REVERSE, RENDER in Part, and REMAND; Opinion Filed April 30, 2015. 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05
- 14
- 00393
- CV NORTH TEXAS MUNICIPA L WATER DISTRICT , Appellant V. JENNIE BALL A/K/A JE NNY TISSING AND JEFF REY TISSING , Appellees On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366
- 01429
- 2013 

### OPINION Before Justices M yers, Evans, and O’ Neill 1 Opinion by Justice O’ N eill This appeal involves a structure built by appellees Jenny and Jeffrey Tissing upon an easement owned by the appellant North Texas Municipal Water District. The District appeals the trial court’s judgment, which found in the Tissings’ favor on the p arties’ cross motions for summary judgment and dismissed the District’s claims for declaratory and injunctive relief. In this Court the District contends the trial court erred by granting the Tissings’ summary judgment motion, by denying the District’s s ummary judgment motion , by denying the District’s request for equitable relief, and by refusing to allow the District to inspect the structure during discovery

. The District seeks a reversal o f the summary judgment rulings and a remand to determine whethe r it is entitled to attorney’s fees.

1 The Honorable Michael J. O’Neill, Justice, Court of Appeals. Fifth District of Texas at Dallas, Retired, sitting by assignmen t.– 2

– For the reasons that follow, we reverse the trial court’s judgment . We render a declaratory judgment in the District’s favor, and we remand the case (a) for entry of a mandatory injunction requiring the Tissings to rem ove the structure and (b) for determination of attorney’s fees for the District under the Declaratory Judgment Act. Background In 1980, Helen Lewis owned a twenty

- one acre tract of land in Collin County, across which the District wished to install a water pipeline. Lewis conveyed a thirty

- foot

- wide permanent easement (the Easement) to the District. The District received the righ t to construct, operate, and maintain water pipelines within the Easement’s boundaries; Lewis retained the right to use the land making up the Easement “ except for the purposes of erecting buildings or permanent structures ” on the land. The District agreed to pay for damage it caused to fences and crops while performing its functions on the Easement. Over the years, Lewis’s tract was subdivided. In 2013, the Tissings owned a subdivided piece of the Lewis property, a two

- and

- one - half acre tract faci ng Stinson Road. The Easement and its pipeline run across the width of the Tissings’ property, parallel to Stinson Road. The Tissings began to erect a structure across the front of their property , and within the Easement boundaries , in March 2013. The structure was built by anchoring galvanized steel poles into holes with concrete, building a base with concrete blocks that encased the poles and created a wall across the front of the property, facing the wall with flagstone on both sides, and topping thi s base with a wood privacy fence. 2 The District learned of the construction in April
2013 and contacted the Tissings to demand that the construction stop and the portion of the structure already built be removed from the Easement. When the Tissings refus ed to stop
construct ion, the District filed suit. The District sought a declaration that it held a valid existing

2 Not surprisingly, t he Tissings refer to the structure as a “fence”; the District calls it a “wall.” T o avoid the ap pearance of partiality in nomenclature, we will refer to the subject of this appeal as a “structure.”– 3

– E asement across the Tissings’ property and that the structure erected within its E asement was a permanent structure that violated the terms o f the E asement. The District also pleaded that the construction of the structure constituted an impermissible use and wrongful interference with the District’s reaso nable use and enjoyment of the E asement. Finally, the District sought a mandatory injunct ion, requiring the Tissings to remove the structure being built within the
E asement. The trial court granted a temporary restraining order and extended that order once. In the meantime, the Tissings answered. They generally denied the District’s claims and, soon after, filed a counterclaim seeking a declaratory judgment that the structure was not permanent in
nature and that it did not violate any term in the E asement. The trial court heard the application for temporary injunction. The parties stipulated that the structure was built within the boundaries of the Easement. The District presented testimony from William Bentley Powell, its real estate manager. Powell explained the workings of the District as well as the location and purpose of this particular pipeline. He testified that, in his opinion , the structure was permanent. The Tissings called land surveyor Garey Gilley, who surveyed the Easement and area around the Easement

. Although he did not specifically opine that the structure was a fence, he did testify that he was not aware of a fence ever being declared a permanent structure. At the close of evidence, the District asked the court to maintain the status quo by halting further construction of the wall. When counsel for the District suggested that a temporary injunction would save the Tissings money in the event of a final decision in favor of the District, counsel for the Tissings replied: I don ’ t think we should have the Municipal Water District telling the Tissings what they should do with their property or their money. If they want to build a fence and if, in the future, they have to tear it down based on the rulings from the Court, they should be allowed to do so. That’ s their property. They should be able to use it and enjoy it as they see fit.

***– 4

– If, at the end of the day, they have to tear the fence down and put something else up, that’s on them, and they’re willing to accept the Court’s ruling on that at a later date and time. The trial court denied the ap plication for temporary injunction, concluding that the structure was “more in the nature of a fence.” The parties both filed summary judgment motions, which we discuss below. In the end, the trial court granted the Tissings’ motion, denied the District’s motion, and dismissed the District’s claims. The District appeals. The Motion s for Summary Judgment Approximately three months after the District filed suit, t he Tissings moved for a no

evidence summary judgment. The District filed a preliminary response and a motion for continuance, arguing adequate time for discovery had not passed

. See T EX
. R. C IV
. P. 166a(i) (party without presenting summary judgment evidence may move for summary judgment “[a]fter adequate time for discovery”). The trial cou rt granted the continuance, and the District ultimately filed both an amended response to the motion and its own traditional and no

- evidence motion for summary judgment.

Standard of Review We apply well

- known standards in our review of traditional and no - evidence summary judgment motions. See Timpte Indus., Inc. v. Gish , 286 S.W.3d 306, 310 (Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548 (Tex. 1985). With respect to a traditional motion for summary judgment, the movant has the burden to demonstrate that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. T EX
. R. C IV
. P. 166a(c); Nixon , 690 S.W.2d at 548

– 49. We review a no

- evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. T EX
. R. C IV
. P. 166a(i); Gish , 286 S.W.3d– 5

– at 310. To defeat a no

- evidence summary judgment, the nonmovant is required to produce evidence that raises a genuine issue of material fact on each challenged element of its claim.
G ish , 286 S.W.3d at 310; see also T EX
. R. C IV
. P. 166a(i). Within these standards, w e review the summary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010). The Easement At the outset, we address the paragraph of the Easement that governs the parties’ summary judgment motions. The said Grantors herein, their heirs and assigns, shall have the right fully to use and enjoy the said premises covered by the said above described easement except for the purposes her einabove granted, and except for the purposes of erecting buildings or permanent structures over said right

- of

- way . The said North Texas Muni c ipal Water District does further covenant and agree to pay for any damage that may be done to crops or fences by laying, erecting, maintaining, operating, or removing such pipe line. (Emphasis added.) The District’s fundamental position is that the structure is “permanent ” within the meaning of the
E asement, so the Tissings had no right to erect it over the Easement ’s right

- of

- way. The Tissings contend the structure is not permanent in nature. But they also argue that

— even if the structure is permanent within the meaning of the Easement

— it is a fence, and the Easement contemplate s an exception for fences when it st ate s the District w ill pay for any damage it does to fences while working on the Easement. The rules of contract construction and interpretation apply to easement agreements. DeWitt Cnty. Elec. Co

- op., Inc. v. Parks , 1 S.W.3d 96, 100 (Tex. 1999)

. Unless the agreement is ambiguous, and no such claim is made in this case, we interpret its provisions as a matter of law. Id. As w e interpret the two Easement pro visions at issue in this appeal, our primary concern is to ascertain the true intentions of the parties as expressed in the instrument. See Coker v. Coker , 650 S.W.2d 391, 393 (Tex. 1983) . We strive to harmonize and give effect to all the provisions of the agreement so that none will be re ndered meaningless

. Id. What is a permanent structure ?– 6

– Whether a structure is “permanent” is necessarily a fact

- specific inquiry that will depend on such factors as the nature of the structure and its location on the restricted area. However, our inqui ry is assisted by this Court’s analysis in Auerbach v. Dallas Area Rapid Transit , No. 05

- 94

- 01207

- CV, 1995 WL 447530 (Tex. App.

— Dallas July 26, 1995, writ denied) (not designated for publication) . Auerbach sued DART for abuse of easement, seeking removal of a billboard constructed in DART’s right

- of

- way easement, which abutted Auerbach’s land. The case
pre sented a limitations issue: the accrual date depended upon whether the injury caused by the billboard was permanent or temporary in nature

. Id. at *2. The nature of the billboard became important because “[w]here a building or permanent structure is placed on a private easement, the limitations period on an action to abate the obstruction begins to run with the completion of the obstruction. ” Id. at * 3 (citing Eidelbach v. Davis, 99 S.W.2d 1067, 1073 (Tex. Civ. App.

— Beaumont 1936, writ dism’ d) )

. The opinion describes the billboard, which:

consists of a metal column supporting an aerial structure to accommodate advertising panels approximately 10 by 40 feet in size, lighting, walkways, ladders, appliances, and an electric meter. The footing of the billboard is embedded in concrete in the ground. Removal of the billboard would require dismantling the steel aerial structure with the use of a crane and e xcavation of the concrete footing and column. It is undisputed that the billboard has remained continuously in place since completion of its construction on October 19, 1981. There has been nothing sporadic about the billboard ’ s presence and it is not cont ingent upon any irregular force. Id. Auerbach argued the billboard was temporary because it could be removed, but we acknowledged that any structure placed upon the land is removable. Id. Instead, we stated that

“ a structure which is designed as a contin uous fixture is permanent as a matter of law. ” Id. We went on to determine the billboard was a permanent structure that was indicative of a permanent injury to the land. Id. at * 4. The Easement require s our application of the facts

— as established by t he summary judgment evidence

— to the rule expressed in Auerbach

. Thus, a structure is “ permanent ” within– 7

– the meaning of the Easement if the facts establish it was designed as a continuous fixture. See id.
at *3. Is construction of a fence an exception to the prohibition of permanent structures ? The Tissings argue our inquiry into the permanent nature of the structure is asking the wrong question. They contend the Easement intends fences to be an exception to the prohibition against erecting permanent structures. According to the Tissings, the plain language of the
Easement contemplates the presence of fences within its boundaries. And t o a limited extent, we
agree with this last statement . The Easement states “[t] he said North Texas Municipal Water District does further covenant and agree to pay for any damage that may be done to crops or fences by laying, erecting, maintaining, operating, or removing such pi pe line. ” This language could speak to a fence already standing within the Easement’s boundaries . It could also speak to

a fence near the Easement’s boundaries that m ight be damaged by pipeline construction

. It could even speak to a fenc e intended to se rve as temporary protection for a homeowner project. In each of those cases, the existence and location of the fence w ould be reasonable, and it would be reasonable to require the District to compensate a damaged fence’s owner. However, t he language rel ied upon by the Tissings speaks only to this remedy of compensation for damage , not to any additional rights reserved by the original landowner. It is true we avoid burdening the servient estate when possible

. Severance v. Patterson , 370 S.W.3d 705, 721 (Tex. 2012) (easement grants unlimited reasonable use to dominant estate holder with as little burden as possible to servient owner). But i t is not reasonable to create an exception to an express prohibition within an easement agreement

— here, construction of a permanent
structure

— when that exception, by its very nature , would significantly interfere with the easement holder ’s ability to carry out the purposes specifically granted to it by the Easement. The Tissings’ interpretation of the Easement’s refere nce to fences give s that provision control

over not only the permanent

- structure prohibition , but also the essential purpose of the Easement.– 8

– We will not give a single provision , taken alone , controlling effect in this Easement ; instead, we must consider all provisions with reference to the purpose of the whole instrument

. See Coker , 650 S.W.2d at 393. And the District’s ability to install, maintain, and repair its water pipeline would be undermined by a permanent structure within the Easement boundaries, regardless of whether the permanent structure is a fence or a wall or a billboard or a ny other continuous fixture. We conclude the Easement prohibits a structure when the facts indicate it was “ designed as a continuous fixture .” See Auerbach , 1995 WL 447530 at *3. We further conclude the
Easement ’s prohibition contains no exception for fences. See Coker, 650 S.W.2d at 393. With th is construction of the Easement’s language, we review the summary judgment motions. The Tissings’ No

- Evidence M otion In its first issue, the District contends the trial court erred by granting the Tissings’ no

evidence motion for summary judgment. At the outset, t he District identifies a number of procedural problems with the Tissings’ motion , the most significant being the Tissings’ failure to identify any specific elements of the District’s claims for which there was no evidence

. A no

evidence motion “ must state the elements as to which there is no evidence .” T EX
. R. C IV
. P. 166a(i). “ A no

- evidence motion that only generally challenges th e sufficiency of the non

movant’ s case and fails to state the specific elements that the movant contends lack supporting evidence is fundamentally defective and cannot support summary judgment as a matter of law. ”
Jose Fuentes Co. v. Alfaro , 418 S.W.3d 280, 283 (Tex. App.

— Dallas 2013, pet. denied ) . The Tissings effort to identify the elements at issue in its no

- evidence motion states only the following: Tissing moves for summary judgment on all of the Plaintiffs claims because , after an adequate time for discovery, Plaintiff can produce no evidence which supports the essential elements of breach of contract.– 9

– This statement fails to identify any particular element or elements of the District’s claims; indeed, it does not even sp eak to a claim that the District pleaded. T he legal sufficiency of a no

evidence motion for summary judgment may be challeng ed for the first time on appeal. Id . at 287. We conclude the Tissings’ no - evidence motion was insufficient as a matter of law and cannot support summary judgment

. See id. Although the Tissings cast their motion as a no

- evidence motion, the motion has certain characteristics of a traditional motion as well. The Tissings attached evidence to the motion, and they asked for judgment on their own declaratory judgment claim, on which they bore the burden of proof

. We must determine the nature and standard governing a summary judgment motion after considering the substance of the motion, rather than categorizing the motion strictly by its form or title. Rodgers v. Weatherspoon , 141 S.W.3d 342, 344 (Tex. App.

— Dallas 2004 , no pet. ) . Thus, although the Tissings’ motion failed to meet the requirements of rule 166a(i) on the District’s claims, we conclude we may review it as a traditional motion on the Tissings’ own declaratory judgm ent claim. See id. The Competing Traditional Motions
We turn, therefore, to the competing motions for summary judgment on the parties’ mirror

- image claims for declaratory judgment. When both parties move for summary judgment and the trial court grants one motion and denies the other, we consider both motions, their evidence, and their issues, and we may render the judgment that the trial court should have rendered. Mann Frankfort St ein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). The Tissings’ motion argued they were entitled to judgment as a matter of law on their declaratory judgment claim: Defendants seek the court to construe the terms of the Easement. Spe cifically, the Tissings’ request a declaration that: 1) the subject fence(s) are not permanent structures 2) the fence(s) do not violate any term or contract construed in the– 10

– Easement. See the attached photographs, collectively as Exhibit "B". Defendants seek a declaration from this Court as to whether or not Plaintiffs have been deprived of the use of the easement with the privacy fence in place. The motion seeks exactly the relief the Tissings sought in their answer to the District’s lawsuit. The Distr ict’s traditional motion, likewise, s eeks the relief it sought in its petition: a declaration that the structure is a permanent structure and an order remov ing the structure from the boundaries of the easement. 3 We proceed, then, to look at all the summa ry judgment evi dence and to determine whether either party has established its right to judgment as a matter of law. The Summary Judgment Evidence The Tissings attached a copy of the Easement and seven photographs of the structure to their motion. 4 The District’s summary judgment evidence (attached to both its amended response to the Tissings’ motion and its own traditional motion) included excerpts from the Tissings’ depositions, a survey of the Easement, the Affidavits of Scott Craft and Joseph M.
Stan kiewicz, and the reporter’s record of the temporary injunction hearing. 5 The Tissings filed
no response

— either argument or evidence

— to the District’s motions. Our review of the summary judgment record focuses on the physical character of the structure, the cost of the structure, the location of the structure on the easement, and the impact of the structure’s presence on the District’s ability to repair and maint ain the pipeline. We address each of these issues in turn. The physical character of the structure is proved by photographs as well as deposition testimony by the Tissing s . The base of the structure was created by setting twenty

- five

3 The District titles its motion one for “partial” summary judgment. But the only further proceedings it sought if its motion was granted

— and the only further proceeding it seeks if we reverse the trial court’s judgment

— is a hearing on its entitlement to attorney’s fees under the Declaratory Judgment Act. As to liability and injunctive relief, the motion sought judgment as a matter of law. 4 The District filed written objections, arguing the photographs were not properly authenticated, were hearsay, an d had not been previously produced in response to the District’s discovery request. Our record, however, includes no ruling by the trial court on the District’s objections, and the District does not complain on appeal of the failure to rule. Accordingly, we will consider the Tissings’ photographs along with the other summary judgment evidence. 5 The Tissings filed no objections to the District’s evidence.– 11

– galvanized steel po sts in two

- feet

- deep holes and filling the holes with concrete. Concrete blocks were then installed over the poles to form the base of the structure, and both sides of the base were covered with a flagstone facing. A line of cedar pickets was installed a top the base, creating the structure’s final height of approximately ten feet. There is no dispute that the structure is anchored to the land and that its base is a concrete wall, covered with stone.
Jenn y Tissing testified during her deposition that buil ding the structure cost between $22,000 and $23,000. That testimony is undisputed.
C ounsel for the parties stipulated that the structure was erected within the Easement. The actual location of the structure in relation to the E asement is proved most prec isely by the
Easement survey prepared by the Tissings’ expert witness, Gary Gilley . Gilley was called as an expert witness by the Tissings at the temporary injunction hearing. His survey indicates the thirty

- foot

- wide Easement runs parallel to

— and some t wenty feet from

— Stinson R oad , across the Tissing property. The structure was built essentially parallel to

— and inside of

— the
E asement’s road

- side boundary, leaving the majority of the Easement between the structure and the Tissings ’ property, now separated from Stinson Road by this structure

. Joseph Stan k iewicz is the Deputy Director of the District and a civil engineer. He testified that the terms of the Easement allow the District to construct additional pipelines within the Easement and require the District to repair and maintain the existing pipeline. He testified further that these activities would damage or destroy the Tissings’ structure. Specifically, he testified: In the event the District is required to excavate that pipeline to fully e xpose the pipeline, accepted safety standards could require a trench of approximately 20

– 25 feet wide at the top of the ditch in order to have full access to the District’s pipeline. Excavating the Easement to provide full access to the pipeline will not be possible within the District’s Easement with the permanent wall in place, without damaging or destroying it.– 12

– Stan k iewicz also testified that, given the Easement’s requirement that the District pay for damages to fences, it would never have approved a $2 3,000 structure within the Easement. None of Stan k iewicz’s testimony was controverted by the Tissings. We conclude the summary judgment evidence establishes that

— under the facts of this

case

— the structure was designed as a continuous fixture

. Therefore, the structure is a permanent structure within the meaning of the Easement. See Auerbach , 1995 WL 447530 , at *3. And assuming

— without deciding

— that the structure should be characterized as a fence, we have concluded that the Easement does not provide an exception to the prohibition of permanent
structure s for fences. We conclude further that the placement of the structure interferes with the District’s use of the E asement for its intended purposes

. A s a matter of law, therefore, the structure violates t he terms of the E asement

. The trial court erred in granting summary judgment for the Tissings and denying summary judgment for the District. We sustain the District’s first and second issues. 6 Injunctive Relief In its third issue, the District contends the trial court erred by not granting its request for a permanent mandatory injunction that would require the Tissings to remove the structure from the
easement. We agree. Injuncti ve relief has been held to be th e proper remedy to halt interference with easement rights. Harris Cnty. v. S. Pac. Transp. Co. , 457 S.W.2d 336, 340 (Tex. Civ. App.

— Houston [1st Dist.] 1970, no writ ) (citing City of Mission v. Popplewell , 294 S.W.2d 712 , 714 ( Tex. 1956) )

. But in a summa ry judgment case, we may order a mandatory injunction o nly whe n the summary judgment evidence demonstrates that the denial of relief would be a clear

6 Although ordinarily we review a party’s no

- evidence motion before their traditional motion, our o bligation to review the Tissings ’ traditional motion require s us to review the two traditional motions together. Because the District has satisfied the “more onerous traditional summary judgment burden,” we need not address its no

- evidence motion in this opinion. See Pitts v. Winkler Cnty. , 351 S.W.3d 564, 571 (Tex. App.

— El Paso 2011 , no pet. )

.– 13

– abuse of discretion

. Texas Health Care Info. Council v. Seton Health Plan, Inc. , 94 S.W.3d 841, 853 (Tex. App.

— Austin 2002, pet. denied).
Stan k iewicz testified that “[i]n order for the District to have full and unobstructed access to its pipeline to make repairs, maintain the pipeline, or to excavate it, it is necessary that the wall be removed from the Dis trict’s Easement.” Because the structure is a permanent structure, the placement of which violates the District’s E asement, we agree that no remedy but its removal

w ill allow the District full and necessary access to its Easement

. The summary judgment

ev idence demonstrates that denial of injunctive relief was a clear abuse of discretion. See id. The trial court should have granted the District’s request for mandatory injunctive relief from the Tissings’ encroachment on the Easement. We sustain the District’s third issue. Attorney’s Fees
I n its fifth issue, t he District asks us to remand this case solely for determination of its attorney’s fees under the Declaratory Judgment Act. The statute provides that “[i]n any proceeding under this chapter, the court may award costs and reasonable and necessary attorney’s fees as are equitable and just.” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . § 37.009 (West 2015 ). Accordingly, w e remand the i s sue of attorney’s fees under the Declaratory Judgment Act to the trial cou rt for its consideration in light of our opinion

. See Hartsell v. Town of Talty , 130 S.W.3d 325, 329 (Tex. App.

— Dallas 2004 , pet. denied )

. We sustain the District’s fifth issue

.– 14

– Conclusion We reverse the trial court’s judgment and render judgment in p art for the District, declaring that the structure is a permanent structure within the meaning of the Easement and that the structure violates the terms of the Easement. We remand this cause to the trial court (a) for entry of a mandatory injunction requi ring the Tissings to remove the structure from the boundaries of the Easement, and (b) for determination of attorney’s fees for the District under the Declaratory Judgment Act. 7

140393F.P05

7 Given our resolution of these matters, the District’s fourth issue, which involves the District’s request to inspect the wall , is now moot. /Michael J. O'Neill/ MICHAEL J. O’NEILL JUSTICE, ASSIGNED– 15

– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

NORTH TEXAS MUNICIPAL WATER DISTRICT, Appellant No. 05

- 14

- 00393

- CV V. JENNIE BALL A/K/A JENNY TISSING AND JEFFREY TISSING, Appellees On Appeal from the 366th Judicial District Court, Collin County, Texas Trial Court Cause No. 366

- 01429

- 2013. Opinion delivered by Justice O’Neill. Justices Myers and Evans participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED.
J udgment is RENDERED IN PART for North Texas Municipal Water District, declaring that the structure erected by appellees is a permanent structure within the meaning of the Easement and that the structure violates the terms of the Easement.
We REMAND this cause to the trial court (a) for entry of a mandatory injunction requiring appellees to remove the structure from the boundaries of the Easement, and (b) for determination of attorney’s fees for the North Texas Municipal Water District under the Decl aratory Judgment Act. It is ORDERED that appellant North Texas Municipal Water District recover its costs of this appeal from appellees Jennie Ball a/k/a Jenny Tissing and Jeffrey Tissing.
Judgment entered this 30th day of April, 2015.