NO. 04-14-00758-CV

 ___

Fourth Court of Appeals 

San Antonio, Texas 

John A. Lance, Debra L. Lance, 

F.D. Franks and Helen Franks, 

 Appellants

v. 

Judith and Terry Robinson, Gary and Brenda Fest, 

Virginia Gray, Butch Townsend, and 

Bexar-Medina-Atascosa Counties Water Control and 

Improvement District No. 1, 

 Appellees

 

From the 198th Judicial District Court in Bandera County, Texas 

Hon. M. Rex Emerson Presiding

 

BRIEF OF APPELLEES JUDITH AND TERRY ROBINSON, GARY AND

BRENDA FEST, VIRGINIA GRAY, AND BUTCH TOWNSEND

 

Stephan B. Rogers 

SBN 17186350 

Kelly P. Rogers 

SBN 00788232 

Ross S. Elliott 

SBN 24080685

ROGERS & MOORE, PLLC 

309 Water St., Ste 201 

Boerne, TX 78006

(830) 816-5487

Fax: (866) 786-4777 

steve@rogersmoorelaw.com kelly@rogersmoorelaw.com ross@rogersmoorelaw.com

Oral Argument Requested

ACCEPTED

04-14-00758-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

7/15/2015 9:38:17 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 07/15/15 9:38:17 PM KEITH E. HOTTLE Clerk
Identity of Parties & Counsel Supplemented 

Appellants’ statement of identity of parties and counsel is supplemented 

and corrected as follows: 

1. The address for Rogers & Moore, PLLC has a new suite number. 

Rogers & Moore, PLLC 

309 Water St., Ste. 201 

Boerne, TX 78006 

2. The fax number for Rogers & Moore, PLLC has an incorrect area code in 

Appellants’ statement. The correct number is: 

(866) 786-4777 (this is a toll free number) 

3. Ross S. Elliott’s correct email address is ross@rogersmoorelaw.com. 

4. Kelly P. Rogers is added as appellate counsel. Her bar number is 

00788232, and her email address is kelly@rogersmoorelaw.com. 

5. Trial Court: Bandera County was redistricted during this case. 

2012-2013 2013-present

Hon. Keith Williams Hon. M. Rex Emerson and 

 Hon. Keith Williams (by 

 assignment) 

216th Judicial District Court 198th Judicial District Court 

Bandera County, TX Bandera County, TX 

- 2 -
Identity of Parties & Counsel Supplemented 2 ..................................................

Index of Authorities 6 .........................................................................................

Citations to the Record 11 ...................................................................................

Statement of the Case 12 ....................................................................................

Reply to Issues Presented 15 ..............................................................................

Statement of Facts 16 .........................................................................................

A. Basic Facts 16 ............................................................................................

1. Redus Point - A Subdivision on Medina Lake 16 ..................................

2. An Express Easement Reserves to Plaintiffs the Right to Use and 

Enjoy the Beachfront in Redus Point 18 ..................................................

3. Defendants Have No Viable Claim of Ownership to the Easement 

Land 22 .....................................................................................................

4. The Lances Wrongfully Attempted to Prevent Plaintiffs from Using 

Their Express Easement 23 .....................................................................

B. Course of the litigation 24 ........................................................................

Summary of the Argument 27 ............................................................................

Argument 29 .......................................................................................................

A. The Summary Judgment Evidence 29 ....................................................

1. The Exhibits Admitted at the Temporary Injunction Hearing 29 .......

2. Defendants’ Untimely Offer of Evidence Was Rejected 31 .................

B. Defendants were Not Entitled to Use a Bogus Deed to Exclude 

Plaintiffs from their Easement of Use and Recreation 32 ............................

1. The Summary Judgment Evidence Conclusively Established that 

Neither the Franks nor the Lances Had a Right of Possession to the .

282-acre Tract 33 ......................................................................................

2. The Deed Without Warranty is a Cloud and Burden on Plaintiffs’ 

- 3 -

Table of Contents 
Easement Rights 34 ..................................................................................

3. Defendants’ Arguments Against the Court’s Authority to Grant 

Relief Have No Merit 35 ...........................................................................

a. Trespass to Try Title is Not Necessary to Determine that 

Defendants’ Deed Without Warranty is Invalid and a Burden on 

Plaintiffs’ Easement 36 ........................................................................

b. Plaintiffs are Aggrieved Parties, and Clearly Have Standing to 

Bring this Suit 40 ................................................................................

c. The Trial Court Did Not Make a Determination of Title in 

Holding the DWW Conveyed No Interest 43 ......................................

C. Plaintiffs’ Express Easement to Use and Enjoy the .282-Acre Tract 

was Conclusively Established 43 ...................................................................

 1. The 1917 Spettle Deed is Not Void 44 ................................................

2. Plaintiffs Have an Appurtenant Easement by Reservation Which 

Runs with the Land and Burdens Property Conveyed to MVICO in 

1917 46 .......................................................................................................

3. The Express Easement in the Spettle Deed is Valid for a Host of 

Reasons 48 ................................................................................................

a. The Easement Satisfies the Statute of Frauds 48 ..........................

b. The Easement has a Dominant and Servient Estate 50 .................

c. The Easement is an Easement Appurtenant 51 ..............................

d. The Easement Language is Explicit 51 ............................................

e. No Rights are Being Implied 51 .......................................................

f. The Easement Runs with the Land and Plaintiffs are Entitled to 

Enforce their Rights against Any Servient Estate Owner 52 ..............

D. Summary Judgment was Proper on Elements of Plaintiffs’ Chapter 12 

Claims that were Conclusively Established 52 ..............................................

E. The Attorney’s Fee Award is Based on Sufficient Evidence of 

Reasonable and Necessary Fees, and the Award is Equitable and Just 56 ..

1. Defendants Have Waived their Complaints Regarding the Fee 

Award 56 ...................................................................................................

2. The trial court was presented with sufficient evidence that the fees 

were reasonable and necessary; the court’s award was equitable and 

- 4 -
just 59 ........................................................................................................

Prayer 65 .............................................................................................................

Certificate of Compliance 66 ..............................................................................

Certificate of Service 66 ......................................................................................

Appendix A 67 ....................................................................................................

- 5 -
Index of Authorities 

Cases

Adamson v. Doornbos,

587 S.W.2d 445 (Tex. Civ. App. 1979, no writ) 38 .............................................

Anderson v. McRae, 

495 S.W.2d 351 (Tex. App.—Texarkana 1973, no writ) 40 ................................

Bexar-Medina-Atascosa Counties Water Improvement District No. 1 

v. Wallace, 619 S.W.2d 551 (Tex. App.—San Antonio 1981, 

writ ref’d n.r.e.) 44-45 ........................................................................................

Bocquet v. Herring, 

972 S.W.2d 19 (Tex. 1998) 59 .............................................................................

Cass v. Stephens, 

156 S.W.3d 38 (Tex. App.—El Paso, 2004, pet. denied) 57 ...............................

Centurion Planning Corp. v. Seabrook Venture II, 176 S.W.3d 498 (Tex. 

App.—Houston [1st Dist] 2004, no pet.) 54 ..................................................... 

City of China Grove v. Morris, 

No. 04-10-00763-CV, 2011 WL 5869629, 2011 Tex. App. LEXIS 9260 

(Tex. App.—San Antonio, Nov. 23, 2011, pet. denied) .63 ................................

City of Dallas v. Bargman, 

207 S.W.3d 926 (Tex. App.—Dallas 2006, no pet.) 35 ......................................

City of Keller v. Wilson, 

168 S.W.3d 802 (Tex. 2005) 59, 61 ....................................................................

City of Mission v. Popplewell,

294 S.W.2d 712 (Tex. 1956) 37 ...........................................................................

City of San Antonio v. Earnest, 188 S.W.2d 775 (Tex. 1945) 33-34 .................

Cornick v. Arthur, 

- 6 -
73 S.W. 410 (Tex. Civ. App.—Austin 1903, no writ) .38 ....................................

De Arrellano v. State Farm Fire & Cas. Co., 

191 S.W.3d 852 (Tex. App.—Houston [14th Dist.], 2006, no pet.) 57 ...............

Drye v. Eagle Rock Rd, 364 S.W.2d 196 (Tex. 1952) 50-51 ..............................

Elliott v. Moffett, 

165 S.W.2d 911 (Tex. Civ. App.—Texarkana 1948, writ ref’d w.o.m.) 43 ..........

Fairfield Fin. Group, Inc. v. Synnott, 

300 S.W.3d 316 (Tex. App.—Austin, 2009, no pet.) 63 ....................................

Frost v. Mischer, 

463 S.W.2d 166 (Tex. 1971) 38 ...........................................................................

Gillett v. Van Horne et al.,

36 S.W.2d 305 (Tex. Civ. App.—El Paso 1931, writ dism’d) 37 .........................

Gordon v. West Houston Trees, Ltd., 

352 S.W.3d 32 (Tex. App.—Houston [1st Dist.] 2011, no pet.) 38, 55 ...............

Greenwood v. Lee, 

420 S.W.3d 106 (Tex. App.—Amarillo 2012, pet. denied) 47-8 ........................

Howard v. Davis, 

6 Tex. 174 (1851) 35 ............................................................................................

Howard v. Young, 

210 S.W.2d 241 (Tex. Civ. App.—Amarillo 1948, writ ref’d n.r.e.) 35, 40 .........

Hollar v. Jowers, 

310 S.W.2d 721 (Tex. Civ. App.—Eastland 1958, writ ref’d n.r.e.) 35 ...............

Inman v. Padrezas, 

540 S.W.2d 789 (Tex. App.—Corpus Christi 1976, no pet.) 39 .........................

Korenek v. Korenek, 

 No. 13-07-00111-CV, 2008 WL 2894906, 2008 Tex. App. LEXIS 5652 

(Tex. App.—Corpus Christi, July 29, 2008, no pet.) 64 ....................................

- 7 -
Krabbe v. Anadarko Petroleum Corp., 

46 S.W.3d 308 (Tex. App.—Amarillo, 2001, pet. denied) 58 ............................

Lance v. Robinson, No. 04-09-00476-CV, 2013 WL 820590, 2013 Tex. 

App. LEXIS 2163 (Tex. App.—San Antonio, March 6, 2013, no pet.) 

(mem. op.) 13, 24, 40, 42, 53 .............................................................................

Lopez v. Morales, 

No. 04-09-00476-CV, 2010 WL 3332318, 2010 Tex. App. LEXIS 6909 

(Tex. App.—San Antonio 2010, no pet.) (mem. op.) 40-41 ...............................

Lopez v. State Farm Mut. Auto. Ins. Co., No. 13-06-276-CV, 

2008 WL 2744609, 2008 Tex. App. LEXIS 7643 (Tex. App.—Corpus 

Christi, June 30, 2008, no pet.)(mem. op.) 57 ..................................................

McMahon v. Fender, 

350 S.W.2d 239 (Tex. Civ. App.—Waco 1961, pet. ref’d, n.r.e.) 38 ...................

Manning v. Enbridge Pipelines, 

345 S.W.3d 718 (Tex. App.—Beaumont 2011, pet. denied) 37 ..........................

Maritime Overseas Corp. v. Ellis, 

971 S.W.2d 402 (Tex. 1998) 59, 62 ....................................................................

Martin v. Amerman, 

133 S.W.3d 262 (Tex. 2004) 63 ..........................................................................

Menczer v. Poage, 

118 S.W. 863 (Tex. Civ. App. 1909) 39 ...............................................................

Nobles v. Marcus, 

533 S.W.2d 923 (Tex. 1976) 40-41 .....................................................................

Pena v. Zardenetta, 

714 S.W.2d 72 (Tex. App.—San Antonio 1986, no writ) 37 ...............................

Placke v. Lee-Fayette Counties W.C.I.D. #1, 

NO. 03-04-00096-CV, 2005 WL 1034075, 2005 Tex. App. LEXIS 3411 

(Tex. App.—Austin 2005, pet. denied) (mem. op.) 46, 49 ................................

- 8 -
Pouns v. Zachery,

103 S.W. 234 (Tex. Civ. App.—Austin 1907, no writ) 38 ...................................

Roberson v. City of Austin, 

157 S.W.3d 130 (Tex. App.— Austin 2005, pet. denied) 38, 63 .........................

Rogers v. Ricane Enterprises, Inc.,

884 S.W.2d 763 (Tex. 1994) 38 ..........................................................................

Smith v. Reid, 

No. 04-13-00550-CV, 2015 Tex. App. LEXIS 6387 (Tex. App.—San Antonio 

2015, Rule 53.7(f) motion filed) (mem. op.) 48, 51 ...........................................

Sorsby v. State, 

624 S.W.2d 227 (Tex. App.—Houston [1st Dist.] 1981, no writ) 34 .................

Stark v. Morgan, 

602 S.W.2d 298 (Tex. Civ. App.—Dallas 1980, no writ) 31 ...............................

Temple Trust Co. v. Logan, 

82 S.W.2d 1017 (Tex. Civ. App.–Amarillo 1935, no writ) 35 .............................

United States v. Denby, 

522 F.2d 1358 (5th Cir. 1975) 17 .........................................................................

Valadez v. Avitia, 

288 S.W.3d 843 (Tex. App.—El Paso, 2007, no pet.) 59 ...................................

Vernon v. Perrien, 

390 S.W.3d 47 (Tex. App.—El Paso Oct. 24, 2012, pet. denied) 39 ..................

Vinson v. Brown, 80 S.W.3d 221 (Tex. App.—Austin 2002, no pet.) 46 ..........

Wilhoite v. Sims, 

401 S.W.3d 752 (Tex. App.—Austin, 2013, no pet.) 36, 43, 64 .........................

- 9 -
Statutes and Rules

Tex. Civ. Prac. & Rem. Code § 12.001 42 ...........................................................

Tex. Civ. Prac. & Rem. Code § 12.002 53, 54, 55 ...............................................

Tex. Civ. Prac. & Rem. Code § 12.003 42, 53 .....................................................

Tex. Civ.Prac. & Rem. Code § 37.009 59, 63, 64 ...............................................

Tex. Prop. Code § 22.001 36 ..............................................................................

Tex. R. App. P. 33.1 58 ........................................................................................

Tex. R. App. P. 38.1 58 .......................................................................................

Tex. R. Civ. P.74 29-30 .......................................................................................

Tex. R. Civ. P 75 30 ............................................................................................

Tex. R. Civ. P. 166a 34 ........................................................................................

Tex. R. Civ. P. 783 36, 37 ....................................................................................

- 10 -
Citations to the Record 

“CR” is used to refer to the clerk’s record. Because the record does not 

contain all relevant filings, Appellees intend to supplement the clerk’s 

record and will so indicate in this brief. 

“RR AF” is used to refer to the reporter’s record from the attorney’s fee 

trial on September 17, 2014, presided over by Judge Emerson, and filed in 

this Court by Appellants. 

“RR MSJ” is used to refer to the reporter’s record from the motion for 

summary judgment hearing held on May 28, 2013, presided over by Judge 

Williams. 

“RR Exhibits” is used to refer to the Exhibits admitted in the Temporary 

Injunction hearing on July 16, 2012, presided over by Judge Williams. 

“RR Rehearing” is used to refer to the reporter’s record from the hearing 

on May 30, 2014 on the motion for rehearing of the summary judgment, 

presided over by Judge Williams.

- 11 -
Statement of the Case 

 Appellees, Judith and Terry Robinson, Brenda and Gary Fest, 

Virginia Gray, and Butch Townsend [“Plaintiffs”] sued Appellants John and 

Debra Lance, and F.D. and Helen Franks [“Defendants”]. RR Exhibits PX1. 

Bexar-Medina-Atascosa Counties Water Control and Improvement District 

No. 1, referred to as BMA or Intervenor, intervened in the case. RR MSJ 4. 1

 The case arose from Defendants’ use of a deed without warranty 

[“DWW”] to attempt to exclude Plaintiffs from .282 acre of land adjacent to 

Defendants’ property on Medina Lake. The disputed area is owned by BMA, 

which operates Medina Lake, and Plaintiffs have an express easement to 

use the property to access the lake and build structures for recreation. 

Plaintiffs sued Defendants for injunctive and declaratory relief and 

damages. RR Exhibits PX1. 2

 The case originated in the 216th District Court, presided over by 

Judge Keith Williams. Id. He granted a temporary injunction after an 

evidentiary hearing. CR 55-166. That injunction was the subject of an 

interlocutory appeal to this Court by the Lances; this Court ruled in 

 The Clerk’s Record will be supplemented with BMA’s plea in intervention. 1

The Clerk’s Record will be supplemented with the live petition at the time of summary 2

judgment. That petition (Fifth Amended) is also attached to Appellants’ Brief at App. I.

- 12 -
Plaintiffs’ favor. Lance v. Robinson, 2013 WL 820590 (Tex. App.—San 

Antonio, March 6, 2013, no pet.), Appellant’s App. H. 

 Plaintiffs then filed a motion for partial summary judgment. CR 

44-51. Defendants filed their own motion for summary judgment. After a 3

hearing, Judge Williams granted Plaintiffs’ motion, and Defendants filed a 

motion for rehearing. CR 182-219. After another hearing, Judge Williams 

modified the judgment and issued an amended order on June 11, 2014. CR 

412-16. The court declared that Defendants had no ownership rights in 

the .282 acre tract, and their DWW constituted a cloud on Plaintiffs’ 

easement rights. Plaintiffs and the Lances both have express easement 

rights to use and enjoy the land at the lake’s edge below the flow line of the 

lake. The court also found that Defendants used the DWW to create an 

appearance of ownership, in violation of Texas Civil Practices and 

Remedies Code Chapter 12. CR 412-14. 

 The summary judgment issues were severed from the rest of the 

lawsuit. CR 251. Plaintiffs and BMA requested attorney’s fees and final 

judgment related to the severed claims. Id., CR 5. These requests were 

Defendants did not include this cross-motion in the record. The 1917 deeds at issue 3

(Spettle Deed and Partition Deed) were submitted as evidence with their cross-motion.

- 13 -
heard by Judge M. Rex Emerson. Judge Emerson rendered final judgment 4

for Plaintiffs and BMA, awarding them attorney’s fees. RR AF, CR 37, 505.5

Defendants initiated this appeal.

 When the case was filed, Bandera County was in the 216th Judicial District; in 2013, 4

after the summary judgment hearing, it was redistricted to the 198th Judicial District. 

Judge Williams continued to preside over matters relating to the summary judgment by 

assignment.

 The final judgment was amended to clarify that the award was subject to post- 5

judgment interest.

- 14 -
Reply to Issues Presented 

1. The summary judgment evidence was sufficiently referenced, and there 

was no objection to the form of the evidence. There is no substantive 

defect in Plaintiffs’ summary judgment evidence, as it was on file at the 

time of the summary judgment hearing, was considered by the trial 

court, and is part of the record. 

2. Defendants failed to respond to Plaintiffs’ summary judgment evidence 

with evidence demonstrating that a material issue of fact existed on any 

ground raised in the motion for summary judgment. 

a. Defendants’ deed without warranty on the property at issue 

conveyed no title, and constituted a cloud on Plaintiffs’ express 

easement rights. 

b. Plaintiffs have owned, used and enjoyed a valid express easement of 

access to the property for decades. 

c. Because the deed without warranty conveyed no title, Plaintiffs’ 

chapter 12 claims based on usage of a fraudulent deed are 

established in part as a matter of law. The essential issues of intent 

and damages were severed and reserved for trial. 

3. The award of attorney’s fees to Plaintiffs is supported by the evidence, 

and is more than equitable and just, especially given Defendants’ tactic 

of rehashing the same arguments over and over again in repetitive 

filings throughout this litigation. Moreover, Defendants waived their 

arguments relating to attorney’s fees. 

- 15 -
Statement of Facts 

A. Basic Facts 

This statement of facts incorporates all the evidence the trial court 

considered on the issues presented. Defendants are incorrect in their 

assertion that the deeds and other exhibits admitted at the temporary 

injunction hearing are not in the summary judgment record. Further, 

Defendants are wrong in stating that the trial court considered evidence 

they submitted a year after the court made its ruling. That evidence is not 

part of the summary judgment record.

1. Redus Point - A Subdivision on Medina Lake 

 This case concerns lot owners in a subdivision on Medina Lake called 

the Redus Point Addition Subdivision [“Redus Point”]. The subdivision is 

on a cove created by a peninsula extending into the lake. RR Exhibits PX7. 

Plaintiffs own lots 1, 2 and 3 in the subdivision. CR 89, 116, RR Exhibits 

PX4. The Plaintiffs’ lots are bordered on the north by a steep 40-50 foot 

rocky cliff that plummets down to the water; the southern side of the 

peninsula is a gentling sloping beachfront. CR 78-79. For many years, since 

the 1950’s, Plaintiffs and their predecessors enjoyed a section of the 

beachfront adjacent to or near their lots. CR 90-95, 117 (Judith Robinson 

has been using the area since she was a little girl, for 55 years). Plaintiffs 

- 16 -
and their predecessors built a boat ramp on the beachfront in the 1970’s, 

and built a deck there about fifteen years ago; they launched their kayaks 

from the beachfront, and picnicked and enjoyed quality time there (albeit 

these times are more enjoyable when there is water than when there is not). 

Id., RR Exhibits PX2 (photos documenting usage). 

 Defendants are the prior owners (Franks) and current owners 

(Lances) of lot 8 in Redus Point. CR 133; RR Exhibits PX5, 6. Lot 8 is 

adjacent to the road and beachfront enjoyed and used by Plaintiffs. The 

beachfront land is outside the boundary of Lot 8and is the location of the 

disputed tract at issue in this case. RR Exhibits PX5 (DWW). Frank Franks 

testified that hegave the Lances a deed without warranty to .282 acre of 

land outside of Lot 8; he said he gave the Lances a deed without warranty 

because ownership of the area was disputed. CR 138-39. He admitted that 

he had no title to the .282 acre tract prior to creating the deed without 

warranty. Id. It thus is undisputed that the Franks never had title to the .

282 acre themselves, and Defendants never pled or offered evidence 

sufficient to raise any issue of fact regarding an alternate source of title in 

themselves such as adverse possession.6

 Because the land is owned by a governmental entity, BMA, adverse possession would 6

not be a valid title source for Defendants. See Tex. Civ. Prac. & Rem. Code § 16.061; 

United States v. Denby, 522 F.2d 1358, 1363-64 (5th Cir. 1975) (adverse possession 

cannot be asserted against the sovereign).

- 17 -
2. An Express Easement Reserves to Plaintiffs the Right to 

Use and Enjoy the Beachfront in Redus Point 

 The boundaries of Redus Point subdivision are laid out to 

approximate the “Elevation 1084” line—the elevation above mean sea level 

of the top of Medina Dam—the highest level the water in the lake can reach 

during extreme flood conditions. CR 68-71; RR Exhibits PX7. Medina 7

Valley Irrigation Company (“MVICO”), the original owner of the lake, 

obtained title to lands necessary to build the lake through condemnations 

and voluntary conveyances of lands below Elevation 1084. Id. 8

 On January 22, 1917, Theresa Spettle, her daughter Mathilda Spettle 

Redus and five other grantors conveyed portions of their land totaling 

1,568.82 acres to MVICO “[t]o be used forever as a reservoir for storing 

According to the elevation datum (baseline standard) in use at the time Medina Lake 7

was built, the top of the dam was determined to be 1084 feet above sea level. However, 

based on the National Geodetic Vertical Datum (NGVD) of 1929, the top of the dam is 

1076.2 feet above sea level. “Elevation 1084” is used herein to mean the elevation of the 

top of the dam as calculated when the dam was built and when the lands below 

Elevation 1084 were conveyed to the Medina Valley Irrigation Company. The level of the 

spillway, and the conservation pool level of the lake (the level of the water when the lake 

is full), is “Elevation 1072,” which according to the 1929 datum is 1064.2 feet above 

mean sea level. See http://www.waterdatafortexas.org/reservoirs/individual/medina.

Generally, when a lake is constructed, the owner must obtain the right to flood all 8

lands below the top of the dam in order to avoid the risk of having to pay flood damages 

to owners of the lands around the lake. The shore lands of many lakes are not owned 

privately, they are owned by the government, typically the United States Army Corps of 

Engineers. For example, Canyon Lake in Comal County is a Corps of Engineers lake and 

much of the land surrounding the lake is owned by the Corps (“fee lands”); however, 

other portions of the shore lands are owned by private owners but are subject to a 

flowage easement. See www.swf-wc.usace.army.mil/canyon/Realestate/index.asp. 

Medina Lake is not a Corps of Engineers lake, and substantially all of the property 

surrounding the lake is privately owned.

- 18 -
water above the dam constructed by” MVICO. The tracts were described in 

metes and bounds. RR Exhibits PX4 at 319. 

 In this “Spettle Deed,” the grantors—who retained ownership in the 

adjoining lands—granted MVICO immunity for any damages caused by 

flooding or submerging the lands conveyed to MVICO. Id.

 Further, the grantors reserved an express easement of use and 

enjoyment in the lands conveyed to MVICO and the lake, for their benefit 

and the benefit of their heirs and assigns: 

But it is distinctly understood and agreed that the grantors, their 

heirs and assigns, herein have reserved and do hereby reserve unto 

themselves: 

(1) The right to use the waters in the reservoir for domestic purposes; 

(2) The right to use the waters in the reservoir for bathing, boating, 

fishing and hunting; and 

(3) The right to construct upon the edges of the reservoir at their own 

peril and expense and without any liability of the grantors for the 

destruction thereof by water or otherwise, such improvements as 

may be necessary and incident to the exercise of the privileges 

above reserved by the grantors, their heirs and assigns, which 

privileges are to be exercised by said parties only to the extent and 

in the proportion which the acreage above described bears to the 

total acreage under the flow line of said reservoir. 

Id. 

Several months later, on July 18, 1917, Theresa Spettle and the other 

grantors in the Spettle Deed partitioned their adjoining lands among 

- 19 -
Theresa and her daughters Mathilda Spettle Redus, Pauline Spettle 

Holzhaus, and Mary Theresa Spettle Mangold. RR Exhibits PX4, .pdf pp. 

53-61. In the Partition Deed, 728 acres of land “situated on the east side of 

the Medina Lake” were partitioned to Mathilda Spettle Redus. Id. at 560. 

The Partition Deed described the partitioned lands by metes and bounds; 

the descriptions make clear that the partitioned lands are adjacent to the 

lake. Id. at 558-60. 9

 The habendum clauses in the “Partition Deed,” including the clause 

pertaining to the 728 acres partitioned to Mathilda Spettle Redus, expressly 

state that all appurtenant rights in the partitioned lands were severed and 

conveyed to the grantees along with the lands:

TO HAVE AND TO HOLD the said last-above described tracts or 

parcels of land, with all and singular the hereditaments and 

appurtenances thereunto belonging, or in anywise incident or 

appertaining, unto her the same Mathilda Spettle Redus, to her sole 

and separate use and as her separate estate, her heirs and assigns, in 

severalty, absolutely, in fee simple and forever. 

Id. at 561. 

The Redus Point Addition Subdivision is located on land that was part 

of the 728 acres partitioned to Mathilda Spettle Redus, and the Plaintiffs 

and the Lances as lot owners in the subdivision are assigns under the 

The tracts are bounded by “the backwater or flow-line” of the lands owned by MVICO. 9

See, e.g., RR Exhibit PX4 at .pdf p. 55 (description of 728 acres partitioned to Mathilda 

Spettle Redus).

- 20 -
Partition Deed with all the appurtenant rights held by Mathilda Spettle 

Redus, including the easement of use and enjoyment in the adjoining lake 

lands now owned by BMA as successor to MVICO. CR 75-76; RR Exhibits 

PX 4, 6. 

 At the temporary injunction hearing held on July 16, 2012, the 

Plaintiffs proved up their rights in the land and chain of title, assisted by 

the uncontroverted testimony of a registered professional land surveyor, 

Lemuel Sinclair. CR 16-36 All of the pertinent deeds were admitted without 

objection. CR 70, 77, 79. Plaintiffs placed the testimony given and the 

exhibits admitted at this hearing into the summary judgment record. CR 

45, 50. 

 Sinclair testified without objection that the disputed .282-acre area is 

located within a 104.6-acre tract of land in Survey No. 231 that was 

conveyed to MVICO in the 1917 Spettle Deed. CR 70. The Redus Point 

Addition Subdivision is located within Survey No. 231, and specifically 

within the 728 acres that were partitioned to Mathilda Spettle Redus in the 

1917 Partition Deed. CR 92-73. The boundaries of the subdivision are 

meander lines drawn to approximate Elevation 1084, the elevation of the 

top of the dam. Id. at 71. The land adjacent to the subdivision below 

Elevation 1084, belongs to BMA as successor to MVICO. Id. at 71-72. 

- 21 -
 The plaintiffs and the Lances, as owners of lots in the subdivision, are 

successors in title to the lands partitioned to Mathilda Spettle Redus in 

1917. Id. at 73. A chronological list of all the deeds reviewed by Sinclair was 

admitted without objection. Id. at 77. 

3. Defendants Have No Viable Claim of Ownership to the 

Easement Land 

 At the temporary injunction hearing, certified copies of the deed in 

which the Franks obtained lot 8 and the deed in which they conveyed lot 8 

to the Lances were admitted in evidence. RR Exhibits PX5. At the same 10

time, the Franks gave a deed without warranty to the Lances to a .282-acre 

tract of land between Lot 8 and Medina Lake located below Elevation 1084, 

outside the boundaries of the subdivision. A certified copy of the DWW is 

also in the record. Id. 

 Franks had not obtained a deed to this tract from any source; the 

tract had not existed prior to the conveyance from the Franks to the Lances. 

CR 138, 143. A deed without warranty was used for the .282-acre tract, 

rather than a warranty deed with a promise of good title, because Frank 

The Prado to Franks deed is out of order in the record. The 3-page deed at pages 10

50-52 of the .pdf of the RR Exhibits volume should be between pages 80 and 81, just 

before the Franks to Lance general warranty deed to lot 8. The list of deeds in exhibits 4 

and 5 is in exhibit 6.

- 22 -
Franks understood “that there might be some dispute regarding property 

below the 1084 line.” Id. at 139 

4. The Lances Wrongfully Attempted to Prevent Plaintiffs 

from Using Their Express Easement 

 After acquiring the purported deed to the .282-acre tract, the Lances 

began taking steps to fence off the tract and exclude their neighbors from it. 

John Lance sent a letter to Plaintiff Judith Robinson (owner of Lot 1) in 

early April 2012, telling her he was going to fence off “our property” and 

that if she did not move the deck within 30 days, the Lances would remove 

it. CR 103-04; RR Exhibits PX1 at 3 & Ex. B. The boundary of the .282-acre 

tract, and the fence that the Lances planned to build around the tract, cut 

across the deck, impeded access to the pier, and prevented use of the boat 

ramp. Id. at 100-02. 

 Judith and the other plaintiffs responded through their attorney in 

early May 2012, objecting to the building of the fence and asserting that the 

DWW was invalid and fraudulent. CR 103-04.

 After receiving the letter, the Lances began building the fence. CR 

104. The .282-acre tract had never been enclosed by a fence, although there 

was a short removable cable fence along the road on one side of the tract. 

Id. at 136. Without consulting any of their neighbors, the Lances pulled out 

the cable fence along the road and began building a permanent wooden 

- 23 -
fence to keep people off the beachfront. Id. at 96, 124. There was a gap in 

the fence, but Lance stretched a cable across it to block access to the lake 

across the beachfront. Id. at 98. The Lances also tore a section off the pier, 

put up “no trespassing” signs, installed game cameras to monitor the area, 

and told their neighbors to stay off the tract or the Lances would call the 

constable. Id. at 97-98. 

 Not surprisingly, a dispute arose at the property and a deputy sheriff 

was called. John Lance showed his DWW to the deputy, and claimed that it 

gave him exclusive ownership of the .282-acre tract. Id. at 103. The deputy 

told the Lances not to block Plaintiffs’ access to their pier or boat ramp. CR 

102-03. To stop them from continuing to build their fence, Plaintiffs filed 

this lawsuit. RR Exhibits PX1. The trial court granted a temporary 

injunction. See Lance v. Robinson, 2013 WL 820590 (Tex. App.—San 

Antonio 2013, no pet.).

B. Course of the litigation

After the July 17, 2012 hearing on the temporary injunction, at which 

expert testimony and certified copies of the relevant deeds were admitted, 

Plaintiffs determined they had sufficient grounds for a partial summary 

- 24 -
judgment on requests for declaratory relief relevant to their claims. See RR 

Exhibits PX1. 11

 Specifically, Plaintiffs moved for a declaration that they had an 

express easement right to access the .282-acre beachfront at issue. Further, 

they moved for a declaration that the Lances did not own the beachfront 

and could not restrict Plaintiffs’ access. They also moved for a declaration 

that the Lances’ invalid claim of ownership (the DWW) constituted a cloud 

on Plaintiffs’ and BMA’s rights in the land. CR 44-45. 

 At the time Plaintiffs moved for summary judgment, Defendants’ 

unsuccessful interlocutory appeal from the temporary injunction order was 

pending in this Court. This Court issued its opinion March 6, 2013. The 

trial court ordered a hearing for May 28, 2013, at which numerous motions 

were set to be held, including Plaintiffs’ motion for summary judgment and 

Defendants’ motion for summary judgment. At the end of that four-hour 

hearing, the trial court orally granted summary judgment for Plaintiffs but 

stated he would not sign an order until the parties participated in another 

half-day mediation (their third). RR MSJ 69-70, 77. 

 The mediation was unsuccessful, and Judge Williams signed a 

summary judgment order on October 14, 2013. CR 182-84. Defendants filed 

Plaintiffs also refer the Court to their Fifth Amended Petition, which will be requested 11

for the clerk’s record supplement.

- 25 -
a motion for rehearing, and supplemented it twice over the next few 

months, attempting to interject new evidence before the trial court. CR 

185, 262, 406. Judge Williams held a hearing on the motion for rehearing 

on May 20, 2014, and very carefully considered Defendants’ arguments yet 

again. RR Rehearing. He refused to consider Defendants’ late-filed 

evidence. RR Rehearing at 33-36. After the hearing, Judge Williams signed 

a modified order on June 14, 2014, striking the language that declared BMA 

was the owner of the disputed tract but otherwise leaving intact the original 

summary judgment order. CR 412. 

 On June 12, 2014, the summary judgment order was severed from the 

remaining issues in the case, save for the attorney’s fees associated with the 

summary judgment rulings. CR 251-52. An evidentiary hearing was held on 

attorney’s fees on September 17, 2014. RR AF. The trial court, Judge Rex 

Emerson, awarded Plaintiffs $90,000 in attorney’s fees plus $10,000 if 

successful on appeal. CR 505-06. BMA was awarded $31,025 plus $10,000 

if successful on appeal. Id. Since Defendants raise evidentiary sufficiency 

issues with respect to attorney’s fees, the evidence and equities in support 

of Plaintiffs’ award of attorney’s fees will be discussed in response to 

Defendant’s issues 6 and 7 in the Argument section of this Brief. 

- 26 -
Summary of the Argument 

 Summary judgment was properly granted in Plaintiffs’ favor. 

Plaintiffs presented both conclusive and uncontroverted evidence 

establishing that they owned an express easement of use and recreation 

over lands owned by the water district below Elevation 1084 at Medina 

Lake. Defendants attempted to prevent Plaintiffs from using their easement 

rights by creating a deed without warranty out of thin air to lakefront land 

they did not own. 

The summary judgment evidence established as a matter of law that 

Defendants’ deed without warranty was invalid, as Franks owned no 

interest to convey to Lance. 

Defendants’ multiple and multifarious arguments represent shallow 

attempts to avoid these established facts: (1) Plaintiffs have an express 

easement, and (2) Defendants’ deed without warranty is a nullity and an 

invalid cloud on Plaintiffs’ easement. None of their legal arguments have 

merit; all are based on mischaracterizations of the issues in this case and 

the law governing the same. 

 Plaintiffs were awarded attorney’s fees under the Declaratory 

Judgment Act. This award, which was drastically reduced from the amount 

proven up, represented reasonable and necessary fees that were equitable 

- 27 -
and just. While Plaintiffs clearly waived error with respect to their 

complaints regarding the attorney’s fees, the evidence is nevertheless 

sufficient to support the attorney’s fee award.

- 28 -
Argument 

A. The Summary Judgment Evidence 

1. The Exhibits Admitted at the Temporary Injunction 

Hearing 

 Defendants’ issues 1 and 2 hinge on their inaccurate claim that the 

summary judgment record is incomplete. Appellants’ Brief at xiii. Plaintiffs’ 

motion for summary judgment specifically referenced and relied on the 

testimony and exhibits admitted at the temporary injunction hearing on 

July 17, 2012. CR 44-166, RR Exhibits. Defendants now complain for the 

first time on appeal that the reference to the exhibits admitted at the 

hearing was improper because they were not on file and hence could not be 

part of the summary judgment record. To the contrary, the exhibits were on 

file with the court. (Defendants do concede that a citation to evidence on 12

file with the court is sufficient to support summary judgment).

 Texas Rule of Civil Procedure 74 defines “filing with the court.” With 

regard to exhibits, the rule states: “The filing of ... exhibits as required by 

these rules shall be made by filing them with the clerk of the court.”

Alternatively, a judge may permit exhibits to be filed with him to be 

At the temporary injunction hearing, Plaintiffs’ expert surveyor testified regarding 12

Plaintiffs’ express easement, and certified copies of every deed at issue in the case were 

admitted into evidence along with a number of photographs, a large-sized plat of the 

lake and tax records. CR 67-88, RR Exhibits. 

- 29 -
transmitted to the clerk. Id. Rule 75a also requires the court reporter at a 

hearing to file any exhibits admitted into evidence with the clerk of the 

court. And, Rule 75b(b) allows the court reporter to give the court clerk a 

receipt for the exhibits if she takes custody of them in order to fulfill her 

legal duties. 

 In this case, at the end of the temporary injunction hearing, Judge 

Williams asked the Lances’ counsel if he wanted his exhibits back, and he 

said no. The judge then said, “Okay, I’m going to leave all the exhibits with 

the file.” CR 146. That same day, July 16, the clerk of the court noted that 

the exhibits were filed in the court’s file. Tex. R. Civ. P. 74. Later, the 13

official court reporter, Cindy Huggins, withdrew the exhibits on August 28, 

2012 and was apparently in possession of them until March 28, 2013, when 

she returned them to the clerk. The summary judgment hearing was two 14

months later, on May 28. The record further reflects that the exhibits 

remained in the custody of the clerk, until they were once again withdrawn 

on April 16, 2015 to prepare the supplemental record for this appeal. 15

The Clerk’s Record will be supplemented with the docket sheet showing this notation. 13

In this timeframe, this Court will note, Defendants prosecuted their interlocutory 14

appeal and the reporter’s record from the hearing, including the exhibits, was part of the 

appellate record.

The Clerk’s Record will be supplemented with the receipts for exhibits reflecting these 15

facts but in the meantime, a certified copy of the receipt is attached to this brief as 

Appendix A.

- 30 -
 Therefore, under the rules of civil procedure, the exhibits admitted at 

the hearing were properly filed and Defendants’ assertion that they are not 

in the record must be disregarded. Plaintiffs were entitled to refer to and 

rely on the exhibits in their motion for summary judgment. Stark v. 

Morgan, 602 S.W.2d 298, 303-04 (Tex. Civ. App.—Dallas 1980, no writ) 

(reference to exhibits offered at temporary injunction hearing in motion for 

summary judgment sufficient to put exhibits before the court). 

 It should also be noted that Defendants never once objected to 

Plaintiffs’ evidence in their summary judgment response, or at the 

summary judgment hearing on May 28, 2013, which lasted over four hours. 

In fact, the record from the hearing is replete with references by the 

attorneys and Judge Williams to the deeds and other summary judgment 

evidence. RR MSJ 21, 36-38, 41-46, 54-55, 66-68, 71, 75-76. There was no 

confusion or question on anyone’s part about the evidence the court was 

asked to consider in ruling on the motions for summary judgment.16

2. Defendants’ Untimely Offer of Evidence Was Rejected 

 Plaintiffs object to Defendants’ citation to this Court of evidence that 

was not part of the summary judgment record. After Judge Williams ruled 

 In their response to Plaintiffs’ motion for summary judgment, Defendants concluded: 16

“Every claim for which Movants are seeking summary judgment should be denied based 

on ... the transcript of the temporary injunction hearing with exhibits.” CR 180 

(emphasis added).

- 31 -
on Plaintiffs’ motion for summary judgment, Defendants asked him to 

reconsider. They filed a motion for rehearing and supplemented it twice, 

each time adding additional evidence they wanted the trial court to 

consider. CR 262-411. One year and two days after the summary judgment 

hearing, Judge Williams had a hearing on the motion for rehearing. RR 

Rehearing. Plaintiffs objected to the untimely offer of evidence without a 

motion for leave, and the judge unambiguously sustained the objection and 

flatly refused to consider Defendants’ evidence. Id. 33-36. In their brief, 17

Defendants summarize this excluded evidence and falsely state that the 

trial court considered it. Appellants’ Brief at 8-9. That evidence was not 

admitted, and Defendants have made no complaint in this Court regarding 

the trial court’s ruling. The evidence is not in the summary judgment 

record. 

B. Defendants were Not Entitled to Use a Bogus Deed to 

Exclude Plaintiffs from their Easement of Use and Recreation 

 In issue 3, Defendants complain that the trial court had no legal or 

factual basis to find that Defendants used a bogus deed to try to exclude 

Plaintiffs from using property Defendants did not own. They also assert 

The excluded evidence includes the affidavit from surveyor Mike Grogan referenced in 17

Defendants’ brief at 8-9.

- 32 -
(the issue is multifarious) that the court had no basis to hold that the DWW 

is a cloud or burden on Plaintiffs’ easement. The issue should be overruled. 

1. The Summary Judgment Evidence Conclusively 

Established that Neither the Franks nor the Lances Had a 

Right of Possession to the .282-acre Tract 

 

 The trial court’s ruling, that the DWW from the Franks to the Lances 

was did not convey any ownership or other interest in the .282-acre tract to 

the Lances, was conclusively established by the summary judgment 

evidence and Defendants offered nothing raising a material issue of fact 

showing otherwise. The evidence established that Defendants created and 

used the DWW in a deliberate attempt to exclude others from accessing 

land Defendants did not own. The evidence further established that the 

Franks only had title to Lot 8, that the.282 acre lay outside Lot 8 within the 

land conveyed to MVICO in the Spettle Deed, and thus the Franks had no 

claim to the .282 acre prior to creating the DWW out of thin air. CR 

128-29. After Franks made the deed up, the Lances used it to justify 

building a fence to exclude Plaintiffs from their boat dock, destroy 

Plaintiffs’ deck, and keep Plaintiffs from using their recreational 

improvements on the lakefront below Elevation 1084. 

 In City of San Antonio v. Earnest, the defendants used a fraudulent 

deed in a scheme to gain title to part of Laredo street; the Supreme Court 

- 33 -
found that the fraudulent deed was “an absolute nullity.” 188 S.W.2d 775, 

778 (Tex. 1945). An absolute nullity is not merely voidable, rather it is void. 

Id. It follows, and the court found, that there was no need for an absolute 

nullity to be set aside. Id. As a nullity the fraudulent deed did not convey 

any title and was properly addressed by a suit to quiet title. Id. 

 The evidence in this case also conclusively established that the .282 

acre tract was in fact owned by BMA, not by Defendants. The trial court 

deleted that ruling from its summary judgment order, CR 413-14, however 

no evidence was offered to controvert the expert testimony that BMA was 

the successor to MVICO and acquired all title to lands below Elevation 1084 

conveyed to MVICO in the Spettle Deed. A summary judgment based on an 

expert witness’ testimony will be sustained if the testimony is 

uncontroverted, clear, positive and direct, and could have been readily 

controverted. Tex. R. Civ. P. 166a(c); Sorsby v. State, 624 S.W.2d 227, 233 

(Tex. App.—Houston [1st Dist.] 1981, no writ). 

2. The Deed Without Warranty is a Cloud and Burden on 

Plaintiffs’ Easement Rights 

 Defendants’ complaint in issue 3 — that the trial court had no legal or 

factual basis to hold that the deed without warranty constituted a cloud and 

burden on Plaintiffs’ easement rights — must be rejected. Plaintiffs have 

carefully read Defendants’ brief and the only place they brief this particular 

- 34 -
point is on page 29, where Defendants summarily state that “a deed cannot 

be a cloud on an easement.” To the contrary, Texas courts have recognized 

a cause of action in equity to remove a cloud on an easement. See, e.g. City 

of Dallas v. Bargman, 207 S.W.3d 926 (Tex. App.—Dallas 2006, no pet.) 

and Howard v. Young, 210 S.W.2d 241 (Tex. Civ. App.—Amarillo 1948, writ 

ref’d n.r.e.) (cases involving equitable claims of cloud on easement rights or 

cloud on “title” to an easement). 

 The elements of a suit to quiet title, or remove a cloud on title, are: (1) 

the plaintiff has an interest in the property; (2) the title to the property is 

affected by a claim of the defendant; and (3) the defendant’s claim, 

although facially valid, is actually invalid or unenforceable. Howard v. 

Davis, 6 Tex. 174, 185 (1851); Temple Trust Co. v. Logan, 82 S.W.2d 1017, 

1020 (Tex. Civ. App.–Amarillo 1935, no writ). Each element was 

conclusively established in this case, and the trial court correctly held that 

Defendants’ bogus deed without warranty clouded Plaintiffs’ interest in 

their easement.

3. Defendants’ Arguments Against the Court’s Authority to 

Grant Relief Have No Merit 

Despite the conclusive evidence supporting the trial court’s rulings 

relating to the deed without warranty, Defendants argue the trial court did 

not have authority to make the rulings. First, they argue Plaintiffs had to 

- 35 -
bring this case as a trespass to try title action. Second, they argue that only 

the grantor can seek to have a deed set aside. And third, they argue that 

ownership of the .282 acres remains in dispute, hence the trial court could 

not rule that Defendants did not have an ownership interest 

a. Trespass to Try Title is Not Necessary to Determine 

that Defendants’ Deed Without Warranty is Invalid and 

a Burden on Plaintiffs’ Easement 

 Defendants have expended much energy on their argument that the 

trial court did not have the authority to rule on Plaintiffs’ requests for relief 

because Plaintiff failed to bring this action as a trespass to try title. See Tex. 

Prop. Code 22.001(a), Tex. R. Civ. P. 783. Trespass to try title is the method 

for determining title to real property. However, when a person makes up a 

deed, like Defendants did in this case, a party negatively affected by that 

deed does not need to bring a suit in trespass to try title to prove that the 

deed is fake. Wilhoite v. Sims, 401 S.W.3d 752, 759 (Tex. App.—Dallas 

2013, no pet.) (issue in the case was whether the quitclaim deed was 

voidable, not whether defendant’s title was superior to plaintiff’s; suit was 

proper under the declaratory judgment act). 

 Plaintiffs’ right to use and enjoy their express easement was 

negatively affected by Defendants’ invalid claim to the easement property. 

Because Plaintiffs had an easement, a non-possessory interest, a trespass to 

- 36 -
try title claim was not available to Plaintiffs. Pena v. Zardenetta, 714 S.W.

2d 72, 73 (Tex. App.—San Antonio 1986, no writ) (easement is a nonpossessory right). Only a party in possession or a party entitled to 

possession of property can file a trespass to try title claim. Tex. R. Civ. P. 

783(d). Easement rights are properly adjudicated, as they were and will be 

in this case, through petitions for declaratory relief, injunctive relief, and/

or claims for damages. 

 The Texas Supreme Court made this clear nearly sixty years ago in 

City of Mission v. Popplewell, 294 S.W.2d 712 (Tex. 1956). The Court held 

an easement can be defended against interference through an injunction, 

but not through trespass to try title: 

The plaintiff in a trespass to try title must allege and prove the right 

to present possession of the land. The owner of an ordinary 

easement does not have such a possessory right and the remedy is 

not available to him. Injunction is the proper remedy. 

Id. at 714. This has been the consistent rule in Texas for over a century. The 

following cases reiterate that injunctive or declaratory relief are the proper 

vehicles to defend an easement, not trespass to try title: Manning v. 

Enbridge Pipelines, 345 S.W.3d 718, 726-27 (Tex. App.—Beaumont 2011, 

pet. denied) (declaratory judgment appropriate to defend easement, not 

trespass to try title); Gillett v. Van Horne et al., 36 S.W.2d 305, 306 (Tex. 

Civ. App.—El Paso 1931, writ dism’d) (trespass to try title not an 

- 37 -
appropriate remedy to determine an easement interest, declaratory 

judgment is); Pouns v. Zachery, 103 S.W. 234 (Tex. Civ. App.—Austin 1907, 

no writ) (declaratory judgment is the proper remedy to protect an 

easement); Cornick v. Arthur, 73 S.W. 410, 411 (Tex. Civ. App.—Austin 

1903, no writ) (easement owner cannot maintain a trespass to try title claim 

against the owner of the land); Roberson v. City of Austin, 157 S.W.3d 130, 

136 (Tex. App.— Austin 2005, pet. denied) (easement is non-possessory 

property interest and, generally, the remedy of trespass to try title has not 

been applied to non-possessory property interests such as easements). 

 Another reason it was not necessary for Plaintiffs to pursue relief in 

trespass to try title is that Defendants’ deed without warranty does not raise 

an issue of title. A quitclaim deed raises no presumption of ownership, and 

does not put title into issue so as to invoke trespass to try title. See 

McMahon v. Fender, 350 S.W.2d 239, 240-41 (Tex. Civ. App.—Waco 1961, 

pet. ref’d, n.r.e.); Adamson v. Doornbos, 587 S.W.2d 445, 447-78 (Tex. Civ. 

App. 1979, no writ); Frost v. Mischer, 463 S.W.2d 166, 168 (Tex. 1971, no 

writ); Rogers v. Ricane Enterprises, Inc., 884 S.W.2d 763, 769 (Tex. 1994). 

In such a case, injunction is an appropriate remedy. McMahon, 350 S.W.2d 

at 240-41; Gordon v. West Houston Trees, Ltd., 352 S.W.3d 32, 46 (Tex. 

App.—Houston [1st Dist.] 2011, no pet.) (creditor’s recovery affirmed on its 

- 38 -
claims for quiet title and declaratory judgment with respect to quitclaim 

deed and amended warranty deed); Inman v. Padrezas, 540 S.W.2d 789, 

792 (Tex. App.—Corpus Christi 1976, no pet.) (declaratory and injunctive 

relief was appropriate when defendants claimed a quitclaim deed permitted 

them to obstruct public easement); Vernon v. Perrien, 390 S.W.3d 47, 2012 

Tex. App. LEXIS 8851, *8-9 (El Paso Oct. 24, 2012, pet. denied) (court has 

jurisdiction to grant declaratory judgment declaring quitclaim deed “null 

and void” and removing cloud on title, even if trespass to try title applies; 

claim to remove cloud on title or to quiet title is a separate claim); Menczer 

v. Poage, 118 S.W. 863 (Tex. Civ. App. 1909) (injunction appropriate 

remedy when defendant attempted to fence in land claimed under deed 

without warranty). The Lances’ DWW is no evidence of ownership, prima 

facie or otherwise.

 Further, Defendants failed to acknowledge the extremely broad scope 

of the Court’s equitable power to quiet title. Unlike a trespass to try title 

claim, “[a] suit to quiet title relies on the invalidity of the defendant’s claim 

to the property. It exists to ‘enable the holder of the feeblest equity to 

remove from his way to legal title any unlawful hindrance having the 

appearance of a better right.’” Vernon, 390 S.W.3d 47. An easement owner 

may ask a court to quiet title and remove a cloud that is interfering with use 

- 39 -
of the easement. See, e.g., Anderson v. McRae, 495 S.W.2d 351, 356, 

360-61 (Tex. App.—Texarkana 1973, no writ) (subdivision lot owners 

entitled to seek quiet title through declaratory judgments act for 

recreational easements in areas adjacent to lake); Howard v. Young, 210 

S.W.2d at 241-43 (quiet title and injunctive relief were appropriate 

remedies when an easement's dimensions and validity were at issue).

b. Plaintiffs are Aggrieved Parties, and Clearly Have 

Standing to Bring this Suit 

 Citing Nobles v. Marcus, 533 S.W.2d 923 (Tex. 1976) and Lopez v. 

Morales, 2010 WL 3332318, 2010 Tex. App. LEXIS 6909 (Tex. App.—San 

Antonio 2010, no pet.) (mem. op.), Defendants argue that only a grantor 

has standing to bring suit to set aside a deed procured by fraud. 

 The test for whether a party has standing is whether “a party has a 

sufficient relationship with the lawsuit so as to have a justiciable interest in 

its outcome.” Lopez, 2010 Tex. App. LEXIS at *7. As this Court has already 

recognized, Plaintiffs in this case have an ownership interest in an 

easement over the land purported to be conveyed by the invalid deed. 

Lance, 2010 WL 820590, *5. Further, BMA, who actually does have title, is 

in this case as a necessary party. All parties were before the trial court, and 

the court had authority to grant the relief requested with respect to the 

DWW. See Hollar v. Jowers, 310 S.W.2d 721 (Tex. Civ. App.—Eastland 

- 40 -
1958, writ ref’d n.r.e.) (plaintiff in suit to set aside deed must have “some 

interest” in relevant property; all necessary parties with an interest must be 

joined). 

 Defendants’ reliance on Nobles and Lopez is misplaced. Nobles 

obviously did not rule that only a grantor can sue to set aside a fraudulent 

deed. Instead, Nobles stands for the unremarkable proposition that only a 

person who has been defrauded can sue for fraud. “A suit to set aside a deed 

obtained by fraud can only be maintained by the defrauded party.” Nobles,

533 S.W.2d at 927. The plaintiff in Nobles was not the defrauded party but 

the creditor of the defrauded party who was attempting to step into the 

shoes of the defrauded party. Id. Nobles does not address a scenario 18

where a grantor and grantee draw up an invalid deed with the intent to 

defraud a third party, which is the situation in this case. 

 This Court in Lopez also held, citing Nobles, that only the actual party 

defrauded could bring a suit to set aside a deed. 2010 Tex. App. LEXIS 

6909 *8. The deed at issue, which was procured by fraud (lack of 

consideration) from a holder of a 1/9th interest in the relevant property, 

purported to convey all of the property to the defendant. The Lopez court 

found that a holder of another 1/9th interest did not have standing to bring 

 The plaintiff could have asserted a statutory claim for fraudulent conveyance, but 18

failed to plead such a claim. Id. at 925, 927.

- 41 -
suit to set aside the deed based on fraud because the grantor was the only 

one who was cheated out of his property. The Court pointed out that the 

deed, no matter what it purported to convey, could only convey whatever 

interest the grantor had, which was a 1/9th interest, and thus the deed did 

not affect the plaintiff’s 1/9th interest. Id. at *11. In this case, Plaintiffs’ 

ownership interest in their easement is affected by the invalid DWW. 

BMA’s interest is also affected. Both parties clearly have standing to bring 

this suit. 

 Defendants made the same argument regarding Plaintiffs’ standing to 

this Court in the first appeal. Lance v. Robinson, 2013 WL 820590 at *4 

(“The Lances repeatedly assert that Appellees have no claim under the 

Franks deed and no right to set it aside.”) In response, this Court held, 

correctly, that an easement is a real property interest, and that a holder of 

an easement interest has standing to seek injunctive relief under section 

12.003(a)(8). Id. at 5; Tex. Civ. Prac. & Rem. Code § 12.001, et. seq. 

(allowing a person who holds an interest in real or personal property to 

bring a claim against one who makes, presents or uses a fraudulent claim 

against real or personal property in order to cause them to suffer injury). 

Defendants did not appeal this Court’s decision. Since this Court has 

already specifically addressed Defendants’ standing argument, there is no 

- 42 -
need to revisit the issue now. Elliott v. Moffett, 165 S.W.2d 911, 912 (Tex. 

Civ. App.—Texarkana 1948, writ ref’d w.o.m.)(questions of law decided by a 

court of ultimate resort govern the case through all subsequent stages of the 

proceeding).

c. The Trial Court Did Not Make a Determination of 

Title in Holding the DWW Conveyed No Interest

 Defendants mischaracterize the trial court’s summary judgment 

ruling in arguing that he made a determination of title while the ownership 

of the .282-acre tract “remained in dispute.” Appellants’ Brief at 19-21. The 

trial court expressly declined to rule that BMA had title to the .282-acre 

tract. CR 412 at ¶ 3. Next, the trial court’s declaration that the bogus DWW 

was ineffective to convey any interest in the .282-acre tract to the Lances 

was permitted under both the declaratory judgment act and equitable 

claims of removal of a cloud on Plaintiffs’ interest. The trial court did not 

adjudicate, as between two parties with a possessory right, who had the 

superior right of possession. Wilhoite, 401 S.W.3d at 759. 

C. Plaintiffs’ Express Easement to Use and Enjoy the .282-

Acre Tract was Conclusively Established 

 In issue 4, Defendants urge this Court to invalidate Plaintiffs’ longstanding, long-utilized express easement of use and enjoyment of the .282-

- 43 -
acre tract for “a host of reasons.” However, their arguments should be 

dismissed by this Court as summarily as they are made. 

 1. The 1917 Spettle Deed is Not Void 

 Defendants argue that the 1917 Spettle Deed is void based on this 

Court’s holding in Bexar-Medina-Atascosa Counties Water Improvement 

District No. 1 v. Wallace, 619 S.W.2d 551 (Tex. App.—San Antonio 1981, 

writ ref’d n.r.e.). Defendants have not requested relief setting aside the 

Spettle Deed. Even assuming that the validity of the Spettle Deed is 

properly before the Court, Defendants mirepresent this Court’s holding in 

Wallace. They claim that Wallace stands for the general proposition that 

every deed bearing similar language to the deed at issue in that case is void. 

This is decidedly not the holding of Wallace. 

 Wallace involved a 1917 deed to MVICO, BMA’s predecessor in title, 

but it was not the Spettle Deed that reserved the easement at issue in this 

case: different deed, different land. The court held that BMA had failed to 

prove a sufficient description of a 13.76-acre tract of land, because it was 

unclear where the starting point of the metes and bounds description 

(“point 2”) was located on the ground. BMA’s surveyor failed to show that 

the deed contained sufficient information to permit location of the point on 

the ground with reasonable certainty. Id. at 554-55. Whatever the fate of 

- 44 -
the 13.76-acre tract in Wallace, the case says nothing about the sufficiency 

of the property description at issue in this case. However, the case does 19

recognize that BMA is MVICO’s successor in title, and that the dividing line 

between BMA land and adjoining private lands is the “high water mark” of 

Elevation 1084; to this extent the case is instructive. Id. at 552 & nn.1, 2; 

553.

 Contrary to Defendants' intimation, the description in the Spettle 

Deed is not insufficient because it's language permits the contours of the 

property conveyed to MVICO to be located on the ground. Mr. Sinclair's 

uncontroverted testimony at the temporary injunction hearing identified 

the purpose of the Spettle Deed as the creation of a reservoir. CR 70. He 

also stated that he was able to determine the boundary line for BMA's 

property by referring to the top of the dam (elevation 1084'). CR 71-72. 

Both the purpose of the grant and the geographical marker, the dam, are 

 In Wallace, the problematic tract, is referred to as being "off of the South side of 19

Survey No. 288 -- E. Pennington", and is described by metes and bounds as follows: 

Beginning at point '2', thence: N. 3 deg. 50' E. 250' N. 16 deg. 55' W.126' . . . S. 80 deg. 

54' W.1231' to point of beginning.” Id. at 553. In this case, Lem Sinclair testified at the 

temporary injunction hearing that the Redus Point subdivision is adjacent to a 104.6-

acre tract, which is described in the deed as: “104.5 acres, more of less, of land off the 

west end of Survey No. 231 Adams, Beaty & Moulton, Medina County, Texas, more 

particularly described by metes and bounds as follows:— Commencing at point "01", 

thence ... to place of beginning.” CR 70, RR Exhibit PX4 at 316. Defendants have not 

controverted Mr. Sinclair’s testimony or otherwise identified any issue with the property 

descriptions relevant to this case. The reference in the Spettle Deed description to the 

“west end” is more specific than the “south side” reference in the Wallace deed. End is a 

fixed point, whereas a point on a “side” or a “line” may need further description to locate 

oit on the ground.

- 45 -
referenced in the language of the Spettle Deed. PX4 (page 319 of the deed). 

Even if there is a deficiency in the calls contained in the Spettle Deed, the 

summary judgment evidence more than adequately demonstrated that the 

deed's language permitted a surveyor to ascertain the boundaries of the 

grant. Placke v. Lee-Fayette Counties W.C.I.D. #1, NO. 03-04-00096-CV, 

2005 WL 1034075, 2005 Tex. App. LEXIS 3411, *8-15 (Tex. App.—Austin 

May 5, 2005, pet. denied) (citing Vinson v. Brown, 80 S.W.3d 221, 227 

(Tex. App.—Austin 2002, no pet.)) (note that Tex. Prop. Code § 5.021, the 

statute of frauds applies to both easements and grants). The evidence 

demonstrated that the boundary of the Spettle Deed could be located on the 

ground using the very language of the deed, it is not void for lacking a 

description of the land.

2. Plaintiffs Have an Appurtenant Easement by Reservation 

Which Runs with the Land and Burdens Property Conveyed 

to MVICO in 1917 

 Plaintiffs have an express easement originating in the 1917 Spettle 

Deed from Theresa Spettle et al. to MVICO. RR Exhibits PX 4 .pdf 44-49. 

Defendants erroneously assert that this deed is not in Plaintiffs’ chain of 

title. The Spettle Deed reserved an express easement to use the lands 

conveyed to MVICO (now owned by BMA) which the owners of lots in the 

- 46 -
Redus Point Addition subdivision, including the Plaintiffs and Defendants, 

now own as successors in title. 

 The testimony of Lemuel Sinclair, expert surveyor for the Plaintiffs, 

establishes that the Spettle Deed is in Plaintiffs’ chain of title. CR 69-77. 

Defendants offered no evidence contradicting Sinclair’s expert testimony. 

Defendants’ assertion that Sinclair testified that the Spettle Deed was not in 

the Plaintiffs’ chain of title is imaginary and not supported by the record.

 Defendants have cited no case supporting their assertion that 

Plaintiffs’ express easement by reservation is not in their chain of title. The 

cases they cite for the proposition that a purchaser is bound by every 

instrument in their chain of title do not support this argument. Even if the 

express easement was “outside” Plaintiffs’ chain of title (which it is not), 

that does not mean it is not a binding contract as between the owners of the 

land below Elevation 1084 and Plaintiffs. No purchaser of the servient 

estate is claiming they did not have notice of the express easement because 

they could not find it in their own chain of title. 

 The other case cited by Defendants, Greenwood v. Lee, 420 S.W.3d 

106 (Tex. App.—Amarillo 2012, pet. denied), also does not support 

Defendants’ position. The Amarillo court of appeals in fact relied on the old 

1964 deed to determine the scope of the express easement in that case, and 

- 47 -
did not rely on the easement holder’s current 2009 deed alone. Id. at 113. 

The scope of the easement by reservation owned by Plaintiffs is set out in 

the Spettle Deed, the easement passed to the heirs and assigns of the 

grantors. Smith v. Reid, 2015 Tex. App. LEXIS 6387 *27-28 (Tex. App.—

San Antonio 2015, Rule 53.7(f) motion filed) (“heirs and assigns” language 

evidences intent for covenant to run with the land). Plaintiffs are successors 

in interest to the Spettle grantors’ easement by reservation. Defendants 

offered no evidence showing a lack of intent on the part of the parties to the 

Spettle Deed to have the easement run with the land. Plaintiffs were 

entitled to summary judgment confirming their express easement. 

3. The Express Easement in the Spettle Deed is Valid for a 

Host of Reasons 

 Defendants next toss out a “host of reasons” they claim Plaintiffs’ 

express easement is invalid, like so much word salad. Appellants’ Brief at 

25-29. 

a. The Easement Satisfies the Statute of Frauds 

 Defendants worry that the language of the easement is insufficient to 

satisfy the statute of frauds due to an inadequate description. Their concern 

is misplaced. As long as the tract of land that will be burdened by the 

easement is sufficiently identified, it is unneccessary for the express 

- 48 -
easement to contain an exact designation of its location. Placke, 2005 Tex. 

App. LEXIS 3411, *8-13. 

 In this case Defendants have not demonstrated any defect in the 

descriptions in the Spettle Deed. The contours of the burdened estate are 

clear—the relevant boundary of the entire conveyance is Elevation 1084. CR 

20. The first four pages of the deed (315-318) constitute detailed metes and 

bounds property descriptions. Then at the top of page 319, the deed states: 

To be used forever as a reservoir for storing water above the 

dam constructed by the Medina Valley Irrigation Company 

across the Medina River below said lands, for use in the 

maintenance and operation of the Irrigation System heretofore 

constructed by the Medina Valley Irrigation Company and now 

in use by it, and the right to submerge any or all lands by 

backing water from its dam over said lands; the grantors 

covenant and agree to forever hold said grantee, its successors 

and assigns harmless from all claims, demands or damages to 

them growing out of incident to such use of the above 

described lands or the flooding of the same with waters. But 

it is distinctly understood and agreed that the grantors, their 

heirs and assigns herein have reserved and do hereby reserve to 

themselves...[the right to use the waters in the reservoir and the 

right to construct upon the edges of the reservoir such 

improvements necessary to enable them to enjoy the waters]. 

RR Exhibits PX4 at 319 (.pdf p. 48). The bracketed language is the 

easement language. It is simply false to state that the express easement 

does not reference a property description or identify its location. The 

easement attaches to any land between Elevation 1084 and the reservoir 

that was conveyed to MVICO in the Spettle Deed, and described by metes 

- 49 -
and bounds. There is no uncertainty concerning which land is subject to the 

easement; it is the “said lands,” “above described lands,” and the “acreage 

above described.” CR 70. As stated earlier herein with respect to the Spettle 

Deed, the description of the land conveyed to MVICO is sufficient to statisfy 

the statute of frauds. This Court must resist Defendants’ urging to strike the 

entire deed and easement based on a faint possibility that one call 

regarding one tract might be off. The easement is sufficiently described. 

b. The Easement has a Dominant and Servient Estate 

 The dominant estate is the land held by the Spettle Deed grantors 

adjacent to the lands conveyed to MVICO (the lake). The servient estate is 

the land conveyed to MVICO. As the Court in Drye v. Eagle Rock Rd., 364 

S.W.2d 196 (Tex. 1952), cited by Defendants, explained: 

The easement attaches to the land of the dominant estate and 

not merely for the convenience of the owner thereof 

independent of the use of his land. The servient estate is subject 

to the use of the dominant estate to the extent of the easement 

granted or reserved. It generally takes the form of a negative 

easement: the owner of the servient estate simply may not 

interfere with the right of the owner of the dominant estate to 

use the servient estate for the purpose of the easement. 

Id. at 207. Defendants have pointed to no case requiring magic words such 

as “dominant” and “servient” in the creation of an express easement. 

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c. The Easement is an Easement Appurtenant 

 Plaintiffs’ easement is an express easement appurtenant to the land 

belonging to the Spettle grantors and their assigns to land adjacent to the 

land below Elevation 1084 conveyed to MVICO in the Spettle Deed. It is 

not an easement in gross or a license. The Court in Drye recognized that a 

right to go on land for pleasure and recreation can be: (1) a license, (2) an 

easement in gross, or (3) “an easement appurtenant to the land, a right 

which is attached to the land itself and passing with it.” Id. at 203. 

Defendants mentioned (1) and (2) but not (3) in their three sentence 

argument on this point. Appellants’ Brief at 27-28. As explained earlier, the 

“heirs and assigns” language makes clear that the easement was intended to 

be appurtenant to the land and run with the land. Smith, 2015 Tex. App. 

LEXIS 6387 *27-28. 

d. The Easement Language is Explicit 

 Defendants next complain that the trial court’s ruling did not contain 

the terms or location of the easement. The terms of the easement are 

contained in the trial court’s ruling at paragraph 4, and track the language 

in the Spettle Deed. The particular location at issue in this case is the .282-

acre tract, as paragraph 6 of the ruling states. CR 413. 

e. No Rights are Being Implied 

- 51 -
 Plaintiffs did not move for summary judgment on an implied 

easement claim. The trial court’s rulings do not mention implied easement 

rights, hence any question of implied easement rights is not before this 

Court. This seems to be an argument regarding the scope of the express 

easement. This argument, like most of the “host of reasons” arguments is 

inadequately briefed and is waived. 

f. The Easement Runs with the Land and Plaintiffs are 

Entitled to Enforce their Rights against Any Servient 

Estate Owner 

 Defendants have yet to cite a case that supports their argument that 

the lack of express easement language in Plaintiffs’ recent deeds somehow 

extinguishes the easement. Again, the language of the easement clearly 

indicates that it is an easement appurtenant, running with the land. The 

Plaintiffs’ deeds each expressly state they take their property “to have and 

to hold the above described premises, together with all and singular the 

rights and appurtenances in anywise belonging...” RR Exhibits PX4, Deeds 

7, 8, 9 (listed on PX6). 

D. Summary Judgment was Proper on Elements of Plaintiffs’ 

Chapter 12 Claims that were Conclusively Established 

 Defendants’ fifth issue pertains the the declarations the trial court 

made with respect to Plaintiffs’ claims under Texas Civil Practices and 

Remedies Code chapter 12. This Court discussed the cause of action under 

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chapter 12 in its first opinion in this case. Lance, 2013 WL 820590 *3-5 & 

n.3. As it applies in this case, Chapter 12 makes it unlawful for a person to 

“make, present, or use a document or other record” with (1) knowledge that 

the “document or other record is a fraudulent lien or claim against real or 

personal property or an interest in real or personal property,” (2) intent 

that the “document or other record be given the same effect as a court 

record ... evidencing a ... claim against real or personal property or an 

interest in real or personal property, and (3) intent to cause a person to 

suffer physical, financial, or emotional injury. Id. at n.3; Tex. Civ. Prac. & 

Rem. Code § 12.002(a)(1)-(3). 

 The trial court made the following declarations: (1) the DWW is a 

“deed or other record” for purposes of section 12.002(a); (2) Defendants 

used and/or presented the DWW with intent to create the appearance of 

actual conveyance of ownership in the disputed area pursuant to section 

12.002(a)(2); and (3) Plaintiffs own an express easement in the disputed 

area and have standing under section 12.003(a)(8). 

 The summary judgment evidence conclusively established these 

declarations and Defendants submitted no evidence raising a material issue 

of fact otherwise. With respect to standing, this Court has already ruled that 

Plaintiffs have standing as a person who owns an interest in real or 

- 53 -
personal property to bring a chapter 12 claim based on an easement right. 

The DWW constitutes a deed or other record for purposes of section 

12.002(a). This is self-evident and there is no proof to the contrary. Section 

12.002 “expressly applies to any document or record that is ‘a fraudulent 

lien or claim’ against real or personal property and that is intended to be 

‘given the same legal effect’ as a court record or document ‘evidencing a 

valid lien or claim against real [or personal] property.’” Centurion Planning 

Corp. v. Seabrook Venture II, 176 S.W.3d 498, 505 (Tex. App.—Houston 

[1st Dist.] 2004, no pet.). In this case, the evidence is undisputed that 

Defendants used the DWW to create the appearance of ownership with the 

same legal effect as a properly filed and recorded deed. CR 98, 102-03. 

Franks’ admission at the temporary injunction hearing that there had never 

been any conveyance to him of the .282-acre tract (i.e., that the DWW was 

created out of thin air, as the Court observed ), that Franks had never paid 20

taxes on the disputed area, CR 113-14, 143, and the fact that Defendants not 

only filed and recorded the DWW but used it to claim ownership to a 

sheriff’s deputy, proves that the Defendants made, presented and used the 

invalid deed. 

 “I do not believe a person can just, out of thin air, create ownership.” CR 140. 20

- 54 -
 Defendants complain on appeal that a DWW can never convey an 

“appearance of ownership” because by definition the grantor makes no 

promise of title. However, chapter 12 claims apply to any document that 

has no legal effect, yet is presented as if it did. Tex. Civ. Prac. & Rem. Code 

§ 12.002. A chapter 12 claim may only be maintained if the document at 

issue has no legal effect, like a void deed. See Gordon v. West Houston 

Trees, Ltd., 352 S.W.3d 32, 46-47 (Tex. App.—Houston [1st Dist.] 2011, no 

pet.) (quiet title and chapter 12 claims asserted against quitclaim deed 

which purported to convey a tract of land in which the grantor had no 

interest). As in Gordon, Plaintiffs in this case allege that a deed which 

passed no interest to the grantee was used in a fraudulent manner with the 

intent to injure. Id.

 While the trial court refrained from finding that Defendants used the 

DWW in a fraudulent manner, the undisputed evidence is that they 

unabashedly recorded and displayed the DWW in an attempt to force 

Plaintiffs to abandon their easement. They relied on the DWW to justify 

destruction of Plaintiffs’ improvements on the easement. Further, the 

DWW conveyed no interest in either Defendant as a matter of law—because 

Franks, despite his protestations that he wasn’t sure if BMA owned the land 

below Elevation 1084, had no possessory interest to convey to the Lances. 

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This is undisputed. Whether they had requisite fraudulent intent is an issue 

reserved for a jury. The trial court had discretion to make rulings by way of 

summary judgment on certain elements of Plaintiffs’ claims.

E. The Attorney’s Fee Award is Based on Sufficient Evidence of 

Reasonable and Necessary Fees, and the Award is Equitable 

and Just 

 In issues 7 and 8, Defendants attack the trial court’s award of 

attorney’s fees to Plaintiffs. However, they have waived their legal and 

factual sufficiency arguments relating to the attorney’s fee award; 

moreover, the evidence presented to the trial court was more than adequate 

justification for the fee award. The central issues resolved by the summary 

judgment: 1) whether Plaintiffs held an easement over the disputed tract 

and 2) the validity of Defendants’ DWW were both proper declaratory 

judgments and their resolution permits the award of attorney’s fees under 

the Declaratory Judgment Act. 

1. Defendants Have Waived their Complaints Regarding the 

Fee Award 

 Defendants have failed to challenge the trial court’s findings of fact 

and conclusions of law, did not raise their complaints regarding the award 

pursuant to the declaratory judgment act at the trial level, and inadequately 

briefed their legal and factual sufficiency complaints. This Court must 

accept the trial court’s findings of fact as true in the event it does not 

- 56 -
conclude Defendants have waived their complaints regarding attorney’s 

fees on appeal. 

 The trial court issued findings of fact and conclusions of law 

pertaining to the bench trial of Plaintiffs’ and BMA’s attorney’s fees in this 

case. CR 515-516. When findings of fact and conclusions of law are present 

in the record, they must be specifically attacked on appeal lest they bind the 

appellate court. Cass v. Stephens, 156 S.W.3d 38, 77 (Tex. App.—El Paso, 

2004, pet. denied); Lopez v. State Farm Mut. Auto. Ins. Co., No. 

13-06-276-CV, 2008 WL 2744609, 2008 Tex. App. LEXIS 7643 *19 (Tex. 

App.—Corpus Christi, June 30, 2008, no pet.) (mem. op.); De Arrellano v. 

State Farm Fire & Cas. Co., 191 S.W.3d 852, 855 (Tex. App.—Houston 

[14th Dist.], 2006, no pet.). Defendants do not cite to the findings of fact 

and conclusions of law in their brief. They do not discuss the findings they 

challenge and do not discuss how the evidence relates to the findings with 

any specificity. Appellants’ Brief at 31-36. This Court should accept the 

findings of fact and conclusions of law as true in light of Defendants’ 

waiver. 

 Defendants also complain that the declaratory judgment claims 

resolved by summary judgment in this case are merely disguised trespass to 

try title claims, for which attorney’s fees may not be recovered. Defendants’ 

- 57 -
Brief at 36. This complaint was first raised on appeal; Defendants’ 

numerous and forceful complaints at the trial level did not bring this issue 

to the trial court’s attention. They have waived this issue on appeal. 

Krabbe v. Anadarko Petroleum Corp., 46 S.W.3d 308, 320-21 (Tex. App.—

Amarillo, 2001, pet. denied); Tex. R. App. P. 33.1(a). 

 Defendants’ waiver extends beyond the findings of fact and 

encompasses their argument against attorney’s fees generally as a result of 

inadequate briefing. Tex. R. App. P. 38.1(i). The transcript of the bench 

trial held on Plaintiffs’ and BMA’s attorney’s fees takes up 136 pages which 

memorialize extensive testimony from attorneys Stephan Rogers, Edward 

Hecker, and Cynthia Payne. Several exhibits were admitted as well. 

Defendants direct this Court to just seven pages from this record.21

Appellants’ Brief at 35. These cursory citations relate only to BMA’s 

evidence, and Defendants present no analysis regarding the evidence 

presented to the trial court in the cited pages. Id. Defendants’ failure to 

adequately direct this Court to the portions of the bench trial record which 

support its legal and factual insufficiency arguments invites this Court to 

conduct an independent review of the record, impermissibly becoming 

Of the pages cited from the bench trial record, three relate to an objection made by 21

Defendants that the trial court did not rule on. RR AF 25-27. 

- 58 -
Defendants’ advocate. Valadez v. Avitia, 288 S.W.3d 843, 845 (Tex. App.—

El Paso, 2007, no pet.). 

2. The trial court was presented with sufficient evidence 

that the fees were reasonable and necessary; the court’s 

award was equitable and just 

 At the bench trial held September 17, 2014, Plaintiffs and BMA 

presented evidence in support of their claims for attorney’s fees, including 

itemized invoices. This evidence, with every reasonable inference indulged 

in favor of the trial court’s determination, supports the judgment; it is 

legally sufficient. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 

2005). The evidence is also factually sufficient; the trial court’s judgment is 

not against the overwhelming weight of the evidence. Maritime Overseas 

Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998). The trial court’s 

determination that the attorney’s fee award pursuant to Texas Civil Practice 

& Remedies Code § 37.009 was reasonable, necessary, equitable, and just 

was well within its discretion. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 

1998). 

 Plaintiffs’ lead counsel, Stephan B. Rogers, testified to the attorney’s 

fees they incurred. Mr. Rogers testified to the total amount of Plaintiffs’ 

legal bill, and estimated that 85% of the work related to the issues resolved 

in the summary judgment order severed into cause number 

- 59 -
CV-12-0100209. RR AF 34-36. Mr. Rogers rounded his estimate down to 

$140,000.00. RR AF 36. He explained that this number resulted from the 

extraordinary amount of work that had been put into the case, given 

Defendants’ unflagging and voluminous briefing, their incessant motions 

for rehearing, and their overall dedication to proving that you can draw a 

deed out of thin air. RR AF 37-41. Further, he prognosticated regarding the 

likely costs for both this appeal ($30,000) and any later review by the Texas 

Supreme Court. RR AF 36-37. The underlying fee invoices were admitted 

into evidence. RR AF 91, PX 3. 

 When Defendants cross-examined Mr. Rogers, the only challenge 

they brought to the amount came through the introduction of a settlement 

offer they sent over near this case’s inception. RR AF 57, DX1. Defendants 

contrasted their offer of $34,000 for a license over the disputed tract to the 

bill presented to Plaintiffs for the legal cost of defending their easement 

over the disputed tract and the valuable improvements threatened by 

Defendants’ DWW. RR AF 52-59. The trial court correctly concluded the 

comparison did not flatter Defendants. 

 Edward Hecker, attorney for BMA, bolstered Mr. Roger’s testimony. 

Mr. Hecker presented the legal bills incurred by BMA. RR AF 68-76, IX 1. 

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He also supported Mr. Rogers’ explanation of why the case had been so 

costly: the sheer volume of Defendants’ pleadings. RR AF 70-75. 

 Finally, the Defendants contested Mr. Rogers’ and Mr. Hecker’s 

testimony through Cynthia Payne, their counsel. Mrs. Payne testified that 

25-30 hours of work at $150-200 per hour would be a reasonable fee for 

summary judgment over an express easement. RR AF 99-100. She further 

testified that Plaintiffs’ attorney’s fees were unreasonable in light of 

Defendants’ settlement offer. RR AF 106-07. 

 On cross examination, Mrs. Payne indicated that Defendants had 

spent more than $30,000 on the lawsuit. RR AF 113. Her explanation for 

why this number is so low is quite reasonable; she does not read every filing 

or review every case cited by the parties. RR AF 15-20. Her commendable 

efforts to save her clients money extends to her briefing as well, where she 

makes a practice of reusing older motions when appropriate. RR AF 120. 

She also conceded that the license Defendants’ offered in settlement was 

based on a void deed (colorfully described by Mr. Hecker as a “bill of 

goods”). RR AF 109. 

 With inferences favoring Plaintiffs and BMA, the evidence before the 

trial court was legally sufficient to support the attorney’s fee award. City of 

Keller, 168 S.W.3d at 827. The billing records and testimony presented by 

- 61 -
Plaintiffs supported an award of $140,000 with $30,000 in the event of an 

appeal along with added costs for a petition for review. 6 RR 34-36. The 

trial court ultimately awarded Plaintiffs $90,000 in attorney’s fees for trial, 

$10,000 for an appeal, and $5,000 for a petition for review despite the fact 

that the evidence supported a larger award. BMA’s more modest award was 

similarly justified as discussed in its brief. 

 The evidence presented by Defendants contesting the fee award was 

hardly overwhelming; the fee award was factually sufficient. Maritime 

Overseas, 971 S.W.2d at 406-07. At most, Mrs. Payne’s testimony 

established what would be an appropriate fee for her work on a motion for 

summary judgment pertaining only to an express easement. RR AF 

99-100. Further, her estimate was likely depressed by her concern for 

minimizing her client’s costs. RR AF 15-20. 

 While the amount testified to by Mrs. Payne was considerably less 

than the fees incurred by Plaintiffs and BMA, this case pertained to far 

more than a simple express easement. While Plaintiffs quieted title in their 

easement by way of summary judgment, they also secured a declaration 

from the trial court that Defendants’ DWW was invalid. CR 44-49. 

Crucially, this declaration was meant to protect Plaintiffs’ property on the 

disputed tract, which Defendants threatened to destroy based on their 

- 62 -
claim to own the disputed tract. RR TI 40-53, RR Exhibits PX1. Mrs. 

Payne’s testimony demonstrated a range of reasonable fees for a portion of 

the relief pleaded for and obtained by Plaintiffs, but it provided no guidance 

with regard to the remainder of the work performed in the case. It does not 

overwhelmingly demonstrate that the fee award was unreasonable. 

 Furthermore, the fee award was equitable and just. Attorney’s fees 

are appropriately awarded pursuant to the declaratory judgment act for 

both determining a deed’s validity, quiet title, and defending an easement 

so long as the lawsuit is not essentially a trespass to try title claim. Tex. Civ. 

Prac. & Rem. Code § 37.009; Fairfield Fin. Group, Inc. v. Synnott, 300 

S.W.3d 316, 323 (Tex. App.—Austin, 2009, no pet.). When a declaratory 

judgment is used to determine a party’s rights under a deed pertaining to a 

non-possessory interest in land, an attorney’s fee award is appropriate. 

Roberson v. City of Austin, 157 S.W.3d 130, 136-37 (Tex. App.—Austin, 

2005, pet. denied) (discussing the effect of Martin v. Amerman, 133 S.W.

3d 262, 264 (Tex. 2004) on cases where title is not at issue and concluding 

the Declaratory Judgment Act may be used to interpret how a deed affects 

rights to an easement lest part of the act be rendered meaningless); accord 

City of China Grove v. Morris, No. 04-10-00763-CV, 2011 Tex. App. LEXIS 

9260, *2-10 (Tex. App.—San Antonio, Nov. 23, 2011, pet. denied). Another 

- 63 -
use for declaratory judgment is declaring a deed invalid or void; again, 

attorney’s fees are appropriate pursuant to § 37.009. Korenek v. Korenek, 

No. 13-07-00111-CV, 2008 Tex. App. LEXIS 5652, *14, 2008 WL 2894906 

(Tex. App.—Corpus Christi, July 29, 2008, no pet.) (mem. op.); Wilhoite, 

401 S.W.3d at 759-60 (noting that a suit for cancellation of a deed, in the 

absence of a conveyance, was not equivalent to trespass to try title). 

Plaintiffs have not asked for, nor has there been an award of, title to the 

disputed tract; this case does not sound in trespass to try title. The award 

of attorney’s fees was justified under § 37.009. 

 The trial court considered Plaintiffs’ and BMA’s discussion of their 

arduous path to judgment in this case. Indeed, the record of this case 

stands as a testament to the complexity of the arguments raised by the 

parties and the tenacity of Defendants. The trial court properly considered 

the record and found that the fee award was reasonable and necessary; the 

law makes it clear that the award was equitable and just. 

- 64 -
Prayer 

 Plaintiffs request that this Court affirm the judgment of the trial court 

in all respects, and award Plaintiffs their attorney’s fees and court costs. 

Plaintiffs further request any other relief to which they have shown 

themselves justly entitled. 

 Respectfully submitted, 

 // Stephan B. Rogers

 Texas Bar No. 17186350

 Kelly P. Rogers 

 Texas Bar No. 00788232 

Ross S. Elliott 

Texas Bar No. 24080685 

ROGERS & MOORE PLLC 

309 Water St., Suite 201

Boerne, TX 78006 

(830) 816-5487 

Fax: (866) 786-4777 

steve@rogersmoorelaw.com

kelly@rogersmoorelaw.com

ross@rogersmoorelaw.com

- 65 -
Certificate of Compliance 

I certify, pursuant to TRAP 9.4 that the number of words used in this 

document, not including the contents excluded by Rule 9.4(i)(1), according 

to the word count of the computer program used to prepare the document, 

is 11,723. 

 // Kelly P. Rogers

Certificate of Service 

I certify that a copy of this brief was served on the following persons 

pursuant to the Texas Rules of Appellate Procedure on July 15, 2015. 

Dan Pozza 

Law Office of Dan Pozza 

239 E. Commerce Street 

San Antonio, TX 78205 

(210) 226-8888 – Phone 

(210) 224-6373 – Fax 

danpozza@yahoo.com 

Edward Hecker 

GOSTOMSKI & HECKER 

607 Urban Loop 

San Antonio, Texas 78204 

ed@ghlawyers.net

 // Kelly P. Rogers

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Appendix A