Allen and Martha Lewis Revocable Trust and Martha Lewis, Individually v. Daniel Perales and Erin Perales--Appeal from 55th District Court of Harris County
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Opinion issued August 12, 2010
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-09-00140-CV
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THE ALLEN AND MARTHA LEWIS REVOCABLE TRUST AND
MARTHA LEWIS, INDIVIDUALLY, Appellants
V.
DANIEL PERALES AND ERIN PERALES, Appellees
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Case No. 0808471
MEMORANDUM OPINION
Appellants, the Allen and Martha Lewis Revocable Trust and Martha A.
Lewis, individually (―Lewis‖), sued Daniel and Erin Perales (―Perales‖) to
establish title to land by adverse possession.1 Lewis appeals the trial court‘s grant
of Perales‘s motion for summary judgment, arguing that the trial court erred: (1) in
failing to rule on or refusing to sustain Lewis‘s special exception complaining that
Perales‘s no-evidence motion for summary judgment was legally insufficient as a
matter of law; (2) in failing or refusing to rule on the special exception, evidentiary
objections, and motion for leave because it had a legal duty to do so and denied
Lewis a proper record for review; (3) in granting Perales‘s motion for summary
judgment because Lewis raised genuine issues of material fact and thus Perales
was not entitled to judgment as a matter of law; and (4) alternatively, in overruling
Lewis‘s evidentiary objections, because such errors were calculated to render an
improper judgment.
We affirm.
BACKGROUND
Lewis purchased Lot Nine in Block Two of Replat of Del Monte, Section
Two, at 5238 Piping Rock Lane, Houston, Texas (―Lot 9‖) on August 29, 1954.
The conveyance included a five-foot easement at the back of the property and an
aerial easement. On January 30, 2007, Lewis transferred the property to the Allen
1
The majority of the motions and briefing both in the trial court and on appeal
discuss this case as if it were a conflict between Allen Lewis and Daniel Perales.
Thus, although there are multiple parties named in the formal pleadings and the
trial court‘s judgment, we refer to the appellant in this appeal as ―Lewis‖ and the
appellee as ―Perales‖ for the sake of clarity.
2
and Martha Lewis Revocable Trust (―the trust‖). Perales purchased a neighboring
property, Lot Ten in Block Two of Replat of Del Monte, Section Two, at 5246
Piping Rock Lane, Houston Texas (―Lot 10‖), on December 27, 2007.
In January 2008, Perales had his property surveyed and learned that the
property line ran seven feet east of the existing fence that divided his yard from
that of Lewis. Perales solicited bids to landscape his yard, and, on January 4,
2008, notified Lewis that the fence would be moved. Perales also had a pecan tree
removed from the front portion of his property, where there was no fence. Lewis
retained attorney Stephen Baker, and on January 8, 2008, Baker sent a letter to
Perales disputing the boundary between the lots and claiming either that the survey
was incorrect or that Lewis had acquired the property by adverse possession.
Baker also argued that even if Lewis had not acquired the property by adverse
possession, he had acquired an easement on it due to a sewer line that ran from the
Lewis home under the disputed land. On January 30, 2008, Lewis, through his
attorney, sent Perales a ―Notice to Vacate‖ the disputed land. Perales received the
notice on February 5, 2008.
On February 11, 2008, Lewis sued Perales for title to the disputed five-foot
strip of land, acknowledging that the disputed property was not included in his
deed to Lot 9 but claiming ownership by adverse possession under the ten-year
3
limitations statute2 and claiming that Perales thus unlawfully ousted Lewis from
the property. In his petition, Lewis alleged that he ―first entered the Real Property,
described above [as the northwest 5.0 feet (adjoining lot 9) of Lot 10], on or about
August 19, 1954‖ and that he had ―held the Real Property continuously in
peaceable and adverse possession from that date.‖ He further alleged that he had
―cultivated, used, maintained, and enjoyed the real property.‖ Lewis specifically
alleged that he had ―exercised possession of said Real Property up to the fence line
established in the 1950‘s between the then-neighbors‖ and that he had ―planted a
pecan tree and grass, cultivated, maintained, used, and enjoyed the Real Property
and dug and installed an underground sewer line in the Real Property to service an
addition to [his] home [that was constructed in 1963].‖
Lewis argued in the alternative that he had acquired a prescriptive easement
on ―that portion of the Real Property used for the sanitary sewer‖ added in 1963.
Lewis alleges that ―the use of the easement by The Lewis Trust and its
predecessors-in-interest was and continued to be open, notorious, hostile,
exclusive, and continuous for 10 or more years before this suit was filed.‖ Lewis
alleged that the trust was the ―current holder of the easement‖ and was thus
―entitled to use this easement for a sanitary sewer line and to have access for
maintenance thereof,‖ and that Perales interfered with these rights by building a
2
See TEX. CIV. PRAC. & REM. CODE ANN. § 16.026 (Vernon 2002).
4
new fence ―that enclosed the easement within [his] backyard and denied [Lewis]
access to and possession of said easement.‖
Finally, Lewis pleaded a trespass cause of action, alleging that Perales
removed a pecan tree that was situated on the disputed property. The petition also
requested title and possession to the disputed property, a declaration of the validity
of the easement, actual and exemplary damages, attorney‘s fees, and costs.
On September 26, 2008, Perales filed a motion for summary judgment.
Perales argued:
Lewis offered no evidence during litigation in this cause to show that
he is entitled to the 5 feet of land belonging to Perales, either by
superior title or through any cognizable act under the adverse
possession doctrine. Accordingly, Perales is entitled to judgment
under the no evidence standard of summary judgment. Even
assuming salient evidence had been offered, Lewis‘ claims are
baseless. . . .
Perales specifically stated that ―Lewis has offered no evidence regarding the date
of the erection of [the fence along the back portion of the disputed property] as
necessary to show he satisfies the [ten] year limitations period, or whether the
fence falls within the allegedly disputed [five-]foot strip of land.‖ Perales‘s motion
stated that his own predecessor in interest built the fence, that ―there is no evidence
relating to when the fence was built, the fence‘s purpose or the reason it was built
in a particular location‖ and that ―no dispute or hostile use of the fence existed . . .
until Perales gave Lewis notice that a new fence would be built.‖ Regarding the
5
front portion of the disputed property, Perales argued that Lewis ―did not show any
‗actual and visible appropriation of real property‘‖ because the fact that he mowed
the lawn and planted a pecan tree ―cannot constitute cultivation, use and enjoyment
of the land as a matter of law.‖
Regarding Lewis‘s claim to an easement, Perales‘s motion argued that
―Lewis failed to produce any evidence relating to the existence or location of the
sewer and cannot show it is located on [Perales‘s lot], or that it is within the [five]
feet of land that is the centerpiece of this action.‖ Perales also stated:
Lewis has offered no proof that the sewer, even if it is located on the
five feet of land on Lot 10, was noticed within the last 10 years (open
and notorious) or if it was a hostile (adverse) use of the property.
Lewis has wholly failed to raise any facts that would show that his
sewer is located on Lot 10 [or] that any owner (other than Perales with
this current action) was ever on notice that Lewis was asserting hostile
use of the land. Instead the lack of evidence shows that Lewis cannot
demonstrate the ten year period of adverse use of the land on Lot 10
for a sewer.
Perales further argued:
because there is no easement, there is no interference with [Lewis‘s]
use of the easement. Even if there were an easement, [Lewis] has
failed to provide evidence that Perales has interfered with [his] use of
the easement, especially where [Lewis] has failed to show the location
or width of the sewer pipe for which he claims an easement.
Perales‘s motion also argued that Lewis‘s trespass claim should fail because
Lewis had acknowledged in his pleading that the five-foot strip of land was not
included in his deed and was in fact contained in the legal description of Perales‘s
6
lot, and thus the tree was not on Lewis‘s property. Finally, Perales argued that
Lewis was not entitled to attorney‘s fees or exemplary damages. Perales attached
various pieces of evidence to his motion for summary judgment, including, among
other things, both his and Lewis‘s deed records, a survey of Lot 10 (Perales‘s lot),
and contractor recommendations regarding the pecan tree.
Lewis filed a response to Perales‘s motion for summary judgment asserting a
special exception, arguing that Perales failed to identify the specific elements of
Lewis‘s causes of action for which there was no evidence, and making various
objections to the evidence Perales had submitted with his motion for summary
judgment. Lewis also argued that genuine issues of material fact existed, arguing
that, ―although merely maintaining plantings may be insufficient to constitute
cultivation, the planting of vegetation such as trees and shrubs is sufficient to
constitute cultivation.‖
Lewis‘s response was accompanied by the affidavits of Martha Lewis and
Allen Lewis. Martha Lewis averred that, after Perales purchased the house next
door, he ―had a pecan tree that my husband[, Allen Lewis,] had planted cut down
and removed. [He] also had the existing fence between our properties removed
and erected a new fence closer to our garage and driveway.‖ She further averred
that there was a dispute between the Lewises and the Peraleses ―concerning a strip
of land between [their] residences‖ and that Perales ―removed the tree and
7
removed and relocated the fence over [the Lewises‘] objections.‖ Allen Lewis‘s
affidavit provided similar facts and also stated:
Before any house was constructed on the property now owned by the
Perales[es], I planted, cultivated, and maintained the grass on the 5
feet that was later discovered to be part of Lot 10. In 1963, I
transplanted a pecan tree on to the now-disputed 5 foot strip of land.
At the same time, a sewer line was installed in the same 5 foot strip of
Lot 10 along the side of our garage to service a new addition to our
home. No person has ever asserted any objection to our use of this 5
foot strip and has not shared its use or enjoyment until the Perales did
so in January 2008.
Perales argued that these affidavits were insufficient to support Lewis‘s
claim of adverse possession because ―they demonstrate that the land was used with
the permission of the predecessor in interest to Perales‖ rather than showing that
there was a dispute regarding the use of the land or that the Lewis‘s ―‗possession‘
interfered with the use of the land by the owner.‖ Perales also pointed out that the
affidavits still did not state ―when he mowed the lawn, nor how often he cultivated
the tree, not where exactly the sewer is located.‖
On November 10, 2008, the trial court held a hearing on the motion for
summary judgment. On November 12, 2008, two days after the hearing, Lewis
filed a motion for leave to late-file summary judgment evidence. Attached to the
motion was a supplemental affidavit by Allen Lewis, which provided new
information regarding the construction of the fence on the back half of the
property. Perales objected to this affidavit, arguing that it was untimely filed after
8
the hearing on Perales‘s motion for summary judgment ―solely to avoid summary
judgment‖ and that it failed to raise any genuine issues of material fact on the
adverse possession claim because it did not provide ―any corroborating evidence of
the [fence‘s] actual installation, locations, construction, nor any facts that would
allow Perales to provide controverting evidence.‖ The trial court did not rule on
Lewis‘s motion for leave to late file summary judgment evidence or Perales‘s
objections.
On November 19, 2008, the trial court granted Perales‘s motion for
summary judgment, stating, ―This Court having heard the arguments of counsel, if
any, and having reviewed the motions and brief, is of the opinion that the motion is
granted.‖ The trial court ordered that Lewis ―receive nothing on all claims in this
action.‖
On December 19, 2008 Lewis filed a motion for a new trial, arguing that the
trial court erred in failing or refusing to rule on Lewis‘s special exception,
evidentiary objections, and motion for leave to file additional summary judgment
evidence. The motion for new trial also argued that the trial court erred to the
extent that it granted Perales‘s no-evidence motion for summary judgment. The
trial court denied the motion for new trial on February 2, 2009.3
3
After the elections in November 2009, the Hon. Dion Ramos replaced Hon. Jeff
Shadwick as the judge of the 55th District Court. Thus, the summary judgment
9
On February 6, 2009, Lewis filed a motion asking the trial court to reduce to
writing its rulings on the special exceptions, evidentiary objections, and motion for
leave to late-file summary judgment evidence.
On February 17, 2009, Lewis appealed the trial court‘s grant of Perales‘s
motion for summary judgment. On April 16, 2009, Lewis filed a petition for writ
of mandamus with this Court, seeking ―mandamus relief compelling the trial court
‗to reduce to writing the trial court‘s decision on Special Exception, Evidentiary
Objections, and Motion for Leave to Late File Summary Judgment Evidence.‘‖
We denied the petition without an opinion on the merits on February 10, 2010. In
re Allen and Martha Lewis Revocable Trust, No. 01-09-00294-CV, 2010 WL
547530 (Tex. App.—Houston [1st Dist.] Feb. 16, 2010, original proceeding)
(mem. op.) (per curium).
Grant of Summary Judgment
In his third issue, Lewis argues that the trial court erred in granting Perales‘s
motion for summary judgment because there were genuine issues of material fact
in dispute and thus Perales was not entitled to judgment as a matter of law.
A.
Standard of Review
Perales filed a hybrid motion for summary judgment arguing that Lewis had
no evidence on various elements of his adverse possession, prescriptive easement,
was granted by Judge Shadwick, and the motion for new trial was denied by Judge
Ramos.
10
and trespass claims and that, ―[e]ven assuming salient evidence had been offered,
Lewis‘ claims are baseless,‖ so that Perales was entitled to judgment as a matter of
law.
We review a trial court‘s grant of summary judgment de novo. Provident
Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). When a party
files a combined traditional and no-evidence summary judgment motion, we first
review the trial court‘s summary judgment under the no-evidence standard of
Texas Rule of Civil Procedure 166a(i). See Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004). If the no-evidence summary judgment was properly
granted, we do not reach arguments under the traditional motion for summary
judgment. See id.
To prevail on a no-evidence motion for summary judgment, the movant
must establish that there is no evidence to support an essential element of the nonmovant‘s claim. TEX. R. CIV. P. 166a(i); see Flameout Design & Fabrication, Inc.
v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.]
1999, no pet.). The burden then shifts to the non-movant to present evidence
raising a genuine issue of material fact as to the elements specified in the motion.
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). ―The trial court
must grant the motion unless the nonmovant produces more than a scintilla of
evidence raising a genuine issue of material fact on the challenged elements.‖
11
Flameout Design & Fabrication, 994 S.W.2d at 834. More than a scintilla of
evidence exists if the evidence ―rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions.‖ Merrell Dow Pharm., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997).
However, ―[w]hen the evidence
offered to prove a vital fact is so weak as to do no more than create a mere surmise
or suspicion of its existence, the evidence is no more than a scintilla and, in legal
effect, is no evidence.‖ Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.
1983). In determining whether a material fact exists, we may consider both direct
and circumstantial evidence. Ridgway, 135 S.W.3d at 601. ―To raise a genuine
issue of material fact, however, the evidence must transcend mere suspicion.‖ Id.
―Evidence that is so slight as to make any inference a guess is in legal effect no
evidence.‖ Id.
To prevail on a traditional summary judgment motion, the movant has the
burden of proving that he is entitled to judgment as a matter of law and that there
are no genuine issues of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth,
900 S.W.2d 339, 341 (Tex. 1995). When, as here, the trial court‘s summary
judgment order does not state the basis for the trial court‘s decision, we must
uphold the order if any of the theories advanced is meritorious. Knott, 128 S.W.3d
at 216.
12
B.
No Evidence of Adverse Possession
Lewis claimed title to the five-foot strip of land under the theory of adverse
possession. Adverse possession is ―an actual and visible appropriation of real
property, commenced and continued under a claim of right that is inconsistent with
and is hostile to the claim of another person‖ throughout the statutorily required
period. TEX. CIV. PRAC. & REM. CODE ANN. § 16.021(1) (Vernon 2002); Masonic
Building Ass’n v. McWhorter, 177 S.W.3d 465, 472 (Tex. App.—Houston [1st
Dist.] 2005, no pet.). ―The statute requires that such possession be ‗inconsistent
with‘ and ‗hostile to‘ the claims of all others.‖ Moore v. Stone, 255 S.W.3d 284,
288 (Tex. App.—Waco 2008, pet. denied) (citing Tran v. Macha, 213 S.W.3d 913,
914 (Tex. 2006)). The ten-year statute of limitations, on which Lewis relies,
provides in relevant part:
A person must bring suit not later than 10 years after the day the
cause of action accrues to recover real property held in peaceable
and adverse possession by another who cultivates, uses, or enjoys
the property.
TEX. CIV. PRAC. & REM. CODE ANN. § 16.026(a) (Vernon 2002). Section 16.030(a)
provides, ―If an action for the recovery of real property is barred under this
chapter, the person who holds the property in peaceable and adverse possession has
full title, precluding all claims.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 16.030(a)
(Vernon 2002).
Thus, an adverse possession claim requires proof of actual
possession of the disputed real property that is open and notorious, peaceable,
13
under a claim of right, adverse or hostile to the claim of the owner, and consistent
and continuous for the duration of the statutory period. Glover v. Union Pac. R.R.
Co., 187 S.W.3d 201, 213 (Tex. App.—Texarkana 2006, pet. denied) (citing
Natural Gas Pipeline Co. v. Pool, 124 S.W.3d 188, 193–94 (Tex. 2003)); Terrill v.
Tuckness, 985 S.W.2d 97, 107 (Tex. App.—San Antonio 1998, no pet.) (stating
that for possession to be adverse, it must be ―actual, visible, continuous, notorious,
distinct, hostile, and of such [a] character as to indicate unmistakably an assertion
of a claim of exclusive ownership in the occupant‖).
Whether adverse possession has been established is ordinarily a question of
fact. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985). ―The test for
hostility is whether the acts performed by the claimant on the land and the use
made of the land were of such a nature and character as to reasonably notify the
true owner of the land that a hostile claim was being asserted to the property.‖
McWhorter, 177 S.W.3d at 472. The element of actual appropriation requires a
claimant to show that he acted in a way that visibly appropriated the disputed
property in a manner that gave notice to any other person that he claimed a right in
the property. Perkins v. McGehee, 133 S.W.3d 287, 291–92 (Tex. App.—Fort
Worth 2004, no pet.) (citing Parker v. McGinnes, 842 S.W.2d 357, 360 (Tex.
App.—Houston [1st Dist.] 1992, writ denied)).
14
Lewis argues in his brief that he presented evidence raising genuine issues of
material fact on the essential elements of his claim because his affidavits show that
he planted grass and a pecan tree on the property, mowed the grass on the disputed
property and cultivated and maintained it, installed an underground sewer on the
disputed property, and ―constructed a driveway, a portion of which lies in the
[disputed property].‖
1.
Planting grass and tree, mowing grass
Lewis contends that he had ―actually possessed‖ the disputed land because
he planted grass and mowed it, and he planted a tree on the disputed land.
However, activities such as mowing the grass, planting flowers, or maintaining a
hedge do not ―constitute a hostile character of possession sufficient to give notice
of an exclusive adverse possession.‖ Bywaters, 686 S.W.2d at 595; see also
McWhorter, 177 S.W.3d at 475 (holding that cutting grass and maintaining
property is not legally sufficient to support claim for adverse possession).
Therefore, Perales correctly argued in his motion for summary judgment that these
activities do not constitute evidence of hostile possession as required to sustain a
claim of adverse possession. See Bywaters, 686 S.W.2d at 595; McWhorter, 177
S.W.3d at 475.
15
2. Installing underground sewer
Lewis contends that he built an underground sewer in the five-foot strip of
land in 1963. The only evidence presented by Lewis regarding the sewer was his
affidavit stating, ―In 1963, . . . a sewer line was installed in the same 5 foot strip on
Lot 10 along the side of our garage to service a new addition to our home.‖ As
Perales argued in his motion for summary judgment, Lewis presented no evidence
of the exact location of the sewer. Furthermore, Lewis‘s affidavit presented no
evidence that the installation of the sewer was visible, notorious, distinct, hostile,
and of such a character as to indicate unmistakably an assertion of a claim of
exclusive ownership in the occupant. See Rhodes v. Cahill, 802 S.W.2d 643, 645
(Tex. 1990). Thus the existence of the sewer is no evidence of Lewis‘s adverse
possession of the disputed property.
3. Building Driveway
Finally, Lewis argues that he constructed a driveway that partially lies on the
disputed strip of land and that this raised a fact issue on his claim of adverse
possession. However, this argument appears to have been raised for the first time
on appeal. The only evidence presented by Lewis in response to Perales‘s motion
for summary judgment were the affidavits of his wife and himself. Neither of
these affidavits made any reference to the driveway. Thus, the alleged existence of
the driveway is no evidence that could support Lewis‘s adverse possession claim.
16
4. Fences
Lewis‘s affidavit also mentioned the existence of a fence on the back portion
of the property between his lot and Perales‘s lot, but he does not discuss the
existence of the fence in his third issue in his brief on appeal. Regarding the fence,
Lewis‘s summary judgment affidavit stated only that Perales ―had the existing
fence between our properties removed and erected a new fence closer to our
garage.‖ This reference is, therefore, likewise no evidence of adverse possession.4
We conclude that the trial court did not err in granting Perales‘s no-evidence
motion for summary judgment on Lewis‘s adverse possession claims.
C.
No Evidence of Prescriptive Easement
Lewis argues, in the alternative, that he is entitled to a prescriptive easement
to the portion of the land containing the sewer, which he avers was contained in the
disputed five-foot strip of land.
4
Lewis submitted a supplemental affidavit following the summary judgment
hearing providing additional information regarding the fence. In part of his
second issue, Lewis also argues that the trial court erred in refusing to rule on his
motion to late-file supplemental summary judgment evidence. However, a trial
court is not required to consider late-filed summary judgment evidence but may do
so ―as long as the court affirmatively indicates in the record that it accepted or
considered the evidence,‖ for example in a written motion or in open court. Auten
v. DJ Clark, Inc., 209 S.W.3d 695, 702 (Tex. App.—Houston [14th Dist.] 2006,
no pet.). Here, the trial court did not expressly rule on either Lewis‘s motion or
Perales‘s objection, nor was it obligated to do so. See id. at 703. Furthermore, the
trial court‘s order granting the motion for summary judgment made no reference to
Lewis‘s supplemental evidence. Thus, we cannot say that the trial court
affirmatively indicated its acceptance or consideration of the late-filed evidence
and we do not consider it on appeal. See id.
17
A prescriptive easement ―rests on the claimant‘s adverse actions under color
of right.‖ Allen v. Allen, 280 S.W.3d 366, 377 (Tex. App.—Amarillo 2008, pet.
denied). ―An easement by prescription is established by the open, notorious,
hostile, adverse, uninterrupted, exclusive and continuous use of the servient estate
for a period of more than ten years, and the absence of any of these elements is
fatal to the prescriptive claim.‖ Id.; see also Brooks v. Jones, 578 S.W.2d 669, 673
(Tex. 1979) (―To obtain a prescriptive easement one must use someone else‘s land
in a manner that is open, notorious, continuous, exclusive, and adverse for the
requisite period of time.‖). ―The use of the property must be exclusive, in that the
claimant excluded or attempted to exclude all other persons, especially the
property owner, from using the same land for the same purpose.‖ Allen, 280
S.W.3d at 377–78. Furthermore, ―the owner of the servient estate must have actual
or constructive notice that there was an adverse and hostile claim against the
property.‖ Id. at 378. ―If there is no verbal assertion of claim to the land brought
to the knowledge of the landowner, the adverse possession must be so open and
notorious and manifested by such open or visible act or acts that knowledge on the
part of the owner will be presumed.‖ Orsborn v. Deep Rock Oil Corp., 267
S.W.2d 781, 787 (Tex. 1954).
Here, Lewis presented no evidence that he made any verbal assertion of his
claim to the disputed property. See id. Furthermore, the only use of the land that
18
Lewis alleges entitles him to a prescriptive easement was the installation of an
underground sewer in 1965. He presented no evidence of the actual location of the
sewer, nor did he present any evidence that underground sewer was marked above
ground in any way. By its very nature, an underground sewer could not be ―so
open and notorious‖ or such a ―visible act‖ that knowledge on the part of Perales or
his predecessors in interest can be presumed. See id.; see also City of Corpus
Christi v. Krause, 584 S.W.2d 325, 329 (Tex. Civ. App.—Corpus Christi 1979, no
writ) (upholding trial court‘s determination that existence of underground pipeline
was not open and notorious when pipeline monument and stand pipe vent were not
located on owner‘s property). Nor is there any indication in the record that Perales
had notice of the existence of the sewer. See Allen, 280 S.W.3d at 378.
Thus, we conclude that the trial court did not err in granting Perales‘s noevidence motion for summary judgment on Lewis‘s prescriptive easement claim.
D.
No evidence of Trespass
Finally, Lewis asserted a cause of action asserting that Perales trespassed
onto his land to remove the pecan tree and to remove and relocate a fence.
However, to establish a claim of trespass, Lewis was required to prove that he had
a possessory interest in the property at issue. See Coastal Oil & Gas Corp. v.
Garza Energy Trust, 268 S.W.3d 1, 9 (Tex. 2008) (―The gist of an action of
trespass to realty is the injury to the right of possession.‖). We have already held
19
that the trial court correctly granted summary judgment dismissing Lewis‘s claims
that would have supported his claim to right of possession, and thus we likewise
conclude that Lewis presented no evidence of a right to possession. Therefore,
Lewis cannot maintain a trespass action. See id.
We conclude that the trial court did not err in granting Perales‘s motion for
summary judgment on Lewis‘s trespass claim.
We overrule Lewis‘s third issue.
Special Exception and Evidentiary Objections
In his first issue, Lewis argues that the trial court erred by refusing to rule on
his special exception, which argued that Perales‘s no-evidence motion for
summary judgment was insufficient as a matter of law because it failed to specify
the particular elements on which Perales alleged that Lewis had no evidence.
However, this is a misrepresentation of Perales‘s summary judgment motion.
Perales‘s motion was a hybrid motion that presented both no-evidence and
traditional grounds for summary judgment, and, as we have already discussed,
presented specific arguments regarding the elements of Lewis‘s claims for which
Lewis had no evidence. Because we have already concluded that the trial court
correctly granted Perales‘s no-evidence motion for summary judgment, this issue is
moot.
We overrule Lewis‘s first issue.
20
In his second and fourth issues, Lewis complains that the trial court erred in
failing or refusing to rule on his special exception and evidentiary objections and
motions, or alternatively, that the trial court erred in overruling his evidentiary
objections. However, because we have already held that the trial court correctly
granted Perales‘s no-evidence motion for summary judgment, these evidentiary
complaints are not relevant to the disposition of this appeal.
We overrule Lewis‘s second and fourth issues.
CONCLUSION
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Hanks, and Higley.
21
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