### 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. 03-11-00066- CV

M. Lawrence Naum ann an d Naumann F arm , LLC, App ellants

v. Edw ard R. Lee and w if

e, Josephine R. Lee; Edward J. L ee and wi fe Zenaida Lee; Robert D. Norr is and wi fe, Dana K. Nor ris; Diana Toler and Von T oler, Appellees

F ROM TH E DISTRI CT COURT O F CALDWELL CO UNTY, 207 TH JUDICI AL DISTRICT NO. 08- 0-3 71, H ONO RAB LE TO DD A. B LOM ERTH, JUDGE P RESIDING

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

I n this ease ment dispute, M. L awr ence Naumann and Naumann Fa rm, L L C, (sometimes jointly ref

err ed to as Naumann) appea l the trial court’s summary judgme nt decla ring that
Naumann has only a limit ed ease ment to acc ess only a portion of his proper ty and that the ease ment purportedly g ranting Naumann the rig ht to acc ess the rema inder of his proper ty is invalid and does
not burden appellee s’ property

. The trial court denied Naumann’ s motion for summ ary judgme nt and gra nted appellees’ cross moti o n . I n five iss ues, Naumann complains that the t rial court err ed in deny ing his motion, g ranting appellee s’ m otion, permane ntly enjoining his use of t he easement except as to a portion of his proper ty , and awa

rding attorney ’s fee s to appellee s. For the rea sons that follow, we a ffirm the tria l court’s judg ment.F ACTUAL AND P ROCEDURAL BACK GR OUND
Naumann Fa

rm owns rea l proper

ty in Caldwell County , convey ed to it by Naumann during the pendenc y of this litigation, that orig inally consisted of two trac ts c onvey ed to Naumann by J ames Warren Gar

y and wife Dayle Gar

y (Ga ry ). One is a 265 acr e trac t tha t f ronts on County 1
Road 103 (the Gar

y trac t). The second is a 1.992 acr e trac t car ved from a larg er trac t that is adjac ent
to the 265 acr e Gar

y trac t and also fronts on County Road 103. The issue in this case is whether an

ease ment g rante d to Gar

y by a prior owner of the 1.992 acr e trac t entitles Naumann, as succe ssor in interest, to ac cess the 265 a cre Gar y trac t.

Easem ent history

I n 1952, Cleo J enning s Heinen inherited a rela tively long and narr ow 259.9 acr e trac t border ed on the northea st by County Road 103 and on the southwest by the San Marc os River and bisected by Morrison Creek, a navig able water way . I n 1963, Heinen subdivided this “par ent” trac t into eig ht separ ately survey ed trac ts, one of which was a fifty -foot wide, L -shape d trac t comprising 5.175 acr es that was laid out to provide acc ess to the other seven trac t s . He inen simult aneously
convey ed all eig ht trac ts to th e Ve t er an s L and Boa rd (VL B)

. The deed to the 5.175 acr e trac t contained no express ref

ere nce to its use as an acc ess ease ment to the other seven trac ts. The deeds
to the other seven trac ts, howeve r, contained lang uag e g ranting acc ess over the 5.175 acr e trac t. The
VL B immediately enter ed into seven contra cts to sell the seven trac ts to various third parties. Over the next twenty -eig ht y ear s, upon completion of the contra ct terms, the VL B deede d the seven trac ts

The fac ts stated here in are taken from the rec ord on appea l, including the summary 1 judgme nt evidence

. 2to the purcha sers or their succe ssors. I t is undisputed that the VL B never executed a contra ct for sale

or dee d convey

ing the 5.175 acr e tra ct.
I n the 1980s, L arr

y an d Ha rr iet Riddick (Riddick) beg an acquir ing the seven VL B
trac ts from the various owner s. By 1985 they had acquir ed six of the trac ts, and in 1 9 9 7 t hey

ac q u i red the seventh trac t. Be tween 1984 and 1998, Riddick convey ed portions of the tract s , including c onvey ance s to appellee s. Each c onvey ance included the orig inal acc ess ea sement over the 5.175 acr e trac t cre ated in the subdi v i s i o n o f t h e pare nt trac t and one or more additional

ease ments over portions o f the other trac ts, as neede d, to provide acc ess from County Road 103. Thes e convey ance s resulted in five ease ments, running for the most part along the southern boundarie s of the two southernmost VL B trac ts and then crossing Morrison Creek. At some point, Riddick constructe d a fifty foot wide gra vel roa d over the ease ments and a concr ete crossing over Morrison Creek. This “Roadwa y Easeme nt,” consisting of the g rave l road and the concr ete crossing , provides the sole a cce ss to appellees’ proper ties.
I n 1984, Gar

y purcha sed the 265 acr e Gar y trac t , wh i ch is adjac ent to the two southernmost VL B trac ts acquir ed by Riddick and there fore ad j ace nt to the Roadway Easeme nt.
L ike the pare nt trac t to the VL B tr ac t s , the Gar y trac t is rela tively long and narr ow, running from County Road 103 to the San Marc os River and bisected by Morrison Creek. The portion of the Gar y
trac t betwee n Morrison Creek an d t h e S an Marc os River cannot be rea ched direc tly from the

rema inder of the trac t except by crossingMorrison Cree k.
I n J une 1988, Gar

y enter ed into a two-par

t transac tion with Riddick. As one part of
t h e t ra n s action, Gar

y purcha sed from Riddick a 1.992 acr e trac t car ved out of one of the two

3southernmost trac ts acquir ed by Riddick. This 1.992 acr e trac t lies betwee n Morrison Creek and the

San Marc os River, acc essible by the concr ete crossing , and provides a phy sical connec tion betwee n
t h e 2 6 5 ac re Gary trac t and the concr ete crossing

. The deed to the 1.992 acr e trac t includes an

ease ment over the 5.175 acr e trac t and other portions of the Roadway Easeme nt, with the restric tion that it be used only for acc ess to the 1.992 acr e trac t. As the second part of the transac tion, Riddick simult aneously ex ecute d a Non-Exclusive Right-of -Way Easeme nt (the 1988 Easeme nt) g ranting Gar y the right to acc ess t he 265 acre Gar y trac t by using the 5.175 acr e tract and other portions of the Roadway Easeme nt. The intended purpose of the simult aneous purcha se of the 1.992 acr e trac t and the 1988 Easeme nt was to allow Gar y acc ess to his entire 265 acr e trac t, including the otherwise inacc essible portion ly ing betwee n Morrison Creek and the San Marc os River by use of the concr ete crossing over Morrison Creek and the 1.992 acr e trac t phy sical l y l i n k i ng the otherwise separ ated portions of his 265 acr e tra ct.

P roce dural h istory

I n 2005, Nau mann purcha sed the Gar y proper ty , with the total acr eag e convey ed being 264.36 acr es, which included the 1.992 acr e trac t. After the purcha se, disputes arose betwee n 2
Naumann and appellee s over Naumann’ s rig hts under the 1988 Easeme nt. I n 2008, Naumann filed 3
suit ag ainst appellee s seeking decla ratory and injunctive relief reg arding his rig ht to u se the Roadway
Easeme nt and attorney ’s fee s and costs under the Uniform Dec lara tory J udg ments Act (UDJA). See

The rec ord is not clea

r as to the dispositi on of the rema inder of the 265 acr e trac t, a nd its 2 dispositi on is not relevant to this opinion. The parties do not dispute that the easement appurtenant to the convey anc e o f t he 1.992 3 acr e tra ct provides a cce ss only to the 1.992 acr e tra ct.

4Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2008). Appellee s fi l ed a co u nterc laim, also

seeking decla

ratory and injunctive relief and attorney ’s fee s and costs under the UDJA. See id. I n addition, N orris filed tort and other counter claims not involving the disputed ease ment. Naumann subsequently conveyed the proper ty to Naumann Fa

rm, his estate planning entity , whi ch t hen intervene d in the suit. The parties filed competing motions for partial summary judgm ent on the

ease ment issue. The s ummary judgme nt evidenc e included the rele vant contra cts for sale, deed

rec ords, ease ments, illust rative draw ings, and photogr aphs. The trial court denied Naumann’ s motion, g rante d appellee s’ motion, and rende red a partial summary judgme nt decla ring that no valid

or lawful ease ment ex i s t s i n favor of Naumann over the Roadway Easeme nt except to acc ess the 1.992 acr e trac t and that the 1988 Easeme nt purporting to g rant acc ess to the 265 acr e trac t is invalid and does not burden appellee s’ proper ties. The trial court also perma nently enjoined Naumann from using the Roadway Easeme nt to acc ess any proper ty other than the 1.992 acr e trac t, conditioned on the judg ment’s bec oming f inal. On appellee s’ motion, the rema ining counter claims wer e sever ed into a s eparate

cause , and a bench trial was held on their reque st for attorney ’s fee s. The trial court rende red a final judgme nt incorpora

ting the decla

ratory and injunctive relief g rante d in the partial s u mm a r y ju d g me n t and awa rding appellee s attorney ’s fees in the amount of $84,760, with remittiturs of $37,500 and $10,0 0 0 , re s pectively , if there was no appea l to this Court and to the supreme court. Naumann
reque sted, and the trial court made, finding s of fac t and conclusions of law on t h e i s s u e of attorney ’s fee s. Naumann then filed a motion for new trial that was overr uled by operation of law. This appea l followed.

5ANALYSIS

Summ ary Judgm ent

Stan dard of Revie w We revie w decla

ratory judgme nts under t h e s ame standard as other judgme nts or decr ees. Tex. Civ. Prac. & Rem. Code Ann. § 37.010 (West 2008); Hawkins v. El Paso First Health Plans, Inc. , 214 S.W .3d 709, 719 (Tex. App.—Austin 2007, pet. denied). Her e, beca u s e t h e t ri al court render ed the decla

ratory ju d g ment throug h summary judgme nt proce eding s, “we revie w t he propriety of the trial court’s decla rations under the same standards we apply to summary judgme nt.” See Hawkins , 214 S.W .3d at 719. We r eview the trial court’s decision to g rant summary judgme nt de novo. Valence Operating Co. v. Dorsett , 164 S.W .3d 656 , 6 6 1 (T ex . 2005). To preva il on a
summary judgme nt motion, the movant must d e mo nstrate that there are no g enuine issues of materia l fac t and that it i s en t i t l ed t o j u dg ment as a matter of law. Tex. R. Civ. P. 166a(c ); Provident L ife & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215–16 (Tex. 2003).

When both parties move for summary judgme nt on the same issues and the trial court
g rants one motion and denies the other, we consider the summary judgme nt evidenc e prese nted by both side s, deter

mine all questions presente d and, if we deter mine that the trial cour

t erre d, rende r the j udg ment the t rial court should have rende red. Dorset t , 164 S.W .3d at 661 (citing FM Props. Operating Co. v. City of Austin , 22 S.W .3d 868, 872 (Tex. 2000))

. W h en the trial court does not specify the g rounds on which the summary judgme nt was g rante d, we must aff ir m if any of the
summary judgme nt g rounds are meritorious. Texas W orkers’ Comp. Comm’n v. Patient Advoc ates , 136 S.W .3d 643, 648 (Tex. 2004); Knott , 128 S.W .3d at 216. I f we deter mine that a fac t issue

6prec ludes summary judgme nt for either party , we rema nd the cause for trial. See University of Tex. Health Sci. Ctr. at Houston v. Big Train Carpet of El Campo, Inc. , 739 S.W .2d 792, 792 (Tex. 1987) (per curiam). Naumann’ s issues also involve matters of deed construction. A deed is subject to the same rules of interpr etation and construction as a contra ct. See Luckel v. W hite , 819 S.W .2d 459, 461–62 (Tex. 1991). The construction of an unambig uous deed is a question of law, which we revie w de novo. Id. at 461. I n conducting a de novo revie w, we exercise our own judgme nt and g ive

no defe renc e to the trial court’s decision. Quick v. City of Austin , 7 S.W .3d 109, 116 (Tex. 1999). The primary duty of a court when construing an unambig uous deed is to asce rtain the parties’ intent

as expressed in the deed’ s four corne rs. Luckel , 819 S.W .2d at 461. I n apply ing the “four corne rs” rule, we must not look at i solated t erms but are to consider the instrument as a whole and attempt
to harmonize and g ive eff ect to all provisions. Plainsman Trading Co. v. Crews , 898 S.W .2d 786, 789 (Tex. 1995). “We g ive the lang uag e its p l ain, g rammatica l meaning unless doing so would clea rly defe at the parties’ intentions.” Tana Oi l & Ga s Corp. v. Cernosek , 188 S.W .3d 354, 359 (Tex. App.—Austin 2006, no pet.).

Naum ann’s Own ership of the 5.575 Acre Easem ent Tract
I n issues one throug h three , Naumann contends that the trial court err ed in g ranting appellee s’ motion for summary judgme nt and denying Naumann’ s motion. Appellee s asser ted five 4

Although as a g ener al rule the denial of a summary judgme nt is interlocutory and not 4 appea lable, see Bake r Hughes, Inc., v. Keco R. & D., Inc. , 12 S.W .3d 1, 5 (Tex. 1999), the denial of Naumann’ s motion for summary judgme nt become s revie wable on appea l by virtue of Naumann’ s complaint reg arding the trial court’s g rant of summary judgmen t in favor of appellee s. See CU 7g rounds in support of t heir motion for summary judgme nt, and on appe al Nauma nn challeng es all five g rounds. Be cause the trial co u rt d i d n o t specify the g rounds on which it g rante d appellee s’ motion, we must a ffirm if the summary judgme nt can be supported by any one of the five g rounds

asser ted. Patient Advoc ates , 136 S.W .3d at 648; Knott , 128 S

. W .3d at 216. We turn then to appellee s’ first g round bec ause it is dispositi ve.

As their first g round in support of their motion for summary judgm en t , appellee s
arg ued that Riddick did not own fee title to the 5.175 acr e trac t and there fore could not as matter of law g rant any ease ment over or acr oss it as the 1988 Easeme nt purported to do. I t is axiom atic that

a party cannot g rant an ease ment over proper ty it does not own, see Drye v. Eagle Rock Ranch, Inc. , 364 S.W .2d 196, 202 (Tex. 1963), and Naumann does not contend that owner ship was not require d.
Nor does Naumann dispute that the VL B never expressly convey ed the 5.175 acr e trac t by contra ct or deed. Rather, Naumann arg ues t hat R iddick acquir ed o wn er s hip of t he 5.175 trac t throug h the deeds to the a djoining VL B tra cts under the “strip and g ore” doctrine.

The strip and g ore doctrine, based on a public policy of discourag ing separ ate

owner ship of l ong narr ow s trips of l and dis tinct from adjoining l and, is a presumption that a deed
convey s a small parc el of land omitted from the descr iption of the land convey ed if the parc el (1) is small in compar ison to the land convey ed, (2) is adjac ent to or surrounde d by the land convey ed, (3) belong ed to the g rantor at the time of the convey ance , and (4) was of no benef it or importance to the
g rantor. Angelo v. Biscamp , 441 S.W .2d 524, 526 (Tex. 1969) (citing Cantley v. Gulf Pro d

. Co. ,
Lloyd’s of Tex. v. Feldman , 977 S.W .2d 568, 569 (Tex. 1998) (per curia m) (citing Jones v. Strauss , 745 S.W .2d 898, 900 (Tex. 1 9 8 8 )) (denia l of summary judgme nt become s revie wable when appellant c omplains reg arding g rant of summar y judgme nt in favor of

adver sary

). 8143 S.W .2d 912, 915 (Tex. 1940) and Strayhorn v. Jones , 300 S.W .2d 623, 638 (Tex. 1957)); Alkas

v. United Sav. Ass’n of T ex
. , Inc. , 672 S.W .2d 852, 857 (Tex. App.—Corpus Christi 1984, writ ref ’d n.r.e.) ; Anderson v. Shaw , No. 03-08-00352- CV, 2010 Tex. App. L EXI S 4578, at *20 (Tex. App.—Austin J une 18, 2010, no pet.) (mem. op.); Hopkins v. State , No. 03-07-00253- CV, 2009 Tex. App. L EXI S 8780, at *15 (Tex. App.—Austin Nov. 13, 2009, no pet.) (mem. op.). When these conditions are met, and in the absenc e of plain and specific lang uag e in the deed indicating that the g rantor intended t o rese rve the strip, it is presumed that the g rantor intended to convey it. Cantley , 143 S.W .2d at 915; Hopkins , 2009 Tex. App. L EXI S 8780, at *16.

The pre sumption, however, is a rule of construction that applies only when ther e is ambig uity as to the land intended to be convey ed, whether the ambig uity is found in the deed itself

or arises from an attempt to apply the proper ty descr iption on the g round. McKee v. Stewart , 162 S.W .2d 948, 950 (Tex. 1942) (citations omitted) (“I f there is no ambig uity there is no occa sion for construction, and the descr iption speaks for itself.”); W oolaver v. Texaco, Inc. , 594 S.W .2d 224 (Tex. Civ. App.—For

t Worth 1980, writ ref

’d n.r.e.) ; Anderson , 2010 Tex. App. L EXI S 4578, at *20; Hopkins , 2009 Tex. App. L EXI S 8780, at *16. The presumption does not ap ply when the g rantor plainly and specific ally rese rves t h e parc el. Angelo , 441 S.W .2d at 526; Anderson , 2010 Tex. App. L EXI S 4578, at *20.

Naumann arg ues that, althoug h there was no separ ate deed convey ing the 5.175 acr e
trac t, by application of the strip and g ore doctrine, Riddick acquir ed fee title to it throug h the deeds
convey ing the adjoining V L B tra cts. Nauma nn asser ts that there is no lang uag e in the dee ds from the VL B or the l ater deeds sugg esting any intention to exclude or reserve the 5.175 acr e tract. To

9the contra

ry , Naumann contends, the lang uag e of the deeds from the VL B expressed the VL B’ s clea r intent to include the 5.175 acr e trac t in the convey ance s. I n support of this rea d i n g o f t h e deeds,
Naumann r elies on the following provision:
Tog ether with the unrestric ted right and privileg e of tra veling on, over, a

nd acr oss, and subject to , that cer

tain acc ess ease ment consisting of 5.175 acr es of land situated in Caldwell County , T e xa s [m e te s a n d b o u n d s d e s cription follows] (empha sis added)

.

Naumann arg ues that the only rea sonable construction of the “subjec t to” lang uag e in this provision is that these inst ruments co n v ey ed both the s pecif ic t rac ts descr ibed and the adjoini ng portions of the 5.175 acr e tra ct. Thus, Naumann arg ues, Riddick, a s succe ssor in inter est, acquir ed fee title in the 5.175 acr e trac t and could subsequently g rant an acc ess ease ment over it. Appellee s, on the other hand, contend that th e VLB d ee d s unambig uously show that the VL B intended to rese rve the 5.175 acr e trac t as a l eg ally separ ate parc el by g ranting an ease ment over the trac t and there fore expressly disavowing a convey ance in fee simple. They arg ue that the “subjec t to” lang uag e relied

on by Naumann define s and limit s the estate convey ed but does not c reate additional rig hts. Thus, neither party contends that the deeds are ambi g uous on their fac es, y et they advanc e conflicting interpre tations of the dee d lang uag e.

After revie wing the dee ds and apply ing the rules of construction, we ag ree that the deeds are not fac ially ambig uous and conclude that they clea rly express an intent by the VL B not to
convey the 5.175 acr e trac t. The deed lang uag e prec isely descr ibes the locations of the boundarie s 5

See Columbia Gas Transmissi on Corp. v. New Ulm Gas Ltd. , 940 S.W .2d 587, 589 (Tex. 5 1996) (“[A] mbiguity does not arise simpl y beca use t he parties advanc e conflicting interpreta tions of the c ontrac t.”). 10of the adjac ent VL B trac ts as running up to and along the 5.175 acr e trac t, showing a clea r intent not
to include the separ ately s u rv ey ed 5 .175 acr e trac t. See McKee , 162 S.W .2d at 950; Hopkins , 2009 Tex. App. L EXI S 8780, at *16 (loca tion of boundary prec isely descr ibed to exclude strip and descr iption showed intent not to convey strip). Fur ther, the deeds and/or contra cts of sale to the VL B
trac ts contain an express ease ment over the 5.175 acr e trac t, which is contra ry to an intent to convey the 5.175 ac re tra ct in fee simple. 6

We further conclude that the “subjec t to” lang uag e does not alter the meaning of the clea r proper ty descr iptions and ease ment lang uag e. The “subjec t to” lang uag e first appea red in the deeds to the VL B, at wh i ch t i m e t he 5.175 acr e trac t was also convey ed—sepa rate ly

. The term “subjec t to” is used to define the estate convey ed and its nature , extent, and char acte r but cre ates no aff irmative rig hts. Cockrell v. Texas Gulf Sulphur Co. , 299 S.W .2d 672, 676 (Tex. 1956); Schlapper

v. Forest , No. 03-06-00315- CV, 2010 Tex. App. L EXI S 7037, at *19 (Tex. App.—Austin Aug

. 24, 2010, pet. denied) (mem. op.). I t implies a limit ation and “should not be interpre ted to g ive a g rante e

I n a footnote, Naumann not es t h at the contra ct for sale and deed for one of the trac ts at 6 issue, from which the Norris and Toler trac ts we re ca rv ed, did not contain the ease ment lang uag e contained in the othe r six convey ance s. As a result, Naumann ar g ues, if appe llees ar e cor rec t that Riddick did not have title to the 5.17 5 acr e trac t and could not convey an ease ment over it, then Norris and Toler have no valid easements bec ause the y too would be depe ndent on later g rants by Riddick. Howeve r, all eig ht deeds to the VL B wer e made the same day and consti t uted a total dispositi on of the pare nt trac t. Simi larly , all of the VL B contra cts for sale wer e executed on the same day

. A series of instruments proxi mate in time and subject matter are construed toge ther to asce rtain intent of the g rantor. See Terrell v. Graham , 576 S.W .2d 610, 612 (Tex. 1979); Jones v. Fuller , 856 S.W .2d 597, 601 (Tex. App.—Waco 1993, writ denied) (whe re fathe r simult aneously deede d trac ts containing ease ments to children and omitted ease ment from one deed, court construed al l d eeds toge ther and held deed omitti ng ease ment lang uag e contained g rant of ease ment as a matter of law). We conclude , and Naumann does not appea r to dispute, that the ease ment over the 5.175 acr e trac t was a ppurtena nt to all of the seven tr acts. 11rig hts in addition to an alre ady stated scope of convey ance .” Smith v. Huston , 251 S.W .3d 808, 823

(Tex. App.—For

t Worth 2008, pet. denied). Apply ing the plain mea ning of the term, and construing the deeds as a whole, we conclude that the term “subjec t to” mere ly provided notice to the g rante es of eac h trac t reg arding the

ease ment rig ht s appurte nant to the other trac ts and does not indicate that the VL B convey ed its fee simple interest in the 5.175 acr e trac t. See Plainsman Trading Co. , 898 S

. W

. 2 d at 7 8 9; Cernosek , 188 S.W .3d at 359; Texas Indep. Exploration, Ltd. v. Peoples Ene rgy Prod.-Tex ., L.P. , No. 0 4

- 0 7

- 0 0 778-CV, 2009 Tex. App. L EXI S 6941, at *15 (Tex. App.—San Antonio Aug

. 31, 2009,

no pet.) (m em. op.) (conve y ing land “subjec t to” define d interests is mere ly means of providing notice of outstanding interests that may aff ect g rante e’s title). Thus, the deeds themselves evidenc e the VL B’ s clea

r intent not to convey and there fore to rese rve the 5.175 acr e trac t as a separ ate parc el. See McKee , 1 62 S.W .2d at 950; Schlapper , 2010 Tex. App. L EXI S 7037, at *19; Hopkins , 2009 Tex. App. L EXI S 8780, at *16.

Na u mann contends that althoug h the deeds are not ambig uous on their fac es, ambig uity arises when the descr iption of the proper ty convey ed is applied to the g round. Naumann
appe ar s t o arg ue that a g rantor’ s convey ance of proper ty omitti ng a narr ow strip that is of no

rema ining use to the g rantor, in and of itself, cre ates ambig uity in apply ing the proper ty descr iption
to the g round. We find this arg ument unper s u as i v e. There must be ambig uity in the deed or its applicati o n fo r t h e p resumpti on to apply to a convey ance that omits a strip of proper ty that is no longe r of use to the g rantor; the mere omission of the strip no longe r neede d does not cre ate ambig uity

. See W

oolaver , 594 S.W .2d at 225; Hopkins , 2009 Tex. App. L EXI S 8780, at *16. Stated

12another

way , the pre sumption applies only when a strip tha t ha s cea sed to be of use is omitted and
t here is ambig uity with reg ard to whether the deed convey s the strip at issue. Com p a r e Mc K

ee , 162 S.W .2d at 950 (no ambiguity wher e property descr iption clearly excluded strip at issue), with Shell Petroleum Corp. v. Landers , 107 S.W .2d 509, 511–12 (Tex. Civ. App.—Eastland 1937, writ ref ’d n.r.e .) (a

mbiguity arose when f

ield notes wer e applied to g round).
Her e, as we have stated, the prope rt y boundarie s are prec isely descr ibed, clea rly fitting the specific trac ts convey ed up to and along the boundary of the separ ate 5.175 acr e trac t, over which a specific ally descr ibed ease ment is convey ed, and there is no evidenc e of ambig uity in apply ing the descr iptions to the g round. The g ranting lang uag e plainly and specific ally convey s only

ease ment rig hts over the 5.175 acr e tract and thus clea rly does not co n vey the t rac t in fee simple. See Angelo , 441 S.W .2 d at 526; Anderson , 2010 Tex. App. L EXI S 4578, at *20. We conclude that there is no ambig uity in the deed descr iptions or in their application to th e gro u n d re garding whether the VL B intended to rese rve the 5.175 acr e tr ac t s o as t o t ri g g er the application of the strip and g ore doctrine. See McKee , 162 S.W .2d at 950; W oolaver , 594 S.W .2d at 225; Hopkins , 2009 Tex. App. L EXI S 8780, at *16.

Even if we wer e to find ambig uity in the deeds or their ap p l i ca t i o n, we would

never theless conclude that the strip and g ore doctrine does not apply i n this case . For the presumption to apply , the omitted strip must no longe r be of use to the g rantor. Angelo , 441 S.W .2d
at 5 2 6

– 2 7 ; Alkas , 672 S.W .2d at 857; Hopkins , 2009 Tex. App. L EXI S 8780, at *15. Nauma n n
arg ues that on ce t h e VL B conveyed the seven trac ts to the purcha sers, it owned no rema ining adjoining proper

ty and thus ha d no use for the 5.175 acr e trac t and no plausible rea son to reta in it.

13Howeve r, the summary judgme nt evidence shows that the 5.175 acr e tract had not ce ased to be of

use to the VL B at the time it convey ed the first two trac ts, the trac ts over which Riddick constructe d the m ajority of t he gra

vel road and the c oncre te cr ossing, or Roadway Easeme nt, at i ssue. At that time, the VL B stil l owned five of t he seven orig inal trac ts and continued t o o wn o n e t ra ct unt il at least 1991. The contra cts for sale on those trac ts had not been paid off, and the VL B neede d to reta in

owner s h i p o f t h e 5 .175 acr e trac t to convey acc ess to these rema ining trac ts when it later deede d these tracts to the purchaser s. I t cannot be said that there wa s n o p l au s i b le reason for the VL B to

rese rve the 5.175 acr e tra ct. See Cantley , 143 S.W .2d at 915.

I n addition, Naumann has cited no case s, and we have found none, in which the courts
ap p l y the strip and g ore doctrine to a parc el that has been convey ed as a separ ate trac t. T h e presumption of convey ance applies to parc els that have been omitted from the proper ty descr iptions i n t h e deeds in question. See Cantley , 143 S.W .2d at 913–14 (no ref ere nce to road rese rvation ad j acent to lot and acquir ed by lot owner by adver se possession); Alkas , 672 S.W .2d at 855–5 6 (af ter consolidation of sever al commerc ial trac ts, two portions, previously i n cl uded in loan secur ity , om i t t ed fr o m field notes in deed of trust for loan consolidation); Anderson , 2010 Tex. App. L EXI S 4578, at *20 (two triang ular-sha ped parc els omitted from field notes in deed)

. Her e, the 5.175 acre t ra ct was not omitted from the deeds of the specific trac ts. Rather, having been the subject o f a s ep ar at e deed in the prior subdivision cre ating those trac ts, it was expressly identified in the dee ds and desig nated a s a boundary for and an ea sement appur tenant to those trac ts.

14Naumann relies heavily on Cantley and contends that it is controlling authority in this

case . I n Cantley , the strip in controve rsy was cre ated as a “roa d rese rvation” betwee n two lots in a partition proce eding but was not the subject of a separate deed. 143 S.W .2d at 913–14. The strip

was never used as a roadw ay ; instead, the owner of one of the adjoining lots fenc ed the strip and cultivated it, acquir ing title by adver se possession, and built a road over the adjoining lot. Id. at 914.
I n a subsequent sale, the deed omitted any ref ere nce to the strip. Id. I n h o l d i n g t h at t h e o wner intended to include t h e s t ri p i n the convey ance , the court noted that he surre ndere d possession of both the lot and the adjoining strip and that there was nothing in the rec ord to show that it was of any benef it to him or that there was any rea son for him to rese rve it at the time the convey ance was made. Id. at 915. I n this case , the 5.175 acr e trac t was not omitted from the deeds but was convey ed as an

ease ment appurte nant i n the dee ds, which pre cisely descr ibed the boundaries of the s pecif ic t rac ts
convey ed as running up to and along the boundary of the 5.175 acr e trac t, which had been previously
convey ed by separ ate deed. There is no evidenc e that VL B ever surre ndere d possession of the 5.175

acr e t ra ct , an d t h e rec ord shows that it had rea son to rese rve it at the time of the convey ance of the other rele vant trac ts. We conclude that Cantley is distinguishable and is not controlling authority here

. Be cause we conclude t h at t he deeds are not fac ially ambig uous but show the clea r intent of th e VLB t o re t ai n the 5.175 acr e trac t, that no ambig uity arises in apply ing the proper ty descr iptions to the g round, that the “subjec t to” lang uag e cre ates no additional aff irmative rig hts in the g rante es, and that the 5.175 acr e trac t had not cea sed to be of use to the VL B, the strip and g ore doctrine does not supply a presumption that the VL B intended to convey the 5.175 acr e trac t in fee

15simple to Riddick. Naumann’ s claim t o o wn ership throug h the application of the strip and g ore

doctrine there fore fails as a matter of law, and t h e trial court did not err in g ranting summary judgme nt in favor of

appellee s on this ground. B eca use we find this g round to be meritorious, we need not rea ch Naumann’ s arg uments on the other g rounds asser ted by appellee s in their motion for
summary judgme nt. See Tex. R. App. P. 47.1; Patient Advoc ates , 136 S.W .3d at 648. We overr ule issues one throug h three

. Injun ctive Relief

I n issue four, Naumann complains of the trial court’s issu an ce o f a perma nent i n j u nction prohibiting Naumann from using the Roadway Easeme nt to acc ess any portion o f t h e Naumann proper

ty except the 1.992 acr e trac t a nd contends that the injunction must be dissolved. We reviewthe gra

nting or denial of a permanent injunction for a n abuse of

discretion. Operation
Rescue -Nat’l v. Planned P a r en t h o o d , 975 S.W .2d 546, 560 (Tex. 1998). A trial court abuses its discretion if it acts arbi t ra rily or unrea sonably or without ref ere nce to any g uiding rules and principles. Bowie Mem ’l Hosp. v. W right , 79 S.W .3d 48, 52 (Tex. 2002) (per curiam ) (c i ting Downer v. Aquam arine Operators, Inc

. , 701 S.W .2d 238, 241–42 (Tex. 1985)).

Naumann first arg ues that the trial court abused its discretion in order ing a perma nent injunction beca

use it was based on the trial court’s err oneous g ranting of decla ratory relief in favor of appellee s. Given our conclusion that the trial court did not er r i n i t s decla ratory summary judgme nt, we cann ot conclude that the trial court abused its discretion in g ranting a perma nent injunction on this g round. See Bowie Mem ’l Hosp. , 79 S.W .3d at 52. Naumann further challeng es the perma

nent injunction on the g rou n d t h at t h ere was no evidenc e that Naumann would not
16voluntarily abide by a final decla ratory judgme nt. I n g ener al, a perma nent injunction must not g rant relief that is more restric tive or compre hen s i v e than justified by the pleading s, evidenc e, and principles of equity and must be narr owly and prec ise l y d rawn. Holubec v. Brandenberge r , 111 S.W .3d 32, 39–40 (Tex. 2003). Her e, the undisputed summary judgme nt evidenc e showed that

on multipl e occa sions Naumann had used the Roadway Easeme nt to acc ess the 265 acr e Gar y trac t with construction vehicles and equipment weig hing in excess of t wo t ons. The 1988 Easement is expressly limit ed to vehicles “not to exceed two-ton trucks.” I n light of the evidenc e that Naumann had previously used t he 1 9 8 8 Easeme nt in violation of i ts express terms, we cannot conclude that the trial court abused its discretion in enter ing a narr ow and prec isely worde d perma nent injunction enjoining Naumann from any future use of the 1988 Easeme nt to acc ess the 265 acr e Gar y trac t. See id ; Bowie Mem ’l Hosp. , 79 S.W .3d at 52. We overr ule Nauma

nn’s fourth issue.

Attor ney’s F ees

I n issue five, Naumann arg ues that the trial court abused it discretion in awa rd ing attorney ’s fee s to appellee s under the UDJA. Naumann challeng es the trial court’s finding that there

wer e “spec ial and particula r circ umstances [i n the case ] that war rante d the awa

rd of attorney ’s fee s”
to appellee s. Naumann complains that the trial court did not specify what those circ umstances wer e, other than its finding that the case involved “complex issues of law and fac t,” and disputes that the

rec ord supports the conclusion that the case was, in fac t, complex. Naumann further contends that beca use the evidenc e was insufficient to support these finding s and the awa rd of attorney ’s fee s, the trial court actua lly based its awa rd on its err oneous decision that made appellee s the preva iling party

.

17The UDJA does not require an awa rd of attorney ’s fee s to the preva iling party ; rathe r, the statute provides that the trial court “may awa rd

. . . rea sonable a

nd nece ssary attorney ’s fee s as

are equitable and j u s t ” and may awa rd fee s to the preva iling party , the nonpreva iling party , or neither. Tex. Civ. Prac. & Rem. Code Ann. § 37.009; Barshop v. Medina Cnty. Underground W ater C o n s er vation Dist. , 925 S.W .2d 618, 637–38 (Tex. 1996) (awar d of attorney ’s fees under UDJ A
not depende nt on finding that party “substantially preva iled”). Courts must m ak e a fa ctual deter mination re garding the rea sonablene ss and nece ssity of the fee s awa rded and a leg al deter mination as to whether the awa rd is equitable and just. Bocque t v. Herring , 972 S.W .2d 19, 21 (Tex. 1998); Stable Energy, L.P. v. Newberry , 999 S.W .2d 538, 556 (Tex. App.—Austin 1999, pet. denied)

. We revie w t h e aw ar d of attorney ’s fee s under the UDJA for an abuse of discretion. Bocque t , 972 S.W .2d at 20–21. Th e trial court abuses its discretion when there is fac tually insufficient e vidence that the fe es aw arde d wer e re asonable and nec essar y , which are questions of fac t, or when the fee awa

rd is inequitable or unjust, which a re ma tters of law

. Id. at 21.
I n conducting a fac tual sufficie ncy revie w, we must weig h al l the evidenc e in the

re co rd an d may overturn the trial court’s finding s only if they are so ag ainst the g reat weig h t

an d preponde ranc e of the evidenc e as to be clea rly wrong and manifestly unjust. Ortiz v. Jo n es , 917 S.W .2d 770, 772 (Tex. 1996) (per curia m) (citing Cain v. Bain , 70 9 S

. W

. 2 d 1 7 5 , 176 (Tex. 1986)). The fac tors that g uide the deter mination of rea sonablene ss and nece ssity are (1) the time and labor requ i re d t o perf

orm the leg al service s; (2) the likelihood that acc eptanc e of the case would
prec lude the attorney from taking other employ ment; (3) the fee customarily char g ed in the are a for simil ar se rvice s; (4) the amount involved and the result obtained; (5) the time limitations imposed

18by the client or the circ umstances; (6) the nature and leng th of the profe ssional rela tionship with the

client; (7) the e x perie nce, r eputation, and ability of the lawy er or lawy ers pe rfor

ming the se rvice s; and (8) whether the fee is f ix ed or conting ent. Bocque t , 972 S.W .2d at 21 (citing Arthur Andersen & Co. v. Perry Equip. Corp. , 945 S.W .2d 812, 818 (Tex. 1997) (quoting Tex. Disciplinary Rules Prof’l Conduct 1.04(b), reprinted in Tex. Gov’t Code Ann. tit. 2, subtit. G app. A (West Supp. 2011) (Tex. State Ba

r R. Art. X, § 9)))

. The appellate court must “deta il all rele vant evidenc e and explain why the evidence was fac tually insufficient.” Id. (citing Rose v. Doctors Hosp. , 801 S.W .2d 841, 848 (Tex. 1990), supersede d on other grounds by statute , Tex. Civ. P ra c. & Rem. Code Ann §§ 71.002, .021 (West 2008)).

We turn, then, to the rec ord to apply these fac tors to the evidenc e. Although this case

was decide d on summary judgme nt, the cler k’s rec ord is three volumes. I t ref lects that the parties’ competing motions for summary judgme nt a nd response s involved detailed explanations of a long and complicated fac t pattern and numerous exhibi ts, includi n g co n trac ts, deeds, aff idavits with additional attachme nts, aer ial photogr aphs, and draw ings. Simi larly , the repor ter’s rec ord, althoug h consisting of the transcr ipt of a single -issue trial, is two volumes (in addition to the master volume), with one devoted entirely to exhibi ts. At trial, both appellee s’ attorney and an independe nt attorney
appea ring as an expert witness testified reg arding attorney ’s fee s. Both testified that they are board

cer tified in far

m and ranc h rea l estate law. They also testified about the detail and complexit y of the fa ct s and issues, calling some of them “novel,” and stated that a case such as this prec l u d es an attorney from taking on other c ases of simil ar c omplex ity

.

19Ap pellees’ attorney testified as to the specific service s he provided, includin g “a

g rea t deal of rese arc h,” on-site inspections, prepa ration of pleading s, a m ed i at i o n , and a trip to Corpus Christi for depositions schedule d by Naumann. He stated that he had spent 125.5 hours on the case at $250.00 an hour, the civil tr ial lawy er he had consulted on civil pr ocedur e had spent 22 hours at $250.00 an hou r, and his associate attorney had spent 14 hours at $140 an hour, and that afte r seg reg ating the fee s due only on t h e m at t er s b ef ore the court, the total was $37,260.00. He estimated that should the case be appea led, his fee s would be $37,50 0

. 0 0 an d $ 10,000.00 to this Court and the supreme court, respe ctively

. Both attorney witnesses stated that they are familiar with the custom ary rate s in the area, t h at the work perf ormed was nece ssary and the fee s char g ed were

rea sonable, a

nd that the estimated fe es on appe al wer e re asonable and nec essar y . The testimony elicited from these witnesses by Naumann included that the litigation had been amicable and eff icient, the parties had exchange d d o cu m ents without formal discovery , there had been only one deposition, and the witness Naumann deposed in Corpus Christi was bey ond subpoena r ang e. Na

umann offe red no testimony to counter tha t of the two attorne y s who testified in support of the fe e aw ard.

Although the rec ord does not conta in evidence of ever y fac tor under Rule 1.04, w e conclude that there was fac tually sufficie nt evidenc e to support the trial court’s finding that the fee s

wer e reasonable and necessar y and cannot say that the trial cour t’s awa rd was so ag ainst the gre at weig ht a nd preponde ranc e of the evidenc e as to be clea rly wrong and manifestly unjust. Id. ; Cain , 709 S.W .2d at 176; Herring , 21 S.W .3d at 368–71 (af firming on rema

n d t ri al co u rt’s awa

rd of attorney ’s fee s even though evidenc e was not prese nt on ev er y fac tor); Davis v. W eatherston ,

20No. 04-00-00533- CV, 2002 Tex. App. L EXI S 3194, at *23 (Tex. App.—San Antonio May 8, 2002,

no pet.) (following Herring and finding no abuse of discretion despite lack of evidenc e on all fac tors). F urther, to the e x tent that Naumann challeng es t he fee award as inequitable or unjust on the g round that it was base d on the t rial court’s err oneous decision on the merits, we ha ve alr eady conclude d that the trial court did not err in g ranting decla ratory and injunctive relief

. The decision
to awa rd attorney ’s fee s is solely within the trial court’s discretion. Bocque t , 972 S.W .2d at 21. As

we stated ear lier, the trial court may exercise its discretion to awa rd attorney s’s fee s to the preva iling party , the nonpreva iling party , or neither. See Tex. Civ. & Prac. Rem. Code Ann § 37.009; Barshop , 925 S.W .2d at 637–38. On the rec ord befor e us, we cannot conclude that the trial court a bused its discretion in its awa

rd of attorney ’s fee s. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009; Bocque t , 972 S.W .2d at 21; Stable Energy , 999 S.W .2d at 556. We overr ule Nauma

nn’s fourth issue.

CONCLUSION Having overr

uled Nauma

nn’s issues, we a ffirm the tria l court’s judg ment. 7

__________________________________________ Melissa Goodwin, Jus tice
Be fore J ustices Pury ear , Henson a nd Goodwin Affir med Filed: Apr il 5, 2012

Appellants and appellee s have both filed motions for leave to file post-submissi on briefs, 7 which ar e pending befor e this Court. W e g rant these motions. 21