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Hobson v. Francis

Court of Appeals of Texas, Second District, Fort Worth

June 27, 2019

JON HOBSON, Appellant
v.
Darrell Francis and Catherine Francis, Appellees

          On Appeal from the 415th District Court Parker County, Texas Trial Court No. CV17-0052

          Before Sudderth, C.J.; Kerr and Pittman, JJ.

          MEMORANDUM OPINION

          Elizabeth Kerr Justice

         The underlying case involved whether the owner of a landlocked tract has an easement by necessity against the adjacent property owners from whom the owner's father initially acquired the tract, when for over thirty years that owner's father had accessed two of the three possible public roads by crossing other adjoining tracts.

         But whatever the merits of Jon Hobson's claim to a necessity easement, this case's procedural posture neither requires nor allows us to reach those merits, and so we will affirm the summary judgment in favor of Darrell and Catherine Francis, the defendant-appellees who in 1978 severed and sold, from their larger landholdings, the tract now owned by plaintiff-appellant Hobson.

         Chronology and Background

         We preface the sequence of events and give context to the facts of this dispute by reproducing the hand-drawn map attached to Hobson's affidavit responding to the Francises' summary-judgment motion:

         (Image Omitted)

         1965: The Francises bought Tract 2. 1973: The Francises bought Tract 1 and, until they sold it five years later, accessed Highway 281 from Tract 1 by a "lane" across Tract 3. 1978: The Francises sold Tract 1 to Hobson's father. At the time of this transaction and for at least 12 years afterwards, the then-owner of Tract 3, Jack Patton, allowed Hobson's father to use the existing private road across Tract 3 to get to Highway 281.[1] Tract l's mailing address is on Highway 281. According to the Francises, between 1973 and 1978 Tract 1 was "contained within a fence perimeter," and "[n]o portion of [their] lands described as Tract Two has ever been used as access for ingress and egress to a public road" (presumably Hardy Road, as Tract 2 fronts that road only) by Hobson or his father. 1990s: Sometime in the 1990s, Patton sold Tract 3 to Roy Thomas. For roughly two years after his purchase, Thomas allowed Hobson's father to keep using the private road to Highway 281 but later blocked off that road. 1999: Hobson's father (and mother) bought Tract 4, which "touches corners" with Tract 1. Because Tract 4 is also landlocked, in 1997 its previous owners were parties to an assignable agreement for a "perpetual easement" over a "strip of land thirty (30) feet in width along and adjacent to the western boundary line of Tract 5, which is owned by the F.B. Hill Family Partnership[2] and fronts on Logan's Run Road. Contemporaneously with the conveyance to Hobson's parents, the sellers of Tract 4 quitclaimed their interest in the easement over Tract 5 so that Hobson's parents could access Logan's Run Road, which is the roadway associated with Tract 4's address. Hobson's father constructed a road on the easement across Tract 5 so that both Tract 1 and Tract 4 would have access to Logan's Run Road. 2003: Hobson's parents divorced. As part of a Mediated Settlement Agreement, Hobson's mother Yvonne got Tract 4, and Hobson's father kept Tract 1. Under the MSA, Yvonne was to have provided Hobson Sr. an easement across Tract 4:

Wife is to deed Husband an easement being 30 feet in width allowing Husband ingress and egress to his property [Tract 1]. This easement is to be surveyed at Husband's expense. Husband shall have the right to use the current roadway crossing Wife's property [Tract 4] for a period of 5 years and as long thereafter as Wife agrees. Husband is to provide to Wife a proposed location of the easement which is to be along Wife's fence lines so as not to unreasonably impact or utilize the current roadway within said 5 year period. Wife agrees to execute a deed setting out this easement so long as it is located reasonably and does not cross the middle of wife's land. Husband agrees that he waives and abandons any right he may have to any easement across Wife's property except for the specific easement that shall be surveyed and dedicated to him at the conclusion of the 5 year period.

         It is undisputed that neither party to the divorce followed through with this MSA provision, and although for some time Hobson's father (and Hobson) continued to cross Tracts 4 and 5 to get to Logan's Run Road, Hobson's father never obtained an express easement across Tract 4 during that five-year MSA period.[3] 2006: Alfred and Kim Ezell acquired Tract 3. The Ezells allowed Hobson "on two or three occasions to use an approximate 100 yard portion of Tract 3 in order for him to access Tract 4, located to the south of Tract 3." But, as they each also averred in their summary-judgment affidavits, [4] they have "never agreed to give Jon Hobson an easement across any portion of Tract 3, and in 2014, when Hobson asked that they "sign an easement agreement for his use of the approximate 100 yard portion of Tract 3," they both refused.

2009: Yvonne sold Tract 4 and the associated Tract 5 "easement property" to Hobson's sister, Erika, who continued to allow Hobson and his father to travel across Tract 4. The record does not indicate that either Hobson or his father sought a formal easement from Erika over Tract 4.
2013: Hobson's father died.
2015: Erika sold Tract 4, along with a "non-exclusive easement for ingress and egress over" Tract 5, to SX3 Properties, LLC. SX3's principal, Neil Southerland, then blocked Hobson's access from Tract 1 to the private road that crosses Tract 4 on its way to the Tract 5 easement.

         Unrelatedly, also in 2015 the Francises bought Tract 2A, which does not abut Tract 1 (nor did it have any unity of ownership with Tract 2, from which Tract 1 was severed in 1978).

Later: At some point after Southerland blocked Hobson's access over Tract 4, Hobson asked the Francises about an easement by necessity across Tract 2 so that- for the first time-he could access Hardy Road to the north. The Francises declined.
2017: Hobson sued all his contiguous neighbors save the Hill Family

         Partnership (owner of Tract 5), [5] seeking various types of easements depending on the status of the adjoining tract. Later that year, the trial court granted summary judgment in the Ezells' favor regarding Tract 3; the following month, the Francises moved for summary judgment. The Francises' combined traditional and no-evidence motion challenged the existence of an easement by necessity as a matter of law on various grounds:

• a necessity did not exist at the time of severance (1978) or on a continuing basis;
• if a necessity did exist in 1978, it terminated when Hobson's father owned Tracts 1 and 4 and obtained an express easement across Tract 5 to Logan's Run Road; or
• any easement of necessity was lost by the ten- or 25-year limitations period.

         Seven days before the hearing scheduled for December 15, 2017, Hobson responded to the Francises' motion, submitting his affidavit, the hand-drawn map reproduced above (which was "not to scale"), and an unsigned supplemental affidavit as his only controverting evidence. Four days before the hearing, without seeking leave of court, Hobson filed his supplemental affidavit in executed form.

         The day before the hearing, on December 14, 2017, the Francises filed general and specific objections to Hobson's summary-judgment evidence. Their general objections attacked both of Hobson's affidavits on the grounds that they "lack[ed] any facts sufficient to establish a basis of personal knowledge of the Affiant as to any of the information contained therein"; were "replete with conclusory statements, legal opinion and legal conclusion"; and further "attempt[ed] to include and incorporate impermissible hearsay information," all in violation of evidentiary rules 602, 701, and 802. In addition, the Francises raised specific objections to Hobson's affidavit on a paragraph-by-paragraph basis, objected to the map under procedural rule 193.6, and also objected to Hobson's executed supplemental affidavit because it was filed late.

         Hobson did not file a motion seeking leave to submit his executed supplemental affidavit or to amend either affidavit, nor did he file a motion to continue the summary-judgment hearing so that he could correct any alleged defects in form in his summary-judgment evidence.

         Following the December 15, 2017 hearing (which was not transcribed), that same day the trial court signed two orders. The first granted the Francises' hybrid summary-judgment motion, and the second order (1) sustained the Francises's general objections to Hobson's initial affidavit; (2) made no ruling on any of their specific objections, which were charted by paragraph on the order; (3) overruled the objections to the map attached as Exhibit 1 to Hobson's initial affidavit; (4) sustained the Francises' untimeliness objection to the supplemental affidavit; and (5) overruled their specific objection that the second sentence of the supplemental affidavit's paragraph 2 constituted inadmissible opinion testimony and failed to show personal knowledge.

         Some two weeks later, Hob son filed a motion to reconsider the summary judgment and the order on the Francises' objections, combined with a motion for leave to file an amended affidavit and to set aside the summary-judgment order. The trial court never ruled on this motion.

2018: Shortly after SX3 and Southerland filed their own summary-judgment motion concerning Tract 4, Hobson nonsuited with prejudice his claims against those remaining defendants. This appeal followed.

         Hobson's Issues

         Although the Issues Presented section of Hobson's brief lays out five discrete issues, we will construe them broadly as raising two appellate complaints and will discuss them in reverse order, as Hobson did in organizing his argument: (1) that the trial court erred in sustaining the Francises' allegedly meritless general objections to his summary-judgment affidavit without ruling on their specific objections or, alternatively, by not ruling on Hobson's motion for leave to file an amended affidavit;[6] and (2) that the trial court erred in granting summary judgment to the Francises on the merits of their motion. We overrule Hobson's first issue- technically, his fourth and fifth Issues Presented-and because the practical effect of this holding is that Hobson thus failed to proffer more than a scintilla of evidence to raise a genuine issue of material fact in response to the Francises' no-evidence summary-judgment motion, we also overrule his second issue, comprising his first through third Issues Presented.

         Summary Judgment Was ...


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