Leonard Kunefke and Vanessa Kunefke v. Calhoun County, Texas--Appeal from 24th District Court of Calhoun County

 NUMBER 13-05-006-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

LEONARD KUNEFKE AND

VANESSA KUNEFKE, Appellants,

v.

CALHOUN COUNTY, TEXAS, Appellee.

On appeal from the 24th District Court of Calhoun County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Garza

Memorandum Opinion by Justice Garza

By one issue, appellants, Leonard and Vanessa Kunefke, appeal a summary judgment granted in favor of appellee, Calhoun County (the ACounty@). Appellants contend the trial court erred in granting appellee=s motion for summary judgment because issues of material fact exist. We affirm the judgment of the trial court.

Background

This is a land dispute concerning four unconstructed streets located in the Sunilanding Subdivision. The Sunilanding Subdivision was initially platted as the Enchanted Harbor Subdivision. On September 13, 1971, Enchanted Harbor, Inc. filed a plat with the County that included the streets in question. The plat contained an express dedication of Athe use of the roads, streets, waterways, and passageways to the public forever.@[1] The plat was accepted by the Calhoun County Commissioner=s Court; however, the streets were Anot accepted for county maintenance at this time.@ See Tex. Loc. Gov=t Code Ann. ' 232.002 (a) (Vernon 2005) (providing for approval of plats by the commissioners court of the county in which the land is located).

In 1982, the Enchanted Harbor Subdivision was purchased by Anita Koop on behalf of her company, Anita=s Resort Properties. Enchanted Harbor became part of the larger subdivision ASunilandings Phase I.@ On September 17, 1982, a revised plat for the Sunilanding subdivision was submitted to the Calhoun County Commissioner=s Court. This plat also dedicated to public use Athe streets and drainage easements shown thereon forever, for the purpose and consideration therein expressed.@ The plat was approved with the provision that Athe streets are not being accepted for county maintenance until they are constructed in accordance with the County regulations.@ Although several of the subdivision=s streets were constructed in accordance with county regulations, and these streets were accepted for county maintenance, a portion of Dolphin Drive, Kingfish Landing, Bluefish Landing, and Tarpon Landing remain unconstructed. On September 15, 1989, Koop sold the property, including the streets at issue, to a new owner, who eventually declared bankruptcy. On or about January 17, 2001, Koop repurchased the properties at a sheriff=s sale, and on March 19, 2001, Koop sold the property to appellants.[2] In the Spring of 2002, appellants began placing obstructions along portions of the streets in question. Appellants were informed by the Calhoun County Sheriff=s department to Acease and desist@ from obstructing these streets because they are public right-of-ways. Appellants contend that they are the sole owners of these streets and that they are not public roads.

On April 12, 2004, appellants sued the County seeking a declaration that the streets at issue are not public roads, but rather, are owned by them in fee simple, subject to no other ownership, uses, easements, or dominant estates. Appellants also sought an injunction enjoining the County from declaring or behaving as if the properties are public roads, and enjoining the County from denying appellants the full use and benefit of the properties at issue. Appellants further sought damages for slander of and/or cloud on title. The County counter-claimed for declaratory judgment seeking a declaration that the streets in question were dedicated and accepted for public use and have not been abandoned. The County moved for summary judgment on (1) traditional grounds contending that it was entitled to judgment as a matter of law because there had been an express dedication and acceptance of the streets, and (2) no-evidence grounds contending that there was no evidence supporting the necessary elements for appellants=claims for injunctive relief and slander/cloud on title.[3] The trial court granted summary judgment on both grounds and declared, as a matter of law, that the right of ways that formed the basis of the dispute were dedicated and accepted for public use. This appeal ensued.[4]

Standard of Review

We review the grant of a traditional motion for summary judgment de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Tex. Commerce Bank Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex. App.BCorpus Christi 2000, pet. denied). To prevail on a traditional motion for summary judgment the movant must conclusively establish, by proper summary judgment evidence, all essential elements of the claim. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). The movant has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a (c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). The nonmovant has no burden to respond to a traditional motion for summary judgment unless the movant conclusively establishes its cause of action or defense. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). However, if the movant has established a right to judgment as a matter of law, the non movant has the burden to respond by presenting to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). In deciding whether there is a genuine issue of material fact, all evidence favorable to the nonmovant will be taken as true, and all reasonable inferences made, and all doubts resolved, in the nonmovant's favor. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).

Analysis

In their sole issue, appellants contend the trial court erred in granting appellee's traditional motion for summary judgment. Appellants contend they submitted sufficient evidence to raise an issue of material fact as to whether the County ever accepted the dedication of the streets.

There are two types of dedications, express and implied. Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex. 1978). AGenerally, an express dedication is accomplished by deed or written document.@ Gutierrez v. County of Zapata, 951 S.W.2d 831, 837 (Tex. App.BSan Antonio 1997, no writ). Implied dedication, however, requires a clear intention on the landowner's behalf to appropriate the land to the public's use, along with an acceptance by the public or local authorities. Id. at 838; City of Corpus Christi v. McCarver, 289 S.W.2d 420, 421 (Tex. Civ. App.BSan Antonio 1956, writ ref'd n.r.e.). In the present case, the parties agree that both the 1971 and 1982 plats contained express dedications.[5]

There are four distinct elements to establish a successful dedication, whether express or implied: (1) the person who makes the dedication must have the ability to do so, i.e., the landowner must have fee simple title before he can dedicate his property; (2) there must be a public purpose served by the dedication; (3) the person must make either an express or implied offer; and (4) there must be an acceptance of that offer. See Moody v. White, 593 S.W.2d 372, 378 (Tex. Civ. App.BCorpus Christi 1979, no writ); see also Dinwiddie v. Am. Trading and Prod. Corp., 373 S.W.2d 867, 869 (Tex. Civ. App.B El Paso 1963, no writ). The fourth element is at issue in this case. Therefore, our analysis focuses on whether the County=s summary judgment evidence established that there was no issue of material fact concerning whether the streets in question were, actually, accepted. See Aransas County v. Reif, 532 S.W.2d 131, 134 (Tex. Civ. App.BCorpus Christi 1975, writ ref'd n.r.e.).

Dedication is a mere offer and the filing of a plat containing the dedication does not constitute an acceptance of the dedication. See Langford v. Kraft, 498 S.W.2d 42, 49 (Tex. Civ. App.BBeaumont 1973, writ ref'd n.r.e.). Acceptance does not require a formal or express act; implied acceptance is sufficient. See Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex. 1978); Moody, 593 S.W.3d at 379. It does not matter whether a county expressly accepts an offer of dedication, or the public accepts the dedication on the county's behalf. See Stein v. Killough, 53 S.W.3d 36, 42 n.2 (Tex. App.BSan Antonio 2001, no pet.). One method of acceptance is through use by the public or local authorities. Id. The use need not be for any specific length of time. Id. A short period of use generally is sufficient, as long as the use continues for such a period that it may be inferred that the public desires to accept in perpetuity the offer of use. Id. (citing Schwertner v. Jones, 456 S.W.2d 956, 958 (Tex. Civ. App.BAustin 1970, no writ)).

In support of its contention that there was an acceptance of the dedication, the County attached copies of the 1971 and 1982 plats containing the dedications, copies of the corresponding Calhoun County Commissioner Court=s Minutes, and the affidavits of R.L. Bolleter and County Commissioner H. Floyd. The County contends its evidence establishes that the dedications were accepted with the qualification that the streets would not be maintained until they were constructed in accordance with County regulations. The Commissioner Court=s minutes reflect that the County accepted the streets with the only condition being that it would not perform maintenance on the streets until the subdivision was developed and the streets were constructed.[6]

The affidavit of Commissioner Floyd further proves the County=s intent to accept the roads. Floyd states:

It is the common practice of the Commissioner=s Court to accept the right of ways for public use, based upon the scope of their authority, but not for maintenance if there have been no roads constructed upon the right of ways at the time of the dedication and acceptance. It is impracticable and impossible for the County to accept these rights of ways for maintenance, when there have been no roads constructed on them at the time of acceptance, especially if the roads may not be constructed for a period of time.

We conclude that the County adduced sufficient evidence on the contested element of acceptance to demonstrate its entitlement to summary judgment. See Tex. R. Civ. P. 166a (c); Lear Siegler, Inc., 819 S.W.2d at 471. Thus, the burden shifted to appellants to come forth with evidence demonstrating that a genuine issue of material fact exists on the question of acceptance. Clear Creek Basin Auth., 589 S.W.2d at 678.

In their response to the County=s motion for summary judgment, appellants rely on the 1971 and 1982 Commissioner Court=s minutes and the County=s answer to interrogatories in support of their contention that because the County has not accepted the streets for maintenance and has never maintained them, the County has not accepted the dedications. Appellants= reasoning is not persuasive and we conclude that their evidence is insufficient to raise an issue of material fact.

Appellants cite to the government code and transportation code in support of their contention; however, this authority only demonstrates that a commissioner=s court is entitled to accept or deny a dedication on behalf of a county and that counties are charged with the obligation to maintain county roads according to county regulations. See Tex. Loc. Gov=t Code Ann. ' 232.002(a) (Vernon 2005); Tex. Transp. Code Ann. ' 251.008 (Vernon 1999). However, appellants have failed to provide us with authority establishing that a County=s failure or refusal to maintain roads that have yet to be constructed amounts to non-acceptance.

We first note that while a county=s failure to maintain roads may have political, or even legal, consequences, it does not cause the road to cease to be public, even if the roads were never constructed as required by county regulations. Cf. Hays County v. Alexander, 640 S.W.2d 73, 78-79 (Tex. App.BAustin 1982, no writ) (stating that while county=s failure to maintain road to requisite standard may have political, or even legal, consequences, road does not cease to be of class to which it had been assigned by the commissioner=s court, even if the road was never put in the physical condition mandated for its class). We are unpersuaded that simply because the County has not maintained the roads, the County did not accept the dedications. This Court has stated that Amere delay in the exercise of the use for which property was dedicated does not amount to abandonment of the use.@ See Town of Palm Valley v. Johnson, 17 S.W.3d 281, 288 (Tex. App.BCorpus Christi 2000, pet. denied). This Court finds it appropriate to expand our reasoning in Palm Valley to the facts in this case. Thus, the County=s decision to delay maintenance until the roads are constructed does not amount to non-acceptance. We further note that appellants= own summary judgment evidence, specifically the interrogatories, actually demonstrates that the roads have been used by members of the public who own property in the subdivision as well as members of the public accessing the water treatment facility. See Stein, 53 S.W.3d at 42 (stating that one method of acceptance is through use by the public).[7] We hold that appellants failed to produce evidence sufficient to raise a genuine issue of material fact as to acceptance. Accordingly, appellants= issue is overruled.[8]

The judgment of the trial court is affirmed.

_______________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 8th day of June, 2006.

[1] Dedication is an act of appropriating private land to the public for any general or public use. See Scott v. Cannon, 959 S.W.2d 712, 718 (Tex. App.BAustin 1998, writ denied).

[2] Koop also sold a portion of the Sunilandings Phase I property to John Leimain. Mr. Leimain is not a party to this suit.

[3] Because appellants= appeal focuses on the traditional summary judgment concerning acceptance and dedication, we begin our review by addressing whether summary judgment was proper under traditional grounds. See Tex. R. Civ. P. 166a(b),(c).

[4] Appellants do not challenge the trial court=s order granting of the County=s no-evidence motion for summary judgment which relates to appellants= claims for injunctive relief and slander/cloud on title.

[5] Calhoun County has a population under 50,000; therefore the County can only acquire an interest in the roads by (1) purchase, (2) condemnation, (3) dedication, or (4) a court=s final judgment of adverse possession. See Tex. Transp. Code Ann. '' 281.001, 281.002 (Vernon 1999). Dedication under chapter 281 must be communicated in writing. See Tex. Transp. Code Ann. ' 281.003 (Vernon 1999). The legislature adopted the statute abolishing the doctrine of implied dedication in counties with a population under 50,000. Id. '' 281.001, 281.002. The statute applies prospectively, not retrospectively; thus, it applies to the 1982 plat but not the 1971 plat. See id. ' 281.001; Linder v. Hill, 673 S.W.2d 611, 615-16 (Tex. App.BSan Antonio 1984), aff=d, 691 S.W.2d 590 (Tex. 1985). However, the distinction is of no consequence because both plats contained express (written) dedications.

[6] Acceptance of the streets with the stipulation that the County would not maintain the streets until constructed is also demonstrated by the Commissioner Court=s minutes which reflect that the County accepted for maintenance streets that had already been completed.

[7] This contention is supported by the affidavit of R.L. Bolleter, who attested that he and a Mr. Morris and Dr. Lorchirachoonkul use the roads in question to access their reserve (reserve AA@) in the Sunilandings subdivision.

[8] Appellants also contend that the County is estopped to claim that the roads are public because the County took a contrary position in a previous lawsuit. However, appellants have failed to provide a clear and concise argument for the contention made and as such, presents nothing for review. See Tex. R. App. P. 38.1(h).