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Wiatrek v. Shimek

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

May 25, 2017

JOHN CLAYTON WIATREK, Appellant,
v.
MARK SHIMEK, Appellee.

         On appeal from the 267th District Court of Calhoun County, Texas.

          Before Justices Contreras, Perkes [1] and Longoria.

          MEMORANDUM OPINION

          NORA L. LONGORIA, JUSTICE

         Appellant John Clayton Wiatrek appeals a judgment which denied his motion for summary judgment and petition for declaratory relief, granted appellee Mark Shimek's cross-motion for summary judgment, and awarded Shimek $48, 350 in attorneys' fees plus contingent appellate fees. We reverse and remand.

         I. Background

         A. Wiatrek Purchases 245.13 Acres From Shimek

         Shimek owned a large parcel of land in Calhoun County that was often used by hunters pursuant to a hunting lease. Wiatrek, who had hunted there before, purchased 245.13 acres of the land with plans to run a hunting guide business. Shimek executed a warranty deed which transferred the 245.13 acres and, because the tract was fully enclosed by Shimek's remaining land and land owned by others, expressly granted Wiatrek a "roadway easement" across Shimek's remaining land. The deed provides that the roadway easement is 4.48 acres long, seventy-five feet in width, and half a mile in length. A document attached to the deed and incorporated into it describes the location of the easement in metes and bounds.

         Both parties agree that the easement begins at a gate leading off of the highway and runs parallel to a canal operated by the Guadalupe-Blanco River Authority ("GBRA") until it reaches Wiatrek's property. At one point, the easement crosses an open drainage ditch on Shimek's land which runs perpendicular to the canal. A dirt-and-gravel road fifteen feet wide begins at the same gate and runs parallel to the canal until it diverges to meet a culvert (the "old culvert") which allows passage over the drainage ditch. At the time Wiatrek purchased the land, the old culvert was the only way for him to reach his new property from the road. It is undisputed that both parties believed at the time of the purchase that the easement followed the dirt road all the way from the gate to the old culvert.[2]

         (IMAGE OMITTED)

         Wiatrek operated his hunting guide business on his property for approximately ten years after the purchase without problems. According to his petition, Wiatrek's customers during this time would often use the dirt road to access his property. When rain made the road impassible, Wiatrek stated that he would often instruct his customers to park on a gravel-covered area in front of the gate that is wider than the road. The dispute between the parties began when Wiatrek's customers allegedly parked directly on the dirt road and obstructed Shimek's own use of the road. The disagreement escalated to the point that Shimek blocked both entrances to the easement by placing steel I-beams and parking tractors across the road.

         B. Wiatrek Files Suit

         Wiatrek filed suit against Shimek alleging various causes of action, including one under the Uniform Declaratory Judgment Act for a declaration of his rights under the easement. See Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (West, Westlaw through 2015 R.S.). The trial court granted Wiatrek's request for a temporary restraining order and enjoined Shimek from obstructing Wiatrek's use of the easement. Shimek complied with the order and removed the tractors and I-beams, but also commissioned an engineering firm to re-survey the express easement. The firm's report disclosed that the divergent area of the road, including the old culvert, was not within the boundaries of the express easement. Shimek responded by constructing a fence across the divergent area of the road. Around the same time, a new culvert was built across the drainage ditch that enabled Wiatrek to access his property from the dirt road without leaving the boundaries of the express easement.[3]

         Wiatrek amended his petition to seek only a declaratory judgment that he (1) owned an easement by estoppel over the divergent area of the road; and (2) had the "legal right to park cars on the gravel portion of his easement" as long as he did not block the road. Wiatrek also asked the court to award him reasonable and necessary attorneys' fees. See id. § 37.009 (West, Westlaw through 2015 R.S.).

         Wiatrek filed a traditional motion for summary judgment asserting that he was entitled to both declarations as a matter of law and that he had incurred $44, 187.50 in attorneys' fees plus contingent appellate fees. Wiatrek attached to his motion (1) a copy of the warranty deed; (2) his affidavit; (3) an affidavit from his counsel regarding the amount and reasonableness of the claimed fees; and (4) the affidavit of John Brouillette, one of Wiatrek's customers, describing a confrontation between Brouillette and Shimek.

         Shimek filed a combined response and cross-motion for summary judgment asserting that no easement by estoppel existed and that Wiatrek had no right to park "on the 15 foot portion of the express easement." Shimek also sought an award of $48, 350 in attorney's fees plus contingent appellate fees. Shimek attached his own affidavit and the affidavit of Mike Crane, his lead attorney, regarding the amount and reasonableness of his fees. Shimek further moved to strike Wiatrek's affidavit as violating the parol evidence rule.

         In response, Wiatrek moved to strike Shimek's affidavit for falsely alleging that Shimek still owned the land burdened by the easement. Specifically, he alleged that Shimek had sold his remaining land to Cumberland & Western Resources, LLC. Wiatrek also objected to the portion of Crane's affidavit which detailed the fees for legal services performed by Patrick A. Cullen, another lawyer who worked on the case for Shimek, as excessive. As support, Wiatrek attached to his response an affidavit prepared by Misty Segura, an attorney in the firm representing Wiatrek, opining that the fees Crane claimed Cullen incurred were unreasonable.

         Shimek filed a reply in which he admitted that he no longer owned the land but asserted the case was not moot because of the issue of which party was entitled to attorneys' fees. He also moved to strike Segura's affidavit as conclusory. Shimek attached to his response an affidavit from Cullen regarding the legal work Cullen performed on the case. Neither party moved to involve Cumberland & Western Resources, LLC, the successor in title to the servient estate, in the case.

         The trial court considered the motions on written submission and issued a final judgment which expressly: (1) sustained Shimek's objections to the Wiatrek and Segura affidavits and struck both documents; (2) overruled Wiatrek's objections to Shimek's affidavit; (3) denied Wiatrek's motion for summary judgment and granted Shimek's motion; (4) denied Wiatrek's petition for declaratory relief; and (5) awarded Shimek $48, 350 in attorneys' fees plus contingent appellate fees. This appeal followed.

         C. Appellate Issues

         Wiatrek now argues in four consolidated and reordered issues on appeal that: (1) the court abused its discretion in striking his affidavit for violating the parol evidence rule; (2) the court erred in granting Shimek's motion for summary judgment; (3) the court erred in denying Wiatrek's motion for summary judgment and his petition for declaratory relief; and (4) the award of attorneys' fees should be reversed and a judgment rendered for Wiatrek or, alternatively, remanded for further consideration.

         II. Mootness

         Before addressing the merits of Wiatrek's issues we must determine whether Shimek's sale of the land burdened by the easement rendered the case moot. See Heckman v. Williamson County, 369 S.W.3d 137, 162 (Tex. 2012) (observing that a live controversy must exist in a case during the entire course of the litigation). Both parties assert that the case is not moot because the competing claims for attorneys' fees is a live controversy. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642-43 (Tex. 2005); Camarena v. Tex. Employment Com'n, 754 S.W.2d 149, 151 (Tex. 1988).

         We agree. "A case becomes moot if a controversy ceases to exist or the parties lack a legally cognizable interest in the outcome." Hallman, 159 S.W.3d at 642. In Hallman, the Texas Supreme Court ruled that a suit for declaratory relief regarding an insurer's duty to defend did not become moot on appeal when the insurer provided the requested defense because there was still a live controversy over whether the insured was entitled to attorneys' fees. Id. at 642-43. The trial court ruled that the insurer had no duty to defend, and the Texas Supreme Court explained that a different answer on the merits question would require a remand for the trial court to reconsider whether an award of fees to the insured was appropriate. Id. at 643. Similarly, the trial court in this case granted Shimek's motion for summary judgment, denied Wiatrek's motion for summary judgment and petition for declaratory relief, and awarded Shimek his attorneys' fees. If Wiatrek is correct that the trial court's ruling was error, further proceedings may show that an award of attorneys' fees to Wiatrek is appropriate. Accordingly, we will address the merits of the land dispute. See ...


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