IN THE

TENTH COURT OF APPEALS

No. 10-18-00329-CV

CURTIS CAPPS,

Appellant

v.

THE KNOWN AND UNKNOWN

HEIRS OF PRISCILLA FOSTER, ET AL,

Appellees

From the 272nd District Court

Brazos County, Texas

Trial Court No. 12-001362-CV-272

D I S S E N T I N G O P I N I O N

I. Position

I cannot agree with the Court’s opinion or judgment.

II. Jurisdiction

It may be that we don’t have jurisdiction. The parties have framed a Motion to 

Dismiss and Response in Opposition. If the Appellees’ Motion to Enforce Judgment 

pursuing injunctive relief and the trial court’s Order granting an injunction is not an 
Capps v. Foster Page 2

appealable Order, this Court has no jurisdiction to review by direct appeal that Order. 

See Kelly v. Wiggins, 466 S.W.3d 324, 327 (Tex. App.—Houston [14th Dist.] 2015, no pet.) 

(“post-judgment orders made for the purpose of enforcing or carrying into effect a prior 

judgment are not subject to appeal because they are not final judgments.”). That Motion 

pleads for relief to enforce the Final Judgment in Cause Number 12-001362-CV-272 

between these parties.1 Capps v. Foster, No. 10-14-00061-CV, 2016 WL 279022 (Tex. App.—

Waco Jan. 21, 2016, pet. denied) (“Capps I”). If there is no jurisdiction, we should dismiss.2

III. What About An Appeal?

Adverse Possession and Landlocked

We found in Capps I in 2016 that Appellant Capps should not prevail against 

Appellees “Foster Heirs” because of their superior adverse possession title to 64.35 acres, 

landlocked inside a total tract of 285.50 acres. Id. Our jurisprudence does not favor 

landlocked realty. See Hamrick v. Ward, 446 S.W.3d 377 (Tex. 2014). In fact, since the mid19th century, our system of justice has developed at least five designated access 

easements, all proven by different element groupings. See Fagan v. Crittenden, 166 S.W.3d 

748, 749 (Tex. App.—Waco 2005, pet. denied) (Gray, C.J., dissenting on reh’g). The Capps 

I trial and appellate dispositions said nothing about access or appeals. In fact, the earliest 

discord between these parties on the subject of access appeared to commence in 

September 2017.

 

1 These parties certainly can pursue other procedures and remedies.

2 The trial court’s Order is not an appealable interlocutory order.
Capps v. Foster Page 3

IV. Limitations and Easements

If this Court has jurisdiction, I disagree there is a valid limitations question that 

prohibits Appellees’ access by easement. However, it is plausible that this appeal should 

reverse and remand to the trial court for further proceedings, likely to more fully develop 

what I believe to be multiple easement access questions. See Staley v. Stiles, 483 S.W.3d 

545 (Tex. 2016); Harrington v. Dawson-Conway Ranch, Ltd., 372 S.W.3d 711 (Tex. App.—

Eastland 2012, pet. denied).

If limitations on reversal is an issue, we have adopted a succinct view from the 

Supreme Court of Texas that coincides, as I see it, with the limitations clock starting to 

run on easement application after access disputes started in the fall, 2017.

A cause of action generally accrues, and the statute of limitations 

begins to run, when facts come into existence that authorize a claimant to 

seek a judicial remedy. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 

828 (Tex.1990); see also Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 

(Tex.1990) (“[A] cause of action can generally be said to accrue when the 

wrongful act effects an injury.”). Today we are asked to decide whether, in 

a suit by an insured against its agent for negligent breach of the agent's duty 

to obtain insurance, the injury-producing event was the denial of coverage 

by the insurance company, or the final resolution of the coverage dispute 

by the courts. We hold that Kenneco sustained injury when coverage was 

denied and, therefore, limitations commenced on that date because all facts 

required for a cause of action existed at that time. See Gilbreath v. White, 903 

S.W.2d 851, 856 (Tex.App.—Texarkana 1995, no writ) (holding that legal 

injury occurred for purposes of negligence action against insurance agent 

when insurance company rejected the claim); see also Bush v. Ford Life Ins. 

Co., 682 So.2d 46, 47–48 (Ala. 1996); Plaza Bottle Shop v. Al Torstrick Ins.

Agency, 712 S.W.2d 349, 350 (Ky. Ct. App. 1986).

Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex. 1998).
Capps v. Foster Page 4

V. Conclusion

Since I disagree with the Court on its proposed Memorandum Opinion, I 

respectfully would dismiss the current appeal or reverse and remand the proposed 

disposition to the trial court for further proceedings consistent with my dissent.

Respectfully, I dissent.

REX D. DAVIS

Justice

Dissenting opinion delivered and filed August 21, 2019.