### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00234- CV

Gar y Newton, App ellant

v. Ke nneth Wil liam s, Lesia W. Jones, John H. Gom ez, and Benita Gom ez, A ppellees

F ROM TH E DISTRI CT COURT O F B ASTROP CO UNTY, 21ST JUDICI AL DISTRICT NO. 28,1 52, H ONO RAB LE CARSON TALMADGE CAMP B ELL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N 1

Gar y Newton appea ls from the trial court’s judgme nt in favor of Kenne th Wil liams,
L esia W. J ones, J ohn H. Gomez, an d Be n i t a Gom ez on Newton’ s claims rela ted to acc ess to rea l
proper ty located in a platted subdivision in Ba strop County

. We will aff irm in part and reve rse and

rema nd in part.

BACK GR OUND 2

I n Aug ust 20 0 0 , Newton purcha sed L ots 1 throug h 14, comprising Bloc k 9 of the
J .C. Madison Addition in Ba strop County (“B lock 9”) at a sale held by the Ba strop County Sheriff

Notice of appea l for this case was originally filed i n t h i s C ourt in Marc h 2016, at which 1 time the case was transfe rre d to the El Paso Court of Appea ls in co m p l i an ce with a docketequalization order issued by the Texas Supreme Court. On April 12, 2018, the Texas Supreme Court order ed that cer

tain case s be transfe rre d back to this Court from the El Paso Court, and we consider this appea l pursuant to that order

. See Misc. Docke t No. 18-9054 (Tex. Apr. 12, 2018) (per curia m). The fa cts set forth he rein a re de rived fr om the testimony and exhibits admitted at trial. 2pursua n t t o an Orde r of Sale issued by the Ba strop County District Clerk. The convey ance was 3
made by ref

ere nce to the J

. C

. Madison Addition “as shown by map or plat there of, rec orded in
V o lu me 5 , Pa g e 2 , D e e d Re c o r d s o f B a s tr o p Co u n ty , T e xa s
. ” T h e r e f

e r e n c e d p la

t o f th e J. C. M a d is o n Addition includes a dedica tion “to the Public, and for Public use” of the streets and alley s shown on the plat. The dedica tion to the public of the streets and alley s identified in the plat was approve d by
Ba strop County by order of the Commiss ioners Court. The plat shows that Bloc k 9 is bounde d by
four de dicated stre ets: (1) Va n Bur en Stree t, adjace nt to Block 9’s northern bounda ry ; (2) Adams Street, adjacent to Bloc k 9’s western boundary ; (3) J eff erson St ree t, adjac ent t o Bloc k 9’s eastern boundary ; and (4) J ackson Street, adjac ent to Bloc k 9’s southern boundary

. Bloc k 8, which is owned by Wil liams, is located south of Bloc k 9 on the south side of J ackson Street. L ots 1 and 12 of Bloc k 4, which are owned by J ones, are located west of Bloc k 8 on the west side of Adams Street, and
Bloc k 11, which is owned by Wil liams a nd his f ather , is loc ated east of Bloc k 8 on the east side of
J eff erson Street. The plat shows that Houston Street runs adjac ent to Bloc ks 4, 8, and 11 along their
southern boundarie s. At the time of trial, Hous ton Street had been constructe d and was used by
Jo n e s a n d Wi ll ia ms to a c c e s s th e ir p r o p e r

ti e s in B lo c k s 4 , 8 , a

n d 1 1

. Jo n e s h a d a ls o im

p r o v e d A d a

ms Street almost to J ackson Street and was using it a s a drivewa y to a cce ss L ot 12, Bloc k 4, on which
she had place d a manufa cture d home. None of the streets adjac ent to Bloc k 9 (Va n Bur en, Adams,
J eff erson, a nd J ackson) had bee n constructe d, nor had Jeffe rson Street be tween B locks 8 and 11.

T h e Orde r of Sale issued afte r the district court rende red judgme nt in a suit filed by t h e 3 Elg in I ndepende nt School District to collect unpaid proper ty taxes assessed ag ainst Block 9

. S ee Tex. Tax Code §§ 33.41 (at a ny time after

its tax on proper

ty become s delinquent taxi ng unit may f il e s u it to f

o r e c lo s e li e n s e c u

r in g p a y me n t o f ta x) ; 3 3

. 5 3 ( if ju d g me n t in s u it to c o ll e c t d e li n q u e n t ta x is for fore closure of tax lien, court shall order proper ty sold in satisfac tion of amount of judgme nt).
2I n April 2011, Newton enter ed into a Contract for Dee d pursuant to which Enmanual

Cruz ag ree d to purcha se Bloc k 9 for $35,000. Newton testified that in late Marc h or ear ly April 2011, he and Cruz attempted to ente r B lock 9 from Houston Stree t by walking north on what they
believed to be the location of Adams Street and J eff erson Street, but wer e preve nted from doing so by J ohn Gomez. Newton also testified that when he beg an marke ting the proper ty in la te 2009 or 4

ear ly 2010 he had attempted to acc ess Bloc k 9 using Adams Street. Newton testified that J ones told
him that what he believed was Adams Street was her drivewa y and that he could not come down it.
Acc ording to Newton, when he showed J ones the plat depicting Adams Street as a dedica ted street she stated that it was he r drivew ay and that he c ould not use it to get to B lock 9. Newton testified
that when he asked Williams and J ones why the rig hts of way cre ated by the dedication of Adams
Street and Jeffe rson Street did not exist they responde d that “they

wer e old.”
I n Marc h 2011, Newton sent letters to Wil liams and J o n es demanding that they

remove what he descr ibed as obstructions place d on the 40-foot rig hts of way identified on the plat

a s A d a ms St r e e t, Je f f e r s o n St r e e t, a n d Ja c k s o n St

r e e t. N e w to n d e s c r ib e d th e o b s tr u c ti o n s a s v e h ic le s , trailers, fenc es, fenc e posts, a nd vehicle pa

rts that he believed had been place d there to impede his ability to use the rig hts of way to acc ess Bloc k 9. Newton stated that Ba strop County Commi ssioner
L ee Dildy was wi lling to meet with them to mediate any disputes about proper ty boundarie s. An

a tt o r n e y r e p r e s e n

ti n g Wi ll ia

ms , Jo n e s , a

n d Jo h n G o me z r e s p o n d e d to N e w to n ’ s le tt e r
. T h e a tt o r n e y ’ s letter stated:

J ohn Gomez and Be nita Gomez purcha sed Bloc k 11 from L illian Reese in May 2011 and 4 then sold it t o W i l l i am s and his fathe r, J .D. Wil liams, in October 2012. Gomez testified that he p u rc h as ed the property beca use he wanted to build a workshop on it and that he sol d the property beca use he de cided he neede d something c loser to his home in Pfluge rville. 3I t has come to our attention that y ou and a potenti al t en an t/buy er and/or survey or have enter ed and crossed o u r cl i ents’ proper ty while my clients wer e out one day (J.C . Madison Edition [ sic], Blocks 11, L ots 1 through 8 a nd J .C. Madison Edition [si c] Bloc k 4, L ots 1, 10, 11, and 12, J .C. Madison Edition [si c] Bloc k 11 [si c], L ots 1-8) to ac cess y our prope rty in Block 9 of

the same Edition [sic]

. Please be advised that any entry onto the proper ty of my clients is trespass and we will seek any and all l egal reme dies, including arr est if appropr iate, leg al fee s and damag es should y ou or y our ag ents (any o ne working for y our [si c] or under y our supervision) ente r their pr operty ag ain.
As a long time owner of Bloc k 9, y ou are awa re, and have been awa

re since the time of its purcha se by y ou at a tax sale over 5 y ear s ag o that y our proper ty does not have acc ess throug h the proper

ty of my clients. My clients’ proper ty has been fenc ed post to post for well over 15 y ear s, with the occa sional exception of minor repa irs, and the persona l drivewa

y s of our clients are not y our proper ty

. My clients have repe atedly told y ou to stay off their proper ty , and have had to g ate the proper ty to keep y ou out. You will need to ac cess y our prope rty from a dif

fer ent direc tion.
As y ou are also awa

re, the develope r of the Madison E d i t i o n [ s ic] abandone d the platted roads shown adjac ent to my clients’ proper ty (which r oads we re ne ver e ven constructe d ) o v er 3 0 y ear s ag o, and since that time my clients have fenc ed the proper ty , paid the taxes and held the proper ty out as their own. The County does not, and has not, owne d or maintained a ny roads in the Ma dison Edition [ sic].

Newton r esponded to this letter, in par t, as follows:

I t was g ood to speak with y ou today

. [] Please let me know all statutory law, ca se law, and/or leg al theories y our firm or Mr. Wil liams ha s as to w hy the 40 foot rig ht of way s on three sides of his proper ty do not exis t or the leg al basis for him to block them and deny me acc ess to my land. I f y ou look on Ba strop CAD’s website y ou can see the maps of the rig ht of way s on three sides o f h i s proper ty

. These maps are based upon the plat filed with Ba strop County in 1947. Mr. Wil liams b o u gh t his proper ty from Ba strop County in 2005 and if y ou look at his deed y ou will find that it conforms to this plat.
I f the ri gh t o f wa y s are blocked past April 11 by Mr. Wil liams I will proce ed to exercise my

full leg al rig ht to acce ss my proper ty

.

4L itiga t i o n i s n o t my pref ere nce. Multipl e times I have offe red to sit down with Mr. Wil liams and his repr esenta tives and look at all plats, survey s and other information rele vant to our dispute and work throug h the differ ence s about proper ty lines.

After rec eiving no response to this letter, counsel for Newton sent a letter to c ounsel for Wil liams,
J ones, and G omez. The letter state d, in part:

Mr. Newton needs unimpeded acc ess to and use of either Adams or J eff erson Street, and enoug h of J ackson Street wher e it cros s es Ad am s o r J eff erson to g et to his proper ty

. The quickest and least expensive way to do this is for y our client to convey any and all intere sts he may have in the streets to Mr

. Newton, and for Mr. Newton to convey any and all interests he may have in the street not chosen, either Adams or J eff erson, a nd the re mainder of

J ackson Stree t, to parties to the neg otiations.

The letter also proposed that the parties meet to g o over the plats and come to a resolution. Such a meeting never took place and i n Au gu s t 2011, Newton filed suit ag ainst Wil liams, J ones, and the
Gomezes asser

ting cause s of action for tortious interfe renc e with acc ess to rea l proper ty and tortious
interfe renc e with a contra ct to sell rea l proper ty

. Newton also soug ht a decla ration that obstruction
of the streets was wrong ful and an injunction c ompelling remova l of all obstructions from Adams,
J eff erson, and J ackson Streets. Newton soug ht to rec over monetary damag es h e al l eged resulted
from canc ellation of the Contract for Dee d as well as exemplary damag es, attorney s’ fee s, and court
costs. J ones and Wil liams filed g ener al denials and asser ted that “all rele vant roadw ay s have been
abandone d,” that Newton’ s claim to a rig ht to use the roadw ay s was barr ed by limit ations, estoppel
and lac hes, or e x tinguished by abandonme nt and pre scription.
After conducting a one-da y bench trial, the district court rende red judgme nt ag ainst
Newton on his tortious interfe renc e claims and denied his reque st for decla ratory and injunctive

5relief

. At Newton’ s reque st, the trial court issued finding s of fac t and conclusions of law in support of the fina l judgment. This appe al followed.

DISCUSSIO N
I n twenty -five appellate issue s an d sub-issues, Newton challeng es the trial court’s judgme nt that he take nothing by his claims for tortious i n t er ference with acc ess to rea l proper ty (issue 13), tortious interfe renc e with contra ct (issue 14), a nd its denial of his claims for injunctive
and dec lara tory

relief (issues 15 and 16) . Newton a lso challeng es the c ourt’s denia l of his reque st for actua l da

mag es (issue 17), exemplary damag es (issue 18), attorney s’ fee s, and costs (issue 19). The remaining issues constitute challeng es t o the l eg al co n cl u s i ons and fact findings made by the
trial court in support of the judgme nt. Newton challeng es the following fac t finding s (F OF) and
conclusions of law(COL ):

FOF 1: A plat in the J .C. Madison Addition was filed for rec ord on J anuar y 20, 1947 and rec orded on J anuar

y 23, 1947. I n 1972, J .D. Wil liams, the fathe r of Def endant Kenne th Wil liams a

nd L esia W. Jones, a cquire d L ots 1, 10, 11 and 12 out of Bloc k 4, L ots 1-8 out of Block 8. L ots 1-8 out of B lock 11 wer e the pr operty of Kenneth Wil liams. Bloc ks 4, 8 and 11 are adjac ent to eac h other and separ ated on the orig inal plat by 40-foot wide strips.
FOF 2: D uring the period from 1972 throug h 1996, Bloc k 4, L ots 1, 10, 11 and 12 and Bloc k 8, L ots 1-8 and Bloc k 11, L ots 1-8 wer e trea ted as a s ingle piece of proper ty

. The 40-foot wide spac es betwe en ea ch of sa id blocks wer e closed off by continuous fenc ing a

nd cattle we re g razed on the subjec t blocks.
FOF 3: At the time of the acquisition of the lots in question by J .D. Wil liams, there had been no use by the publ ic of the 40-foot wide st rips as roadway s, no roadw ay s had been installed, and no maintenanc e or other attempts to maintain a roadw ay had occur red. During a period fr o m 1972 throug h 1996, the fenc e rema ined in place , blocking public acc ess to the roa dway s betwee n the three named lots.

6FOF 4: I n 1996, Def endant L esia J ones acquir ed title to Bloc k 4, L ots 1, 10, 11 and 12 by a Gift De ed fr om her fa

ther, J.D. W illiams.
FOF 5: Def

endant Kenne th Wil liams acqui re d t i t l e t o Bloc k 8, L ots 1-8 by a Gift Dee d from his fathe r in 1996.
FOF 8: L esia W. J ones uses and occupie s Bloc k 4, L ots 1, 10, 11 and 12, including the 40-foot wide strip adjace nt to said property , as a pa rt of her homestead.
FOF 9: Def

endant Kenne th Wil liams uses and occupie s Bloc k 8, L ots 1-8, including the 40-foot wide strip separ ating Bloc k 8 from Bloc k 4 and Bloc k 11 as a portion of his homestead.
FOF 11: There is no evidenc e that any member of the public ever used any portion of the two 40-f

oot wide strips for roa dway purposes. FOF 12: No member of the public has made use of any of the 40-foot wide strips as roadw ay s since 1972.
COL 1: The roadw ay strips betwee n Bloc ks 4, 8 and 11 owned by Def endants at the time of the suit wer e abandone d under Section 251.057 of the Texas Transpor tation Code in 1993.
COL 2: The road wa y strips betwee n Bloc ks 4, 8 and 11 wer e abandone d under Common L aw a

bandonment.
COL 3: The proper

ty having been abandone d as roadw ay could not be re- established as a public r oad except in the manne r provided f or establishing a new

road.
COL 4: Gar

y Newton was without leg al authority to acc ess Bloc k 9 using the 40-foot wide strips betwee n Bloc ks 4, 8, and 11 beca use those strips had been abandone d as roadw ay
. COL 5: Plaint i ff

, Ga ry Ne wton is bound by the knowledg e and actions of his prede cessor s in tit le and the r ights a nd parties in possession.
C OL 6 : Gar

y Newton is barr ed from asser ting a rig ht to open the roadw ay s fo r acc ess to Bloc k 9 under the theories of L ache s and Equitable Estoppel.

7Abandon m ent of J.C. Madison Additi on Dedicated Streets
We first consider whether the trial court corr ectly conclude d that Adams Street and
Je f f e r s o n St r e e t, w h ic h h a d b e e n d e d ic a te d f o r p u b li c u s e b u t w e r e n e v e r c o n s tr u c te d , w e r e a

b a n d o n e d
under section 251.057 of the Texas Transpor tation Code. See State v. Heal , 917 S.W .2d 6, 9 (Tex. 1996) (trial court’s conclusions of law are revie wed de novo and revie wing court aff ords no defe renc e to lower

court’s de cision). Section 251.057 provides, in per tinent part:
(a) A county road is abandone d when its use has be come so infr equent that one or more adjoining proper

ty owner s have enclose d the road with a fenc e continuously for at least 20 y ear s. The abandone d road may be ree stablished as a public road only in the manner

provided for

establishing a

new r oad.

Tex. Transp. Code § 251.057(a)

. I n order for this statute to apply , Adams Street and J eff erson Street

mu s t q u a li f y a s “ c o u n ty r o a d s
. ” T h e J. C. M a d is o n A d d it io n p la t id e n ti f ie s th e s e s tr e e ts a s d e d ic a

te d
for public use. Streets and roads on an ap p ro v ed p l at that are dedica ted to the public are public roads, but they are not county roads unless the commissioners court has acc epted the roads into the county road sy stem. See M

iller v. Elliot , 94 S.W .3d 38, 45 (Tex. App.—Ty ler 2002, pe t. denied);
Commissioners’ Court v. Frank Jeste r Dev

. Co. , 199 S.W .2d 1004, 1007 (Tex. Civ. App.—Dallas 1947, writ ref

’d n.r.e.) (public road is not nece ssarily part of county road sy stem). The trial court did

not make any express finding that Adams Street and J eff erson Street had b ee n ac cepted into the
B a s tr o p Co u

n ty r o a d s y s te m a

n d th e r e is n o e v id e n c e to s u p p o r t a ny s u c h im

p li e d f in d in g
. M o r e o v e r , there was n o ev i dence that Ba strop County had ever improved the road. See Tex. Transp. Code § 253.011 (roa d improved under chapte r 253 is county road)

. Roads that are not county roads are not subject to abandonme nt pursuant to Transpor tation Code section 251.057. Id. § 251.057(a)

.
8Fur thermore , even if Adams Street and J eff erson Street could be considere d county roads, there was no evidenc e at trial that “one or more adjoining p ro p erty owner s have enclose d
the road with a fe nce c ontinuously for a t least 20 y ear s.” Id. The testimony at trial was that when
J .D. Wil liams purcha sed his proper ty in 1969, there was a fenc e running along Houston Street, the
southern boundary of Wil liams’s proper ty

. That fenc e did not “enc lose” Adams Street or J eff erson Street. Will iams testified that he did not build the fenc e himself and tha t at some point in ti me he

tore part of it down. Wil liams also testified that he did not build any other fenc es other than “a hot
fenc e, elec tric fenc e for my cattle.” Wil liams did not state when he built the elec tric fenc ing, wher e it was located, or how long it was in place

. Although the trial court found that “[t] he 40-foot wide 5
space s betwee n eac h of said blocks wer e closed off by co n t i n u o u s fe ncing ,” there is no evidenc e
to su p p o rt t h at finding

. See Anderson v. City of Seve n Points , 806 S.W .2d 791, 794 (Tex. 1991) (trial court’s finding s of fact are review ab l e fo r l egal sufficienc y of evidence by same standard as applied in r eviewing leg al sufficie ncy of evidenc e supporting jury ’s finding ). The trial court err ed
i n co n cl u d i ng that J eff

erson Street and Adams Street wer e abandone d pursuant to Transpor tation
Code section 251.057.

Newton also challeng es the trial court’s conclusion that Adams Street and J eff erson Street wer e abandone d under common-law abandonme nt. To show common-law abandonme nt, one

mu s t s h o w in

te n t to a b a n d o n a n d a c ts o f r e li n q

u is h me n t. M

a p le s v
. H e n d e r s o n Ct y
. , 2 5 9 S. W. 2 d 2 6 4 , 267 (Tex. Civ. App.—Dall as 1 9 5 3 , writ ref ’d n.r.e.)

. “Common-law abandonme nt ‘occ urs when

When asked how long the elec tric fenc e stay ed u p , W i l l i ams responde d “Tha t, I don’t 5 reme mber how long. When I sold out of cows.” There was no evidenc e of the date Wil liams sold his cows. 9the u s e for which the proper ty is dedica ted become s impossibl e, or so highly improbable as to be
prac tically impossibl e, or wher e the object of the use for which the proper ty is dedica

ted wholly
f a il s
. ’ ” R u tl

e d g e v
. S ta n e r , 9 S. W. 3 d 4 6 9 , 4 7 1 ( T e x. A p p
. — T y le r 1 9 9 9 , p e t. d e n ie d ) ( q

u o ti n g G r if

fi th

v. Allison , 96 S.W .2d 74, 77 (Tex. 1936)). There is no evidenc e that the purpose of either J eff erson Street or Adams Street has become prac tically impossibl e or that the use for which the proper ty was dedica ted has wholly failed. “The purpose of a public road, particula rly one local in char acte r, is to provide a cce ss to property abutting upon it, as w ell as a thoroug hfar e betwe en dis tant points.” Id.
Her e, the purpose of J eff erso n S t re et and Adams Street was to provide acc ess to, among others blocks, Bloc k 9 of the J .C. Madison Addition. These streets have not lost their purpose as a public
road to provide landowner s in the J .C. Madison Addition acc ess to their proper ty

. Common-law
abandonme nt has not occur red. 6
Severa l of the trial court’s finding s seem to sug g est that Wil liams and J ones have met the elements of adver se possession of J eff erson Street and Adams Street that defe at the rig ht of others, including Newton, to use the roads for acc ess to lots in the J .C. Madison Addition. Howeve r, “a person may not acquir e throug h adver se possession any rig ht or title to rea l proper ty dedica ted to public use.” Tex. Civ. Prac. & Rem. Code § 16.030(b). Nor can Newton be barr ed by the equitable 7

We a lso note that the county ’s failure to ma intain a road does not establish common-law 6 aband o n m en t , n o r does non-use of a road. See Rutledge v. Staner , 9 S.W .3d 469, 472 (Tex. App.—Ty ler 1999, pet. denied) ; Compton v. Thacker , 474 S.W .2d 57 0 , 5 74 (Tex. Civ. App.—Dallas 1971, writ ref

’d n.r.e .). Although we will not discuss the issue in detail, we note that the evidenc e adduce d at trial 7 does not support a finding that either W illiams or J ones established title to the s tree ts by virtue of the 5-, 10- or 25-y ear limit ations statutes. See Tex. Civ. Prac. & Rem. Code §§ 16.025 (setting forth elements of adver se possession under 5-y ear statute as requiring claimant to continuously (1) claim title under duly reg istered deed; (2) pay taxes on proper ty ; and (3) cultivate, use, or enjoy proper ty ), 10theories of lache s or estoppel from exerc ising his rig ht to use the roads de dicated f or public use in
the J .C. Madison Addition plat. The trial court err ed in ref using to decla

re that Wil liams and J ones

co u l d n o t obstruct the public roads in the J .C. Madison Addition, including J eff erson Street an d
Adams Street. The trial court also err ed in ref using to e njoin Williams and J ones from continuing to obstruct these public roa ds. 8

Tortious Interference

Claim s We next consider the trial court’s denial of Newton’ s claim that Wil liams, J ones, and
Gomez tortiously interfe red with his contra ct to sell Bloc k 9 to Cruz. The elements of interfe renc e with an exis ting contra ct are (1) an exis ting contract subject to interfe renc e; (2) a willful and
intentional act of interfe renc e with the contra ct; (3) that proxi mately cause d the plaintiff’s injury ; and (4) cause d actua l damag es or loss. Prudential Ins. Co. of Am. v. Financial Rev iew Servs., Inc. , 29 S.W .3d 74, 77 (Tex. 2000) (citing ACS Inv’rs, I nc. v. McLaughlin , 943 S.W .2d 426, 430 (Tex. 1997)). On appea l, Newton asser ts that “[t] he trial court should not h av e denied [hi s] claim of

tortuous [si c] interfe renc e with [hi s] contra ct to sell rea l proper ty , as t he evidence establishes as a

.026-.027 (setting forth elements of adver se possession under 10- and 25-y ear s statutes as requiring c la im a n t to c u lt iv a

te , u s e , o r e n

jo y p r o p e r

ty in c o n ti n

u o u s a n d h o s ti le ma

nn e r ) ; s e e a ls o id

. § 1 6

. 0 2 1 ( 1 ) (“‘ Adver se possession’ means an actua l and visible appropr iation of rea l proper ty , commence d and continued under a claim of rig ht that is inconsistent with and is hostile to t h e cl ai m of another person.” ). The evidence that J .D. W illiams g razed cattle and repaire d a fe nce tha t alrea dy exis ted at the time he purcha sed his lots in the subdivisio n i s i n s u fficient to support a finding of adver se p o s s e s s io n
. S

e e H o p k in s v
. S ta te , N o
. 0 3

- 0 7

- 0 0 2 5 3

- CV , 2 0 0 9 WL 3 8 0 6 1 6 0 , a t * 7 ( T e x. A

p p
. — A u s ti n Nov. 13, 2009, no pet.) (mem. op.) (mer e g razing of land incidentally enclose d by a fence cre ated by others cannot support a claim of adver se posses sion). Wil liams was also unable to rec all how many y ear s he used the la

nd for g razing cattle.
Be cause the Gomezes no longe r own proper ty in the J .C. Madison Addition, it wa s n o t 8 err or for the trial cour

t to deny Newton’ s reque st for dec lara tory and injunctive re lief as to them.
11matter of law all the vital fac ts supporting a conclusion that the collapse of [hi s] attempt to sell Bloc k

9 was direc tly the result of Appellee s’ behavior , which forc ed Appellant to a g ree with his buy er to

c a n c e l th e ir Co n tr a c t f

o r D e e d

. ” A n a

p p e ll a n t a tt a c k in g th e le g a l s u f

f ic ie n c y o f a

n a d v e r s e f in d in g o n which he c arr ied the burde n of proof must de monstrate that the evidenc e conclusively establishes,

a s ma tt e r o f la w , th e v it a l f

a c ts in s u p p o r t o f th e is s u e
. S

e e D o w Ch e m
. Co

. v
. F

r a n c is , 4 6 S. W. 3 d 2 3 7 , 241 (Tex. 2001).

The only evidenc e Newton identifies in his appellate b ri ef i s an Ag ree ment for
Cance llation of Contract for Dee d executed by Newton and Cruz , wh i ch rec ites that the ag ree d

canc ellation was “base d upon and arises out of the wrong ful acts of third parties who have blocked

acc ess to the Property along the roads, streets and alley s which wer e dedica ted to the public as such,
makin g i t impossibl e for Purchase r to acc ess and enjoy the Property .” Newton does not identify
evidenc e establishing, as a matter of law, that Wil liams, J ones, or Gomez place d obstructions in the

are as dedica ted as p u b l ic roads with the intent of interfe ring with Newton’ s contra ct. Rather, the
evidenc e at trial indicated that the intent was to preve nt Newton from acc essing Bloc k 9 by crossing
what they believed, albeit incorre ctly , to be their proper ty

. See Bradford v

. Vento , 48 S.W .3d 749,
758 (Tex. 2001) (there is no tortious interfe renc e if interfe renc e is, at most, only incidental result of
conduct e ng ag ed in for a

nother purpose). There is no evidenc e that Willi ams or Jones even knew
that Newton had enter ed into a contra ct with Cruz for the sale of Bloc k 9 at the time they first denied
Newton acc ess to Bloc k 9. See Southwestern Bell Tel. Co. v. John Carlo Tex., Inc. , 843 S.W .2d 470,
472 (Tex. 1992) (tortious interfe renc e requires f i n d i n g that defe ndant performed certa in acts with knowledg e or belief that interfe renc e with co n tr a c t w o uld result from that conduct)

. Newton testified

12that at t h e t i m e he entered into the contract wit h Cruz he “knew that Ms. J ones and Mr. W illiams

viewed it as the ir proper

ty and didn’t wa

nt us using the platted r ight- of-wa y .” We ca

nnot say that
the evidenc e conclusively establishes, as a matter of l aw , t h at o b s tructing the roads dedica ted to public use in the J

. C

. M ad i s on Addition constituted a willful and intentional act of interfe renc e with Newton’ s contra ct with Cruz. See id. (ele ment of intent is established when actor desires to

cause co n sequenc es of his or her acts or believes those conseque nces are substantially cer tain to result from those a cts).

Newton also challeng es the trial court’s denial of his claim of “tortious interfe renc e with acc ess to rea l proper

ty .” Whil e Texas law rec og nizes a cause of action for tortious interfe renc e with proper

ty rig hts, we are unawa

re of a ca u s e o f action for tortious interfe renc e with acce ss to

rea l proper

ty

. Newton provides no authority to support the exis tence of such a claim. Moreove r, the

reme dy Newton reque sted in his petition—removal of the obstructions to the roadw ay and use of the
roadw ay s to acc ess his proper ty —may be provided by the trial court in the form of decla ratory and injunctive relief

. 9

Actual an d Exem

plary Dam ages Newton asser

ts that the trial court err ed in failing to awa rd him $45,000 in actua l damag es arising out of the alleg ed tortious interfe renc e with his contra ct with Cruz and in failing to

Additionally , Newton’ s briefing of this issue consists of only three sentenc es and contains 9 no citations to the rec ord or to any leg al authority rela ted to this claim. See Tex. R. App. P. 38.1(i) (“The brief must contain a clea r and concise arg ument for the contentions made, with appropr iate citations to authorities and to the rec ord.”) ; Maver i ck Cty. v. Railroad Commission of Tex. , No. 03-14-00257-CV, 2015 WL 9583873, at *10 (Te x . App.—Austin Dec . 29, 2015, pet. denied) (mem. op.) ( when a

ppellant offe rs no discussion or ana ly sis of arg ument it is waived). 13awa

rd him e x emplary damag es. Be cause we aff irm the trial court’s conclusion that Newton failed

t o es t abli sh the elements of tortious interfe renc e with contra ct, there is no basis for an awa rd o f damag es. Ex emplary damag es are not available unless the plaintiff establishes that it sustained

actua l loss or injury

as the result of an under ly ing tor t. Tex. C iv. Prac. & Rem. Code § 41.004(a) ; Fede ral Express Corp. v. Du t s ch mann , 846 S.W .2d 282, 284 (Tex. 1993) (“Recove ry of puni tive damag es require s a finding of an independe nt tort with acc ompany ing actua l damag es.”)

. A plaintiff

cannot rec over punitive damag es if its compensa tory damag e claim is prec luded as a matter of law. Entergy Gulf States, Inc. v. Isom , 143 S.W .3d 486, 494 (Tex. App.—B eaumont 2004, pet. denied)

. Be cause Newton did not rec over on his tort claims, the trial court proper ly declined to awa rd actua l or exemplary

damag es.

Attorn eys’

Fees
Newton asser

ts that the trial court err ed by ref using t o awa

rd him attorney s’ fee s and costs. Having denied all of Newton’ s claims, there was no basis for the trial court to awa rd him
fee s. We have, howeve r, reve rsed and rema nded the cause to the trial court for entry of appropr iate
decla ratory and injunctive relief

. The Texas Uniform Dec lara tory J udg ments Act provides that the

court may awa

rd costs and rea sonable and nece ssary attorney s’ fee s “as are equitable and just.” Tex.
C i v
. P ra c. & R em. Code § 37.009. I n the prese nt case , our reve rsal of the trial court’s judgmen t deny ing Newton decla

ratory relief may

aff ect whe ther a

n awa rd of a ttorney s’ fee s is e quitable and ju s t. S e e S a v a G u m a r

s k a I n Ke m ij s k a I n d u s tr ia D

. D

. v
. A d

v a n c e d P o ly

m e r S c is

. , I n c
. , 1 2 8 S. W. 3 d 3 0 4 , 324 (Tex. App.—Dallas 2004, no pet.) (on rema nd afte r reve rsal of decla

ratory judgme nt ruling trial court may rec onsider attorne y s’ fe e aw ard)

. On re mand, the trial c ourt may rec onsider whe ther to

14awa

rd attorney s’ fee s under the decla ratory judgme nts act, to whom any such fee s may be awa rded,

a n d th e r e a s o n a

b le a n d n e c e s s a

r y a mo u n t o f a ny s u c h a tt o r n e y s ’ f e e s , if a w a r d e d

. S e e A r th u r M

. D e c k
& Assocs. v. Crispi n , 888 S.W .2d 56, 62 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (in
decla ratory judgme nt action, trial court may awa rd either side costs and rea sonable attorney s’ fee s).

CONCLUSION
For t h e re asons stated in this opinion, we reve rse the portion of the trial court’s judgme nt deny ing Newton’ s reque st f or decla ratory and injunctive relief

. We rema

nd the cause to the trial court to provide the appropr iate decla ratory and injunctive relief reg arding J eff erson Street,
Adams Street, and J ackson Street in the J .C. Madison Addition. On re m an d , t he trial court may also rec onsider whe ther to aw ard attorney s’ fees pursuant to section 37.009 of t he Te x as Unifor m Dec lara tory

J udg ments Act. The r emainder of the trial c ourt’s judg ment is affirme d.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Scott K. Field, Just ice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field
Affir med in Part, Rever sed and Rema nded in Part
Filed: Jul y

10, 2018

15