Opinion issued March 26, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00671-CV

———————————

JOEL A. KOLB AND TRACEY A. KOLB, Appellants

V.

EDWARD C. SCARBROUGH, INDIVIDUALLY AND AS TRUSTEE FOR 

ECS TRUST, ECS TRUST AND CHERYL SCARBROUGH, Appellees

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Case No. 13-DCV-205374

MEMORANDUM OPINION

The Kolbs sued their neighbors, the Scarbroughs, alleging that the 

Scarbroughs’ underground drainage system and other property improvements 

caused excessive erosion on their lower-elevation lot. The Kolbs’ petition included 

claims for negligence, gross negligence, violations of the Water Code, nuisance, 
2

and trespass. In addition to monetary damages, the Kolbs sought a permanent 

injunction requiring the Scarbroughs to “implement a plan to alter the grade” of 

their property “to avoid future flooding.”

The Scarbroughs moved for summary judgment on all claims. They 

contended that the previous owners of the Kolb property gave them permission to 

install the drainage system before the property was sold to the Kolbs, thereby 

creating an easement by estoppel to which the Kolbs continued to be bound. They 

also asserted that the Kolbs had no evidence of causation or damages.

The trial court granted the Scarbroughs’ summary-judgment motion without 

specifying the grounds for the ruling and entered a final judgment dismissing all 

claims against the Scarbroughs.

In two issues, the Kolbs contend that the trial court erred by (1) granting 

summary judgment to the Scarbroughs on the trespass claim because discrepancies 

between the affidavit and earlier deposition testimony of David Easterling, who 

sold his property to the Kolbs, created a fact issue and (2) granting final judgment 

against them on their remaining claims because the Scarbroughs’ summaryjudgment motion did not address those claims.

We affirm.
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Background

The Scarbroughs purchased their residential lot in 2001, began building a 

home in 2005, and moved into the home in 2009. Their neighbors, the Easterlings, 

owned the lot next door, which was at a lower elevation. In 2011, the Easterlings 

sold their lot to the Kolbs. 

The entire neighborhood is situated on naturally sloping terrain, and rainwater runoff is an issue. The rain water naturally flows from higher lots, through 

the Scarbrough lot, to the Kolb lot, and down into a natural ravine within the 

Kolbs’ property. The Kolb lot is within a designated 100-year flood zone. When 

the Kolbs bought it, though, the area was experiencing a “drought.” 

David Easterling testified that the ravine appeared as through it had been 

there for many years. Tree roots near the edge of the ravine were exposed and had 

grown bark, indicating that the soil had been washed away a long time ago. 

Easterling also testified that the Easterling/Kolb lot had a low spot that would hold 

water after each rain. The “bog,” which was approximately 10 feet in diameter,

became a breeding ground for mosquitoes. 

Ed Scarbrough installed various drainage inlets and pipes on his property to 

address water runoff and erosion. Some pipes drained towards a river behind his 

house; others drained in the opposite direction towards the ravine on the Kolb 

property. Ed testified that he had concerns about the bog next door and persistent 
4

mosquito problem. He also was concerned that the ravine on the Easterling/Kolb 

lot was steadily expanding towards his property line and would, eventually, 

encroach on his land. Due to these concerns, in 2011, Scarbrough approached 

Easterling and offered to install a drainage system on the Easterling lot, at the 

Scarbroughs’ expense, if Easterling agreed. Easterling told Scarbrough that he 

“could do whatever he wanted on my property to make the drainage improvements 

that he envisioned making, as long as he was paying for the cost.” These 

conversations occurred shortly before the Easterlings sold their property to the 

Kolbs.

When the Kolbs were doing a pre-sale “walk-through” of the property, they 

saw Ed Scarbrough using wooden forms and concrete to construct a bulkhead at 

the ravine. Joel Kolb testified that, on that day, he also saw two underground pipes 

draining into the ravine. Kolb admitted that Ed told him he was doing the work on 

the Easterling—soon to be Kolb—land to address drainage issues and erosion. The 

Kolbs did not object to the work.

After the Kolbs moved in, their initially friendly relationship with the 

Scarbroughs deteriorated. The property line between their lots was within a gaspipeline easement, and, due to easement restrictions, was not marked by a fence.

Disputes arose concerning the exact location of the property line. The Kolbs 

believed that the Scarbroughs were physically entering their property without 
5

permission and adding landscaping on the Kolbs’ side of the property line. 

Additionally, the Kolbs began to question whether the underground drainage pipes 

the Scarbroughs installed were harming their property. 

There were two drainage pipes that were of particular concern. One began 

and ended within the Kolbs’ property—it drained the standing water from the bog 

to the ravine. The other pipe was connected to the Scarbroughs’ underground 

irrigation system, ran across the property line between the two lots, and emptied

into the ravine near the bulkhead the Kolbs saw Scarbrough building. 

Eventually—though without discussing the issue with the Scarbroughs—

Tracey Kolb dug up the two pipes, broke them apart, and filled them with concrete. 

For a short time afterwards, Scarbrough brought his drainage system up to the 

surface and added an exit point to the piping about 10 feet on his side of the 

property line. That exit point was later capped at the Kolbs’ insistence. Once the 

two pipes were plugged or capped, the water runoff returned to the surface-level 

and again flowed across the Scarbrough property, down to the Kolb property, and 

into the Kolbs’ ravine. The bulkhead remained.

After the Kolbs disabled the two underground drainage pipes, they sued the 

Easterlings and Scarbroughs, asserting that the Scarbroughs’ diversion of water 

caused damage to their property, including flooding and excessive erosion. David

Easterling was deposed. The Easterlings were later nonsuited. Several months after 
6

that, the Scarbroughs filed a motion for summary judgment, combining noevidence and traditional summary-judgment challenges in the same motion. They 

included within their summary-judgment evidence an affidavit from David 

Easterling stating that he gave the Scarbroughs permission to install the 

underground drainage system. The trial court granted the Scarbroughs’ summaryjudgment motion without specifying the basis for its ruling.

The Kolbs timely appealed. 

Standard of Review

The standard for reviewing a summary judgment is de novo. Provident Life 

& Accident Ins. Co .v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); see TEX. R. CIV. P.

166a. “The movant for summary judgment has the burden of showing that there is 

no genuine issue of material fact and it is entitled to judgment as a matter of law.” 

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). “In deciding 

whether there is a disputed material fact issue precluding summary judgment, 

evidence favorable to the non-movant will be taken as true.” Id. at 548–49. “Every 

reasonable inference must be indulged in favor of the non-movant and any doubts 

resolved in its favor.” Id. at 549. 

When a defendant moves for summary judgment, he must either disprove at 

least one essential element of the plaintiff’s cause of action or plead and 

conclusively establish each essential element of his affirmative defense. Cathey v. 
7

Booth, 900 S.W.2d 339, 341 (Tex. 1995); Centeq Realty, Inc. v. Siegler, 899 

S.W.2d 195, 197 (Tex. 1995). If a defendant conclusively establishes his 

affirmative defense, the burden shifts to the nonmovant to raise a genuine issue of 

material fact to defeat summary judgment. Centeq Realty, 899 S.W.2d at 197; 

Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.—Houston [1st 

Dist.] 2014, no pet.); see Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 

(Tex. 1997).

The evidence raises a genuine issue of fact if reasonable and fair-minded 

jurors could differ in their conclusions in light of all of the summary-judgment 

evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.

2007) (per curiam); Lujan, 433 S.W.3d at 704. To determine if the nonmovant has 

raised a fact issue, we review the evidence in the light most favorable to the 

nonmovant, crediting favorable evidence if reasonable jurors could do so, and 

disregarding contrary evidence unless reasonable jurors could not. See City of 

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We indulge every reasonable 

inference and resolve any doubts in the nonmovant’s favor. Sw. Elec. Power Co. v. 

Grant, 73 S.W.3d 211, 215 (Tex. 2002).

Normally, when a party includes both traditional and no-evidence points in 

his summary-judgment motion, we review the no-evidence points first. Ford Motor 

Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Brookshire Katy Drainage 
8

Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 307 (Tex. App.—Houston [1st Dist.] 

2010, pet. denied); see TEX. R. CIV. P. 166a(i). If no-evidence summary judgment 

was properly granted, we do not reach the traditional summary-judgment 

arguments. Brookshire Katy Drainage Dist., 333 S.W.3d at 307. Thus, in

reviewing whether summary judgment was properly granted to the Scarbroughs, 

we start with whether the Kolbs produced more than a scintilla of evidence on each 

element of their asserted causes of action.

No-Evidence Summary Judgment

The Kolbs asserted five causes of action against the Scarbroughs: 

negligence, gross negligence, violations of the Water Code, nuisance, and trespass.

In their summary-judgment motion, the Scarbroughs argued that the Kolbs “have 

no evidence that they have suffered injury[,] as the damage caused by the natural 

flow of water was actually stopped by the drainage improvements.” Additionally, 

they argue that the Kolbs “have no evidence that increase in the flow of water 

allegedly related to the construction of the Scarbrough home . . . caused any 

erosion . . . or . . . damages to the Kolbs at all.” Thus, for those causes of action 

that require evidence of causation and damages, we must determine whether the 

Kolbs presented more than a scintilla of evidence of those two elements.
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A. Negligence and gross negligence

A negligence cause of action has three elements: (1) a legal duty owed by 

one person to another, (2) a breach of that duty, and (3) damages proximately 

caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002); 

Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 310 (Tex. App.—Houston [1st Dist.] 

2007, no pet.). 

The Scarbroughs argued in their summary-judgment motion that the Kolbs 

presented no evidence of causation or damages. The Kolbs responded by 

referencing a report prepared by their retained expert, which stated as follows:

Erosion has taken place in the gully on the owners’ property. This 

erosion is likely to have been caused from the concentration of 

stormwater runoff from the sub-surface drainage system while it was 

functional. In addition, the headwall has caused overland sheetflow to 

back up behind it and flow over, producing a waterfall effect. These 

factors would contribute to increased runoff within the gully 

compared to runoff allowed to flow across the ground surface and 

produce serious erosion issues.

According to the Kolbs, “This clearly establishes that Defendants’ conduct in 

installing the drainage system and the headwall caused substantial and continued 

erosion.” 

The Scarbroughs argue that the “unsworn hearsay report” is no evidence and 

that the Kolbs failed to provide any other evidence of causation or damages. They 

raise this issue for the first time on appeal. We, therefore, must consider whether 

the Scarbroughs have waived their argument that the expert report is not competent 
10

summary-judgment evidence. See TEX. R. APP. P. 33.1(a); Bushnell v. Dean, 803 

S.W.2d 711, 712 (Tex. 1991).

The resolution of this issue depends on whether the alleged defect is one of 

form or substance. Form defects must be objected to at the trial court or are waived 

on appeal. TEX. R. CIV. P. 166a(f); Seaprints, Inc. v. Cadleway Prop., Inc., 446 

S.W.3d 434, 441 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Bastida v. 

Aznaran, 444 S.W.3d 98, 104–05 (Tex. App.—Dallas 2014, no pet.). Substantive 

defects, however, may be raised for the first time on appeal. Seaprints, 446 S.W.3d 

at 441; Bastida, 444 S.W.3d at 105.

“The absence of an affidavit verifying a copy of the instrument attached as 

summary judgment proof amounts to no proof.” In re Estate of Guerrero, No. 14–

13–00580–CV, 2014 WL 4377465, at *10 (Tex. App.—Houston [14th Dist.] Sept. 

4, 2014, no pet.) (mem. op.). Thus, unverified summary-judgment evidence is a 

substantive defect that can be raised for the first time on appeal. Mansions in the 

Forest, L.P. v. Montgomery Cnty., 365 S.W.3d 314, 317 (Tex. 2012) (per curiam) 

(stating that “an unverified copy of a promissory note offered as summary 

judgment evidence, which was complained about for the first time on appeal” will 

not support summary judgment); Perkins v. Crittenden, 462 S.W.2d 565, 568 (Tex.

1970) (reversing summary judgment because copy of promissory note included in 

summary-judgment evidence was unverified, after holding that complaint 
11

regarding substantive defect could be raised for first time on appeal); see Blanche 

v. First Nationwide Mtg. Corp., 74 S .W.3d 444, 451 (Tex. App.—Dallas 2002, no 

pet.) (stating that “complete absence of authentication is a defect of substance”); 

see also Judge David Hittner & Lynne Liberato, Summary Judgments in Texas: 

State and Federal Practice, 46 Hous. L. Rev. 1379, 1470 (2010) (“Non-summary 

judgment evidence, such as unsworn witness statements, expert’s reports, or 

unauthenticated documents . . . is not proper summary judgment evidence and 

cannot defeat a no-evidence summary judgment motion.”).

Accordingly, the Kolbs’ failure to attach an affidavit or otherwise 

authenticate their expert report is a substantive defect that the Scarbroughs can 

raise for the first time on appeal. See Perkins, 462 S.W.2d at 568; Guerrero, 2014 

WL 4377465, at *10; accord Mansions, 365 S.W.3d at 317. Because the expert 

report is not verified, it is not competent summary-judgment evidence and cannot 

defeat the Scarbroughs’ no-evidence motion. Perkins, 462 S.W.2d at 568. The 

Kolbs point to no other summary-judgment evidence on causation or damages and, 

without any, we conclude that the trial court did not err in granting summary 

judgment to the Scarbroughs on the negligence cause of action.

Because there was no evidence to support the negligence claim, the gross 

negligence claim also fails. See Garay v. G.R. Birdwell Const., L.P., No. 01-13-

01088-CV, 2014 WL 6680347, at *9 (Tex. App.—Houston [1st Dist.] Nov. 25, 
12

2014, no pet.) (mem. op.); Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex. 

App.—Houston [14th Dist.] 1994, writ denied).

B. Violations of Texas Water Code section 11.086

Section 11.086, “Overflow Caused by Diversion of Water,” provides:

(a) No person may divert or impound the natural flow of surface 

waters in this state, or permit a diversion or impounding by him 

to continue, in a manner that damages the property of another 

by the overflow of the water diverted or impounded.

(b) A person whose property is injured by an overflow of water 

caused by an unlawful diversion or impounding has remedies at 

law and in equity and may recover damages occasioned by the 

overflow.

TEX. WATER CODE ANN. § 11.086 (West 2013). “The elements of the statutory 

cause of action are (1) a diversion or impoundment of surface water which 

(2) causes (3) damage to the property of the plaintiff landowner.” Kraft v. 

Langford, 565 S.W.2d 223, 229 (Tex. 1978); accord Bily v. Omni Equities, Inc., 

731 S.W.2d 606, 611 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.). 

Similar to the negligence claim, the only evidence the Kolbs offered that the 

Scarbroughs’ diversion of water caused damage to their property was the 

unverified expert report. Because the report is not competent summary-judgment 

evidence, we conclude that the trial court did not err in granting summary 

judgment to the Scarbroughs on this cause of action.
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C. Nuisance 

“A private nuisance is a nontrespassory invasion of another’s interest in the 

private use and enjoyment of land.” Lethu Inc. v. City of Houston, 23 S.W.3d 482, 

489 (Tex. App.—Houston [1st Dist.] 2000, pet. denied); Bily, 731 S.W.2d at 611. 

Conduct that is “abnormal” and “out of place in the surroundings” will support a 

claim of private nuisance; the defendant’s actions need not be negligent. City of 

Tyler v. Likes, 962 S.W.2d 489, 504 (Tex. 1997). 

“[A] nuisance occurs in one of three ways: by (1) physical harm to property, 

such as by the encroachment of a damaging substance or by the property’s 

destruction; (2) physical harm to a person [on his] property . . . ; and (3) emotional 

harm to a person from the deprivation of the enjoyment of [his] property . . . .”

Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 99 (Tex. App.—

Houston [1st Dist.] 1994, writ denied). The Kolbs alleged only the first variety. 

Thus, to survive summary judgment on their claim, they were required to present 

more than a scintilla of evidence that the alleged nuisance caused physical harm to 

their property. See id.

Like with the other causes of action, the only evidence the Kolbs offered on 

causation and damages was the unverified expert report; therefore, the trial court 

did not err in granting summary judgment on this claim.
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D. Trespass

There are three elements to a trespass claim: (1) entry (2) onto the property 

of another (3) without the property owner’s consent or authorization. Envt’l. 

Processing Sys., L.C. v. FPL Farming Ltd., No. 12-0905, 2015 WL 496336, at *4 

(Tex. Feb. 6, 2015) Stated differently, “[e]very unauthorized entry upon land of 

another is a trespass even if no damage is done.” Coinmach Corp. v. Aspenwood 

Apts. Corp., 417 S.W.3d 909, 920 (Tex. 2013) (quoting Watson v. Brazos Elec. 

Power Coop., 918 S.W.2d 639, 645 (Tex. App.—Waco 1996, writ denied)); 

Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 12 n.36 (Tex.

2008). The lack of damages evidence that resulted in no-evidence summary 

judgment on the Kolbs’ other claims does not also defeat the trespass claim. 

We overrule the Kolbs’ second issue challenging summary judgment on all 

claims other than trespass. We turn next to whether the trial court erred in granting 

traditional summary judgment on that claim.

Traditional Summary Judgment

The Scarbroughs contend that they are not liable to the Kolbs for trespass 

because they received permission to install the drainage system from the previous 

owner, David Easterling. According to the Scarbroughs, the Easterlings’ consent to 

the drainage system created an easement by estoppel, and the Kolbs—who 

purchased the land from the Easterlings—are bound by the easement.
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A. Elements of easement by estoppel

Generally, the grant of an easement must be made in writing and cannot be 

created by a parol agreement. Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983); 

Stallman v. Newman, 9 S.W.3d 243, 247 (Tex. App.—Houston [14th Dist.] 1999, 

pet. denied). The equitable doctrine of easement by estoppel is an exception to the 

writing requirement. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 209 (Tex. 

1962); Horner v. Heather, 397 S.W.3d 321, 325 (Tex. App.—Tyler 2013, no pet.). 

“The owner of land, under some circumstances, may be estopped to deny the 

existence of an easement by making representations which have been acted upon 

by a purchaser to his detriment.” Drye, 364 S.W.2d at 209–10 (noting that doctrine 

has been applied when party allows other party to expend money erecting drainage 

ditch across his land). 

There are three elements to an easement by estoppel: (1) the owner of the 

servient estate (here, the Easterling/Kolb property) communicated a representation, 

either by words or conduct, to the promisee (here, Scarbrough); (2) the promisee 

believed the communication; and (3) the promisee relied on the communication. 

See Storms v. Tuck, 579 S.W.2d 447, 452 (Tex. 1979); Mitchell v. Garza, 255 

S.W.3d 118, 122 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). 

An easement by estoppel may be imposed against a subsequent purchaser for 

value if the subsequent purchaser had notice—actual or constructive—of the 
16

easement claimed, Mitchell, 255 S.W.3d at 122–23, or if reliance upon the 

existence of the easement continued after the sale. Whaley v. Cent. Church of 

Christ of Pearland, No. 01-02-01354-CV, 2004 WL 1405701, at *4 (Tex. App.—

Houston [1st Dist.] June 24, 2004, no pet.) (mem. op.). The grant of an easement 

by estoppel “depend[s] on the unique facts of each case.” Holden v. Weidenfeller, 

929 S.W.2d 124, 131 (Tex. App.—San Antonio 1996, writ denied); see Mack v. 

Landry, 22 S.W.3d 524, 528 (Tex. App.—Houston [14th Dist.] 2000, no pet.); 

Drye, 364 S.W.2d at 209.

B. Scarbroughs’ evidence that an easement by estoppel was created

In support of their assertion that Easterling gave them permission to 

construct the drainage system, the Scarbroughs included in their summaryjudgment evidence Easterling’s affidavit. He averred as follows:

I specifically gave permission for Ed Scarbrough . . . . to install any 

drainage pipes or drainage inlets on the Scarbrough property that 

would then cross over onto my property and discharge water into the 

ravine. In short, Ed Scarbrough had my full and explicit permission to 

construct all of the drainage improvements that he built on both his 

property and my property and he had my explicit permission that he 

could direct water into the ravine from his property or my property in 

whatever fashion he designed . . . . 

C. The Kolbs’ challenges to Easterlings’ affidavit

The Kolbs contend that Easterling is an interested witness and, therefore, his 

affidavit cannot support summary judgment unless “(1) it is uncontroverted; (2) it 

is clear, positive, and direct; (3) it is otherwise credible and free from 
17

contradictions and inconsistencies; and (4) it could have been readily 

controverted.” RRR Farms, Ltd. v. Am. Horse Prot. Ass’n, Inc., 957 S.W.2d 121, 

132 (Tex. App.—Houston [14th Dist.] 1997, pet. denied), modified on other 

grounds, Baty v. ProTech Ins. Agency, 63 S.W.3d 841 (Tex. App.—Houston [14th 

Dist.] 2001, pet. denied) (setting forth requirements for affidavit from interested 

witness to support summary judgment). According to the Kolbs, the affidavit fails 

on all accounts.

1. Whether Easterlings’ affidavit is free from contradictions

The Kolbs’ first challenge is that Easterling’s affidavit contradicts his earlier 

deposition testimony. Specifically, they contend that the following portion of his 

deposition demonstrates that he could not have given the “explicit permission” his 

affidavit discusses:

Q: Do you know whether the black pipe or the white pipe 

connected to Ed’s property?

A: No. All I know is: The one that was right there where the 

pooling was—and that was the French drain, we’ll call it, I 

guess—that’s the only one I remember seeing.

. . . .

Q: You didn’t see any that ran to his property?

A: I didn’t notice any. I mean, all I saw was just the one that he 

had dug there. I didn’t know if there were any other going there. 

The only one I remember seeing is just that one channel going 

from the drain over to the bulkhead.
18

According to the Kolbs, if Easterling did not realize that one of the pipes drained 

from the Scarbrough property, it is impossible that Easterling gave Scarbrough 

“explicit permission” to drain water onto his land. 

While we agree that the affidavit deals more directly and in greater detail 

with Easterling’s knowledge about the drainage pipes than his earlier deposition 

testimony, we do not agree that the two are inconsistent. Nothing in Easterling’s 

deposition states that he did not authorize drainage from the Scarbroughs’ 

property. In fact, it indicates the opposite. Easterling explained that, due to the 

slope of the terrain, rain runoff was flowing from higher lots, including the 

Scarbroughs’ lot, onto his own. Ed Scarbrough’s drainage project took the existing 

surface-level runoff, moved it underground, and released it into the naturally 

created ravine, in a manner that both the Scarbroughs and Easterlings described as 

an improvement to the previous, more erosive process. 

In his deposition, Easterling acknowledged that he knew there were two 

pipes and only one of the two drained from his low spot. He knew the pipes were 

pulling rain water underground so that it would not cross the surface of his lot on 

its way to the ravine. That he could not describe in his deposition exactly where the 

pipes were positioned is not inconsistent with him giving Scarbrough express 

permission to lay pipes. He told Scarbrough that he had permission to do what he 

felt was necessary to address the surface-level runoff, bring it underground, and 
19

minimize erosion. He left the details of the project to Scarbrough, but he expressly 

authorized the work.

We conclude that the affidavit and deposition testimony are not inconsistent 

and, therefore, overrule this challenge to the summary-judgment evidence.

Next, we address the Kolbs’ contention that Easterling is an interested 

witness. 

2. Whether Easterling is an interested witness

The Kolbs’ original petition named the Scarbroughs and the Easterlings as 

defendants. David Easterling was deposed in September 2013. The Kolbs 

nonsuited their claims against the Easterlings one month later. The affidavit from 

Easterling that was attached to the Scarbroughs’ summary-judgment motion was 

executed nine months after Easterling was nonsuited. 

At the time he executed his affidavit, Easterling no longer had an interest in 

the outcome of the litigation. See Nicholson v. Smith, 986 S.W.2d 54, 59 (Tex. 

App.—San Antonio 1999, no pet.) (holding that deponent was not interested 

witness “because he did not have a stake in the litigation or a material interest in its 

outcome.”); see also Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 877 (Tex. 

App.—Dallas 1990, no writ). He also no longer had an interest in the property 

underlying the claims. Cf. Hayes v. E.T.S. Enter. Inc., 809 S.W.2d 652, 656 (Tex. 

App.—Amarillo 1991, writ denied) (stating that individual who has stake in other 
20

litigation involving subject matter of lawsuit in question qualified as interested 

witness). Accordingly, Easterling does not qualify as an interested witness.

The Kolbs respond that Easterling should be considered an interested 

witness, nonetheless, because the Scarbroughs previously helped him get a job at 

AFLAC—where both of the Scarbroughs worked—which, the Kolbs allege, made 

Easterling “beholden” to the Scarbroughs. 

The record contains deposition testimony from the Scarbroughs and David 

Easterling to the effect that they were friendly neighbors. According to Cheryl 

Scarbrough, Easterling was unemployed for a time and was having difficulty 

finding new employment. To assist him with his financial situation, she mentioned 

that AFLAC was looking for salespeople. In February 2010—before the drainage 

pipes were installed and three years before this litigation—Easterling took the 

Scarbroughs’ advice and pursued a position at AFLAC. He stayed with the 

company until 2012. By the time the Kolbs sued him in 2013, he had left AFLAC 

and had been working at Home Depot for over a year. 

The Kolbs cite no authority for the proposition that a friendly gesture to aid 

a neighbor looking for employment causes one neighbor to be “beholden” to the 

other such that he may be considered an “interested witness” in his neighbor’s

litigation. In our view, it does not.

Accordingly, we overrule this challenge to David Easterling’s affidavit.
21

D. Whether the evidence established reliance

The Kolbs’ next challenge whether the summary-judgment evidence 

established the element of reliance to create an easement by estoppel. The Kolbs 

argue that Scarbrough could prove reliance only through evidence that he paid 

consideration to the Easterlings for the use of their land or that he incurred 

expenses creating the drainage system. They contend there is no evidence of either. 

We disagree.

The record contains evidence that Scarbrough relied on Easterling’s consent 

to the use of his land for drainage. Ed Scarbrough testified that he approached the 

Easterlings about the possibility of adding a drainage system on their property and 

had several conversations with them before reaching an agreement. David 

Easterling specifically agreed to allow Scarbrough to build the concrete headwall 

and install underground pipes on his land, but his consent was conditioned on 

Scarbrough agreeing to pay for the project and do the work himself.

Scarbrough testified that he bought pipe as needed for specific projects. He 

stated that he did not buy the pipe he used for this project until after Easterling 

agreed to allow the drainage system. Further, Scarbrough, along with a paid helper, 

performed the manual labor to pour the concrete forms, dig the ditches, and lay the 

pipe.
22

For his part, Easterling averred that Scarbrough was a “good neighbor” who 

expended his own money “to buy the materials and to install the concrete headwall 

and drainage pipes” and “paid for the labor of a helper that aided him in the 

installation.” Easterling stated his belief that “Scarbrough would not have spent the 

time and money to construct these drainage improvements if he did not have 

[Easterling’s] explicit permission to enter my property to install” them. Easterling 

added that he “was pleased with the results.” 

Scarbrough presented evidence that he expended funds and performed 

manual labor in reliance on Easterling’s representation. See LaTaste Enter. v. City 

of Addison, 115 S.W.3d 730, 736–37 (Tex. App.—Dallas 2003, pet. denied) 

(noting that reliance can be shown by expending funds to improve the dominant 

estate). We conclude that the Scarbroughs established that they relied on David 

Easterling’s communication in constructing the drainage system on the 

Easterling/Kolb land. Evidence that Scarbrough paid consideration was not 

required.

E. Whether grant of use of land can be clear and specific enough to create 

an easement by estoppel as matter of law

The Kolbs’ final challenge concerns whether a landowner’s permission can 

be specific and certain enough to support judgment as a matter of law on the 

creation of an easement by estoppel. The Kolbs suggest that the imposition of an 

easement by estoppel necessarily requires a trial and cannot be resolved by a 
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summary disposition. However, none of the cases cited by the Kolbs suggest that 

an easement by estoppel cannot be granted as a matter of law. Instead, to the extent 

those courts denied judgment as a matter of law, it was because, under the facts of 

each particular case, the opposing party successfully raised a fact issue. See, e.g.,

McClung v. Ayers, 352 S.W.3d 723, 731 (Tex. App.—Texarkana 2011, no pet.) 

(holding that conflicting evidence prevented judgment as matter of law on 

easement by estoppel). It does not follow that every subsequent case must also 

contain a fact issue to prevent judgment as a matter of law.

We overrule this challenge to the trial court’s order granting summary 

judgment.

Having reject each of the Kolbs’ challenges, we overrule their first issue.

Conclusion

We affirm the judgment of the trial court.

Harvey Brown

Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.