### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00610- CV

Inf initi H otel G roup, LL C, Appellant

v. Vinay Pat el and S ai Laxmi, LLC, Appellees

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. C2009 -01 38B , H ONO RAB LE DIB WALDRIP , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This appea l arises from a d i s p u te betwee n adjoining proper ty owner s reg arding an

ease ment. Appellant I nfiniti Hotel Group, L L C filed suit ag ainst appellee s Vi n ay P at el and Sai L axmi , L L C (collectively “Sai L axmi ”) seeking to e njoin Sai L axmi from construc ting a hotel and parking lot that would require acc ess o v er I nfiniti’s lot. Sai L axmi counter claimed for decla ratory judgme nt r eg arding a claimed ease ment. I nfiniti appea ls from a summary judgme nt in favor of Sai L axmi on their counte rcla ims, asserting that the trial cour t erre d by (1) f ailing to hold

a separ ate evidentiar

y hear ing on the ad m issibil ity of I nfiniti’s expert aff idavit, (2) sustaining Sai L axmi ’s objections to I nfiniti’s expert aff idavit, (3) g ranting Sai L axmi ’s summ a r y ju d g me n t mo ti o n , and (4) denying I

nfiniti’s moti on to enforc e a r ule 11 ag ree ment. We will affirm the judg ment.F ACTUAL AND P ROCEDURAL BACK GR OUND The parties own a total of three lots loca t ed o n the frontag e road of I H-35 in New Br aunfe ls, Texas. Sai L axmi owns two lots along the frontag e road and I nfiniti owns a T-shape d lot located behind Sai L axmi ’s lots. The “stem” of I nfiniti’s “T” ends at the frontag e road and connec ts the main portion of I nfiniti’s otherwise landlocked proper ty to the I H-35 frontag e. Sai L axmi ’s lots

are located on e ither side of Infiniti’s lot. The following is a simplified dra wing of the lots.

The light g ray are a of this draw ing, which is the “stem” of I nfiniti’s lot, is a private road connec ting the I H-35 frontag e to I nfiniti’s main lot. I t provides the only acc ess from the I H-35 frontag e to the three lots beca

use the Texas Depa

rtment of Transpor

tation (“TxDOT”) h as d es i gn ated the are as wher e lots 1D-3 and 1D-4 adjoin the I H-35 frontag e as “no acce ss” ar eas. L ot 1D-1, which is not part of this suit, has separ ate a cce ss to another roa d.

Sai L axmi wanted to construct a multis tory hotel on lot 1D-3 and use the smaller lot 1D-4 as a parking lot. Be cause New Bra unfels’ z oning ordinance s require that parking s p ac es b e

2located on the same lot as the structure s they serve , Sai L axmi soug ht a v aria nce from the city to allow construction of parking space s on the second lot acr oss the “s h ar ed acc ess roadw ay ”—i.e., I nfiniti’s pr ivate road—f

rom the hotel lot. I nfiniti objec ted to the reque st on various g rounds, but, afte r a public he aring , the city ’s zoning boar d approve d Sai L axmi ’s var iance

.

I nfiniti filed this suit in district court ag ainst the zoning board and Sai L axmi , seeking revie w of the zoning board’ s decision and an injunction to preve nt Sai L axmi from beg inning construction on its hotel and parking lot. I nfiniti asserted that the zoning board’ s varia nce cre ated

a public safe ty hazard and incre ased I nfiniti’s liability exposure. I nfiniti also arg ued that the board’ s decision “er

roneously assume[d] that Sai L axmi had an ease ment acr oss I nfiniti’s private road.” I n response , Sai L axmi filed a counter claim, seeking decla ratory judgme nt that its two lots benef itted from an “express ease ment for utilit ies and share d acc ess” to Infiniti’s private road that provided “unre stricted rig hts to ingre ss and eg ress” for Sai L axmi ’s two adjoining lots.

Sai L axmi then filed a

motion for summary

judgme nt, asserting that it was entitled to summary judgme nt on its countercla im for dec lara tory relief . I t arg ued that the plat r ecor ds for the three lots, which wer e ref ere nced in the war

ranty deeds for all three lots, show as a matter of law that the Sai L axmi ’s two lots benef it from a “non-e x clusive Easeme nt App u rt enant for Shared Acc ess and Utiliti es with Rights.” I n support of its motion, Sai L axmi offe red the aff idavit of Vinay Patel, which included the war ranty deeds a nd the plat re cord r efe renc ed in those wa rra nty deeds. Fo u r d ay s befor e the hear ing on Sai L axmi ’s motion for summary judgme nt, after having unsucce ssfully soug ht a continuance of that hear ing, Infiniti nonsuited its claims ag ainst Sai L ax m i and filed a response to Sai L axmi ’s motion for summary judgme nt. I nfiniti’s response

3asser

ted that Sai L ax m i wa s n o t entitled to summary judgme nt beca use the plat did not g rant Sai L ax m i ’s lots an ease ment for share d acc ess to I nfiniti’s private road. I n support of its response , I nfiniti attache d the aff

idavit of its expert, Robert Miller. Sai L axmi objected to Miller’s aff idavit,

asser ting that his testimony was inadmissible beca use (1) Miller was not qualified to rende r expert testimony in the case , (2) his underlying methodology was unreliable , and (3) his aff idavit contained leg al conc lusions.

After hear ing argument, th e d istric t court took the matter under advisement. Ten day s afte r the hear ing, on Aug ust 2 0 , 2 0 0 9 , t he trial court issued an order sustaining Sai L axmi ’s objections to Miller’s aff

idavit and g ranting partial summary judgme nt in favor of Sai L axmi on its counter claim ag ainst I nfiniti. The trial court found that Sai L axmi ’s lots “held an express ease ment 1 for utilit ies and share d acc ess along the entirety of [I nfiniti’s private road].” The trial court notified the par ties of its decision in the matter by a letter dated a nd file marke d Aug ust 21, 2009. On Aug ust 24, 2009, the parties, appar ently unawa re of the court’s Aug ust 20, 2009 ruling , enter ed into a rule 11 letter ag ree ment reg arding various scheduling and discove ry matters, including an ag ree d date for a rehe aring on Sai L axmi ’s summary -judg ment motion. After lear ning of the summary judgme nt, I nfiniti filed a m o t i o n asking the trial court to rec onsider its summary judgme nt and enfor ce the rule 11 ag ree ment. The trial court did not make an express ruling on either of these two motions, but did g rant the parties’ ag ree d motion to sever this case from I nfiniti’s claims ag ainst the zoning board, rende ring the trial court’s partial summary judgme nt final. I nfiniti appea ls.

I nfiniti’s claims ag ainst the city rema ined pending

. 1 4DISCUSSIO N

Expert-witness af

fi davit I n its first two issues, I nfiniti contends that the trial court err ed in finding that its exp er t-witness aff

idavit was inadmissible as summary -judg ment evidenc e. The admission and ex clusion of ex pert testim ony are matters withi n the t rial court’s discretion. See E

. I. d u P o nt de Nemours & Co. v. R o b i nson , 923 S.W .2d 549, 558 (Tex. 1995); see also City of Brownsville v. Alvarado , 897 S.W .2d 750, 753 (Tex. 1995) (discussing admission and exclusion of evidenc e in g ener al). To succe ssfully challeng e an evide ntiary ruling , the complaining party must show that t h e j udg ment turned on the particula r evidenc e being challeng ed and that the err or in admitting or excl u d i n g t h e evidence probably resulted in the rendition of an improper judgme nt. Tex. R. App. P 44.1(a) ; Alvarado , 897 S.W .2d at 753-54. The evidenc e at issue consisted of Miller’s expert-witness aff

idavit reg arding the proper construction and eff ect of the rele vant pla

t r e c o rds. The dispositi ve issue in this case is whether the plat rec ord cre ated an express ease ment for share d acc ess to I nfiniti’s private road. For rea sons discussed i n gre ater detail below, we hold that the plat

rec ords here are “susce ptible to only one rea sonable, definite interpre tation afte r apply ing the rules of contra ct construction” and thus prese nt purely leg al questions. See Marcus Cable Assocs., L.P. v. K rohn , 90 S.W .3d 697, 703 (Tex. 2002). As such, the issue in this case is not a matter for which expert-opinion testimony will assist the trier of fac t. See Upjohn Co. v. Rylander , 38 S.W .3d 600, 611 (Tex. App.—Austin 2000, pet. denied) (expert witness may not testify reg arding an opinion

on a pure question of law); Tex. R. Evid. 702 (providing that expert witness may testify if “scie ntific, technica l, or ot her spe cialized knowledg e will assist the trier of f act to under stand the evide nce or

5to deter

mine a fac t in issue”). I nfiniti makes no showing of how the exclusion of Miller’s aff idavit probably cause d the rendition of an improper judgme nt, and, afte r revie wing the summary -judg ment

rec ord, we conclude any err or in excluding the aff idavit testimony was harmless. See Tex. R. App. P. 44.1. Accor dingly , we ove rrule I nfiniti’s first and sec ond issues.

Summ ary Judgm ent

I n its third issue, I nfiniti argues that the trial court err ed in g ranting Sa i L axmi ’s summary judgme nt beca

use it incorre ctly interpre ted the phrase “U.E. & Shared Acc ess” in the plat

rec ords as g ran t i n g an “express ease ment for utilit ies and share d acc ess” to I nfiniti’s road that benef itted Sai L axmi ’s two lots. I nfiniti asser ts that Sai L axmi purcha sed two landlocked lots—i.e., they have no acc ess t o t h e I H- 35 frontag e over I nfiniti’s private road—be cause “shar ed acc ess”

mere ly indicates the one place—i.e., shared—whe re these t hree lots can leg ally acc es s I H- 3 5 , but that Sai L axmi failed to obtain “ appropr iate interna l acc ess ea sements” to use the acc ess point.

We revie w summary judgme nts de novo. Valence Operating Co. v. Dor sett , 164 S.W .3d 656, 661 (Tex. 2 0 0 5 ). A movant is entitled to summary judgme nt if (1) there are no g enuine issues of materia l fac t, and (2) it is entitled to judgme nt as a matter of law. Tex. R. Civ. P. 166a(c ); Nixon v. Mr. Prop. Mgmt. Co ., 690S.W .2d 546, 548-49 (Tex. 1985). We indulge

ever y rea sonable infere nce and resolve any doubts in favor of the non-movant. Nixon , 690 S.W .2d at 548-49. An ease ment is a nonpossessory rig ht to use the rea l proper t y o f another. Marcus Cable , 90 S.W .3d at 700. An express ease ment is cre ated by ag ree ment of the parties and is subject to the statute of fra

uds. Cummins v. Travis County W a t er Co n t r o l & Improve ment Dist. No. 17 , 6175 S.W .3d 34, 51 (Tex. App.—Austin 2005, pet denied)

. To satisfy the statute of fra uds, the written document cre ating the easement m ust show the i ntent of t he parties, the essential ter ms of the easement, and an adequate description of the easement’s location. Id. No particular words or forms, however, are require d to cre ate a n ease ment as l ong as t he langua g e shows the i ntention to g rant or rese rve an ease ment. Mitchell v. Castellaw , 246 S.W .2d 1 6 3 , 1 6 6-67 (Tex. 1952). An

ease ment’s express terms, which are to be g iven their plain meaning , define the purposes for which the ea sement holder ma

y use the prope rty

. Id

. “We apply basic princip l es o f contra ct construction and interpre tation when considering an expres s ea s ement’s terms.” Marcus Cable , 90 S.W .3d at 700. The scope of the

ease ment must be deter

mined by the intent of the parties as expressed in the terms of the g rant. Id. (citing DeW

itt County Elec. Co-op., Inc. v. Parks , 1 S.W .3d 96, 103 (Tex. 1999)); see also Restatement (Third) of Property (Servitudes) § 4.1 (providing that ease ment “should be interpre ted to g ive eff

ect to the intention of the parties asce rtained from the languag e used in the instrument, or the circ umstances surrounding the cre ation of the servitude, and to car ry out the purpose for which it was cre ated” ). “When the g rant’s terms are not specific ally define d, they should be g iven th eir plain, ordinary , and g ener ally acc epted meaning .” Marcus Cable , 90 S.W .3d. at 701; Re statement (Second) of Contracts § 202(3)( a) (“U nless a differ ent intention is manifested, wher e lang uag e has

a g ener ally preva iling meaning , it is interpre ted in acc ordanc e with that meaning .”). “When an

ease ment is susceptible to only one rea sonable, definite interpre tation afte r a p p ly in g e s ta b li s h e d rules of contra ct construc tion, we ar e oblig ated to construe i t as a matter of law even if the pa rties offe r differ ent interpre tations of the ea sement’s ter ms.” Marcus Cable , 90 S.W .3d

. at 703.

7The plat rec ord at issue here is a profe ssional survey . I t was approve d by the city and

filed of rec ord in the county rec ords. I t is titled “Resubdivision of Plat of L ot 1D” and it shows the orig inal lot 1D divided into four lots—1D-1 throug h 1D-4. The plat shows lot 1D-2’s private road

as the only permitted acc ess to I H-35 for lots 1D-2, 1D-3, and 1 D- 4

. “U

. E

. & Shared Acc ess” is written inside the private road and two solid lines extend from that phrase to other are as on the plat:

one line extends from the front of the “U” to the boundary line betwee n the private road and lot I D-3; the other line extends from the end of “Share d Acc ess” to the boundary line betwee n the private road and lot I D-4. The only other information reg arding the private road on the survey is the width of the private r oad, which the plat indicates with a line dra wn from “ A=48.03' ” to the boundar y betwee n the roa d and I H-35. The following is a simplified drawing of the surve y as discussed he re.

I nfiniti asser

ts that the amper sand betwee n the “U.E.” and “Share d Acc ess” makes the two phrase s “sepa rate and distinct rig hts.” Specifica lly , I nfiniti arg ues that while “U.E.” cre ates a utilit y

8ease ment over the private road, the term “Share d Acc ess” does not cr ea t e an ease ment beca use “U.E.” is separ ated from that phrase by the amper sand—i.e., the ease ment does not apply to “shar ed

acc ess.” I n an argument that we do not fully understand, I nfiniti a sserts that “Share d Acc ess” only indicates that the three lots “shar e” the only authorized ingr es s an d egr ess point to the I H-35 frontag e. I nfiniti asser

ts, howeve r, that beca

use Sai L axmi failed to obtain internal ea sements

nece ssary to use the ac ce ss point, Sai L axmi ’s lots lack a leg al means of acc essing the I H-35 frontag e—i.e., they are landlocked. I nfiniti bases its asser tion on the Tx DOT’s definiti o n of that phrase as a “sing le connec tion serving two or more adjoining lots or parc els.” Acc ess Mgmt. Manual 1-12 (June 2004) (Te x . Dep’ t of Tra nsp.). We disag ree with I nfiniti’s construction. Assuming without deciding that Tx DOT’s definition of “shar ed acc ess” is somehow applicable to the plat rec ord here , I nfiniti’s construction is not re asonable g iven the plat rec ord’s place ment of and desig nation for that phrase

. The phrase is writ t en inside the boundarie s of the private road and has lines extending from eac h end of the phrase to the boundarie s betwee n the lots and the private road. These ty pe of lines are used on this plat to desig nate the point on the pl at t o wh i ch the information applies, usually beca use it would not be clea

r based on the information’s place ment on the plat. For example, to indicate the width of the private road wher e it meets I H-35, the plat shows “A= 48.03' ” written inside Sai L axmi ’s 1D-3 lot with a line running from it to the line indicating the boundary betwee n the private road and I H-35. Also, to show the boundary for the 20' utilit y ease ment along I H-35 an d t o i n d i ca te t he width of t he lot 1D-3, which would be otherwise ambig uous g iven the proxi mity of this information on the plat, there are separ ate lines running from “20' U.E.” and from “A=202.20' ” to the areas of the pl at t o which they ref er. Presumably t h en , i f

9“Share d Acc ess” means, as I nfiniti arg ues, the entry point along I H-35 for the proper ties, there would be a line extending from “Share d Acc ess” to the point wher e the pri vate road intersec ts I H-35. I nstead, the lines extend from eac h end of the phrase “U.E. & Shared Acc ess” to the boundarie s betwee n Sai L axmi ’s lots and the private road. This indicates the intent that both “U.E.” and “Share d Acc ess” tog ether ref er to the e ntirety

of I nfiniti’s private roa d. I nfiniti argues that the resubdivision of lot 1D into four lots resulted in lots 1D-3 and 1D-4 being “landlocke d”—i.e., without acc ess to a rig ht of way —beca use Sai L axmi failed to ensure that, in addition to the share d acc ess to the entra nce point to I H-35, it also had acc ess to the private road that would allow it to use that share d acc ess point. I n support of its interpre tation, I nfiniti relies

on Tx DOT’s war

nings to purcha sers of resubdivided lots. See Acc ess Mgmt Manual 2-11 (June 2004) (T ex . Dep’ t of Transp.)

. Whil e I nfiniti is corr ect that Tx DOT urg es purcha sers to ensure

acc ess to resubdivided lots with share d acc ess points, the plat h er e d oes that beca use the phrase “Share d Acc ess” modifies the side s of the priva te roa d and not the point at w hich the road a djoins I H-35. Thus, the two “landlocke d” lots have the rig ht to acc ess I H-35 along the leng th of the private road; in other words, an ease ment. See Marcus Cable , 90 S.W .3d at 700 (def inition of ease ment). Construing the plat as I nfiniti sug g ests rende rs the phrase “Share d Acc ess” as used on the plat meaning less. We decline to interpre t the plat rec ord in a way that rende rs a provision meaning less. Seagul l Energy E & P, Inc. v. Eland Energy, Inc ., 207 S.W .3d 342, 345 (Tex. 2006) (noting that court must “examine and consider the entire writi ng in an eff ort to harmonize and g ive eff ect to all the provisions of the c ontrac t so that none will be rende red me aning less.”).

10Finally , I nfiniti argues that the plat rec ords do not sufficie ntly identify the ease ment

as require d by the statute of fra uds. See AIC Mgmt. v. Crews , 246 S.W .3d 640, 645 (Tex. 2008) (“To be valid, a convey ance of rea l proper t y must contain a sufficie nt descr iption of the proper ty to be

co n v ey ed.”) The statute of fra uds is satisfied, howeve r, as long as the writing “fur nishes wit h i n itself, or by ref

ere nce to some other exis ting writing , the m ea n s o r d ate by which the land to be convey ed may

be identified w ith reasona ble ce rtainty .” Id. ; W

est Beac h Marina, Ltd. v. Erdeljac , 94 S.W .3d 248, 264 (Tex. App.—Austin 2002, no pet.). The plat rec ord here , which is a survey of the proper

ty , indicates that the “U.E. & Shared Acc ess” ref ers to the are a inside the boundary lines betwee n Sai L axmi ’s two lots and the private road. This is sufficie nt to satisfy the statute of fra uds require ments reg arding descr iption of the re al prope rty interest. We ove rrule I nfiniti’s third issue. Rule 11 agree m ent

I n its final i ssue on appea l, I nfiniti contends that the t rial co u rt err ed in denying its motion to enforce the par ties’ rule 11 a g ree ment. The rule 11 ag ree ment was sig ned af ter the tria l court rende red summary judgme nt, but prior to the parties’ rec eiving notice of the judgme nt. When I nfiniti lea

rned tha t the trial court ha d g rante d summary judgme nt on Sai L axmi ’s counter claim, it filed a motion to rec onsider the summary judgme nt and a motion to enfor ce the rule 11 ag ree ment,

asser ting that the rule 11 ag ree ment somehow rende red the trial court’s g rant of summary judgme nt “moot.” The trial court did not rule on e ither motion.

I n addition to the fac t that I nfiniti fails to provide any support for its asser tion that the rule 11 ag ree ment rende red the tr i al court’s summary judgme nt “moot,” I nfiniti failed to prese rve

err or on this issue. To prese rve err or for appellate revie w, the rec ord must show that the trial court 11ruled on or ref used to rule on the motion complained of on appea l. See Tex. R. App. P. 33.1(a) (2). Although rule 33.1 contemplates that implied ruling s may , in cer tain circ umstances, be sufficie nt to prese rve e rror , there is no indication here that I nfiniti reque sted consideration of its motion to enfor ce either by submissi on or ora l hear ing. Finally , we would note that under the circ umstances pr esente d here —i.e., a r ule 11 ag ree m en t t h at contemplates further pre- trial action in a case that, unknown to either party , had alre ady been resolved by the trial court in summary judgme nt, but which did not ag ree to disreg ard a pre vious disposi tive ruling—the trial cour t did not abuse its di scre tion in refusing to enforc e the ag ree ment. See M

antas v. Fifth Ci rcuit Court of Appeals , 925 S.W .2d 656, 659 (Tex. 1996) (trial court’s decision t o enfor ce rule 11 ag ree ment revie wed for abuse of discretion). Acc ording ly , we

overr ule I nfiniti’s fourth issue.

CONCLUSION Having overr

uled Infiniti’s four issues, we a ffirm the judg ment of the trial c ourt.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med Filed: Apr il 8, 2011

12