ACCEPTED 04-15-00272-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 11/10/2015 9:50:51 AM KEITH HOTTLE CLERK
NO. 04-15-00272-CV
FILED IN 4th COURT OF APPEALS IN THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 11/10/2015 9:50:51 AM KEITH E. HOTTLE Clerk
KYU IM ROBINSON, APPELLANT,
V.
JESS L. MAYFIELD, TRUSTEE, ET AL., APPELLEES.
ON APPEAL FROM THE 131ST JUDICIAL DISTRICT COURT BEXAR COUNTY, TEXAS HON. RENEE A. YANTA, PRESIDING JUDGE TRIAL COURT CAUSE NO. 2013-CI-07766
APPELLANT’S REPLY BRIEF
JoAnn Storey State Bar No. 19315300 JOANN STOREY, P.C. 1005 Heights Boulevard Houston, Texas 77008 Telephone: 713/529-0048 Telecopier: 713/529-2498 storeyj@heightslaw.com
Counsel for appellant, Kyu Im Robinson
O RAL A RGUMENT R EQUESTED TABLE OF CONTENTS
Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
I. Riddick misrepresents the record... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Riddick misrepresents Robinson’s briefing... . . . . . . . . . . . . . . . . . . . . . . . . 7
III. Holden and the other cases Riddick cites are distinguishable... . . . . . . . . . 10
IV. Notice of use and notice of an easement are two different things... . . . . . . 15
V. This Court has rejected the Scott exception... . . . . . . . . . . . . . . . . . . . . . . . 16
Conclusion and Prayer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 INDEX OF AUTHORITIES
Cases Page
Allen v. Allen, 280 S.W.3d 366 (Tex.App.─Amarillo 2008, pet. denied). . . . . . . . . . . . . . 18
Callan v. Walters, 190 S.W. 829 (Tex.Civ.App.─Austin 1916, no writ). . . . . . . . . . . . . . . . . . 15
Holden v. Weidenfeller, 929 S.W.2d 124 (Tex.App.─San Antonio 1996, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 15, 16
In re CMH Homes, Inc., No. 04-13-00050-CV, 2013 WL 2446724 (Tex.App.─San Antonio 2013, orig. proceeding).. . . . . . . . . . . . . . . . . . . . . 2
Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868 (Tex. App.─Austin 1988, writ denied). . . . . . . . . . . . . . . 15
Mack v. Landry, 22 S.W.3d 524 (Tex.App.─Houston [14th Dist.] 2000, no pet.). . . . . . . . . . 17
Montange v. Hagelstein, No. 10-05-00291-CV, 2006 WL 648115 (Tex.App.─Waco 2006, pet. denied) (mem. op.) (Gray, C.J., dissenting). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
North Clear Lake Development Corp. v. Blackstock, 450 S.W.2d 678 (Tex.Civ.App.─Houston [14th Dist.] 1970, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
RDG Partnership v. Long, 350 S.W.3d 262 (Tex.App.─San Antonio 2011, no pet.). . . . . . . . . . . . . . . 17
-ii- Rinn v. Wennenweser, No. 01-07-00763-CV, 2008 WL 2611921 (Tex.App.─Houston [1st Dist.] 2008, no pet.) (mem. op.). . . . . . . . . . . . . . 18
Russell v. Rawls, No. 08-00-00546-CV, 2003 WL 1361534 (Tex.App.─El Paso 2003, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . 13
Smith v. Reid, No. 04-13-00550-CV, 2015 WL 3895465 (Tex. App.─San Antonio 2015, pet. filed) (mem. op.). . . . . . . . . . . . . . . . . . 9
Storms v. Tuck, 579 S.W.2d 447 (Tex.1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Suarez v. City of Texas City, 465 S.W.3d 623 (Tex.2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 15
Thompson v. Houk, No. 12-04-00315-CV, 2005 WL 2035831 (Tex.App.─Tyler 2005, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . 12, 13
Wallace v. McKinzie, 869 S.W.2d 592 (Tex.App.─Amarillo 1993, writ denied). . . . . . . . . . . . . . 12
-iii- No. 04-15-00272-CV
In The Fourth Court of Appeals San Antonio , Texas
Kyu Im Robinson, Appellants,
v.
Jess L. Mayfield, Trustee, et al., Appellees.
TO THE HONORABLE COURT OF APPEALS:
Appellant, Kyu Im Robinson (Robinson or appellant), files this brief in reply
to Appellee’s Brief filed by William P. Riddick, Individually and as Trustee of the
Wm P. Riddick ─ 76 Trusts (Riddick or appellee).
I. Riddick misrepresents the record.
Robinson objects to the following misrepresentations of the record in Riddick’s
brief.
1. Misrepresentation: The Roadway was constructed sometime before
January 1954. RIDDICK BR. at p. 3 (citing DX9).
Record: DX9 is a Warranty Deed executed by Walter G. Laguerquist, Jr.
conveying Riddick’s property to Riddick and his brother, Thomas R. Riddick. DX9. The deed does not mention any roadway, nor does the deed purport to reflect any
condition of the property before the date of its execution on January 31, 1977.
2. Misrepresentation: At the time the Roadway was built, the Steves
Brothers still owned the property on both sides of the Roadway. RIDDICK BR. at p.
3 (citing DX1).
Record: DX1 consists of plats dated in 1966. DX1. They do not reflect
the roadway, much less the date the roadway was built.
3. Misrepresentation: By 1954 there was already a structure built on the
north side of the Roadway, as indicated in the below aerial photograph taken on
January 16, 1954, with the Roadway highlighted. RIDDICK BR. at p. 3 (citing CR33,
DX9).
Record: No “aerial photograph taken on January 16, 1954, with the
Roadway highlighted” was ever introduced into evidence at trial. CR33 is Riddick’s
pleading. It is not evidence. See In re CMH Homes, Inc., No. 04-13-00050-CV, 2013
WL 2446724, at *9 (Tex.App.─San Antonio 2013, orig. proceeding) (citing Laidlaw
Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.1995)). The Warranty
Deed, DX9, does not include, or reference, any aerial photograph, nor does it show
a “highlighted roadway.”
-2- 4. Misrepresentation: Prior to purchasing the Riddick Property,
architectural and engineering drawings were created, evidencing Mr. Lifshutz’s plans
for the Riddick Property. RIDDICK BR. at p. 6 (citing DX28A, B, C; 3RR58, 59, 61-
63).
Record: The record conclusively establishes the opposite of Riddick’s
assertion. As Riddick’s own counsel conceded: “We don’t know who actually
designed those drawings. Everybody is dead. Mr. Bernard Lifshutz is dead. Mr.
Albert Steves is dead.” 2RR45.
5. Misrepresentation: The Apartments and associated carport parking
structures were constructed in clear reliance on, and contemplation of, the continued
use of the Roadway. RIDDICK BR. at p. 6 (citing 3RR26-27).
Record: The record cite is to Riddick’s statements made on voir dire to
establish Riddick’s expertise on real estate issues. 3RR23-27. Nothing in the cited
pages reflect that whoever built the Apartments relied on or contemplated continued
use of the Roadway.
6. Misrepresentation: Other aspects of the Apartments - - stairs, hot water
boilers, electrical infrastructure - - were designed so as to make continuous use of the
Roadway necessary. RIDDICK BR. at p. 7 (citing 3RR48-49).
-3- Record: The cited portion of the record is Riddick’s testimony
concerning a video of the premises. Nothing in the cited part of the record, or
anywhere else in the record, reflects that the stairs, hot water boilers, and electrical
infrastructure were part of a “design” that contemplated continuous use of the
roadway. The current condition of the premises is not relevant to any issue in the
case.
7. Misrepresentation: The Apartments as designed clearly envisioned and
necessitated the use of the Roadway by the Apartments’ owners and its tenants.
RIDDICK BR. at p. 7 (citing CTX1 and 3RR26-27).
Record: CTX1 is Dr. Lifshutz’s deposition testimony; 3RR26-27 is the
voir dire of Riddick. The cited portions of the record do not show what the design
of the apartments envisioned or necessitated. To the contrary, Dr. Lifshutz’s first
memory of the roadway was after all the hoopla of the construction of the apartments
was over. CTX1(p.13).
8. Misrepresentation: The covered parking spots are required for code
compliance for operation as an apartment complex. RIDDICK BR. at p. 7 (citing
3RR26-27, 30).
Record: The cited portions of the record do not indicate that such “code
compliance” was in effect and relied upon at the time the apartments were designed
-4- or constructed. Whatever “code compliance” is now required is not relevant to any
issue in this case.
9. Misrepresentation: The original developer of the Riddick Property
actually built the Apartments and permanent parking structures in a way that required
use of the Roadway. RIDDICK BR. at p. 24.
Record: The record conclusively establishes the opposite of Riddick’s
assertion. As Riddick’s own counsel conceded: “We don’t know who actually
designed those drawings. Everybody is dead. Mr. Bernard Lifshutz is dead. Mr.
Albert Steves is dead.” 2RR45.
10. Misrepresentation: Lifshutz believed and relied on the Steves Brothers’
representations when they failed to halt or preclude the construction of the
Apartments. RIDDICK BR. at p. 24 (citing DX28A, B, C).
Record: The drawings depicted in DX28A, B, and C do not contain any
representations by silence or acquiescence by the Steves Brothers.
11. Misrepresentation: Photographs in the record clearly show that the
Roadway existed before the Apartments were constructed. RIDDICK BR. at p. 33
(citing PX10B; DX26A, B; DX27; CR33).
Record: CR33 is Riddick’s pleading. It is not evidence. PX10B is not
dated and, thus, is no evidence that the roadway existed before the apartments were
-5- constructed. DX26A and DX26B are not dated and, thus, are no evidence the
roadway existed before the apartments were constructed.1/ DX27 is not dated and,
thus, is no evidence the roadway existed before the apartments were constructed.
Indeed, Dr. Lifshutz testified that DX27 correctly depicts where the Regency House
Apartments are located. CTX1(p.33). That testimony is contrary to the notion that
“the Roadway existed before the Apartments were constructed.”
12. Misrepresentation: Every owner of the Apartments since construction
has relied on a right to use of the Roadway. RIDDICK BR. at p. 36 (citing 3RR26-27).
Record: The record cite consists of Riddick’s statements on voir dire
about code compliance and the effect on the value of his property if he does not have
use of the roadway. 3RR26-27. There is nothing in that exchange about what his
predecessors relied on “since construction” of the roadway. The testimony in the
cited pages of the record is “so weak as to do no more than create a mere surmise or
suspicion of” the existence of reliance and, thus, “is no evidence.” Suarez v. City of
Texas City, 465 S.W.3d 623, 634 (Tex.2015) (quoting Browning─Ferris, Inc. v.
Reyna, 865 S.W.2d 925, 927 & n.3 (Tex.1993)).
1/ As Robinson pointed out in her opening brief, the court reporter’s reference in her index to photos dated 1/16/54 is not supported by the photos themselves. ROBINSON BR. at p. 16, n.2.
-6- II. Riddick misrepresents Robinson’s briefing.
Riddick claims Robinson mischaracterizes the applicable legal standards and
the evidence and “misses the point” of the law. RIDDICK BR. at p. 37. Riddick is
referring to Robinson’s argument that there is no evidence that Steves or his
independent executrix - - predecessors to Robinson, the servient-estate owner - -
induced Riddick’s acceptance of the grant of his property. ROBINSON BR. at p. 28.
Riddick says that the law does not require reliance on representations made by
the predecessor to the owner of the dominant estate. RIDDICK BR. at p. 37. But,
Robinson never claimed that Steves or his independent executrix were predecessors
in title to Riddick (the owner of the dominant estate). Rather, as she clearly pointed
out, the Robinson property (which is the servient estate) was owned either by Steves
or by his independent executrix when Riddick purchased his property and that there
is no evidence that “either of those persons induced Riddick’s acceptance of the
grant.” ROBINSON BR. at p. 28. It is the law that an easement by estoppel may be
based on representations by the owner of the servient estate to the owner of the
dominant estate and Robinson cited that law in her argument. Id. (citing Lakeside
Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 872 (Tex.App.─Austin
1988, pet. denied)).
-7- In short, it is Riddick who has missed the point or has created a classic straw-
man argument.
Riddick also says that Robinson’s argument, that use of the roadway was
permissive, is disingenuous. RIDDICK BR. at p. 38. According to Riddick,
Robinson’s argument is disingenuous because there is no evidence that the use of the
roadway was ever permissive and, “in fact there is evidence of the opposite.” Id.
Riddick’s contention ignores - - and, hence, does not address - - Robinson’s legal
argument that the law presumes that use is by permission based on undisputed
evidence of joint use of the roadway. See ROBINSON BR. at pp. 23, 31, 33, 37, 38, 40,
41 (citing Callan v. Walters, 190 S.W. 829, 831-32 (Tex.Civ.App.─Austin 1916, no
writ)).
Riddick further claims Robinson mischaracterizes the state of the law regarding
the requirement of a vendor/vendee relationship to impose a duty. RIDDICK BR. at p.
39. According to Riddick, this Court has not required a vendor/vendee relationship
in recognizing easements by estoppel. Id. (citing Holden v. Weidenfeller, 929 S.W.2d
124 (Tex.App.─San Antonio 1996, writ denied)). Riddick ignores the following
precedent from this Court and, thus, misstates Robinson’s briefing:
-8- An easement by estoppel may not be predicated upon silence and passive acquiescence alone.
In the absence of a vendor/vendee relationship, there was no duty on the Reids [servient estate owner] to caution or warn Smith or his predecessors-in-title that they should make no improvements upon their property without a secure right of ingress and egress appurtenant to their land.
Smith v. Reid, No. 04-13-00550-CV, 2015 WL 3895465, at *7 (Tex. App.─San
Antonio 2015, pet. filed) (mem. op.) (citations and internal quotations omitted).
Robinson cited this Court’s opinion in Smith in support of her argument that there
was no duty in the absence of a vendor/vendee relationship. ROBINSON BR. at pp. 34,
39, 42.
Riddick accuses Robinson of “ignoring precedent like Holden that clearly
supports the trial court’s judgment.” RIDDICK BR. at p. 40. Riddick overlooks
Robinson’s discussion of Holden - - and how it applies to this case - - on pages 13,
19-20, 21, and 22 of her brief. Riddick’s accusation is unfounded. More importantly,
the compelling facts supporting this Court’s holding in Holden are missing in this
case.
Finally, Riddick asserts that Robinson does not cite any authority supporting
her argument that recovery of attorney’s fees in easement cases under the TDJA is
limited to those instances involving the construction of a written agreement. RIDDICK
BR. at p. 48. Riddick’s statement is a complete falsehood. Robinson cites three cases
-9- in support of her argument - - including two cases from this Court - - with
parenthetical explanations. ROBINSON BR. at pp. 52-53 (citing Smith v. Reid and
Herring v. Bocquet from this Court and Roberson v. City of Austin from the Austin
Court of Appeals).
III. Holden and the other cases Riddick cites are distinguishable.
Riddick argues that Holden’s facts make its holding dispositive in this case.
RIDDICK BR. at p. 28. But, the doctrine of easement by estoppel depends on the
unique facts of each case. Holden, 929 S.W.2d at 131. Even Riddick recognizes this
maxim: Easements by estoppel are “addressed on a case-by-case basis” and “are fact
specific.” RIDDICK BR. at p. 32. In any event, the table below demonstrates that the
facts that compelled the conclusion in Holden are absent here.
Holden v. Weidenfeller Robinson v. Riddick Deed of property to claimant’s No reference to roadway in question in predecessor referenced the road in any deed question, 929 S.W.2d at 131 Claimant’s property is landlocked Riddick’s property is not landlocked, without the use of the road in question, DX6, 2RR86 id. The roadway was the only means of Riddick’s property is accessible by ingress and egress between a public three public roads: Burr Road, Raphail road and the claimant’s property, id. at Drive, and Harry Wurzbach Road 127 (formerly Military Highway), DX6; 2RR86.
-10- Holden v. Weidenfeller Robinson v. Riddick Claimant’s predecessors testified that: None of Riddick’s predecessors - - Albert Steves, III, B. Lee Lifshutz, ● the property was purchased with the Skylark Investment Company, or understanding that the road was the Walter G. Laguerquist, Jr., DX3, DX5, means of access, and DX7, DX9 - - testified at trial
● the property was purchased because they believed, based on the previous use of the road, they had a right to access their property via the old road
Id. at 131 The owners of the servient estate No evidence Kim took any action that encouraged the claimants’ belief they encouraged Riddick’s belief he had a had a right to cross the owner’s right to use the roadway to access the property to access their own property parking spaces by allowing the claimants to put their own lock on a gate on the roadway to gain access to their property, id. at 131-32 The owners of the servient estate built No evidence Robinson took any action a new roadway on their land to allow that “indicated her knowledge” of the claimants an alternative access to Riddick’s right to cross Robinson’s their land, id. at 132 land to access the parking spaces The owners of the servient estate saw a There is no evidence the roadway in gate across the roadway leading to the question was never gated. claimant’s property before they purchased the property and never inquired about the use of the gate and road, id. at 132
The Court should reject Riddick’s attempt to apply Holden’s holding to the
vastly different facts of this case.
-11- The other cases Riddick cites are similarly distinguishable. In Wallace v.
McKinzie, the claimant’s property was landlocked. 869 S.W.2d 592, 594
(Tex.App.─Amarillo 1993, writ denied). In contrast to Wallace, Riddick’s property
in this case is accessed via three public roadways. DX6; 2RR86. Further, the
claimant in Wallace had a conversation with the owner of the roadway, believed what
he was told, and thereafter maintained the road and made improvements to his
property. 869 S.W.2d at 595. In contrast to Wallace, it is undisputed in this case that
Riddick has never had any oral communication with Robinson about the roadway
between the two properties. 3RR87. Finally, the parties in Wallace reached an
agreement to place double locks on the gate to allow both parties access to the road
and, following that agreement, the claimant continued to maintain the road. 869
S.W.2d at 595. There is no agreement between the parties in this case.
In Thompson v. Houk, the claimants could reach their land only by helicopter
or by boat if they were unable to use the roadway in question. No. 12-04-00315-CV,
2005 WL 2035831, at *1 (Tex.App.─Tyler 2005, no pet.) (mem. op.). Here,
Riddick’s property is not landlocked. Further, the Tyler court reached its holding
based on - - to quote the court itself - - “nothing but permissive and acquiescing
behavior” on the part of the owners of the servient estate and their predecessors. Id.,
-12- at *3. Thus, Thompson stands in stark contrast to the facts that compelled this
Court’s conclusion in Holden.
There further is no discussion in Thompson of the duty requirement imposed
by the Texas Supreme Court. See Storms v. Tuck, 579 S.W.2d 447, 452 (Tex.1979)
(estoppel by silence arises “where a person is under a duty to another to speak, but
refrains from doing so and thereby leads the other to act in reliance on a mistaken
understanding of the facts.”). Finally, the holding in Thompson far exceeds the legal
bounds established by the Texas Supreme Court in Storms: There is no estoppel to
deny the existence of an alleged easement where the owner of the servient estate
“mere[ly] acquiesce[s] in the making of improvements to the dominant estate.” 579
S.W.2d at 453 n.7.
The Russell v. Rawls case is distinguishable from this case because - - to quote
the El Paso court - - the servient estate owner’s “conduct was more than mere
acquiescence to the use of the road on her property.” No. 08-00-00546-CV, 2003 WL
1361534, at *4 (Tex.App.─El Paso 2003, no pet.) (mem. op.). Russell is also
distinguishable from this case because, again like so many of these cases, the
dominant estate owner’s property was landlocked. 2003 WL 1361534, at *4.
Further, the court found “no evidence to contradict the strong inference” that the
owner of the servient estate (Van Neiman) was aware of the landlocked owner’s daily
-13- use of Van Neiman’s roadway to tend to Van Neiman’s needs and to bring her
groceries and her mail. Id. Finally, there was evidence that, despite several
opportunities, Van Neiman never objected to the use of the road. Id.
In North Clear Lake Development Corp. v. Blackstock, 450 S.W.2d 678
(Tex.Civ.App.─Houston [14th Dist.] 1970, writ ref’d n.r.e.), the court, in finding an
easement by estoppel, considered the fact that improvements which had been made
were permanent and substantial, that such improvements were open and obvious to
the owner of the servient estate, that the servient estate had constructive notice of the
activities of the dominant estate holders, and that such use and improvements had the
tacit consent of the servient estate owners because there was no complaint made when
the improvements were constructed. In contrast to Blackstock, Riddick’s
improvement to his property consisted of a concrete pad to support his Waste
Management dumpster that, by Riddick’s own admission, he installed - - not because
of anything Robinson did or did not say or do - - to prevent damage caused by Waste
Management trucks and to eliminate the need for constant repair of the asphalt.
3RR75.
In short, the compelling facts in Holden are not present in this case. As for the
other cases Riddick cites, none involves the unique fact distinguishing this case from
them: Because the roadway is located between, and may be accessed by, two public
-14- roads, it is used by the public as well as by Riddick and Robinson. The Court should
resist Riddick’s effort to have this case resolved by examining the facts of other
cases.
IV. Notice of use and notice of an easement are two different things.
According to Riddick, Robinson “clearly had notice of the easement” because
she knew the roadway was used by the apartment tenants, because she knew Riddick
maintained the roadway, and because the roadway had been designated for
commercial use. RIDDICK BR. at pp. 34-35. Riddick conflates notice of use with
notice of an easement. They are two different things in the law.
“[N]o easement by estoppel may be imposed against a subsequent purchaser
for value, who has no notice, actual or constructive, of the easement claimed.”
Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 873 (Tex.
App.─Austin 1988, writ denied); see also Holden, 929 S.W.2d at 132 (affirming
easement where servient owner had notice of claimant’s claim of right of way on
roadway in question); Callan v. Walters, 190 S.W. at 831-32 (to operate as notice, use
must be exclusive, thereby giving notice of a claim of right). Under the applicable
law, the evidence Riddick relies on for notice of an easement - - in contrast to notice
of use - - is nothing more than “some suspicion linked to other suspicion produc[ing]
only more suspicion, which is not the same as some evidence.” Suarez v. City of
-15- Texas City, 465 S.W.3d at 634 (quoting Marathon Corp. v. Pitzner, 106 S.W.3d 724,
727-28 (Tex.2003).
Further, Riddick omits a key factor supporting this Court’s determination in
Holden that the owner of the servient estate had notice of the easement. “The deed
[from the grantor of the servient estate] referencing the road should have put [the
grantor’s successor] on notice of a potential claim of right of way.” Holden, 929
S.W.2d at 132. There is no deed in this case referencing the roadway and, thereby,
putting Robinson on notice of a potential claim of right of way over the roadway.
Nor is there any evidence of the other fact establishing notice of an easement in
Holden: the servient owner’s knowledge, before he bought his property, of a gate “in
plain view” on the road leading to the claimant’s property. Id.
As Robinson discussed in her opening brief, the evidence conclusively
establishes the contrary of notice because Riddick’s use of the roadway was not
exclusive but had been used by Robinson and her predecessors for decades.
ROBINSON BR. at pp. 22-23. The Court should decline Riddick’s invitation to expand
the law to the facts of this case.
V. This Court has rejected the Scott exception.
Riddick acknowledges that this Court holds that “joint use is fatal to a
prescriptive-easement claim[.]” RIDDICK BR. at p. 41 (citing Estate of Trevino v.
-16- Melton, No. 04-07-00654-CV, 2009 WL 891881, at *4 (Tex.App.─San Antonio 2009,
pet. denied) (mem. op.)). Yet, Riddick asks this Court to adopt an exception carved
out by the Austin Court of Appeals and followed by the Waco Court of Appeals. Id.
at pp. 42-47 (citing Scott v. Cannon, 959 S.W.2d 712 (Tex.App.─Austin 1998, pet.
denied), and Montange v. Hagelstein, No. 10-05-00291-CV, 2006 WL 648115
(Tex.App.─Waco 2006, pet. denied) (mem. op.). Riddick fails to mention this Court
expressly rejected the reasoning in Scott.
Significantly, this Court has expressly determined that Scott’s exception is
legally infirm because “both the Texas Supreme Court and this court continue to cite
joint use as a basis for rejecting a claim of easement by prescription.” RDG
Partnership v. Long, 350 S.W.3d 262, 275 (Tex.App.─San Antonio 2011, no pet.).
Based on RDG Partnership’s precedent, this Court should again decline to adopt
Scott’s exception.
Further, this Court and others have distinguished Scott’s self-described
“unique” facts and have refused to expand the exception beyond those facts. See id.
(finding no evidence of “independent acts to show adversity . . . that would be
similar to the evidence in Scott.”) (emphasis added); Mack v. Landry, 22 S.W.3d 524,
531-32 (Tex.App.─Houston [14th Dist.] 2000, no pet.) (finding, after reciting the
unique facts in Scott, that there was “no such independent act of hostility to turn the
-17- joint permissive use of the road into a prescriptive easement.”) (emphasis added);
Allen v. Allen, 280 S.W.3d 366, 379 (Tex.App.─Amarillo 2008, pet. denied) (finding
Scott was “readily distinguishable” because of its facts); Rinn v. Wennenweser, No.
01-07-00763-CV, 2008 WL 2611921, at *5 n.3 (Tex.App.─Houston [1st Dist.] 2008,
no pet.) (mem. op.) (finding Scott was factually distinguishable because of its facts).
And, the dissent in Montange points out the legal infirmity of Scott. 2006 WL
648115, at *6 (Gray, C.J., dissenting) (explaining the anomaly of Scott’s acceptance
of an argument that “exclusive use” should change based upon the nature of the case).
Riddick also posits that because “[o]nly the Apartments’ tenants and their
visitors are allowed to use the parking spaces accessible by the Roadway,” their use
is “exclusive.” RIDDICK BR. at p. 43. The argument is nonsensical and, if adopted,
would eviscerate the Texas Supreme Court’s century-old rule that joint use is not
exclusive. It goes without saying that every easement claimant uses someone else’s
property to access his or her [the claimant’s] property. Common sense dictates that
the owner of the servient estate does not use the easement over his or her own
property to access the dominant-estate-owner’s property. No case can be found - -
and Riddick does not cite any - - that holds that the easement claimant’s use of an
easement to access his or her own property equates to “exclusive” use of the
-18- easement. The Court should decline to create new law to hold that the undisputed
joint use of the roadway in this case not fatal to a prescriptive easement.
CONCLUSION AND PRAYER
For the reasons stated in appellant’s opening brief and in this Reply Brief, the
Court should reverse the trial court’s judgment granting Riddick an easement by
estoppel and render judgment declaring that Riddick has no easement by estoppel.
The trial court’s judgment alternatively granting Riddick an easement by prescription
should be reversed and judgment rendered that Riddick take nothing. The trial
court’s judgment granting Riddick his attorney’s fees should be reversed and
judgment rendered that Riddick take nothing, or, alternatively, the parties’ attorney’s
fees should be remanded for a new trial.
Respectfully submitted,
JOANN STOREY, P.C.
BY: /s/ JoAnn Storey JoAnn Storey State Bar No. 19315300 1005 Heights Boulevard Houston, Texas 77008 Telephone: 713/529-0048 Facsimile: 713/529-2498 Email: storeyj@heightslaw.com
Counsel on appeal for appellant, Kyu Im Robinson
-19- CERTIFICATE OF COMPLIANCE
Relying on the word count function in the word processing software used to produce this document, I certify that the number of words in this Appellants’ Reply Brief is 4,013, excluding the following: captions, table of contents, index of authorities, signature, proof of service, and certificate of compliance.
This brief complies with the typeface requirements of TRAP 9.4(e) because it uses a conventional typeface no smaller than 14-point (WordPerfect X4 14-point Times New Roman).
/s/ JoAnn Storey JoAnn Storey
CERTIFICATE OF SERVICE
On November 10, 2015, I sent a true and correct copy of the foregoing Appellant’s Reply Brief via ProDoc® electronic filing to the following:
Michael B. Knisely Jeffrey T. Knebel OSBORNE, HELMAN, KNEBEL & SCOTT, LLP 301 Congress Avenue, Suite 1910 Austin, Texas 78701
Counsel for appellee, William P. Riddick, Individually and as Trustee of the Wm P. Riddick ─ 76 Trust
/s/ JoAnn Storey JoAnn Storey
-20-