Reversed and Remanded and Majority and Dissenting Opinions filed 

September 10, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-01141-CV

UNION PACIFIC RAILROAD COMPANY, Appellant

V.

CHARLES SEBER AND BARBARA SEBER, Appellees

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2008-64372

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

The trial court granted the landowners’ traditional summary-judgment 

motion on their claim for an implied easement by prior use and denied the 

railroad’s no-evidence summary-judgment motion aimed at several essential 

elements of the landowners’ claim. On appeal, the railroad challenges both 

rulings. Because the railroad was entitled to summary judgment based on one of 

its no-evidence grounds, this court should reverse the trial court’s judgment and 
2

render judgment in the railroad’s favor. Instead, the majority reverses and remands 

without addressing the railroad’s rendition arguments based on its no-evidence 

summary-judgment motion. 

The Prior-Use Easement Claim

In their live pleading, appellees/plaintiffs Charles and Barbara Seber 

asserted a single claim against appellant/defendant Union Pacific Railroad 

Company—a claim for an implied easement by prior use. The essential elements of 

the claim are

(1) unity of ownership of the alleged dominant and servient estates 

before severance; 

(2) open and apparent use of the claimed easement at the time of 

severance; 

(3) continuous use, such that the parties must have intended that the 

easement pass by grant; and 

(4) the necessity of the use to the use of the dominant estate.1 

The Supreme Court of Texas’s recent decision in Hamrick v. Ward did not change

the essential elements of a prior-use easement claim. The elements are the same 

after Hamrick as they were before Hamrick.

2

The Summary-Judgment Motions on Remand from the First Appeal

On remand following the first appeal, the Sebers filed a traditional 

summary-judgment motion, in which they asserted their entitlement to judgment as 

a matter of law on their prior-use easement claim. In response, Union Pacific filed 

a cross-motion in which it sought judgment as a matter of law on the Sebers’ claim 

based on two no-evidence grounds. The trial court granted the Sebers’ motion and 

denied Union Pacific’s motion. 

 

1

See Hamrick v. Ward, 446 S.W.3d 377, 383 (Tex. 2014).

2

See id.; Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207-08 (Tex. 1962).
3

Issues in Original Appellate Briefing

In this second appeal, Union Pacific asserts in its initial brief that the trial 

court erred in granting the Sebers’ motion and in denying Union Pacific’s motion. 

Union Pacific urges this court to reverse and render judgment in Union Pacific’s 

favor, arguing that the trial court should have granted a no-evidence summary 

judgment in Union Pacific’s favor based on either of its two no-evidence grounds. 

Additional Briefing Regarding Hamrick v. Ward

Shortly after the parties submitted their briefs in this appeal, the Supreme 

Court of Texas issued its opinion in Hamrick v. Ward.

3

 The Hamrick court held as 

a matter of law that a plaintiff may not assert a prior-use easement claim if the 

plaintiff seeks roadway access to a landlocked parcel that previously was a part of 

another parcel of land.4 In Hamrick, the high court did not abolish the claim for a 

prior-use easement, nor did the high court vary the elements of the claim.5 Before 

oral argument, the parties submitted additional briefing vis-à-vis Hamrick. In its 

additional briefing, Union Pacific argues that we should reverse and render 

judgment that the Sebers take nothing for an additional reason—the Sebers’ prioruse easement claim, according to Union Pacific, falls within the scope of Hamrick

and therefore the Sebers may not assert a prior-use easement claim as a matter of 

law. Conversely, in their additional briefing, the Sebers argue that their prior-use 

easement claim does not fall within Hamrick’s holding. The Sebers note that the 

Hamrick court did not alter the essential elements of a prior-use easement claim 

and the Sebers continue to rely on their prior argument that the trial court did not 

err in granting their summary-judgment motion and in denying Union Pacific’s 

 

3

See Hamrick, 446 S.W.3d at 377. 

4

See id. at 381, 385.

5

See id. at 381–85.
4

motion. The Sebers urge that, in the event this court were to reverse the trial 

court’s judgment based upon Hamrick, the court should remand in the interest of 

justice to allow the Sebers an opportunity to plead and pursue an easement-bynecessity claim. 

At oral argument, both sides argued the Hamrick issues as well as issues 

from the original briefing regarding Union Pacific’s no-evidence grounds. Though 

Union Pacific asserted it was entitled to rendition of a take-nothing judgment based 

on Hamrick, Union Pacific also pointed out during oral argument that this court 

need not address the Hamrick issues because the court can dispose of the case 

based on arguments in Union Pacific’s original briefing. And, at oral argument, 

Union Pacific argued that the interests of justice do not require a remand. 

The Arguments That Would Give Union Pacific the Greatest Relief on Appeal

If more than one appellate judgment is potentially appropriate based on the 

record, the briefs, and the law, an appellate court must render the judgment that 

moves the case to the greatest degree of finality.6 This longstanding rule furthers 

judicial economy.7 To honor this important purpose and to comply with the 

greatest-degree-of-finality mandate, a court of appeals first must consider and 

reject all arguments that would entitle the appellant to the greatest relief potentially 

available, before rendering an appellate judgment granting the appellant lesser 

relief.8Thus, before we may order a remand, we are duty-bound to consider and 

 

6

See Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 201 (Tex. 2003); Ortega v. 

CACH, LLC, 396 S.W.3d 622, 627 (Tex. App.—Houston [14th Dist.] 2013, no pet.). 

7

See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201; Monsanto Co. v. Davis, 25 S.W.3d 

773, 780 (Tex. App.—Waco 2000, pet. denied) (stating that “[j]udicial efficiency requires us to 

first rule upon the complaints brought by [appellants] which would entitle them to the greatest 

relief”).

8

See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201–02; Monsanto Co., 25 S.W.3d at 780. 
5

reject all arguments which, if meritorious, would result in a rendition.9 

In structuring an appellate opinion, courts generally opt to address first the 

arguments that would provide the greatest relief and then, if necessary, to address 

arguments that would provide lesser relief.10 Logical as well as efficient, this 

sequencing principle stands as a well-worn appellate convention. Yet, it is distinct 

from the greatest-degree-of-finality rule, which is a first principle of appellate 

practice.11 Whether the court addresses the arguments that would provide the 

greatest relief at the beginning of its analysis or at the end, the court must consider 

and reject all such arguments before issuing an appellate judgment that provides 

lesser relief.12 This case presents no exception to the rule.

13

 

9

See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201–02 (holding that, although dissenting 

justice asserted that court should sustain remand issue, court could not do so because it was 

required to reverse and render based on meritorious rendition argument); CMH Homes, Inc. v. 

Daenen, 15 S.W.3d 97, 99 (Tex. 2000) (concluding that, because rendition point had merit court 

would not address issue which, if sustained would result only in a remand); Bradleys’ Electric, 

Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 676–77 (Tex. 1999) (holding that the court of 

appeals erred, not in using the wrong sequence in its analysis, but in sustaining a remand issue 

without determining whether a rendition issue had merit); Ortega, 396 S.W.3d at 627 (stating 

that “[w]hen an appellant asserts multiple grounds for reversal of the trial court’s judgment, this 

court should first address all issues that would require rendition and then, if necessary, consider 

issues that would result in remand” and considering and rejecting all rendition issues before 

sustaining a remand issue); Monsanto Co., 25 S.W.3d at 780 (stating that “[j]udicial efficiency 

requires us to first rule upon the complaints brought by [appellants] which would entitle them to 

the greatest relief”); Forbes v. Lanzl, 9 S.W.3d 895, 898 n.3 (Tex. App.—Austin 2000, pet. 

denied) (stating “[w]e decide rendition issues before remand issues” and sustaining rendition 

issue without addressing remand issue); Stevenson v. Koutzarov, 795 S.W.2d 313, 322 (Tex. 

App.—Houston [1st Dist.] 1990, writ denied) (stating “[w]e must, however, address the points

which, if granted, would compel a rendition of judgment for the [appellants]”).

10 See Bradleys’ Electric, Inc.. 995 S.W.2d at 677.

11 The majority seems to suggest that this dissenting opinion is based on the sequencing 

principle. See ante at p. 20. Instead, it is based on the greatest-degree-of-finality rule.

12 See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201–02; CMH Homes, Inc., 15 S.W.3d at 

99; Bradleys’ Electric, Inc., 995 S.W.2d at 676–77; Ortega, 396 S.W.3d at 627; Monsanto Co., 

25 S.W.3d at 780; Forbes, 9 S.W.3d at 898 n. 3; Stevenson, 795 S.W.2d at 322.

13 The majority suggests that Texas Rule of Appellate Procedure 43.3(b) provides an exception 

to this rule. See ante at p. 20. But, Rule 43.3(b) does not provide that an appellate court may 
6

Though Union Pacific claims that its Hamrick arguments, if meritorious, 

would entitle Union Pacific to rendition of a judgment that the Sebers take nothing, 

this relief would not be proper. Presuming for the sake of argument that the 

summary-judgment evidence conclusively proved that this case falls within the

scope of the Hamrick holding, the proper appellate judgment would be a remand 

for further proceedings based on the trial court’s error in granting the Sebers’ 

motion for a traditional summary judgment.14 A rendition would not be available 

because Union Pacific did not assert any summary-judgment ground in which it 

argued that the Sebers’ claim fails as a matter of law because they assert a prioruse easement claim for roadway access to a landlocked parcel that previously was 

a part of another parcel of land. Thus, the Hamrick holding provides no basis for 

this court to reverse and render a judgment that the Sebers take nothing based on 

the trial court’s denial of Union Pacific’s summary-judgment motion.15 

Arguably, it would be premature to address whether, on remand from a 

reversal of the traditional summary judgment, the interests of justice require that 

 

grant lesser relief in its judgment without addressing arguments in which the appellant seeks 

greater relief. See Tex. R. App. P. 43.3(b) (providing that “[w]hen reversing a trial court’s 

judgment, the court must render the judgment that the trial court should have rendered, except 

when: . . . (b) the interests of justice require a remand for another trial”). The majority cites no 

case holding that Rule 43.3(b) provides such an exception.

14 See Marzo Club, LLC v. Columbia Lakes Homeowners Ass’n, 325 S.W.3d 791, 799–801 (Tex. 

App.—Houston [14th Dist.] 2010, no pet.). 

15 See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (stating that a 

summary-judgment motion must stand or fall on the grounds expressly presented in the motion); 

Dardas v. Fleming, Hovenkamp & Grayson, P.C., 194 S.W.3d 603, 615–16 (Tex. App.—

Houston [14th Dist.] 2006, pet. denied) (concluding that, even though during pendency of appeal 

Texas law had changed, the appellate court would not address the new law because it was not 

expressly presented to trial court as ground for summary judgment); Baty v. Pro-Tech Ins. 

Agency, 63 S.W.3d 841, 863 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (stating that, 

even though during pendency of appeal Texas law had changed regarding essential elements of 

tortious-interference-with-prospective-business-relationships claim, appellate court would not 

address new law because it was not expressly presented to trial court as ground for summary 

judgment). 
7

the Sebers be permitted to amend their pleadings to add an easement-by-necessity

claim. But, in any event, a remand for this additional purpose would be lesser 

relief than a rendition of judgment that the Sebers take nothing.16 

If Union Pacific’s arguments under either its first issue or its second issue 

have merit, then the trial court erred in granting the Sebers’ motion and also erred 

in denying Union Pacific’s no-evidence motion. In this scenario, the proper 

appellate judgment would be to reverse and render judgment that the Sebers take 

nothing, unless this court determines that the interests of justice require a remand.17 

If the Sebers’ prior-use easement claim does not fall within the scope of the 

Hamrick decision, the interests of justice would not require a remand based on that 

decision.18 But, even if the Sebers’ prior-use easement claim fell within Hamrick’s

scope, the interests of justice would not require a remand if the Sebers’ prior-use 

easement claim fails as a matter of law because there is no evidence of essential 

elements that were unaffected by the Hamrick decision.19 If the Sebers have been 

pursuing for almost seven years a claim that fails as a matter of law under preHamrick law, the issuance of the Hamrick opinion hardly mandates a remand in 

the interests of justice to allow the Sebers another chance to plead, seek discovery, 

and attempt to recover on an easement-by-necessity claim, even if the case under 

review happened to fall within the scope of Hamrick.

20

 Thus, Union Pacific’s first 

and second appellate issues, if meritorious, would entitle Union Pacific to the 

greatest possible relief. Therefore, this court must address these issues and reject 

 

16 See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201; Daenen, 15 S.W.3d at 99; Bradleys’ 

Electric, Inc., 995 S.W.2d at 676–77. 

17 See Tex. R. App. P. 43.3; Gaines v. Kelly, 235 S.W.3d 179, 185 (Tex. 2007). 

18 See Tex. R. App. P. 43.3; Kissman v. Bendix Home Sys., 587 S.W.2d 675, 678 (Tex. 1979) 

(holding that interests of justice did not require a remand). 

19 See Tex. R. App. P. 43.3; Kissman, 587 S.W.2d at 678.

20 See Tex. R. App. P. 43.3; Kissman, 587 S.W.2d at 678. 
8

them before considering the Hamrick issues.

21

 And, if one of these arguments has 

merit, then this court should render judgment granting Union Pacific the greatest 

possible relief, without even addressing the Hamrick arguments.22

The Merits of Union Pacific’s Second Issue

In one of its no-evidence grounds, Union Pacific asserted there was no 

evidence that, at the time of the alleged severance in 1959 (“Severance Time”), any

use of the claimed easement was apparent or continuous. In its second appellate 

issue, Union Pacific asserts that the trial court erred in denying summary judgment 

on this ground. The only summary-judgment evidence that potentially raises a fact 

issue in this regard is Barbara Seber’s affidavit. In it, Barbara does not testify that 

she ever saw the railroad crossing in question being used at or before the 

Severance Time. Barbara states that, at the Severance Time, the railroad crossing 

in question was apparent, but Barbara does not state that any use of the crossing 

was apparent. Barbara makes conclusory statements that the railroad crossing was 

in continuous use from 1902 until the Severance Time and from the Severance 

Time until 2008. But, these conclusory statements do not raise a genuine fact issue 

that would preclude summary judgment.23 Under the applicable standard of 

review, the summary-judgment evidence did not raise a genuine issue as to 

whether the railroad crossing at issue was being used in an apparent and 

continuous manner at the Severance Time.24 Therefore, the trial court erred in 

denying Union Pacific’s motion on this ground and in granting the Sebers’ 

 

21 See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201; Daenen, 15 S.W.3d at 99; Bradleys’ 

Electric, Inc., 995 S.W.2d at 676–77. 

22 See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201; Daenen, 15 S.W.3d at 99; Bradleys’ 

Electric, Inc., 995 S.W.2d at 676–77.

23 See Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997); Elizondo v. Krist, 338 

S.W.3d 17, 22 (Tex. App.—Houston [14th Dist.] 2010), aff’d, 415 S.W.3d 259 (Tex. 2013). 

24 See Elizondo, 338 S.W.3d at 22–24.
9

summary-judgment motion, and this court should reverse and render judgment that 

the Sebers take nothing, without any remand to allow the Sebers to plead and 

pursue any new claims.

25

 

No Invitation to Remand in the Interests of Justice

The majority points to Union Pacific’s additional briefing and suggests that 

Union Pacific has invited this court to remand for further proceedings in light of 

Hamrick.

26

 Union Pacific issued no such invitation. Rather than urge a remand in 

light of Hamrick, Union Pacific argues that this court should reverse and render 

judgment that the Sebers take nothing for an additional reason—because, 

according to Union Pacific, the Sebers’ prior-use easement claim falls within the 

scope of Hamrick and therefore the Sebers may not assert a prior-use easement

claim as a matter of law. Union Pacific does not invite this court to remand the 

case to the trial court in the interests of justice, though Union Pacific does state at 

one point in its briefing that this court could reverse and remand in the interests of 

justice. At no point has Union Pacific waived, rescinded, or revoked the issues and 

arguments in its original appellate brief. At oral argument, Union Pacific not only 

argued that the interests of justice do not require a remand, but also reminded the 

panel that it need not even address the Hamrick issues because the court could 

 

25 See Tex. R. App. P. 43.3; Kissman, 587 S.W.2d at 678; Drye, 364 S.W.2d at 209. The 

Hamrick court held that, as a matter of law, a plaintiff may not assert a prior-use easement claim 

if the plaintiff seeks roadway access to a landlocked parcel of land that previously was a part of 

another parcel of land. See Hamrick, 446 S.W.3d at 381, 385. The case under review does not 

involve two previously unified parcels of land. At most, it involves a 1.5 acre parcel of land and 

Union Pacific’s easement to use the property on which the railroad tracks lie to operate a 

railroad. A roadway over land owned in fee simple significantly limits the landowner’s ability to 

develop the land. A crossing over a railroad’s easement to operate a railroad does not appear to 

significantly limit the railroad company’s ability to operate a railroad, which is the only property 

right the railroad possesses. Nonetheless, for the reasons outlined above, the court should 

dispose of this appeal without addressing whether this case falls within the scope of Hamrick. 

26 See ante at p. 20. 
10

dispose of the case based on arguments in Union Pacific’s original briefing. And, 

that is what this court should do. 

Conclusion

Under binding precedent, this court may not reverse and remand without 

addressing Union Pacific’s two rendition arguments under its first and second 

issues.27 The majority concludes that the court need not address these arguments or 

the propriety of the trial court’s denial of Union Pacific’s no-evidence motion.28 

The majority instead concludes that the trial court erred in granting the Sebers’ 

summary-judgment motion and then addresses whether the interests of justice 

require a remand.29 For purposes of judicial economy and to comply with the 

supreme court’s longstanding rule, this court should address Union Pacific’s 

argument under its second issue. And, the court should sustain the second issue, 

conclude that the interests of justice do not require a remand, reverse the trial 

court’s judgment, and render judgment that the Sebers take nothing. Because the

court instead reverses and remands without addressing Union Pacific’s rendition 

arguments, I respectfully dissent.

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally. (Boyce, J. 

majority opinion).

 

27 See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201; Daenen, 15 S.W.3d at 99; Bradleys’ 

Electric, Inc., 995 S.W.2d at 676–77. 

28 See ante at pp. 20–21. 

29 See ante at pp. 12–16, 16–19.