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Garrett v. Brinkley

Court of Appeals of Texas, Third District, Austin

December 12, 2017

Barbara A. Garrett and Nelson Gene Garrett, Appellants
Shay Brinkley and Robin Brinkley, Appellees


          Before Justices Puryear, Field, and Bourland



         This is 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.

         DISCUSSION [1]

         In 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.[2] 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.[3] The affidavit is one-and-a-half pages in length and does not make any reference to the width of the easement.[4] 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.[5] 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.

         In 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. Id.

         In their motion for new trial, the Garretts introduced two affidavits[6] for the first time, suggesting that they considered the affidavits to be "newly discovered evidence, " justifying a new trial.[7] 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.

         In 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.).

         The 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 prayer).

         Because 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).

         With 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' predecessor:

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 ...

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