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                                             OPINION

                                         No. 04-08-00021-CV

                         Xavier REYES and Wife Maria del Rosario T. Reyes,
                                           Appellants

                                                  v.

                             Eligio E. SAENZ, Jr. and Wife Martha Saenz,
                                             Appellees

                      From the 229th Judicial District Court, Duval County, Texas
                                      Trial Court No. DC-06-287
                             Honorable Alex W. Gabert, Judge Presiding


Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: July 9, 2008

REVERSED AND REMANDED

           This is an appeal from the trial court’s summary judgment rendered in favor of appellees.

Because appellees did not establish their entitlement to summary judgment as a matter of law, we

reverse and remand.
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                                        BACKGROUND

       Appellants, Xavier Reyes and Maria del Rosario T. Reyes own sixty acres of land, which

they acquired in 1978 from Francisca Thrash. Appellees, Eligio E. Saenz, Jr. and Martha Saenz own

approximately eighty-seven acres of land, which they acquired in 1970 from the previous owners,

who in turn had acquired the land from Francisca Thrash in 1965. There is no dispute that the land

owned by the Saenzes is landlocked. However, a road exists that passes from a public road that

leads across Mrs. Thrasher’s land and across the Reyeses’ land to the Saenzes’ land. In October

2006, the Saenzes sued the Reyeses asking for a declaratory judgment on their right of way across

the Reyeses’ property for the purpose of accessing the Saenzes’ property. The Saenzes also asked

that the Reyeses be permanently enjoined from interfering with their use and enjoyment of the

roadway across the Reyeses’ property. In their petition, the Saenzes based their request for relief

on five theories: implied easement appurtenant, easement by implication, easement by necessity,

easement by estoppel, and easement by prescription. The Saenzes later moved for summary

judgment on three of their five theories: implied easement appurtenant, easement by implication, and

easement by necessity. The trial court rendered summary judgment in favor of the Saenzes “under

the various legal theories pled by them.” This appeal by the Reyeses ensued.

                          NO-EVIDENCE SUMMARY JUDGMENT

       The Saenzes moved for both a no-evidence summary judgment and a traditional summary

judgment. The basis of the Saenzes’ no-evidence motion was that the Reyeses had “failed to

produce any evidence to negate or disprove the essential elements of [the Saenzes’] claims.”

Although the trial court did not state whether it was granting the no-evidence motion or the

traditional motion or both, we construe the court’s statement that the Saenzes were entitled to


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summary judgment “under the various legal theories pled by them” as granting a traditional

summary judgment. We also note that the Saenzes, as plaintiffs, were not entitled to a no-evidence

summary judgment on their own claims. The Texas Rules of Civil Procedure allow a party to move

for summary judgment “on the ground that there is no evidence of one or more essential elements

of a claim ... on which an adverse party would have the burden of proof at trial.” TEX. R. CIV. P.

166a(i) (emphasis added). The Saenzes had the burden of proof on their easement claim; therefore,

they were not entitled to a no-evidence summary judgment on that claim.

                          TRADITIONAL SUMMARY JUDGMENT

       The Saenzes’ petition asserted five theories as the basis for their requested relief; however,

they moved for a traditional summary judgment on only three of those grounds: implied easement

appurtenant, easement by implication, and easement by necessity. Accordingly, to the extent the

trial court rendered judgment in favor of the Saenzes on the two grounds not raised in their motion,

the Saenzes were not entitled to summary judgment on the theories of easement by estoppel and

easement by prescription. We thus narrow our review to whether the Saenzes established their

entitlement to summary judgment as a matter of law under the remaining three grounds.

       A plaintiff, as movant, must conclusively prove all essential elements of his or her claim to

be entitled to summary judgment. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). The movant

bears the burden of showing there are no genuine issues of material fact and that he or she is entitled

to judgment as a matter of law. Id.; TEX. R. CIV. P. 166a(c). An essential element common to all

three theories under which the Saenzes sought relief is the element of necessity. See Drye v. Eagle

Rock Ranch, Inc., 364 S.W.2d 196, 207-08 (Tex. 1962) (stating an easement is appurtenant when

it is necessary and essential to the enjoyment of the dominant estate; to prove an easement by


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implication, the use must be necessary to the use of the dominant estate); Koonce v. J.E. Brite

Estate, 663 S.W.2d 451, 452 (Tex. 1984) (stating one of the required elements to establish an

easement by necessity is that “access must be a necessity and not a mere convenience”).

       In their motion for summary judgment, the Saenzes asserted “the use of the road was

necessary because it was, and still is, the only practicable way to reach [the Saenzes’] landlocked

property. There is no other practicable means of access.” There is no dispute that the Saenzes must

cross property owned by another in order to access their acreage. However, no summary judgment

evidence was offered to support, or explain, their contention that access across the Reyeses’ property

was the “only practicable way” to reach the Saenzes’ property. Conclusory statements contained

in a motion for summary judgment do not constitute summary judgment evidence. See TEX. R. CIV.

P. 166a(c) (prohibiting oral evidence in summary judgment determination); Laidlaw Waste Sys.

(Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (noting pleadings are not

competent summary judgment evidence); Madeksho v. Abraham, Watkins, Nichols & Friend, 57

S.W.3d 448, 455 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (noting conclusions in motion

for summary judgment or response are not summary judgment evidence).

       Also, in their response to the Saenzes’ motion, the Reyeses point to the testimony of Xavier

Reyes, which the Saenzes attached to their motion for summary judgment, in which Xavier is

questioned as follows:

       Q.      All right. And are you aware of whether or not Eligio [Saenz] has any other
               method of getting to a public roadway, other than through Mrs. Thrash’s
               property and through your property?

       A.      He’s even going through my, my easement that I bought outright several
               times, and also through the ranch, through other places. [Emphasis added]

       Q.      Through what other places sir?

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         A.       Through mine and Bazans and Manuel Reyes too. He’s been using it, not
                  right now because he locked the gates. [Emphasis added]

Xavier Reyes’ testimony raises a genuine issue of material fact on whether the Saenzes have other

means of access to their property and on whether access across the Reyeses’ property is a necessity,

as opposed to a mere convenience. Therefore, we conclude the Saenzes failed to conclusively prove

an essential element common to all three of the claims on which they moved for summary judgment.

Accordingly, the trial court erred in rendering summary judgment in favor of the Saenzes.

                                                 CONCLUSION

         We reverse the trial court’s judgment and remand for further proceedings.1



                                                                Sandee Bryan Marion, Justice




         1
            We decline to address the Reyeses’ first and third issues as they are not dispositive to this appeal. TEX.
R. APP. P. 47.1.


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