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

MEMORANDUM OPINION

In two issues, appellant, Curtis Capps, challenges an “Order and Judgment 

Granting Injunction” granted in favor of appellees, the known and unknown heirs of 

Priscilla Foster. Specifically, Capps asserts that: (1) the trial court lacked jurisdiction to 
Curtis Capps v. The Known and Unknown Heirs of Priscilla Foster, et al Page 2

grant an easement in this case; and (2) even if the trial court had jurisdiction, the Foster 

heirs failed to establish the elements for an easement claim. We reverse and render.1

I. BACKGROUND

For a second time, a certain landlocked, 285.5-acre tract of land in Brazos County, 

Texas, is in dispute.2 See generally Capps v. Foster, No. 10-14-00061-CV, 2016 Tex. App. 

LEXIS 626 (Tex. App.—Waco Jan. 21, 2016, pet. denied) (mem. op.) (“Capps I”). In Capps 

I, Capps filed suit to remove a cloud on the title to this property. See id. at *4. The Foster 

heirs filed an adverse-possession counterclaim. Id. The trial court awarded to the Foster 

heirs title to four tracts contained within the larger 285.5-acre tract, and we affirmed.3 Id.

at *4, **20-21.

 

1 The Foster heirs have also filed a motion to dismiss Capps’s appeal for lack of jurisdiction. In 

light of our disposition, and because the trial court’s “Order and Judgment Granting Injunction” acts in the 

nature of a mandatory injunction that resolves property rights, we deny this motion. See Jack M. Sanders 

Family P’ship v. Roger T Fridholm Revocable Living Trust, 434 S.W.3d 236, 242 (Tex. App.—Houston [1st Dist.] 

2014, no pet.) (“A post-judgment order, however, may be appealable if an appeal is statutorily authorized 

or if the order has the nature of a mandatory injunction that resolves property rights. . . . A post-judgment 

order operates as a mandatory injunction when it resolves property rights and imposes obligations on the 

judgment creditor or interested third parties.”); see also In re Doe, 397 S.W.3d 847, 849 (Tex. App.—Fort 

Worth 2013, orig. proceeding) (“When, however, a post-judgment order acts in the nature of a mandatory 

injunction that resolves property rights, it may be appealable.” (citing Schultz v. Fifth Judicial Dist. Court of 

Appeals, 810 S.W.2d 738, 740 (Tex. 1991) (orig. proceeding), abrogated on other grounds by In re Sheshtawy, 154 

S.W.3d 114, 124-25 (Tex. 2004) (orig. proceeding) (holding that a turnover order that resolved property 

rights and acted “in the nature of a mandatory injunction” was appealable))). 

2 As noted in the trial court’s findings of fact and conclusions of law,

The original 285.5 acre tract is the land more fully described in the deed from William W. 

Dunlap as agent for Archibald McDowell to Wiatt Butler, Peter Morgan, Nelson Constance 

and Alex Scott dated January 4, 1875 and recorded in Volume P, Page 293 of the Official 

Records of Brazos County, Texas. 

3 The four tracts are commonly referred to as the Priscilla Foster Tract, the Henry Foster Tract, the 

Mattie Carter Tract, and the Tom Hill Tract, and these tracts comprise 64.351 acres of the 285.5-acre tract.
Curtis Capps v. The Known and Unknown Heirs of Priscilla Foster, et al Page 3

On August 14, 2018, the Foster heirs filed a “Motion to Enforce Judgment and 

Request for Injunctive Relief.” In this filing, the Foster heirs alleged that, commencing in 

September 2017, Capps began engaging in a course of conduct to defy the terms of the 

trial court’s final judgment in Capps I. Specifically, the Foster heirs contended that Capps: 

(1) maliciously harassed them by “removing from the Movants’ easement and property 

Movants’ signs and board of instructions,” “swearing out or causing to be sworn false 

complaints of criminal theft,” and “causing the sheriff’s department to arrest and jail 

individuals visiting the property who were guests, and in at least one case, the spouse of 

one of Priscilla Foster’s Heirs who is a movant herein”; (2) installed new locked gates and 

placed locks on long-existing gates located on Day Road in order to prevent access; and 

(3) performed acts of intimidation, including written statements that amounted to threats 

aimed at discouraging use of Day Road by the Foster heirs and their invitees. The Foster 

heirs argued Capps’ actions obstructed and prevented them from enjoying full use of 

their property, as granted by the trial court’s prior judgment in Capps I. Accordingly, the 

Foster heirs sought to enforce the trial court’s prior judgment and requested a permanent 

injunction against Capps “from interfering in any manner with Movants’ continued 

possession and use of said Day Road as the easement of access for their properties as 

adjudged and ordered . . . .”
Curtis Capps v. The Known and Unknown Heirs of Priscilla Foster, et al Page 4

The trial court conducted an evidentiary hearing on the Foster heirs’ motion and 

request and ultimately ruled in favor of the Foster heirs. The trial court’s “Order and 

Judgment Granting Injunction” provided the following, in relevant part:

Having considered the evidence and arguments, the Court finds and 

concludes that the Defendants [the Foster heirs] are entitled to enforcement 

of their Final Judgment signed and entered on January 22, 2014, and the 

relief necessary for such enforcement as hereinafter given.

IT IS THEREFORE, ORDERED that the Plaintiff be and hereby is 

commanded to cease, desist and refrain from blocking, impeding, 

interfering and preventing full access by Defendants on, along and across 

Day Road, aka Day Lane, aka Day Street in their travel on such easement 

and right-of-way from FM 2154 through any and all property in which he 

claims an interest, including, but not limited to the 9.437 acres, called 

10.6582 acre and known as the ANITA VASQUEZ TRACT and Plaintiff 

[Capps] is to cease and desist taking any actions which would impede, 

interfere, discourage, frustrate or prevent the Defendants and their families, 

agents, contractors, invitees, tenants and lessees from having and enjoying 

full use and freedom of access and passage along, by, across and through 

the easement designated in Plaintiff’s Exhibit 44, Defendants’ Exhibit 15 in 

the record of the original trial of this case . . . which easement has and 

continues to be known as Day Road, aka Day Lane, aka Day Street, as it 

passes through and across both DEVER SURVEY and the J.M. BARRERA 

SURVEY to the four (4) tracts of land set forth in the Judgment of this Court.

IT IS FURTHER ORDERED that the Plaintiff be, and hereby is, 

commanded on or before Oct[ober] 19, 2018, to remove all locks on any 

gates located on said road, easement and right-of-way, to remove any 

threatening signs, to cease filing criminal proceedings in the County Courts 

requesting punishment to individuals using the easement and right-of-way 

known as Day Road, aka Day Lane, aka Day Street and restore the boards 

of instructions previously posted by Defendants.

The trial court also entered findings of fact and conclusions of law. This appeal followed.
Curtis Capps v. The Known and Unknown Heirs of Priscilla Foster, et al Page 5

II. JURISDICTION

In his first issue, Capps contends that the trial court lacked jurisdiction to amend 

its judgment after its plenary power expired. In particular, Capps argues that “the Foster 

heirs never sought an easement—nor was one purportedly granted—until four years 

after the judgment was entered. At that point, the court’s plenary power had lapsed, the 

court lacked jurisdiction, and its judgment granting an easement is therefore void.” The 

Foster heirs counter that they presented evidence at the 2013 bench trial that they were 

entitled to an implied easement appurtenant known as Day Road by both necessity and 

prior use. According to the Foster heirs, their right of access by easement necessarily 

passed with the property awarded.

With regard to a trial court’s plenary power, the expiration of that power, and 

orders entered by the trial court after plenary power expires, Texas courts have stated:

A court order is void if it is apparent that the court had no jurisdiction of 

the parties or property, no jurisdiction of the subject matter, no jurisdiction 

to enter the particular judgment, or no capacity to act. A trial court cannot 

act when it has no jurisdiction, and a reviewing court cannot find 

jurisdiction where none exists. Orders issued outside of a trial court’s 

plenary power are typically void, because a court no longer has jurisdiction 

to act once its plenary power has expired.

The Texas Rules of Civil Procedure limit a trial court’s jurisdiction 

after it has entered a final judgment. Rule 329b generally provides that a 

trial court retains jurisdiction over a case for a minimum of thirty days, 

during which time the trial court has plenary power to change its judgment. 

Certain post-judgment motions, if filed within this initial thirty day period, 

extend the trial court’s plenary jurisdiction over its judgment for up to an 

additional seventy-five days. After the time set forth in the rules, however, 
Curtis Capps v. The Known and Unknown Heirs of Priscilla Foster, et al Page 6

a court’s plenary power expires and the actions that it may take with respect 

to its judgment are limited.

Once its plenary power has expired, the trial court may engage only 

in certain specified activities with respect to its judgment. For example, the 

trial court may correct clerical mistakes in the judgment. The trial court 

may also supervise post-judgment discovery that is conducted to aid in the 

enforcement of the judgment. In addition, the trial court has both a 

statutory and an inherent power to enforce its judgment.

The trial court may not, however, issue an order that is inconsistent 

with the original judgment or that otherwise constitutes a material change 

in the substantive adjudicative portions of the judgment after its plenary 

power has expired.

Custom Corporates, Inc. v. Sec. Storage, Inc., 207 S.W.3d 835, 838-39 (Tex. App.—Houston 

[14th Dist.] 2006, orig. proceeding) (internal citations & quotations omitted).

In the instant case, the Foster heirs filed a “Motion to Enforce Judgment and 

Request for Injunctive Relief.” The relief sought by the Foster heirs, however, is an 

implied easement appurtenant—use of Day Road. This appeal turns on whether this 

motion and request appropriately sought to enforce a prior judgment or if the motion 

and request sought to litigate new issues and, thus, constituted a new suit.

The test to determine if a pleading constitutes a suit to enforce a prior 

judgment, as opposed to a new suit, is whether the suit seeks to litigate new 

issues and controversies not attempted to be litigated in the prior suit. Such 

issues and controversies constitute a new suit and not one to enforce a prior 

judgment.

New Jersey Bank v. Knuckley, 637 S.W.2d 920, 921 (Tex. 1982).

The record in Capps I reveals that the Foster heirs did not request an easement. 

Moreover, in Capps I, the Foster heirs disavowed any adverse-possession claim against 
Curtis Capps v. The Known and Unknown Heirs of Priscilla Foster, et al Page 7

the Vasquez tract, which contains a portion of Day Road for which the Foster heirs seek 

an easement. Furthermore, the judgment which the Foster heirs seek to enforce—the 

Capps I judgment—did not purport to grant any of the relief sought in this proceeding. 

Indeed, the Capps I judgment made no reference to an easement involving Day Road. In 

light of the foregoing, we conclude that the Foster heirs request for an easement in this 

case sought to litigate a new issue that should be raised in a new suit. See id.; see also 

Burrage v. Hunt Prod. Co., 114 S.W.2d 1228, 1233 (Tex. Civ. App.—Dallas 1938, writ dism’d 

w.o.j.).4

Nevertheless, the Foster heirs contend that the requested easement is an implied 

easement appurtenant that ran with the property and automatically transferred when 

they were awarded the property; therefore, it did not matter whether the issue was raised 

in Capps I. See Severance v. Patterson, 370 S.W.3d 705, 721 (Tex. 2012); Drye v. Eagle Rock 

 

4

In a case with a similar procedural posture, the Burrage Court noted the following:

We are unable to agree with appellants that the suit, denominated a “motion,” is one to 

enforce the judgment of April 4, 1932. Obviously, appellants seek to recover a judgment 

for oil runs accruing subsequent to the rendition of said judgment, and accounting, the 

appointment of a receiver and the granting of an injunction, etc., which issues were not 

involved in the former suit. There is no relief sought by appellants which could not be 

awarded by any other court of competent jurisdiction. Appellants alleged factual issues 

which either the appellants or appellees could require a jury to pass thereon; and then, 

when the factual issues are thus determined, the court entering judgment thereon, either 

side could take an appeal. This is the identical procedure which would be necessary to 

follow to obtain the same relief in any other court. It is beyond argument, we think, that 

appellants in this proceeding are seeking to recover a new judgment, and not the 

enforcement of the judgment already recovered. The judgment which appellants contend 

that they are seeking to enforce does not purport to grant any of the relief sought by this 

proceeding.

Burrage v. Hunt Prod. Co., 114 S.W.2d 1228, 1233 (Tex. Civ. App.—Dallas 1938, writ dism’d w.o.j.).
Curtis Capps v. The Known and Unknown Heirs of Priscilla Foster, et al Page 8

Ranch, Inc., 364 S.W.2d 196, 203, 207 (Tex. 1962); see also Shelton v. Kalbow, 489 S.W.3d 32, 

46 n.11 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (noting that an easement 

appurtenant “automatically” follows the dominant estate, regardless of whether the 

easement is referenced in the deed); McDaniel v. Calvert, 875 S.W.2d 482, 484 (Tex. App.—

Fort Worth 1994, no writ) (same). We are not persuaded by this contention.

The Foster heirs must plead and prove the necessity of the implied easement in 

the trial court to secure a judgment. See Hamrick v. Ward, 446 S.W.3d 377, 385 (Tex. 2014) 

(“Ordinarily, ‘parties are restricted in the appellate court to the theory on which the case 

was tried in the lower court. Accordingly, we procedurally cannot hold that the Wards 

prevailed on a theory they have not advanced in the trial court.” (quoting Safety Cas. Co. 

v. Wright, 138 Tex. 492, 160 S.W.2d 238, 245 (1942)); see also Bowington v. Williams, 166 S.W. 

719, 720 (Tex. Civ. App.—El Paso 1914, no writ) (“Where a party claims an easement as 

against the owner of the fee, it is incumbent upon him to plead and prove it.”). We 

recognize that the record in Capps I contains some testimony about the usage of Day Road 

to access the four tracts that were awarded to the Foster heirs. However, as noted earlier, 

the Foster heirs did not plead for an easement in Capps I, nor did the judgment in Capps I

explicitly award the Foster heirs with an easement over the Vazquez tract. See TEX. R.

CIV. P. 301 (stating that a judgment must conform to the pleadings); see also Adeleye v. 

Driscal, 544 S.W.3d 467, 484 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Furthermore, 

there is no evidence from the original trial of the parties’ “clear intent” to try the 
Curtis Capps v. The Known and Unknown Heirs of Priscilla Foster, et al Page 9

unpleaded easement issue; thus, it cannot be said that the issue was tried by consent. See 

Adeleye, 544 S.W.3d at 484.

We therefore conclude that the trial court’s judgment granting the Foster heirs’ 

motion and request for an easement approximately four years after the Capps I judgment 

was entered constituted a material change in the substantive adjudicative portion of the 

Capps I judgment and was entered after the trial court’s plenary power expired. See 

Custom Corporates, Inc., 207 S.W.3d at 838-39; see also TEX. R. CIV. P. 329b. And because the 

trial court’s judgment granting the Foster heirs’ request for an easement was entered after 

the trial court’s plenary power expired, we further conclude that the trial court lacked 

jurisdiction to enter the judgment; thus, we hold that the trial court’s “Order and 

Judgment Granting Injunction” is void. See Custom Corporates, Inc., 207 S.W.3d at 838-39. 

We sustain Capps’s first issue.5

III. CONCLUSION

We reverse the trial court’s “Order and Judgment Granting Injunction” and render 

judgment that the “Order and Judgment Granting Injunction” is void.

JOHN E. NEILL

Justice

 

5 Because we have sustained Capps’s first issue, we need not address his remaining issues. See TEX.

R. APP. P. 47.1, 47.4.
Curtis Capps v. The Known and Unknown Heirs of Priscilla Foster, et al Page 10

Before Chief Justice Gray,

Justice Davis, and

Justice Neill

(Justice Davis dissenting with an opinion)

Reversed and rendered

Opinion delivered and filed August 21, 2019

[CV06]