      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-08-00537-CV



                                  Patricia Gordon Stark, Appellant

                                                   v.

   Fernando H. Loya, Rebecca L. Loya, Timothy J. Myers, and Lisa G. Myers, Appellees


    FROM THE DISTRICT COURT OF BASTROP COUNTY, 335TH JUDICIAL DISTRICT
       NO. 26,369, HONORABLE REVA TOWSLEE-CORBETT, JUDGE PRESIDING



                               MEMORANDUM OPINION


                  This appeal concerns the scope of an access easement created in a decree partitioning

land. Appellant Patricia Gordon Stark, the owner of the partitioned tract of land burdened by the

easement, appeals the district court’s declaration that appellees Fernando H. Loya, Rebecca L. Loya,

Timothy J. Myers, and Lisa G. Myers, as the owners of the land bordering Stark’s tract, are

beneficiaries of the access easement. In three issues, Stark contends that the district court erred by

allowing parol evidence and submitting a question to the jury on the intent of the drafters of the

partition decree because the decree unambiguously created the access easement for the sole benefit

of the parties in the partition suit. For the reasons that follow, we affirm the judgment of the

district court.
                      FACTUAL AND PROCEDURAL BACKGROUND

                The land subject to the partition suit was owned in undivided interests by members

of the Kellough family (the “Kellough property”). Prior to the partition, the Kellough property was

served by a single public road, Pecan Acres Road. Pecan Acres Road ended on the Kellough

property’s northern boundary line and was connected to an “existing road” that crossed the Kellough

property and provided access to appellees’ property. Appellees’ property is located on the southern

boundary and, at the time of the partition decree, was owned by Oscar Davis and his wife.

               Charles Kellough, one of the owners of an undivided interest in the Kellough

property, petitioned the district court to partition and equally divide the property among the family

members with undivided interests. The district court appointed commissioners to partition the land

and a surveyor to assist with the partition. After the commissioners filed their report with the court

and with the agreement of the parties, the district court entered its partition decree confirming the

commissioners’ report. The decree was executed and recorded in the real property records of

Bastrop County in October 1989.

               The partition decree states in relevant part:


       That each party to whom a share has been allotted by the report above set forth shall
       be vested, as against the other parties hereto, with fee simple title in both the surface
       and mineral estates to the property thus allotted to him or her as described in the
       report and the exhibits attached thereto, and hereby confirmed such exhibits being
       attached hereto and made a part hereof and shown herein as Exhibits “A”, “B”, and
       “C”, and all of such tracts being subject to easements as described in the plats above
       described and attached hereto for ingress and egress roadway and utility purposes.




                                                  2
                 Attached to the partition decree and recorded in the real property records were (i) the

field notes1 for a thirty-foot wide easement and a sixty-foot wide easement, and (ii) a survey plat

identifying the location of the partitioned tracts, the easements, and appellees’ property.2 The

thirty-foot wide easement follows a cattle path that crosses through the partitioned tracts numbers

3 and 4 (the “cattle path easement”).3 Charles Kellough granted and recorded in the real property

records of Bastrop County the cattle path easement for “right-of-way” in December 1989 to Davis

and his wife, as the owners at the time of appellees’ property. The easement was for “the purposes

of vehicular and pedestrian travel, for maintaining, rebuilding or replacing the roadway to be

constructed by Grantees within the Right-of-Way Easement, and for public utilities, of what ever

kind or character in the sole discretion of the Grantees.” The sixty-foot wide easement follows the

perimeter of six of the partitioned tracts of land, providing access from Pecan Acres Road to each

tract and to appellees’ property (the “perimeter easement”). The portion of the perimeter easement

in dispute runs along the boundary line between the partitioned tracts 3 and 4, encumbering

thirty feet on each side of the boundary line between the two tracts and extending to the boundary

line with appellees’ property.4


        1
        Gary Reynolds, an attorney that testified at trial, testified that field notes refer to the metes
and bounds description of property.
        2
         The survey plat and field notes identify the land on the southern boundary of the Kellough
property as “Oscar A. Davis 172 acre tract.”
        3
           Stark does not dispute that appellees were beneficiaries of the cattle path easement and has
not appealed the portion of the final judgment concerning that easement. Appellee Timothy Myers
testified at trial that, unless a bridge was built, appellees’ land was accessible only through the cattle
path easement or the perimeter easement.
        4
            The portion of the perimeter easement burdening tract 4 was not at issue in this suit.

                                                    3
                 Stark purchased tract 3 of the partitioned tracts in 1996,5 and appellees purchased the

land formerly owned by Davis and his wife in October 2006. By agreement with the owner of the

land at the time, Amanda Roth, the land was “split [ ] down the middle,” with the Loyas and Myers

each receiving a separate deed for their half of the land. Shortly after appellees purchased their land,

they began clearing and developing the perimeter easement so that it could be used to access their

property as an alternative to the cattle path easement. Stark thereafter filed this suit, seeking

injunctive relief and damages for trespass, contending that appellees were not beneficiaries of the

perimeter easement. Appellees filed a counterclaim, including seeking declaratory relief that they

were beneficiaries of the perimeter easement.

                 The case proceeded to a jury trial in July 2008. Stark and her husband testified on

her behalf.6 Stark testified to her interactions with appellees, appellees’ “bulldozing” in the

perimeter easement without her permission, the loss of trees and other damage from the bulldozing,

and her understanding of the beneficiaries of the perimeter easement. She testified that no individual

had attempted to use the perimeter easement on tract 3 of the partitioned tracts prior to appellees and

that appellees’ means to access their property was the cattle path easement. When asked during cross

examination if the perimeter easement exists today, she testified that “[o]n paper it does. I mean it’s

drawn out on the survey,” but she testified that only “heirs to the Kellough estate” had the right to

use it. Mr. Stark testified to the number of trees that appellees destroyed in the perimeter easement



       5
            Stark purchased other tracts from the partitioned land that are not at issue, and tract 3 of
the partitioned land is titled in the assumed name of her business, except for a five-acre parcel that
is titled in her individual name.
        6
            Mr. Stark, who was a third-party defendant, has not appealed the final judgment.

                                                   4
and the time that he spent because of appellees’ actions, including his efforts to recover lost cattle

from downed fences.

               Witnesses to testify for appellees included the Myers; the Loyas; Gary Reynolds and

Allen McMurrey, attorneys that represented parties in the partition suit; Dale Olson, the surveyor and

one of the commissioners in the partition suit; Tammy and Amanda Roth, prior owners of appellees’

property; and William Rivers, a title examiner expert. Timothy Myers testified to the circumstances

surrounding appellees’ purchase of their property, that appellees discovered the perimeter easement

at the closing on their property, that Stark initially agreed to appellees’ developing the perimeter

easement, and that appellees did not intend to use the cattle path easement after the perimeter

easement was developed. Fernando Loya testified consistently that appellees first learned of the

perimeter easement at their closing and that, when they approached Stark about developing the

easement, she said “anything to improve the land.” He also testified that Mr. Stark initially assisted

with the development of the perimeter easement. Rebecca Loya and Lisa Myers testified to an

incident with Stark in which they felt threatened.

               Reynolds, McMurrey, and Olson testified to their respective involvement with the

partition suit and understanding concerning the portion of the perimeter easement located on the

boundary line between tracts 3 and 4 of the partitioned land. Reynolds testified that, based on his

memory and understanding that the reason this portion of the perimeter easement was created was

to provide a “more direct route” to appellees’ property:


       Well, as I testified when you took my deposition, there is a road, an old pasture road,
       . . . that zigs across those two Tracts, 3 and 4. And my memory was, that it just made
       sense to try to put an easement right down between the two tracts so that it wouldn’t

                                                  5
       unnecessarily infringe on either of the tracts anymore so than necessary. And I do
       recall that we had discussions about that and it was agreed that that’s where the
       easement would be.

                                                ***

       It’s been a long time ago but I believe that the people that lived to the south had been
       using that [old pasture] road. I certainly don’t know for how long, but it was in use
       at that time. The idea was simply to provide a more direct route to access that
       property.


Consistently, McMurrey testified that the perimeter easement was to provide access to appellees’

property, and Olson testified that the portion of the perimeter easement between tracts 3 and 4 was

to provide access to appellees’ property and the “purpose of that easement was to eliminate the

crooked driveway going down there, which crosses the property line several times, and to put it along

the property line.”

               Tammy Roth testified concerning her purchase of appellees’ property from Davis and

the subsequent sale to Amanda Roth, to difficulties that she had with Stark concerning access to

her property, and to a lawsuit between herself and Stark concerning the cattle path easement.

Amanda Roth also testified to her difficulties with Stark concerning access to her property and to

her sale of the property to appellees in 2006. William Rivers testified to his examination of

appellees’ title that included, in his opinion, appellees’ right to use the perimeter easement. He

opined that the reason for the perimeter easement on tracts 3 and 4 was to provide access to

appellees’ property and to “clean up title on the squiggly easement.” Rivers also testified to contact

that he had with Stark, including that he declined to remove the perimeter easement from the




                                                  6
exceptions on her title policy concerning tract 3 because, in his opinion, her property was

encumbered by the easement.

               The district court’s submission to the jury included a question on the intent of the

perimeter easement:


       Do you find from a preponderance of the evidence that the 60-foot access easement
       created in the Kellough family partition was also intended to provide access to the
       Oscar Davis property now owned by the Myers and the Loyas?


The jury answered this question “Yes.” The district court thereafter entered judgment in favor of

appellees.7

               In the judgment, the district court declared that, as owners of the bordering land,

appellees are beneficiaries of the perimeter easement,


       shown on the partition plat . . . and described in the field notes . . . and set forth in the
       Final Decree Confirming Report of Commissioners in Partition and Vesting Title
       . . . , which Perimeter Easement is appurtenant to [appellees’] [p]roperty and which
       Perimeter Easement crosses and burdens that certain 17.80-acre tract in Bastrop
       County, Texas owned by [the Starks], which 17.80-acre tract is called Tract No. 3 in
       the Kellough Partition Decree . . . and [appellees], as owners of the [property] are
       entitled to the free and uninterrupted use of the Perimeter Easement for pedestrian
       and vehicular ingress and egress to and from Pecan Acres Road, which is a county
       road and public right-of-way, and [appellees’] Property and for utility purposes.




       7
         The jury also found that Stark “unreasonably interfered with the easement rights of the
Myers and the Loyas,” that the harm to the Myers and the Loyas “resulted from malice” by Stark,
and awarded exemplary damages of $25,000 to the Myers and $25,000 to the Loyas. The district
court did not award exemplary damages to appellees in its final judgment, and they have not
appealed the damages award.

                                                    7
The district court also awarded attorney’s fees to appellees and enjoined the Starks from interfering

with appellees’ rights to use the easement. This appeal followed.


                                              ANALYSIS

                Stark contends that the partition decree and the report of commissioners confirmed

in the decree (collectively the “partition decree”) are not ambiguous and that they only created rights

as to the perimeter easement in favor of parties to the partition suit and not in favor of appellees who

were non-parties. In her first and second issues, Stark contends that the district court erred in

allowing parol evidence8 to alter and expand the clear language of the partition decree and in

submitting to the jury the intent of the perimeter easement. In her third issue, she contends that

the proper interpretation of the express terms of the partition decree only supports that appellees, as

non-parties, have no rights in the perimeter easement.

                Stark’s issues are dependent on her proposed interpretation of the partition decree.

Stark relies on the language in the partition decree that “each party . . . shall be vested, as against the

other parties hereto, with fee simple title” and on language in the report of commissioners that “each

tract owner shall have access for roadway and utility purposes to each tract.” She contends that the

partition decree could not make appellees’ property the dominant estate of an easement without

Davis, the owner at the time, being a party to the partition suit. Stark also characterizes appellees’

claim in effect as a public easement and contends that there is no language in the partition decree of

an intent to create an easement for public use.


        8
         The complained of testimony consisted of the testimony concerning the intent and
understanding of the parties to the partition suit as to the perimeter easement.

                                                    8
               The partition decree, as an agreed judgment, is subject to the same rules of

interpretation and construction as a contract. See Gulf Ins. Co. v. Burns Motor, Inc., 22 S.W.3d 417,

422 (Tex. 2000). Similarly, basic principles of contract construction govern the terms of an express

easement. See Canyon Reg’l Water Auth. v. Guadalupe-Blanco River Auth., 258 S.W.3d 613, 616

(Tex. 2008); Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700-01 (Tex. 2002). Whether

a contract is ambiguous is subject to de novo review. See MCI Telecomms. Corp. v. Texas Utils.

Elec. Co., 995 S.W.2d 647, 650-51 (Tex. 1999). A court decides whether a contract is ambiguous

by looking at the contract as a whole in light of the circumstances present when the contract was

entered. See Sacks v. Haden, 266 S.W.3d 447, 451 (Tex. 2008) (per curiam); see also Marcus Cable

Assocs., 90 S.W.3d at 701(“[A]n easement ‘should be interpreted to give effect to the intention of

the parties ascertained from the language used in the instrument, or the circumstances surrounding

the creation of the servitude, and to carry out the purpose for which it was created.’”(quoting

Restatement (Third) of Property (Servitudes) § 4.1 (2000))).

               When a court concludes that contract language can be given a certain or definite

meaning, then the language is not ambiguous, and the court is obligated to interpret the contract as

a matter of law. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). “An unambiguous contract

will be enforced as written, and parol evidence will not be received for the purpose of creating

an ambiguity or to give the contract a meaning different from that which its language imports.”

Sacks, 266 S.W.3d at 451 (citing Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154, 157

(Tex. 1951)). An ambiguity arises when the application of established rules of construction leaves

an agreement susceptible to more than one meaning and two or more potential meanings are



                                                 9
reasonable. See id.; Dewitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999). Only

where a contract is first determined to be ambiguous may the courts consider the parties’

interpretation and admit extraneous evidence to determine the true meaning of the instrument.

See Sacks, 266 S.W.3d at 450-51. Applying these principles, we turn to our interpretation of

the partition decree.

                Reviewing the express language of the partition decree, the decree confirms the report

by the commissioners of their proposed partition. It then states that the partition tracts are “subject

to easements as described in the plats above described and attached hereto for ingress and egress

roadway and utility purposes.” The partition decree expressly shows (i) the location and description

of the partitioned tracts, the easements, and appellees’ land; (ii) tracts 3 and 4 are the only tracts that

are burdened by the cattle path easement and by an extension of the perimeter easement; and

(iii) there are no similar extensions of the perimeter easement between other partitioned tracts. As

to the circumstances surrounding the creation of the perimeter easement, both appellees’ property

and the Kellough property prior to the partition were accessed from Pecan Acres Road, and the

Kellough property was burdened by the cattle path easement that provided access to appellees’

property. By creating the perimeter easement between tracts 3 and 4 as an alternative to the cattle

path easement, the tracts are more equally burdened with the access easement to appellees’ property.

                Under Stark’s proposed interpretation that only parties to the partition suit were

beneficiaries of the perimeter easement, the portion of the perimeter easement between tracts 3 and




                                                    10
4 would serve no apparent purpose as it would be a spur easement to a dead end.9 Her proposed

interpretation also is inconsistent with her position that appellees, as the owners of the bordering

property, are beneficiaries of the cattle path easement shown on the survey plat. Further, as to

Stark’s claim that appellees, in effect, seek a public easement, the basis of appellees’ claim is their

ownership of the adjoining land, and the district court specifically limited its declaration as to their

rights to the perimeter easement accordingly:


       IT IS FURTHER ORDERED, ADJUDGED AND DECREED and the Court does
       hereby declare that Defendants and Counter-Plaintiffs [ ], and their successors and
       assigns, as owners of that certain . . . acres of land, more or less, in Bastrop County,
       Texas, which is described more specifically in that certain Warranty Deed with
       Vendor’s Lien dated October 27, 2006, from Amanda Joyce Roth, as grantor,
       recorded under Clerk’s file number . . . and in Volume [ ], Page [ ], of the Official
       Public Records of Bastrop County, Texas [ ], are beneficiaries of that certain 60-foot
       wide access easement (hereinafter referred to for all purposes in this Judgment as the
       “Perimeter Easement”).10


               Reviewing the partition decree as a whole and the circumstances surrounding

its creation, we conclude that the partition decree is not ambiguous as to the perimeter easement

and that the portion of the perimeter easement on tract 3 was created, at least in part, to

provide appellees, as the owners of the bordering property, access to their property from Pecan




       9
          Stark also contends on appeal that the portion of the perimeter easement on tract 3 ceased
to exist when she purchased adjoining tracts from the heirs to the partition suit because the purpose
of the easement ceased to exist—“one does not need an easement to travel across one’s land.” But
the purpose of the perimeter easement to provide access to appellees’ property remains regardless
of Stark’s easement rights.
       10
         The judgment recites the same declarations as to the respective properties purchased by
the Myers and the Loyas from Amanda Roth except as to the names and recording information.

                                                  11
Acres Road. See Sacks, 266 S.W.3d at 451; Marcus Cable Assocs., 90 S.W.3d at 701; Coker,

650 S.W.2d at 393.11

                Based on our conclusion that the express terms of the partition decree support the

district court’s declaration that appellees are beneficiaries of the perimeter easement, we also

conclude that any error by the district court in allowing parol evidence or in submitting intent of the

perimeter easement to the jury did not probably cause the rendition of an improper judgment.

See Tex. R. App. P. 44.1(a)(1). Further, even if we were to conclude that the partition decree as to

the perimeter easement was ambiguous, we would reach the same conclusion that the district court

did not err in its declaration based on the jury’s finding that the intent of the perimeter easement was

to provide access to appellees’ property. The testimony of the three participants in the partition suit

to testify was consistent and uncontroverted. They testified that, consistent with the perimeter

easement as shown on the survey plat, the portion of the perimeter easement on the boundary line

between tracts 3 and 4 was created to provide access to appellees’ property.


                                           CONCLUSION

                Because we conclude the district court did not err in declaring that appellees are

beneficiaries of the perimeter easement created in the partition decree, we overrule Stark’s issues and

affirm the district court’s judgment.




        11
           In her reply brief, Stark argues that appellees’ interpretation of the partition decree renders
the language in the commissioners’ report that “each tract owner shall have access for roadway and
utility purposes to each tract” meaningless. But the tract owners’ status as beneficiaries is not
mutually exclusive with appellees’ status as beneficiaries.

                                                   12
                                          __________________________________________

                                          Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: August 12, 2009




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