Reversed and Remanded and Majority and Dissenting Opinions filed
September 10, 2015.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-01141-CV

           UNION PACIFIC RAILROAD COMPANY, Appellant
                                       V.

           CHARLES SEBER AND BARBARA SEBER, Appellees

                   On Appeal from the 113th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2008-64372

                    DISSENTING OPINION

      The trial court granted the landowners’ traditional summary-judgment
motion on their claim for an implied easement by prior use and denied the
railroad’s no-evidence summary-judgment motion aimed at several essential
elements of the landowners’ claim.     On appeal, the railroad challenges both
rulings. Because the railroad was entitled to summary judgment based on one of
its no-evidence grounds, this court should reverse the trial court’s judgment and
render judgment in the railroad’s favor. Instead, the majority reverses and remands
without addressing the railroad’s rendition arguments based on its no-evidence
summary-judgment motion.

                              The Prior-Use Easement Claim

         In their live pleading, appellees/plaintiffs Charles and Barbara Seber
asserted a single claim against appellant/defendant Union Pacific Railroad
Company—a claim for an implied easement by prior use. The essential elements of
the claim are

         (1) unity of ownership of the alleged dominant and servient estates
         before severance;
         (2) open and apparent use of the claimed easement at the time of
         severance;
         (3) continuous use, such that the parties must have intended that the
         easement pass by grant; and
         (4) the necessity of the use to the use of the dominant estate.1
The Supreme Court of Texas’s recent decision in Hamrick v. Ward did not change
the essential elements of a prior-use easement claim. The elements are the same
after Hamrick as they were before Hamrick.2

        The Summary-Judgment Motions on Remand from the First Appeal

         On remand following the first appeal, the Sebers filed a traditional
summary-judgment motion, in which they asserted their entitlement to judgment as
a matter of law on their prior-use easement claim. In response, Union Pacific filed
a cross-motion in which it sought judgment as a matter of law on the Sebers’ claim
based on two no-evidence grounds. The trial court granted the Sebers’ motion and
denied Union Pacific’s motion.
1
    See Hamrick v. Ward, 446 S.W.3d 377, 383 (Tex. 2014).
2
    See id.; Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207-08 (Tex. 1962).

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                           Issues in Original Appellate Briefing

          In this second appeal, Union Pacific asserts in its initial brief that the trial
court erred in granting the Sebers’ motion and in denying Union Pacific’s motion.
Union Pacific urges this court to reverse and render judgment in Union Pacific’s
favor, arguing that the trial court should have granted a no-evidence summary
judgment in Union Pacific’s favor based on either of its two no-evidence grounds.

                      Additional Briefing Regarding Hamrick v. Ward

          Shortly after the parties submitted their briefs in this appeal, the Supreme
Court of Texas issued its opinion in Hamrick v. Ward.3 The Hamrick court held as
a matter of law that a plaintiff may not assert a prior-use easement claim if the
plaintiff seeks roadway access to a landlocked parcel that previously was a part of
another parcel of land.4 In Hamrick, the high court did not abolish the claim for a
prior-use easement, nor did the high court vary the elements of the claim.5 Before
oral argument, the parties submitted additional briefing vis-à-vis Hamrick. In its
additional briefing, Union Pacific argues that we should reverse and render
judgment that the Sebers take nothing for an additional reason—the Sebers’ prior-
use easement claim, according to Union Pacific, falls within the scope of Hamrick
and therefore the Sebers may not assert a prior-use easement claim as a matter of
law. Conversely, in their additional briefing, the Sebers argue that their prior-use
easement claim does not fall within Hamrick’s holding. The Sebers note that the
Hamrick court did not alter the essential elements of a prior-use easement claim
and the Sebers continue to rely on their prior argument that the trial court did not
err in granting their summary-judgment motion and in denying Union Pacific’s

3
    See Hamrick, 446 S.W.3d at 377.
4
    See id. at 381, 385.
5
    See id. at 381–85.

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motion. The Sebers urge that, in the event this court were to reverse the trial
court’s judgment based upon Hamrick, the court should remand in the interest of
justice to allow the Sebers an opportunity to plead and pursue an easement-by-
necessity claim.

         At oral argument, both sides argued the Hamrick issues as well as issues
from the original briefing regarding Union Pacific’s no-evidence grounds. Though
Union Pacific asserted it was entitled to rendition of a take-nothing judgment based
on Hamrick, Union Pacific also pointed out during oral argument that this court
need not address the Hamrick issues because the court can dispose of the case
based on arguments in Union Pacific’s original briefing. And, at oral argument,
Union Pacific argued that the interests of justice do not require a remand.

The Arguments That Would Give Union Pacific the Greatest Relief on Appeal

         If more than one appellate judgment is potentially appropriate based on the
record, the briefs, and the law, an appellate court must render the judgment that
moves the case to the greatest degree of finality.6 This longstanding rule furthers
judicial economy.7        To honor this important purpose and to comply with the
greatest-degree-of-finality mandate, a court of appeals first must consider and
reject all arguments that would entitle the appellant to the greatest relief potentially
available, before rendering an appellate judgment granting the appellant lesser
relief.8 Thus, before we may order a remand, we are duty-bound to consider and


6
 See Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 201 (Tex. 2003); Ortega v.
CACH, LLC, 396 S.W.3d 622, 627 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
7
  See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201; Monsanto Co. v. Davis, 25 S.W.3d
773, 780 (Tex. App.—Waco 2000, pet. denied) (stating that “[j]udicial efficiency requires us to
first rule upon the complaints brought by [appellants] which would entitle them to the greatest
relief”).
8
    See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201–02; Monsanto Co., 25 S.W.3d at 780.
                                                4
reject all arguments which, if meritorious, would result in a rendition.9
          In structuring an appellate opinion, courts generally opt to address first the
arguments that would provide the greatest relief and then, if necessary, to address
arguments that would provide lesser relief.10 Logical as well as efficient, this
sequencing principle stands as a well-worn appellate convention. Yet, it is distinct
from the greatest-degree-of-finality rule, which is a first principle of appellate
practice.11 Whether the court addresses the arguments that would provide the
greatest relief at the beginning of its analysis or at the end, the court must consider
and reject all such arguments before issuing an appellate judgment that provides
lesser relief.12 This case presents no exception to the rule.13

9
  See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201–02 (holding that, although dissenting
justice asserted that court should sustain remand issue, court could not do so because it was
required to reverse and render based on meritorious rendition argument); CMH Homes, Inc. v.
Daenen, 15 S.W.3d 97, 99 (Tex. 2000) (concluding that, because rendition point had merit court
would not address issue which, if sustained would result only in a remand); Bradleys’ Electric,
Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 676–77 (Tex. 1999) (holding that the court of
appeals erred, not in using the wrong sequence in its analysis, but in sustaining a remand issue
without determining whether a rendition issue had merit); Ortega, 396 S.W.3d at 627 (stating
that “[w]hen an appellant asserts multiple grounds for reversal of the trial court’s judgment, this
court should first address all issues that would require rendition and then, if necessary, consider
issues that would result in remand” and considering and rejecting all rendition issues before
sustaining a remand issue); Monsanto Co., 25 S.W.3d at 780 (stating that “[j]udicial efficiency
requires us to first rule upon the complaints brought by [appellants] which would entitle them to
the greatest relief”); Forbes v. Lanzl, 9 S.W.3d 895, 898 n.3 (Tex. App.—Austin 2000, pet.
denied) (stating “[w]e decide rendition issues before remand issues” and sustaining rendition
issue without addressing remand issue); Stevenson v. Koutzarov, 795 S.W.2d 313, 322 (Tex.
App.—Houston [1st Dist.] 1990, writ denied) (stating “[w]e must, however, address the points
which, if granted, would compel a rendition of judgment for the [appellants]”).
10
     See Bradleys’ Electric, Inc.. 995 S.W.2d at 677.
11
   The majority seems to suggest that this dissenting opinion is based on the sequencing
principle. See ante at p. 20. Instead, it is based on the greatest-degree-of-finality rule.
12
  See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201–02; CMH Homes, Inc., 15 S.W.3d at
99; Bradleys’ Electric, Inc., 995 S.W.2d at 676–77; Ortega, 396 S.W.3d at 627; Monsanto Co.,
25 S.W.3d at 780; Forbes, 9 S.W.3d at 898 n. 3; Stevenson, 795 S.W.2d at 322.
13
   The majority suggests that Texas Rule of Appellate Procedure 43.3(b) provides an exception
to this rule. See ante at p. 20. But, Rule 43.3(b) does not provide that an appellate court may
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       Though Union Pacific claims that its Hamrick arguments, if meritorious,
would entitle Union Pacific to rendition of a judgment that the Sebers take nothing,
this relief would not be proper. Presuming for the sake of argument that the
summary-judgment evidence conclusively proved that this case falls within the
scope of the Hamrick holding, the proper appellate judgment would be a remand
for further proceedings based on the trial court’s error in granting the Sebers’
motion for a traditional summary judgment.14 A rendition would not be available
because Union Pacific did not assert any summary-judgment ground in which it
argued that the Sebers’ claim fails as a matter of law because they assert a prior-
use easement claim for roadway access to a landlocked parcel that previously was
a part of another parcel of land. Thus, the Hamrick holding provides no basis for
this court to reverse and render a judgment that the Sebers take nothing based on
the trial court’s denial of Union Pacific’s summary-judgment motion.15

       Arguably, it would be premature to address whether, on remand from a
reversal of the traditional summary judgment, the interests of justice require that

grant lesser relief in its judgment without addressing arguments in which the appellant seeks
greater relief. See Tex. R. App. P. 43.3(b) (providing that “[w]hen reversing a trial court’s
judgment, the court must render the judgment that the trial court should have rendered, except
when: . . . (b) the interests of justice require a remand for another trial”). The majority cites no
case holding that Rule 43.3(b) provides such an exception.
14
 See Marzo Club, LLC v. Columbia Lakes Homeowners Ass’n, 325 S.W.3d 791, 799–801 (Tex.
App.—Houston [14th Dist.] 2010, no pet.).
15
   See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (stating that a
summary-judgment motion must stand or fall on the grounds expressly presented in the motion);
Dardas v. Fleming, Hovenkamp & Grayson, P.C., 194 S.W.3d 603, 615–16 (Tex. App.—
Houston [14th Dist.] 2006, pet. denied) (concluding that, even though during pendency of appeal
Texas law had changed, the appellate court would not address the new law because it was not
expressly presented to trial court as ground for summary judgment); Baty v. Pro-Tech Ins.
Agency, 63 S.W.3d 841, 863 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (stating that,
even though during pendency of appeal Texas law had changed regarding essential elements of
tortious-interference-with-prospective-business-relationships claim, appellate court would not
address new law because it was not expressly presented to trial court as ground for summary
judgment).

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the Sebers be permitted to amend their pleadings to add an easement-by-necessity
claim. But, in any event, a remand for this additional purpose would be lesser
relief than a rendition of judgment that the Sebers take nothing.16
          If Union Pacific’s arguments under either its first issue or its second issue
have merit, then the trial court erred in granting the Sebers’ motion and also erred
in denying Union Pacific’s no-evidence motion.                  In this scenario, the proper
appellate judgment would be to reverse and render judgment that the Sebers take
nothing, unless this court determines that the interests of justice require a remand.17
If the Sebers’ prior-use easement claim does not fall within the scope of the
Hamrick decision, the interests of justice would not require a remand based on that
decision.18 But, even if the Sebers’ prior-use easement claim fell within Hamrick’s
scope, the interests of justice would not require a remand if the Sebers’ prior-use
easement claim fails as a matter of law because there is no evidence of essential
elements that were unaffected by the Hamrick decision.19               If the Sebers have been
pursuing for almost seven years a claim that fails as a matter of law under pre-
Hamrick law, the issuance of the Hamrick opinion hardly mandates a remand in
the interests of justice to allow the Sebers another chance to plead, seek discovery,
and attempt to recover on an easement-by-necessity claim, even if the case under
review happened to fall within the scope of Hamrick.20 Thus, Union Pacific’s first
and second appellate issues, if meritorious, would entitle Union Pacific to the
greatest possible relief. Therefore, this court must address these issues and reject

16
  See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201; Daenen, 15 S.W.3d at 99; Bradleys’
Electric, Inc., 995 S.W.2d at 676–77.
17
     See Tex. R. App. P. 43.3; Gaines v. Kelly, 235 S.W.3d 179, 185 (Tex. 2007).
18
  See Tex. R. App. P. 43.3; Kissman v. Bendix Home Sys., 587 S.W.2d 675, 678 (Tex. 1979)
(holding that interests of justice did not require a remand).
19
     See Tex. R. App. P. 43.3; Kissman, 587 S.W.2d at 678.
20
     See Tex. R. App. P. 43.3; Kissman, 587 S.W.2d at 678.

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them before considering the Hamrick issues.21 And, if one of these arguments has
merit, then this court should render judgment granting Union Pacific the greatest
possible relief, without even addressing the Hamrick arguments.22

                       The Merits of Union Pacific’s Second Issue

         In one of its no-evidence grounds, Union Pacific asserted there was no
evidence that, at the time of the alleged severance in 1959 (“Severance Time”), any
use of the claimed easement was apparent or continuous. In its second appellate
issue, Union Pacific asserts that the trial court erred in denying summary judgment
on this ground. The only summary-judgment evidence that potentially raises a fact
issue in this regard is Barbara Seber’s affidavit. In it, Barbara does not testify that
she ever saw the railroad crossing in question being used at or before the
Severance Time. Barbara states that, at the Severance Time, the railroad crossing
in question was apparent, but Barbara does not state that any use of the crossing
was apparent. Barbara makes conclusory statements that the railroad crossing was
in continuous use from 1902 until the Severance Time and from the Severance
Time until 2008. But, these conclusory statements do not raise a genuine fact issue
that would preclude summary judgment.23             Under the applicable standard of
review, the summary-judgment evidence did not raise a genuine issue as to
whether the railroad crossing at issue was being used in an apparent and
continuous manner at the Severance Time.24 Therefore, the trial court erred in
denying Union Pacific’s motion on this ground and in granting the Sebers’
21
  See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201; Daenen, 15 S.W.3d at 99; Bradleys’
Electric, Inc., 995 S.W.2d at 676–77.
22
  See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201; Daenen, 15 S.W.3d at 99; Bradleys’
Electric, Inc., 995 S.W.2d at 676–77.
23
  See Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997); Elizondo v. Krist, 338
S.W.3d 17, 22 (Tex. App.—Houston [14th Dist.] 2010), aff’d, 415 S.W.3d 259 (Tex. 2013).
24
     See Elizondo, 338 S.W.3d at 22–24.

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summary-judgment motion, and this court should reverse and render judgment that
the Sebers take nothing, without any remand to allow the Sebers to plead and
pursue any new claims.25

                    No Invitation to Remand in the Interests of Justice

          The majority points to Union Pacific’s additional briefing and suggests that
Union Pacific has invited this court to remand for further proceedings in light of
Hamrick.26 Union Pacific issued no such invitation. Rather than urge a remand in
light of Hamrick, Union Pacific argues that this court should reverse and render
judgment that the Sebers take nothing for an additional reason—because,
according to Union Pacific, the Sebers’ prior-use easement claim falls within the
scope of Hamrick and therefore the Sebers may not assert a prior-use easement
claim as a matter of law. Union Pacific does not invite this court to remand the
case to the trial court in the interests of justice, though Union Pacific does state at
one point in its briefing that this court could reverse and remand in the interests of
justice. At no point has Union Pacific waived, rescinded, or revoked the issues and
arguments in its original appellate brief. At oral argument, Union Pacific not only
argued that the interests of justice do not require a remand, but also reminded the
panel that it need not even address the Hamrick issues because the court could

25
    See Tex. R. App. P. 43.3; Kissman, 587 S.W.2d at 678; Drye, 364 S.W.2d at 209. The
Hamrick court held that, as a matter of law, a plaintiff may not assert a prior-use easement claim
if the plaintiff seeks roadway access to a landlocked parcel of land that previously was a part of
another parcel of land. See Hamrick, 446 S.W.3d at 381, 385. The case under review does not
involve two previously unified parcels of land. At most, it involves a 1.5 acre parcel of land and
Union Pacific’s easement to use the property on which the railroad tracks lie to operate a
railroad. A roadway over land owned in fee simple significantly limits the landowner’s ability to
develop the land. A crossing over a railroad’s easement to operate a railroad does not appear to
significantly limit the railroad company’s ability to operate a railroad, which is the only property
right the railroad possesses. Nonetheless, for the reasons outlined above, the court should
dispose of this appeal without addressing whether this case falls within the scope of Hamrick.
26
     See ante at p. 20.

                                                 9
dispose of the case based on arguments in Union Pacific’s original briefing. And,
that is what this court should do.

                                       Conclusion

          Under binding precedent, this court may not reverse and remand without
addressing Union Pacific’s two rendition arguments under its first and second
issues.27 The majority concludes that the court need not address these arguments or
the propriety of the trial court’s denial of Union Pacific’s no-evidence motion.28
The majority instead concludes that the trial court erred in granting the Sebers’
summary-judgment motion and then addresses whether the interests of justice
require a remand.29 For purposes of judicial economy and to comply with the
supreme court’s longstanding rule, this court should address Union Pacific’s
argument under its second issue. And, the court should sustain the second issue,
conclude that the interests of justice do not require a remand, reverse the trial
court’s judgment, and render judgment that the Sebers take nothing. Because the
court instead reverses and remands without addressing Union Pacific’s rendition
arguments, I respectfully dissent.



                                          /s/    Kem Thompson Frost
                                                 Chief Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally. (Boyce, J.
majority opinion).




27
  See Natural Gas Pipeline Co. of Am., 124 S.W.3d at 201; Daenen, 15 S.W.3d at 99; Bradleys’
Electric, Inc., 995 S.W.2d at 676–77.
28
     See ante at pp. 20–21.
29
     See ante at pp. 12–16, 16–19.

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