Paul Klocek and Maureen Klocek v. J. Tomas Barrett and Cathleen A. Barrett

• Court: Court of Appeals of Texas
• Decided: August 6, 2025
• Docket: 03-24-00846-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00846-CV

Paul Klocek and Maureen Klocek, Appellants

v.

J. Tomas Barrett and Cathleen A. Barrett, Appellees

FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-21-006692, THE HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING

MEMORANDUM OPINION

This is a dispute between neighbors J. Tomas and Cathleen A. Barrett (the Barretts)

and Paul and Maureen Klocek (the Kloceks) about easements. The Kloceks appeal the trial court’s

summary judgment in the Barretts’ favor. We will affirm.

BACKGROUND

The Barretts and the Kloceks are next-door neighbors in Travis County’s Courtyard

Subdivision, which borders Bull Creek to the east, Lake Austin to the south, and Loop 360 to the

west. The Kloceks’ property (Lot 14, Block B) does not have frontage on Bull Creek, but the

Barretts’ property (Lot 13, Block B) does. The back of the Barretts’ property slopes downhill

toward Bull Creek, where there are several boat docks owned by residents in the subdivision,

including one owned by the Kloceks. The Kloceks cannot access their boat dock from their own property. To that end,

the Kloceks have a 10-foot-wide access easement located along the eastern edge of the Barretts’

property that allows them to reach Bull Creek and their boat dock. This easement is included in

the deed to their property (the Klocek deed), which they bought in 2017 from the Ayreses and

references “the same tract reserved in instrument of record Volume 7595, Page 558, Real Property

Records, Travis County, Texas.” That recorded document is the original 1981 deed from the

Westover Hills Corporation to the Teggemans (the Teggeman deed), from whom the Barretts

purchased their property in 2010. It includes a paragraph describing this easement:

Easement or Right-of-Way: It is, however, understood and agreed that out of the property hereby conveyed there is hereby accepted and reserved unto Grantors [Westover Hills], their heirs and assigns, as owners of Lot 14, Block B, adjacent to the herein conveyed property, the free and uninterrupted use, liberty and easement of passing in and along a certain passageway or access land across the said premises and located along the entire eastern boundary of the premises and providing access from Lot 14, Block B across the premises to connect with a Limited Use Easement of 0.130 acres granted to Lot 13, Block B (said passageway or access lane being more particularly described as Tract 2 on the attached Exhibit “A”), and to use such passageway or road at all times in common with Grantee [the Teggemans], his heirs and assigns. Grantor does hereby covenant and agree to maintain the herein mentioned easement or right-of-way and shall be a burden and a benefit to the respective properties as set forth above.

The Kloceks’ deed also includes a provision that states:

It is understood and agreed that Grantors [the Ayreses] are not making and specifically disclaim, any warranties or representations or any kind or character, express or implied, with respect to the property and the easements. Grantees [the Kloceks] have conducted such inspections and investigations of the property and easements as Grantee deemed necessary, including but not limited to, the physical and environmental conditions thereof and shall rely upon same; Grantees acknowledge and agree that Grantors have conveyed to Grantees and Grantees have accepted the property and easements in their current condition, “as is, where is” with all faults. Grantees[’] agreement to purchase the property and easements without representations and warranties was a material factor in determining the purchase price of the property and easements. [Capitalization omitted]

2 Soon after purchasing the Lot 13, Block B property in the early 1980s, the

Teggemans constructed a retaining wall and flower bed, which includes two large, existing

boulders that form part of the home’s foundation, on the east side of the property. The retaining

wall, flower bed, and boulders encroach approximately four to five feet into part of the easement1

granted to Lot 14, Block B, now owned by the Kloceks. It is undisputed that this landscaping has

not been significantly altered since the Teggemans first implemented the plan and that, consistent

with the deed, the Teggemans and the Barretts have maintained the easement.

In mid-2020, the Kloceks told the Barretts that they intended to remove the

retaining wall and flower bed so they could have access to all 10 feet of the easement’s width at

all points to transport various watercraft to their boat dock. The Barretts opposed those plans,

arguing that this landscaping plan had been in place since the early 1980s and the trees in the

flower bed provide privacy between the homes. The Barretts also had a professional engineer

analyze potential modifications to the boulders or retaining wall, and his report concluded that any

disturbance would negatively affect the foundation of their home. The parties were unable to

resolve their disagreement, and in November 2021, when the Barretts were away from home, the

Kloceks hired a landscaping crew to begin destroying the retaining wall and removing the trees in

the flower bed. The Barretts returned home and stopped the work before it was complete, but the

trees had been cut down and the retaining wall required structural repairs.

The following week, the Barretts sued the Kloceks. In their live pleading, the

Barretts sought injunctive relief, damages, attorney’s fees, and a declaration that the Kloceks’

claims for the right to modify the landscaping in the easement are barred by, among other things,

1 The Barretts estimate that the flower bed and retaining wall encroach for about 28 feet of the 146-foot-long easement. 3 a two-year statute of limitations. The Barretts also asserted an adverse-possession claim for the

same property, but they later nonsuited that claim. In response, the Kloceks asserted declaratory

judgment and trespass-to-try-title counterclaims.

Both the Barretts and the Kloceks moved for summary judgment. In their motion,

the Barretts urged that (i) they adversely possessed the property bounded by the retaining wall and

flower bed under Texas Civil Practice and Remedies Code Section 16.025; (ii) even if they have

not adversely possessed the property, the statute of limitations to remove an encroachment into an

easement is two years and had long passed; (iii) the Kloceks purchased their property with a deed

that accepted “all easements in their current conditions” such that they waived any claim to remove

the encroachment; (iv) the balance of equitable principles favor leaving the property as is; and

(v) the Kloceks have unclean hands. The Barretts’ summary-judgment evidence included

Mr. Barrett’s affidavit with attached photographs of the easement, the professional engineer’s

affidavit and report, and Ms. Ayres’s affidavit, in which she attested that when she purchased the

property in 1988, and until she sold the property to the Kloceks in 2017, “there existed a flower

bed on the Barrett Property that protruded into the easement along the backside of the Barrett

Property.” Ms. Ayres attached to her affidavit photographs of the easement area, which she

attested “show the flower bed as I remember it during the entire time I was an owner of the []

Property.” These photographs show the same landscaping as in the photographs attached to

Mr. Barrett’s affidavit.

The Kloceks moved for summary judgment on their competing claims, arguing that

as the easement’s dominant tenant, they were entitled to a declaration that they may modify the

easement by removing the landscaping and a permanent injunction providing the same. The

Kloceks’ summary-judgment evidence included their deed, the Teggeman deed, and Mr. Klocek’s

4 affidavit that attached surveys, a photograph of the easement area, and excerpts from the Barretts’

professional engineer’s deposition.

In September 2023, the trial court granted the Barretts’ summary-judgment motion

with respect to any claim by the Kloceks to remove or destroy the retaining wall or anything

enclosed between the retaining wall and the Barretts’ house. In a letter ruling, the trial court

explained that it found that the Kloceks were barred by a two-year statute of limitations from

exercising any purported right to remove or destroy the retaining wall, flower bed, trees, or

boulders. Likewise, the trial court denied the Kloceks’ motion for summary judgment and

dismissed their claims to modify any of the landscaping. The trial court also denied the Barretts’

motion for summary judgment as it pertained to their adverse-possession claim, noting that such a

claim must be brought through a trespass-to-try-title claim, not declaratory judgment. Though the

Barretts amended their petition to add such a claim, they later nonsuited it.

While litigation proceeded, another dispute arose between the parties about the

boundaries of their respective limited-use easements. These easements extend into Bull Creek and

provide an area in which owners can build improvements, like a boat dock. Here, the parties

discovered a conflict in the metes-and-bounds description of their deeds’ respective limited-use

easements. The discrepancy created a small area in which the Kloceks’ limited-use easement

overlaps with the Barretts’ limited-use easement. The Barretts amended their petition to seek a

declaration that the description in their deed is accurate and requested that the trial court reform

the Kloceks’ deed to reflect the same description. The parties filed competing motions for

summary judgment on the issue. In the Barretts’ motion, they traced the origin of their limited-

use easement and its metes-and-bounds description to the 1981 Teggeman deed, which they

attached as evidence. The Barretts’ summary-judgment evidence also included the 1983 Mayfield

5 deed, from the Kloceks’ predecessors in interest, which first set forth the conflicting

metes-and-bounds description, as well as an email from the Kloceks’ attorney initially agreeing

that, given the “first in time, first in right” rule, “your clients’ [limited-use easement] description

would prevail if there was a dispute about it.” The Kloceks’ summary-judgment motion regarding

the limited-use easement urged that, among other things, the Barretts’ request for reformation was

barred by limitations and the Barretts had relied on the metes-and-bounds description contained in

the Kloceks’ deed when building their boat dock and thus should be estopped from asserting

otherwise. In June 2024, the trial court granted the Barretts’ motion and denied the Kloceks’.

After a hearing on attorney’s fees, the trial court entered final judgment that

incorporated its September 2023 and June 2024 summary-judgment orders and granted the

Barretts’ request for attorney’s fees. The Kloceks appeal.

STANDARD OF REVIEW

We review the trial court’s summary-judgment decision de novo. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). “‘When both parties move for

summary judgment and the trial court grants one motion and denies the other, as here, we review

both sides’ summary judgment evidence and render the judgment the trial court should have

rendered.’” BCCA Appeal Grp. v. City of Houston, 496 S.W.3d 1, 7 (Tex. 2016) (quoting Southern

Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013)). Traditional

summary judgment is proper when the movant establishes that no genuine issue of material fact

exists and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c).

6 DISCUSSSION

In two issues on appeal, the Kloceks argue that the trial court erred in determining

that they are not entitled to use their access easement in the manner they intend based on limitations

and by reforming the Barretts’ deed “based on alleged adverse possession.”

In their first issue, the Kloceks argue that the trial court erred in its 2023 order

granting the Barretts’ summary-judgment motion based on limitations. They urge that they never

sought judgment requiring the Barretts to remove any encroachments on their express easement

but “simply wished to improve their express easement to make it free from obstacles that prevent

the free and uninterrupted use of the easement as expressly intended in the Tegg[e]man and Klocek

deeds – to use it as a roadway.” The Barretts maintain that the trial court correctly ruled that

limitations bars the Kloceks’ claimed right to modify any of the easement’s landscaping, including

the retaining wall, flower bed, and boulders.

An action to prevent encroachment on a private easement may be barred

by limitations. Scott v. Babb, 419 S.W.3d 531, 532 (Tex. App.—San Antonio 2013, no pet.).

When a claim accrues is generally a legal question. Provident Life & Accident Ins. v. Knott,

128 S.W.3d 211, 221 (Tex. 2003). A claim for permanent damages to land has a two-year

limitations period that accrues upon the discovery date of the first actionable injury. 2 See Tex.

Civ. Prac. & Rem. Code § 16.003(a) (providing two-year limitations period for “suit for trespass

2 Neither the Kloceks nor the Barretts contend that the retaining wall, flower bed, or boulders are temporary injuries subject to a different limitations period. See generally Yancy v. City of Tyler, 836 S.W.2d 337, 340–41 (Tex. App.—Tyler 1992, writ denied) (discussing distinctions between permanent and temporary injuries to land and characterizing permanent injuries as “constant and continuous”); see, e.g., Rocha v. U.S. Home/Homecraft Corp., 653 S.W.2d 53, 55–56 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.) (concluding retaining wall was permanent, not temporary, injury to land). 7 for injury to the estate or to the property of another, conversion of personal property, taking or

detaining the personal property of another, personal injury, forcible entry and detainer, and forcible

detainer”); Scott, 419 S.W.3d at 533–34. This is true even if damages have not yet occurred.

Krohn v. Marcus Cable Assocs., 201 S.W.3d 876, 879 (Tex. App.—Waco 2006, pet. denied)

(quoting Provident, 128 S.W.3d at 221); see Scott, 419 S.W.3d at 534 (“Where a building or

permanent structure is placed on a private easement, the limitations period on an action to abate

the obstruction begins to run with the completion of the obstruction.” (quoting Auerbach

v. Dallas Area Rapid Transit, No. 05-94-01207-CV, 1995 WL 447530, at *3 (Tex. App.—Dallas

July 26, 1995, writ denied) (not designated for publication))).

Here, uncontroverted summary-judgment evidence establishes that the landscaping

plan, including the retaining wall, boulders, and flower bed, has been in place since at least as early

as 1988 and has remained essentially unchanged. The summary-judgment evidence also

establishes that the Kloceks knew about the landscaping in the easement when they purchased their

home, and their deed expressly states that they accepted the easements “in their current condition,

‘as is, where is’ with all faults.” See Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 700 (Tex.

2002) (“Unlike a possessory interest in land, an easement is a nonpossessory interest that

authorizes its holder to use the property for only particular purposes.”); Cummins v. Travis Cnty.

Water Control & Improvement Dist. No. 17, 175 S.W.3d 34, 51 (Tex. App.—Austin 2005, pet.

denied) (“The easement holder is only entitled to do what is ‘reasonably necessary’ to fairly enjoy

the rights that were expressly granted, and if a purpose was not expressly provided for in the grant,

it is not permitted.”). Thus, the limitations period for the Kloceks’ claim regarding encroachments

on the easement has lapsed, and the trial court correctly concluded that such a claim is time-barred.

See Tex. Civ. Prac. & Rem. Code § 16.003(a); Scott, 419 S.W.3d at 534. The caselaw that the

8 Kloceks cite in favor of their argument that they simply wish to improve their easement is

inapposite because it concerns the complete obstruction of an access easement—unlike the

circumstances here, where it is undisputed that the Kloceks regularly use the easement as intended,

to reach Bull Creek—and does not implicate the statute of limitations. Cf. Ferrara v. Moore,

318 S.W.3d 487, 489–92 (Tex. App.—Texarkana 2010, pet. denied) (affirming injunction

prohibiting appellant from restricting use of access easement with inaccessible gates and other

obstacles). And though the Kloceks frame the issue as one of adverse possession, the trial court

did not grant summary judgment based on the Barretts’ adverse-possession argument, and the

Barretts nonsuited their adverse-possession claim before final judgment. We overrule the Kloceks’

first issue.

Next, the Kloceks argue that the trial court erred by reforming the Barretts’ deed

“based on alleged adverse possession” because the Barretts failed to meet the essential elements

of an adverse-possession claim. But the trial court did not reform the Barretts’ deed; it reformed

the Kloceks’ deed to reflect the metes-and-bounds description of the Barretts’ limited-use

easement. To the extent that the Kloceks intend to challenge the reformation of their deed

regarding the limited-use easement “based on alleged adverse possession,” that argument also fails

because the Barretts did not move for summary judgment based on an adverse-possession claim

to the limited-use easement, and nothing in the record indicates that the trial court reformed the

Kloceks’ deed based on the Barretts’ alleged adverse possession. See Tex. R. Civ. P. 166a(c)

(“The motion for summary judgment shall state the specific grounds therefor.”); Rogers v. Coslett,

646 S.W.3d 1, 12 (Tex. App.—Texarkana 2022, no pet.) (“A summary judgment movant may not

be granted judgment on a claim or cause of action not addressed in its motion.” (citing Black

v. Victoria Lloyds Ins., 797 S.W.2d 20, 27 (Tex. 1990))). We overrule the Kloceks’ second issue.

9 CONCLUSION

Having overruled all of the Kloceks’ issues on appeal, we affirm the trial court’s

final judgment.

__________________________________________ Rosa Lopez Theofanis, Justice

Before Justices Triana, Theofanis, and Crump

Affirmed

Filed: August 6, 2025