the 272nd District Court Brazos County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Neill
E. NEILL JUSTICE
issues, appellant, Curtis Capps, challenges an "Order
and Judgment Granting Injunction" granted in favor of
appellees, the known and unknown heirs of Priscilla Foster.
Specifically, Capps asserts that: (1) the trial court lacked
jurisdiction to grant an easement in this case; and (2) even
if the trial court had jurisdiction, the Foster heirs failed
to establish the elements for an easement claim. We reverse
second time, a certain landlocked, 285.5-acre tract of land
in Brazos County, Texas, is in dispute. See generally
Capps v. Foster, No. 10-14-00061-CV, 2016 Tex.App. LEXIS
626 (Tex. App.-Waco Jan. 21, 2016, pet. denied) (mem. op.)
("Capps I"). In Capps I, Capps
filed suit to remove a cloud on the title to this property.
See id. at *4. The Foster heirs filed an
adverse-possession counterclaim. Id. The trial court
awarded to the Foster heirs title to four tracts contained
within the larger 285.5-acre tract, and we
affirmed. Id. at *4, **20-21.
August 14, 2018, the Foster heirs filed a "Motion to
Enforce Judgment and Request for Injunctive Relief." In
this filing, the Foster heirs alleged that, commencing in
September 2017, Capps began engaging in a course of conduct
to defy the terms of the trial court's final judgment in
Capps I. Specifically, the Foster heirs contended
that Capps: (1) maliciously harassed them by "removing
from the Movants' easement and property Movants'
signs and board of instructions," "swearing out or
causing to be sworn false complaints of criminal theft,"
and "causing the sheriff's department to arrest and
jail individuals visiting the property who were guests, and
in at least one case, the spouse of one of Priscilla
Foster's Heirs who is a movant herein"; (2)
installed new locked gates and placed locks on long-existing
gates located on Day Road in order to prevent access; and (3)
performed acts of intimidation, including written statements
that amounted to threats aimed at discouraging use of Day
Road by the Foster heirs and their invitees. The Foster heirs
argued Capps' actions obstructed and prevented them from
enjoying full use of their property, as granted by the trial
court's prior judgment in Capps I. Accordingly,
the Foster heirs sought to enforce the trial court's
prior judgment and requested a permanent injunction against
Capps "from interfering in any manner with Movants'
continued possession and use of said Day Road as the easement
of access for their properties as adjudged and ordered . . .
trial court conducted an evidentiary hearing on the Foster
heirs' motion and request and ultimately ruled in favor
of the Foster heirs. The trial court's "Order and
Judgment Granting Injunction" provided the following, in
Having considered the evidence and arguments, the Court finds
and concludes that the Defendants [the Foster heirs] are
entitled to enforcement of their Final Judgment signed and
entered on January 22, 2014, and the relief necessary for
such enforcement as hereinafter given.
IT IS THEREFORE, ORDERED that the Plaintiff be and hereby is
commanded to cease, desist and refrain from blocking,
impeding, interfering and preventing full access by
Defendants on, along and across Day Road, aka Day Lane, aka
Day Street in their travel on such easement and right-of-way
from FM 2154 through any and all property in which he claims
an interest, including, but not limited to the 9.437 acres,
called 10.6582 acre and known as the ANITA VASQUEZ TRACT and
Plaintiff [Capps] is to cease and desist taking any actions
which would impede, interfere, discourage, frustrate or
prevent the Defendants and their families, agents,
contractors, invitees, tenants and lessees from having and
enjoying full use and freedom of access and passage along,
by, across and through the easement designated in
Plaintiff's Exhibit 44, Defendants' Exhibit 15 in the
record of the original trial of this case . . . which
easement has and continues to be known as Day Road, aka Day
Lane, aka Day Street, as it passes through and across both
DEVER SURVEY and the J.M. BARRERA SURVEY to the four (4)
tracts of land set forth in the Judgment of this Court.
IT IS FURTHER ORDERED that the Plaintiff be, and hereby is,
commanded on or before Oct[ober] 19, 2018, to remove all
locks on any gates located on said road, easement and
right-of-way, to remove any threatening signs, to cease
filing criminal proceedings in the County Courts requesting
punishment to individuals using the easement and right-of-way
known as Day Road, aka Day Lane, aka Day Street and restore
the boards of instructions previously posted by Defendants.
trial court also entered findings of fact and conclusions of
law. This appeal followed.
first issue, Capps contends that the trial court lacked
jurisdiction to amend its judgment after its plenary power
expired. In particular, Capps argues that "the Foster
heirs never sought an easement-nor was one purportedly
granted-until four years after the judgment was entered. At
that point, the court's plenary power had lapsed, the
court lacked jurisdiction, and its judgment granting an
easement is therefore void." The Foster heirs counter
that they presented evidence at the 2013 bench trial that
they were entitled to an implied easement appurtenant known
as Day Road by both necessity and prior use. According to the
Foster heirs, their right of access by easement necessarily
passed with the property awarded.
regard to a trial court's plenary power, the expiration
of that power, and orders entered by the trial court after
plenary power expires, Texas courts have stated:
A court order is void if it is apparent that the court had no
jurisdiction of the parties or property, no jurisdiction of
the subject matter, no jurisdiction to enter the particular
judgment, or no capacity to act. A trial court cannot act
when it has no jurisdiction, and a reviewing court cannot
find jurisdiction where none exists. Orders issued outside of
a trial court's plenary power are typically void, because
a court no longer has jurisdiction to act once its plenary
power has expired.
The Texas Rules of Civil Procedure limit a trial court's
jurisdiction after it has entered a final judgment. Rule 329b
generally provides that a trial court retains jurisdiction
over a case for a minimum of thirty days, during which time
the trial court has plenary power to change its judgment.
Certain post-judgment motions, if filed within this initial
thirty day period, extend the trial court's plenary
jurisdiction over its judgment for up to an additional
seventy-five days. After the time set forth in the ...