Cola Futrell, Jr. and Laverne Futrell v. Daniel Lopez--Appeal from 57th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00894-CV
Cola FUTRELL, Jr. and Laverne Futrell,
Appellants
v.
Daniel LOPEZ,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-07754
Honorable James F. Clawson, Jr., Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: June 4, 2003

AFFIRMED

Daniel Lopez ("Lopez") sued Cola Futrell, Jr. and Laverne Futrell (the "Futrells") after the Futrells locked a gate denying Lopez access to Swallow Road. The trial court concluded that Swallow Road is a public road by way of express dedication. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion under Tex. R. App. P. 47.4 for the following reasons:

1. The Futrells' first, second, fourth, fifth, and sixth issues relate to the sufficiency of the evidence to support the trial court's finding that Swallow Road is a public road by express dedication and the elements Lopez was required to prove in order for the trial court to make that finding. The Futrells contend that the evidence was insufficient to establish that a public purpose was served by the dedication or that the dedication was accepted. The Futrells further contend that the trial court abused its discretion in refusing to apply all four of the required elements of an express dedication and in shifting the burden of proof.

The filing of a plat with a dedicatory affidavit or certificate coupled with conveyances made in reference to the plat causes the dedication to become binding and irrevocable. See, e.g., Adams v. Rowles, 228 S.W.2d 849, 851-52 (Tex. 1950); Martinez v. City of Dallas, 113 S.W. 1167, 1167 (Tex. 1908); City of Corsicana v. Zorn, 78 S.W. 924, 925-26 (Tex. 1904); Copeland v. City of Dallas, 454 S.W.2d 279, 284-85 (Tex. Civ. App.--Dallas 1970, writ ref'd n.r.e.). In this case, the plat and dedicatory affidavit were filed and recorded in April of 1929. The 1983 and 1987 deeds conveying portions of the platted land to the Futrells and the 1945 deed to Lopez's predecessor in title all contain references to the plat.

The absence of action by any governmental entity to open an area as a street does not affect the irrevocable nature of the dedication. Zorn, 78 S.W. at 935-36; Copeland, 454 S.W.2d at 284-85. At the time of the dedication, "[i]t was not expected that the streets and alleys should all be opened at once, but, as is well known in the history of such transactions, many years might elapse before the settlement of that part of the city would require the use of such streets." Zorn, 78 S.W. at 925-26. Lopez testified that his family and friends used Swallow Road to access his property for various purposes and that he intended to convey the land to his family to build houses; therefore, although years had elapsed before the settlement of Lopez's land required the use of such streets, the lapse in time does not affect the irrevocable dedication of Swallow Road for public use.

The evidence is sufficient to support the trial court's finding that Swallow Road is a public road by way of express dedication.

2. In their third issue, the Futrells contend that the trial court abused its discretion in ordering the removal of obstructions because the clerk's record contains "a summary judgment ruling in which the court ruled that a four-year statute of limitations applied to this case." The trial court addressed the issue of limitations in response to Lopez's no evidence motion for partial summary judgment. In that motion, Lopez asserted that a four year limitations period was applicable to his action for declaratory judgment, not a two year period as asserted in the Futrells' motion to dismiss and motion for sanctions. The trial court granted Lopez's motion and ruled that the four year limitations period applied.

Although a gate was in place across Swallow Road in 1983, the Futrells did not lock the gate and deny Lopez access until March of 1999, thereby causing injury to him. See Lubbock County,Texas v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (cause of action accrues when wrongful act causes injury). Lopez filed his petition in the underlying lawsuit in 2002, within the four year limitations period. See Tex. Civ. Prac. & Rem. Code Ann. 16.051 (Vernon 1997).

3. In their sixth issue, the Futrells complain of the trial court's verbal statement at the conclusion of the bench trial that, "There is no evidence that Mr. Futrell owns Swallow Road." Although the trial court made this verbal statement, the statement is not contained in the trial court's final written judgment, which accurately states that Swallow Road is a public road. Assuming the trial court erred in making the verbal statement at the conclusion of the hearing, the error is harmless. See Tex. R. App. P. 44.1.

4. In their seventh issue, the Futrells contend that the trial court erred in awarding attorney's fees. The Futrells argue that attorney's fees were erroneously awarded because the trial court erred in rendering judgment in favor of Lopez on the merits of Lopez's cause of action. Because we affirm the trial court's judgment as to the merits of the underlying claim, we affirm the award of attorney's fees.

Alma L. L pez, Chief Justice