Court of Appeals of Texas, Third District, Austin
Barbara A. Garrett and Nelson Gene Garrett, Appellants
Shay Brinkley and Robin Brinkley, Appellees
THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT
NO. 43699, HONORABLE EVAN C. STUBBS, JUDGE PRESIDING
Justices Puryear, Field, and Bourland
the second appeal to this Court concerning the same disputed
road easement used to access a public road by Shay and Robin
Brinkley across the property of Barbara A. and Nelson Gene
Garrett. We previously determined that the Brinkleys do,
indeed, have an enforceable easement across the Garretts'
property. See Garrett v. Brinkley, No.
03-14-00431-CV, 2016 WL 240896, at *1 (Tex. App.-Austin Jan.
15, 2016, no pet.) (mem. op.) (affirming trial court's
summary judgment in favor of Brinkleys on Garretts'
declaratory-judgment claims). While that cause was on appeal,
the Garretts filed another lawsuit against the Brinkleys,
this time alleging trespass and seeking to enjoin the
Brinkleys from modifying the road easement and operating
vehicles or road equipment beyond its "original"
width. The trial court granted the Brinkleys'
summary-judgment motion on the Garretts' claims and
resolved the core of the parties' dispute by determining
the width of the easement. The Garretts appeal the summary
judgment, contending that there was a disputed material fact
issue about the easement's width and that the court erred
in setting it at 20 feet as a matter of law. We will affirm
the trial court's judgment.
their first issue, the Garretts contend that the trial court
erred in granting the Brinkleys' combined traditional and
no-evidence motion for summary judgment because there is a
disputed material fact issue about the easement's
width. However, the only evidence the Garretts
attached to their response to the Brinkleys'
summary-judgment motion, other than a legal description of
the property at issue that is not relevant to the
easement's width, was one affidavit-that of their son,
Glenn Garrett. The affidavit is one-and-a-half pages in
length and does not make any reference to the width of the
easement. Rather, it alleges merely that (a) Shay
Brinkley admitted to Glenn Garrett that he had mistakenly
caused damage to the Garretts' property through his use
of a contractor to perform maintenance on the road and (b)
Glenn had observed a "maintainer" (a piece of heavy
road equipment) on the Brinkleys' property near the
property line as well as physical damage to his parents'
property adjacent to the original roadway. This affidavit
does not amount to a scintilla of evidence on the issue of
the easement's width and, accordingly, the Garretts did
not meet their burden of proof. See Tex. R. Civ. P.
166a(i); City of Keller v. Wilson, 168 S.W.3d 802,
825 (Tex. 2005); Garrett, 2016 WL 240896, at *2.
Accordingly, we overrule the Garretts' first issue.
their second issue, the Garretts contend that the trial court
erred in failing to grant their motion for new trial. The
motion for new trial raised the same issues and made the same
arguments as those presently before this Court. We review the
district court's decision granting or denying a motion
for new trial for abuse of discretion. Herrera v. Seton
Nw. Hosp., 212 S.W.3d 452, 462 (Tex. App.-Austin 2006,
no pet.). When a motion for new trial is overruled by
operation of law, as here, the question becomes whether the
court abused its discretion by allowing the motion to be
overruled. Id. A court abuses its discretion when it
fails to correctly analyze or apply the law or when it acts
arbitrarily or without reference to guiding legal principles.
their motion for new trial, the Garretts introduced two
affidavits for the first time, suggesting that they
considered the affidavits to be "newly discovered
evidence, " justifying a new trial. Id. at
463. But evidence that was, or could have been, discovered
using reasonable diligence is not newly discovered.
Id. The Garretts' motion for new trial does not
assert that the affidavits could not have been discovered
earlier in the proceedings, and based on the affidavits'
content and the fact that they are from interested witnesses,
we conclude that with the exercise of reasonable diligence,
the Garretts could have presented the affidavits in response
to the Brinkleys' motion for summary judgment. The
Garretts have not met their burden of showing that the trial
court acted arbitrarily or unreasonably by allowing their
motion for new trial to be overruled. Accordingly, we
overrule their second issue.
their final issue, the Garretts contend that the trial court
erred in setting the easement width at 20 feet, both (1)
because that determination granted the Brinkleys relief that
they did not request in their motion for summary judgment,
which prayed only that the easement "be confirmed as
15' wide, " not 20; and (2) in contravention of the
deed granting the easement. The Garretts do not cite any
authority for their argument that the trial court may not
determine the easement to be wider than specifically
requested by the Brinkleys in their summary-judgment motion.
While the general rule is that a summary judgment may not
grant a party more relief than that requested in its motion,
that rule has developed in circumstances wherein a motion for
summary judgment has wholly failed to address an entire
claim of relief or theory of liability.
See, e.g., Science Spectrum, Inc. v.
Martinez, 941 S.W.2d 910, 911-12 (Tex. 1997); Bever
Props., L.L.C. v. Jerry Huffman Custom Builder, L.L.C.,
355 S.W.3d 878, 886-87 (Tex. App.-Dallas 2011, no pet.);
Rust v. Texas Farmers Ins. Co., 341 S.W.3d 541, 552
(Tex. App.-El Paso 2011, pet. denied); Muston v. Nueces
Cty. Sheriff's Dep't, 122 S.W.3d 469, 473 (Tex.
App.-Corpus Christi 2003, no pet.).
circumstances are different here, where the trial court did
not enter judgment on an issue that had not been presented to
it. Rather, before the Brinkleys moved for summary judgment,
they had already presented the issue of the easement's
width to the trial court by way of their first amended
answer, in which they prayed for a boundary determination.
Furthermore, their summary-judgment motion not only prayed
for setting the easement's width at 15 feet but,
additionally, prayed generally that the court grant them
"all additional or alternative relief to which they may
be entitled." The body of the motion further argued that
the easement was "at least" 15 feet wide, as
supported by affidavits. When resolving on summary judgment
the legal question at the core of a dispute, the trial court
may properly fashion a remedy in accordance with the
movant's general prayer despite the presence of
a specific, limited prayer. See Travis Cent. Appraisal
Dist. v. Signature Flight Support Corp., 140 S.W.3d 833,
845 (Tex. App.-Austin 2004, no pet.) (concluding that
appellee's request in prayer section of summary-judgment
motion that it be awarded "such other and further
relief" to which it was entitled, in addition to
specific request that it be removed from tax rolls for one
particular year, was sufficient request to support
court's judgment ordering taxing authority to remove
appellee from tax rolls for additional years); see also
Holmstrom v. Lee, 26 S.W.3d 526, 532-33 (Tex.
App.-Austin 2000, no pet.) (noting that relief consistent
with facts and pleaded theories may be granted under general
the Brinkleys' live pleading sought a determination of
the easement's parameters and because their
summary-judgment motion sought resolution of the boundary
issue as well as "all additional or alternative
relief" to which they were entitled, we conclude that
the trial court did not err in setting the easement's
width at 20 feet rather than 15. See Signature Flight
Support Corp., 140 S.W.3d at 845; Leverov v. Hold
Props., Ltd., No. 11-11-00284-CV, 2014 WL 887225, at
*5-6 (Tex. App.-Eastland Feb. 27, 2014, no pet.) (mem. op.)
(affirming summary judgment granting damages for more
months' rent than that specifically requested by
summary-judgment motion, where evidence supported award, body
of motion referenced more months of lost rent than
specifically requested in prayer, and prayer did not
"cap" request at two months but instead requested
"at least" two months' of rent); see
also Tex. R. Civ. P. 301 (requiring court's judgment
to conform to pleadings).
respect to the Garretts' second argument-that the trial
court's width determination contravened the deed-we begin
by reciting the relevant provisions in the 1945 instrument
wherein the Garretts' predecessor sold the Brinkleys'
a perpetual easement and right of ingress and egress at any
and all times to enter upon and go through and across the
following lands owned ...