference to any guiding rules or principles. See id. (citing
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). But “[t]he
standard of review of a trial court’s dismissal upon special exceptions is de novo on the
legal question of whether the pleading stated a cause of action.” Sanchez v. Huntsville
Indep. Sch. Dist., 844 S.W.2d 286, 288 (Tex. App.—Houston [1st Dist.] 1992, no writ)
(citing Krupicka v. White, 584 S.W.2d 733, 737 (Tex. App.—Tyler 1979, no writ)).
2. Brown Neither Waived Nor Invited the Error Stone asserts that Brown waived any complaint about the trial court’s dismissal
of his first supplemental counterclaim upon special exceptions by failing to raise the
issue in a motion for new trial. But a motion for new trial is not always necessary to
preserve such a complaint. See Parker v. Barefield, 206 S.W.3d 119, 120–21 (Tex. 2006)
(holding that a motion for new trial was not needed to preserve error regarding trial
court’s order sustaining special exceptions and dismissing appellants’ case without first
allowing them the opportunity to replead because they had already requested leave to
amend and had filed amended pleadings before the trial court sustained the special
exceptions, meaning that their request for leave to amend had effectively been denied
when the trial court dismissed the case). Because the trial court sustained Stone’s
special exceptions based upon mootness—a defect of a type that amendment cannot
cure—it was not required to give Brown an opportunity to replead before dismissing
the counterclaim. See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007). Under
18 these circumstances, Brown was not required to file a motion for new trial to preserve
error. See Parker, 206 S.W.3d at 120–21; cf. Howell v. Coca-Cola Bottling Co. of Lubbock,
Inc., 599 S.W.2d 801, 802 (Tex. 1980) (holding that a formal motion for new trial is no
longer an absolute predicate for appeal).
Stone also asserts that Brown invited the complained-of error by submitting to
the court for signature an order sustaining Stone’s special exceptions and dismissing
Brown’s first supplemental counterclaim even though (according to Stone) no hearing
had been held on Stone’s special exceptions. See In re G.X.H., 627 S.W.3d 288, 301
(Tex. 2021) (discussing invited-error doctrine). But Brown contends that Stone’s
special exceptions were heard at the pretrial conference, and the record supports this
contention. In any event, because there is nothing in the record suggesting that Brown
asked the trial court to dismiss or strike his first supplemental counterclaim—and we
cannot conceive of any reason why he would have done so—the invited-error
doctrine is inapplicable. See In re Dep’t of Fam. & Protective Servs., 273 S.W.3d 637, 646
(Tex. 2009) (orig. proceeding) (noting that the invited-error doctrine applies when “a
party requests the court to make a specific ruling, then complains of that ruling on
appeal”).
Based on the foregoing, we conclude that Brown preserved his second issue.
19 3. The Trial Court Erred by Dismissing Brown’s First Supplemental Counterclaim In September 2021, Brown filed his first supplemental counterclaim in which
he asserted that the deeds supporting Stone’s argument for the Alleged Easement’s
existence were defective because they were not signed by Ota B. King, who
purportedly held an undivided one-half interest in the Alleged Easement land at the
time the deeds were executed and recorded. Stone filed special exceptions in which he
argued that Brown’s first supplemental counterclaim was moot because the trial court
had already ruled that Stone was a co-owner of the Alleged Easement land, meaning
that he did not need an easement. In October 2022, the trial court signed an order
sustaining Stone’s special exceptions and dismissing Brown’s first supplemental
counterclaim as moot—and therefore incurable by repleading. See Neff v. Brady, 527
S.W.3d 511, 528 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (recognizing that
“[g]enerally, when the trial court sustains special exceptions, it must give the pleader
an opportunity to amend the pleading” but if “the pleading defect is of a type that
amendment cannot cure,” the court may dismiss the cause of action).
Because the trial court sustained Stone’s special exceptions based on its
previous ruling that Stone had an ownership interest in the Alleged Easement land—a
ruling that we have determined to be erroneous—this ruling was likewise erroneous.
And because the trial court’s decision to dismiss Brown’s supplemental counterclaim
as incurable was also predicated on its erroneous ownership-interest ruling, its
20 dismissal of Brown’s supplemental counterclaim was similarly erroneous. 8 7
Accordingly, we sustain Brown’s second issue.
C. The Alleged Easement Was Extinguished by Merger
In his third issue, Brown contends that the trial court erred by rendering
summary judgment that Stone’s claimed easements, including the Alleged Easement,
had not been extinguished by merger and were therefore valid and enforceable. We
agree.
“Under the merger doctrine, if an easement exists and then the owner of that
easement acquires a greater estate, the two estates merge into the greater of the two
and the lesser is extinguished.” Cecola v. Ruley, 12 S.W.3d 848, 852 (Tex. App.—
Texarkana 2000, no pet.) (op. on reh’g). This is because a property owner “no longer
needs an easement across his own property” since his ownership by itself “gives him
the right to use all of the property.” Id.; see Teal Trading & Dev., LP v. Champee Springs
Ranches Prop. Owners Ass’n, 534 S.W.3d 558, 578 n.7 (Tex. App.—San Antonio 2017)
(“The merger doctrine proceeds from a recognition that a person cannot have an
easement in his or her own land because all the uses of an easement are fully
In his special exceptions, Stone alternatively argued that Brown’s first 8
supplemental counterclaim was meritless and should be stricken because Ota B. King had ratified the Alleged Easement. But because the trial court’s order expressly states that the court sustained Stone’s special exceptions and dismissed Brown’s first supplemental counterclaim on mootness grounds, we do not consider Stone’s alternative ratification theory. See Shook v. Gilmore Tatge Mfg. Co., 951 S.W.2d 294, 296 (Tex. App.—Waco 1997, pet. denied) (“[I]f the dismissal order lists a particular reason for the dismissal, then the appellate court’s review is limited to whether the dismissal was proper based on the ground specified by the trial court.”).
21 comprehended in the general right of ownership.” (quoting ACI Worldwide Corp. v.
Churchill Lane Assocs., LLC, 847 F.3d 571, 580 (8th Cir. 2017))), aff’d, 593 S.W.3d 324
(Tex. 2020); see also Howell v. Estes, 12 S.W. 62, 62 (Tex. 1888) (“The principle is
elementary that, to constitute an easement, the dominant and the servient estates must
be held by different owners; and when the owner of an estate enjoys an easement over
another, and acquires title to the latter, the easement is thereby extinguished.”). Thus,
“an easement is terminated ‘when all the benefits and burdens come into a single
ownership.’” Teal Trading & Dev., LP, 534 S.W.3d at 579 (quoting Restatement (Third)
of Property: Servitudes § 7.5).
Here, it is undisputed that Smallwood acquired the North, West, and East Lots
in 1997 and that the North and East Lots were united under a single owner again
when Bordlemay acquired them in 2006. Nevertheless, Stone argues that the Alleged
Easement was not extinguished by merger because both Smallwood and Bordlemay
took the lots subject to retained vendor’s liens. According to Stone, because the
holder of a vendor’s lien retains legal title until the purchase price is fully paid, see Flag-
Redfern Oil Co., 744 S.W.2d at 8, and because the vendor’s liens on the various lots
were held by different parties, the lots were never truly united under common
ownership, and consequently, the easements were never extinguished by merger.
Thus, the question we must decide is whether the lots “c[a]me into a single
ownership” when Smallwood (and later Bordlemay) purchased them subject to
22 retained vendor’s liens. See Teal Trading & Dev., LP, 534 S.W.3d at 579. Given the
merger doctrine’s underlying premise, we conclude that they did.
As noted, the merger doctrine is based on the idea that a property owner does
not need an easement because he already has the right to use the property by virtue of
his ownership interest. See id. at 578 n.7; Cecola, 12 S.W.3d at 852; see also Uptown Cars,
Inc. v. Newcastle Mgmt. Tr., No. 03-22-00422-CV, 2024 WL 4643295, at *13 (Tex.
App.—Austin Oct. 31, 2024, no pet.) (op. on reh’g) (quoting Cecola, 12 S.W.3d at 852).
When a land purchaser receives a deed conveying title to him subject to a retained
vendor’s lien, he receives equitable title to the property and has the right to use and
possess it; the “reserved vendor’s lien . . . essentially [constitutes] a mortgage coupled
with a power of rescis[s]ion on default [and] operates only as security for payment of
the purchase price.” Babb v. McGee, 507 S.W.2d 821, 823 (Tex. App.—Dallas 1974,
writ ref’d n.r.e.); see 5 Aloysius A. Leopold, Texas Practice Series: Land Titles and Title
Examination § 30.2 (3d ed. 2024). Because the holder of a vendor’s lien deed (i.e., the
vendee) has the right to use and possess the property and because the vendor’s
retained title is limited “to the character of security for the purchase-money debt,”
Carey v. Starr, 56 S.W. 324, 325 (Tex. 1900), we conclude that the vendee—not the
vendor—is the relevant “owner” for merger-doctrine purposes. 9 Thus, when 8
9 Our conclusion that the vendee, as the holder of equitable title, constitutes the property owner for merger-doctrine purposes is reinforced by the fact that equitable- title holders have been held to be property owners in a variety of other legal contexts. See AHF-Arbors at Huntsville I, LLC v. Walker Cnty. Appraisal Dist., 410 S.W.3d 831,
23 Smallwood acquired all of the lots by vendor’s lien deed, they came into a single
ownership. 10 See Teal Trading & Dev., LP, 534 S.W.3d at 579. 9
Relying primarily on Flag-Redfern Oil Co., Stone argues that even if the lots were
united under common ownership, the merger-of-estates doctrine requires the
satisfaction of six elements before a merger could occur. See 744 S.W.2d at 9.
However, neither Flag-Redfern Oil Co. nor any of the other cases relied upon by Stone
involved the extinguishment of easements through merger, and we are not aware of
any cases applying the six-element merger-of-estates test in this context. 11 Because the 0
837, 839 (Tex. 2012) (defining “equitable title” and holding that it is sufficient to establish ownership for the purpose of exemptions under the Tax Code); City of Garland v. Wentzel, 294 S.W.2d 145, 147 (Tex. App.—Dallas 1956, writ ref’d n.r.e.) (holding that the equitable-title holder is the “owner of the land” and thus has the right to recover damages for a permanent nuisance because the equitable-title holder “must bear the loss or depreciation” caused by the nuisance); Hoffman v. Cont’l Supply Co., 120 S.W.2d 851, 854 (Tex. App.—Eastland 1938) (concluding that the holder of an equitable title to an oil or mineral leasehold interest in land was an “owner” of such interest for purposes of the materialmen’s lien statute), rev’d on other grounds, 144 S.W.2d 253 (Tex. 1940); see also Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist., 585 S.W.3d 530, 534 (Tex. App.—Houston [14th Dist.] 2019) (“Texas courts generally have defined ‘ownership’ for taxation purposes in terms of the person or entity holding legal or equitable title.” (emphasis added)), aff’d, 624 S.W.3d 535 (Tex. 2021).
We note that even if the retained vendor’s liens were sufficient to prevent unity 10
of ownership, the Alleged Easement would have been extinguished when Smallwood paid off the vendor’s liens. Stone argued in the trial court that Smallwood’s transfer of the West Lot to Herring before she paid off the vendor’s liens prevented the Alleged Easement from being extinguished by merger. But the transfer to Herring is irrelevant here because Brown’s and Stone’s properties would still have been united under single ownership after the sale of the West Lot to Herring. Flag-Redfern Oil Co. involved the merger of legal and equitable title, 744 S.W.2d 11
at 9, and the other principal case on which Stone relies, Steger v. Muenster, 134 S.W.3d
24 merger doctrine as applied to easements is concerned with unification of ownership
of separate parcels, not the unification of various estates within the same parcel, we
conclude that Flag-Redfern Oil Co.’s six-element test does not apply. 12
Having determined that Smallwood was the relevant owner for merger-doctrine
purposes and that Flag-Redfern Oil Co.’s six-element test does not apply in this context,
359, 375–77 (Tex. App.—Fort Worth 2003, pet. denied), involved the merger of leaseholds and inherited estates. The merger-of-estates doctrine has also been applied to the merger of first and second liens, Smith v. U.S. Nat’l Bank of Galveston, 767 S.W.2d 820, 822–23 (Tex. App.—Texarkana 1989, writ denied); mineral lessee and lessor interests, Ferguson v. Ragland, 243 S.W. 721, 723 (Tex. App.—San Antonio 1922, writ ref’d); and life estate and remainder interests, Montgomery v. Browder, 930 S.W.2d 772, 781 (Tex. App.—Amarillo 1996, writ denied) (op. on reh’g). 12 We note that even if the six-element merger-of-estates test applied, summary judgment that no merger occurred would nevertheless have been improper because fact issues existed. Under Flag-Redfern Oil Co., for the doctrine of merger to apply, the following elements must be present: (1) there must be a greater and lesser estate; (2) both estates must unite under the same owner; (3) both estates must be owned in the same right; (4) there must not be an intervening estate; (5) merger must not be contrary to the owner’s intent; and (6) merger must not be disadvantageous to the owner. 744 S.W.2d at 9. Stone argued that the fifth and sixth elements were not present, but he did not offer any summary-judgment evidence disproving them. As to the fifth element, he offered no direct evidence of Smallwood’s intent; instead, he argued that Smallwood’s plan to set up a homeowners’ association (HOA) showed that she did not want the easements to be extinguished. But Smallwood’s plan to set up an HOA does not prove that she intended to retain the historical easements; it is equally likely that she intended to move boundary lines and create new easements. As to the sixth element, Stone argued that extinguishing the easements would be disadvantageous because it would result in the inability to access the property and would be disadvantageous to the vendor who retained legal title. But the sixth element is concerned with disadvantage to the owner, and Smallwood, as owner, could access all of the various lots without the need for an easement (or could create new easements as she saw fit). Further, as discussed above, the vendor’s retained legal title under a vendor’s lien is limited “to the character of security for the purchase-money debt.” Carey, 56 S.W. at 325. Because the holders of the vendor’s liens were not true owners, any disadvantage to them would be irrelevant.
25 we conclude that all easements that burdened the Alleged Easement land were
extinguished when Smallwood acquired all of the relevant lots, thereby bringing “all
the benefits and burdens . . . into a single ownership.” See Teal Trading & Dev., LP,
534 S.W.3d at 579; see also Howell, 12 S.W. at 62; Cecola, 12 S.W.3d at 852. Thus, the
trial court erred by granting Stone’s summary-judgment motion and declaring that the
easements, including the Alleged Easement, had not been extinguished by merger.
Accordingly, we sustain Brown’s third issue.
D. We Need Not Address Brown’s Remaining Issues
Brown’s fourth and fifth issues concern the sufficiency of the evidence to
support the jury’s verdict on Stone’s nuisance claim and its award of mental-anguish
damages based on that claim; his sixth issue concerns the trial court’s decision not to
include a waiver-of-mental-anguish-damages instruction in the jury charge based on
Stone’s agreement to leave the fence in place during the litigation; and his seventh
issue concerns the trial court’s redefinition of an easement described as the “L-Shaped
Easement” in its final judgment to allow for vehicular traffic even though Stone did
not plead for this relief.
Going into the jury trial on whether Brown’s fence was a nuisance, the trial
court had already erroneously decided that the fence impeded Stone’s access to his
claimed easements, including the Alleged Easement, and was on property that Stone
co-owned. Had the trial court correctly determined that Stone did not have an
ownership interest in the Alleged Easement land and that the Alleged Easement had
26 been extinguished by merger, Stone’s nuisance claim would have turned on whether
he had a reasonable expectation that Brown would never build a standard fence along
his own property line, not on whether Stone had a reasonable expectation that Brown
would not build a fence that impeded Stone’s easement and divided his property. See
Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003) (defining “nuisance” as “a
condition that substantially interferes with the use and enjoyment of land by causing
unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting
to use and enjoy it”); see also Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580,
597 (Tex. 2016) (“‘Unreasonable’ in nuisance law . . . does not refer to risk-creating
conduct of the defendant but to the reasonable expectations of a normal person
occupying the plaintiff’s land.” (quoting Dan B. Dobbs, Paul T. Hayden, & Ellen M.
Bublick, The Law of Torts § 401, at 625 (2d ed. 2011))). Thus, the trial court’s erroneous
summary judgment significantly impacted the trial proceedings on Stone’s nuisance
claim. Under these circumstances, we must remand for a new trial on that claim. See
Tex. Windstorm Ins. Ass’n v. Dickinson Indep. Sch. Dist., 561 S.W.3d 263, 281 (Tex.
App.—Houston [14th Dist.] 2018, pets. denied) (op. on reh’g) (“As the entire trial
proceedings were premised on erroneous summary judgment orders, the more
prudent course of action is to restore the parties to the status quo at the time of the
summary judgment rulings and begin anew.”); see also Ramirez v. Sanchez, No. 01-21-
00417-CV, 2023 WL 2919545, at *9–10 (Tex. App.—Houston [1st Dist.] Apr. 13,
2023, no pet.) (mem. op.) (remanding matters to the trial court “in their entirety”
27 because trial court’s erroneous summary-judgment rulings on appellant’s “claims to
modify conservatorship, to designate the primary residence of the child, and his
request for child support” affected the presentation of evidence at the subsequent
bench trial on appellee’s counterpetition to increase child support). Accordingly, we
need not address Brown’s fourth, fifth, and sixth issues, all of which pertain to Stone’s
nuisance claim or the damages awarded based on that claim. See Tex. R. App. P. 47.1.
Further, because Brown’s seventh issue concerns the trial court’s redefinition
of the L-Shaped Easement and because we have already determined that all of the
easements at issue were extinguished by merger, we need not address Brown’s seventh
issue. See id.
III. CONCLUSION
Having sustained Brown’s first three issues, we reverse the trial court’s final
judgment, summary judgment, and order granting Stone’s special exception to
Brown’s first supplemental counterclaim; render judgment that all easements that
burdened the Alleged Easement land have been extinguished by merger; and remand
the case for a new trial consistent with this opinion on all remaining issues.
/s/ Wade Birdwell
Wade Birdwell Justice
Delivered: April 3, 2025