Affirmed and Memorandum Opinion filed November 26, 2019.




                                   In The

                   Fourteenth Court of Appeals

                            NO. 14-18-00170-CV

                          MTNV, INC., Appellant
                                     V.
               ALST REALTY, LLC & TUOI DO, Appellees

                  On Appeal from the 133rd District Court
                           Harris County, Texas
                     Trial Court Cause No. 2015-40735

                        MEMORANDUM OPINION

     Appellant MTNV, Inc. (“MTNV”) appeals the trial court’s judgment in
favor of appellees ALST Realty and Tuoi Do finding that a prior use easement,
appurtenant of an underground sewer line, exists benefitting dominant property
owned by ALST Realty across servient property owned by MTNV. We affirm.
                                 I.     Background

      At issue in this appeal is ALST Realty’s right to an implied easement for
access to an underground sewer line, which runs across MTNV’s tract of land.

      ALST Realty is the owner of a .7781acre tract of real property located at
8502 C. E. King Parkway, Houston, Texas (“Dominant Property”). MTNV is the
owner of an adjacent 3.1418 acre tract of real property located at 8514 C. E. King
Parkway, Houston, Texas (“Servient Property”).           Greenwood Utility District
provides water and sewer services to the Servient Property. The underground
sewer line is connected to the Greenwood Utility Lift Station. Prior to the parties’
ownership, Ronald Tomlinson (“Tomlinson”) owned and developed the Dominant
Property, the Servient Property and the Lift Station Property for his own use as a
commercial shopping center. Unity of ownership by Tomlinson is undisputed.

                     History of the dominant and subservient properties

      Tomlinson severed the unified tract into two properties on September 14,
1989, when he sold the Servient Property to Le Bich Hoang and Luong Hoang.

      Tomlinson kept title to the Dominant Property until he sold it to Angie C.
Autry on June 30, 1995. On April 21, 1999, Autry sold the Dominant Property to
Frank and Jewell Bush. Thereafter, on January 11, 2005, the Bush’s sold the
property to third-party defendant/appellee Tuoi Do.1 Greenwood Utility District
agreed to operate the lift station to process the sewage from the Dominant Property
in exchange for the electric bill being paid by Do when she owned the Dominant
Property. This was consistent with the arrangement between Greenwood Utility
District and Frank Bush when he owned the Dominant Property.

      1
         Susan Vu and Hanh Nguyen allegedly helped facilitate the sale of the Dominant
Property to Tuoi Do. Tuoi Do knew Susan Vu and Hanh Nguyen because they all attended the
same church.

                                           2
       On March 27, 2008, Tomlinson sold the .0354 tract of land where the lift
station is located to Greenwood Utility District. In or around February 2011, Do
began paying Greenwood Utility District the equivalent of a sewer usage fee—i.e.,
she paid a calculated amount that would be the equivalent of a tax rate as well as
an estimated usage of the sewage. In exchange, Do stopped paying the electricity
bills for the lift station.

       MTNV, the operator of a commercial shopping center, purchased the
Servient Property on December 6, 1999.2 According to MTNV,3 at the time of
purchase, the use of the underground sewer line by the Dominant Property was not
apparent, continuous, and/or necessary to the use of the Dominant Property
because multiple septic tanks existed on the Dominant Property.

                              2013 rupture of water line

        In 2013, there was a break in a water line allegedly on the Servient
Property. At that time, Do owned the Dominant Property, which was managed by
Sidney E. Webb, Jr. The break in the water line was believed to be caused by dry
weather and lack of rain which caused the land to shift, resulting in a rupture in the
water line. Do and MTNV disputed responsibility. According to MTNV, sewage
and/or water intruded on to MTNV’s property and resulted in a high water bill—
totaling $7,278.22. Do denied any liability for the break in MTNV’s water line.

       MTNV hired and paid a licensed plumber, Roland Balderas II, who repaired
the water leak. Balderas also reconnected the damaged sewer taps connecting the



       2
         After Tomlinson sold the Servient Property to Hoang, the ownership history of the
Servient Property reflects three additional owners prior to MTNV.
       3
       The President of MTNV is Xuan Thi Vu also known as Susan Vu. Her husband is
Hanh Nguyen. Nguyen performed maintenance on the Servient Property.

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sewer lines on the Dominant Property to the sewer lines on the Servient Property.
MTNV also paid the high water bill from Greenwood Utility District.

      In January 2014, ALST Realty purchased the Dominant Property from Do in
an “as is” condition. ALST Realty utilizes the Dominant Property as a mixed use
property; it has commercial properties, residential duplexes, and mobile homes.

      On July 15, 2015, ALST Realty filed suit seeking a temporary restraining
order, declaratory judgment and temporary injunction against MTNV, based, in
part, on the dispute between MTNV and Do over the 2013 damage to the broken
water line and/or sewer line and MTNV’s threat that MTNV would sever the sewer
line unless ALST Realty paid the high water bill. ALST Realty sought declaratory
relief from the court in the form of an easement by equitable estoppel or quasi-
estoppel. On July 16, 2015, the trial court granted ALST Realty’s application for
TRO ex parte and set a hearing on the temporary injunction.

      On July 27, 2015, MTNV filed its answer, counterclaims to ALST Realty’s
application for TRO and injunctive relief, and a cross-claim again Do. MTNV
alleged Do trespassed on the Servient Property and illegally tapped into MTNV’s
sewer line. According to MTNV, while illegally tapping into its sewer line, Do
broke MTNV’s water line, resulting in monetary damages and ground
contamination. Do, who appeared pro se in the trial court and on appeal, filed a
response to the cross-claim, denying responsibility.

      On June 14, 2017, the case was tried to the court in a bench trial. The trial
court rendered judgment in favor of ALST Realty and, on December 6, 2017,
issued Final Judgment. The trial court found that a prior use easement appurtenant
of the underground sewer line exists benefitting the Dominant Property (ALST




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Realty) across the Servient Property (MTNV).4 The trial court granted ALST
Realty a permanent injunction preventing MTNV from interfering with the
easement rights belonging to ALST Realty.                  On January 22, 2018, the court
entered Findings of Facts and Conclusions of Law. There were no requests to file
additional findings of facts and conclusions of law. MTNV timely filed its notice
of appeal.

                                       II.     Analysis

       On appeal, MTNV raises the following four issues: (1) whether the trial
court erred in finding there was sufficient evidence of prior use easement
appurtenant      for    a    sewer     line    at    the    time     the    subject     property
was severed in 1989; (2) whether the trial court abused its discretion by failing to
exclude testimony of Sydney Webb, Jr., who testified regarding Tomlinson’s
statements about development of the subject property, in violation of the hearsay
rules and the Dead Man’s Rule (Rule 801 and Rule 601 of the Texas Rules of
Evidence); (3) whether the trial court abused its discretion in granting ALST
Realty a permanent injunction in the absence of a pleading requesting such relief;
and (4) in the alternative, whether the trial court erred as a matter of law in finding
third-party defendant Do not liable to MTNV for the 2013 damages to the sewer
line and/or water line.

A.     Sufficiency of the evidence

       In its first issue, MTNV asserts that the evidence presented to the trial court
was factually and legally insufficient to establish an easement at the time


       4
         In rendering its verdict, the trial court observed that there was no pleading for a prior
use easement. Rather, ALST Realty’s pleadings were for easement by estoppel or quasi-
estoppel. The trial court, however, found that prior use easement was tried by consent. MTNV
does not dispute this determination.

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Tomlinson severed the subject property, and the trial court erred as to its
conclusion that there was an implied easement at the time of severance.

      1.     Standards of review

      A trial court’s findings of fact in a bench trial have the same force and
dignity as the jury’s verdict upon questions. Anderson v. City of Seven Points, 806
S.W.2d 791, 794 (Tex. 1991). When the trial court acts as a factfinder, its findings
are reviewed under legal and factual sufficiency standards. Id. When specific
findings of fact and conclusions of law are filed and a reporter’s record is before
the appellate court, the findings will be sustained if there is evidence to support
them. We review the legal conclusions drawn from the facts found to determine
their correctness. TMC Worldwide, L.P. v. Gray, 178 S.W.3d 29, 36 (Tex. App.—
Houston [1st Dist.] 2005, no pet.).

      We review the trial court’s conclusions of law de novo. See BMC Software
Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Conclusions of law are
upheld if the judgment can be sustained on any legal theory the evidence supports.
Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex. App.—Houston [14th Dist.]
1996, no writ).

      When a party attacks the legal sufficiency of an adverse finding on which he
did not have the burden of proof, he must demonstrate on appeal that no evidence
supports the finding. Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263
(Tex. 2014) (per curiam). We review the evidence in the light most favorable to
the appealed finding and indulge every reasonable inference that supports it. City
of Keller v. Wilson, 168 S.W.3d 802, 821–22, 827 (Tex. 2005); Graham Cent.
Station, 442 S.W.3d at 263. But the fact finder is the sole judge of the credibility
of the witnesses and the weight to give their testimony, and it is the province of the
fact finder to resolve conflicts in the evidence. City of Keller, 168 S.W.3d at 819–
                                          6
20. If the evidence at trial would enable reasonable and fair-minded people to
differ in their conclusions, then the fact finder must be allowed to do so, and we
may not substitute our judgment for that of the fact finder. Id. at 822.

      When a party attacks the factual sufficiency of the evidence pertaining to a
finding on which the party did not have the burden of proof, we may set aside the
finding only if it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. Bennett v. Comm’n for Lawyer Discipline, 489 S.W.3d
58, 66 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The amount of evidence
necessary to affirm is far less than the amount necessary to reverse a judgment.
GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied).

      This court is not a factfinder. Maritime Overseas Corp. v. Ellis, 971 S.W.2d
402, 407 (Tex. 1998). Instead, the trier of fact—in this case the trial court—is the
sole judge of witness credibility and the weight afforded their testimony. GTE
Mobilnet, 61 S.W.3d at 615–16. Therefore, we may not pass upon the witnesses’
credibility or substitute our judgment for that of the trial court, even if the evidence
would also support a different result. Id. “If we determine that the evidence is
factually insufficient, we must detail the evidence relevant to the issue and state in
what regard the contrary evidence greatly outweighs the evidence in support of the
challenged finding; we need not do so when we affirm.” Bennett, 489 S.W.3d at
66.

      2.     Prior use easements

      A party seeking to claim a prior use easement must prove: “(1) unity of
ownership of the alleged dominant and servient estates prior to severance; (2) the
use of the claimed easement was open and apparent at the time of severance;
(3) the use was continuous, so the parties must have intended that its use pass by
                                           7
grant; and (4) the use must be necessary to the use of the dominant estate.”
Hamrick v. Ward, 446 S.W.3d 377, 383 (Tex. 2014) (citing Drye v. Eagle Rock
Ranch, 364 S.W.2d 196, 207–08 (Tex. 1962))

      3.    The evidence is sufficient to support the trial court’s finding of an
            implied easement by prior use
      MTNV argues the trial court committed reversible error in holding that there
is an implied easement as a matter of law, citing paragraph 22 of the trial court’s
“findings of law.” “MTNV contends that when Tomlinson severed the property
into two tracts of land, the use of the underground sewer line by the Dominant
Property was not apparent, continuous, or necessary to the use of the Dominant
Property as there existed multiple septic tanks on the Dominant Property.”

      ALST Realty maintains the trial court did not err in finding an implied
easement by prior use because testimony supported each element. As to the first
element (unity of ownership), it is undisputed that Tomlinson owned both the
Dominant and Servient Property. As evidence of element two (use of the easement
at the time of the severance) and element three (continuous use of the easement by
the Dominant Property), ALST Realty offered the testimony of Webb. Webb
testified that he knew the developer, Tomlinson, and Webb watched the installation
and preparation of the property for the water and sewer lines. He testified how
Tomlinson installed the water line and sewer line in close proximity to each other.
Webb recounted personal conversations with Tomlinson about the lift station to
provide sewer service to his businesses. “[Tomlinson] said he had to have a lift
station to provide sewer for his businesses.” Webb testified that only a sewer line
could handle the sewage from the business district located on the Dominant
Property and the sewage from the residential improvements also located on the
Dominant Property. Webb further testified there were no septic tanks in use on the
Dominant Property due to physical limitations of the size of the Dominant
                                         8
Property. “There is no way a septic tank would hold—there is not enough room to
have an active septic tank on that property.”

      Webb further testified that sewage from the Dominant Property always had
been treated through the six inch sewer line going across the Servient Property.
In fact, the trial court asked Webb a series of questions regarding the installation of
the sewer line for the benefit of the Dominant Property by Tomlinson, when
Tomlinson owned both the Dominant Property and the Servient Property. When
the trial court inquired how Webb knew about the sewage prior to 2011, when
Webb began leasing a space from Do, Webb responded:

             The Witness: Judge, I grew up in that area. I personally knew
      the developer and I know all about the construction about the facility
      and I know all about the lift station that Ronald Tomlinson had
      installed. And it’s to Ronald Tomlinson’s benefit to tie everything in
      because he owned all the properties.
      Webb confirmed that “[t]here are no septic tanks on the [Dominant
Property].” Webb acknowledged that there was an abandoned septic tank on the
ALST Realty property, but the tank had not been used since Tomlinson developed
the property. Webb clarified the prior use to the trial court, as follows:

             The Court: Are you telling me you have personal knowledge
      that since the property has been developed that the sewage from the
      Plaintiff’s tract [Dominant Property] has always been tied into the
      main line going across the Defendant’s tract [Servient Property] over
      to the lift?
            The Witness: That’s what I’m saying, yes, sir, I was there
      during the development and it’s always been tied to the lift station.
The underground sewer lines running under the Dominant Property and the
Servient Property all the way to the lift station property are “apparent” if their
existence “is indicated by signs which might be seen or known on a careful
inspection by a person ordinarily conversant with the subject.” See Westbrook v.

                                           9
Wright, 477 S.W.2d 663, 666 (Tex. Civ. App.—Houston [14th Dist.] 1972, no
writ) (subsurface sewer line found to be apparent). As this court observed in
Westbrook,

      The fact that subsurface installations might not be obvious to a
      stranger to the transaction upon casual observation will not
      necessarily defeat the requirement of apparency. In Wiesel v. Smira,
      49 R.I. 246, 142 A. 148, 150 (1928), the Court was confronted with a
      similar circumstance and stated that although the sub-surface pipe was
      not visible, clearly the appliances connecting with and leading to it
      were obvious and disappearance of waste from the houses involved
      was plain. ‘Apparent’ in instances involving sub-surface installations
      that are installed to avoid being seen can not [sic] be considered to be
      synonymous with ‘visibility.’ 1 Thompson on Real Property 474, Sec.
      368 (1st ed. 1924).
Id.
      The fact finder is the sole judge of the credibility of the witnesses and the
weight to give their testimony. City of Keller, 168 S.W.3d at 819–20. Webb’s
testimony established the second and third elements for finding an implied
easement by prior use. Other than unsupported criticism about what Webb could
have known as a young man growing up in the area and observing Tomlinson
develop the property, and the repeated argument that there were septic tanks on the
Dominant Property, MTNV does not offer any evidence that contradicts Webb’s
testimony as to the establishment of the sewer line on both tracts of property and
that the sewer line was needed at all times to process sewage from the Dominant
Property. The trial court concluded that Webb’s testimony that Tomlinson set up
the sewer line for the benefit of the Dominant Property was credible and proved
continuous use after the severance of the Servient Property from the Dominant
Property.

      The trial court heard conflicting testimony on the existence of septic tanks.
The trial court heard testimony from Webb that the Dominant Property could not
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have used septic tanks to process all the sewage produced by the Dominant
Property, and that the sewage from the Dominant Property has been tied into the
sewer line located on the Servient Property since the property was developed by
Tomlinson. Susan Vu testified that Do was using a septic tank until she illegally
tied in to the Servient Property sewer line. The trial court resolved the inconsistent
testimony with its findings that it was not economically feasible for the Dominant
Property to tie into the Greenwood Utility District except via the sewer line under
the Subservient Property, that the Dominant Property cannot process all its sewage
by septic tanks located on the property, and that any prior septic tank was for a
prior building and not related to the installation of the sewer line installed on the
Dominant Property and Subservient Property by Tomlinson. It is the province of
the fact finder to resolve conflicts in the evidence. City of Keller, 168 S.W.3d at
819–20

      Finally, as to the fourth element, ALST Realty provided testimony at trial to
prove that the easement is reasonably necessary to fair use of the Dominant
Property. A principal of ALST Realty, Harm Dieter Liebich, testified that the
Dominant Property needs to have continued access to the sewer line easement to
process sewage from the Dominant Property; otherwise, ALST Realty could not do
anything with the Dominant Property. Webb also testified that if the sewage could
not be treated by sending it through the sewer line on the Servient Property, it
would create a hazardous condition and be a health and safety concern. As set
forth, supra, Webb testified that there is not enough room on the Dominant
Property to install septic tanks to handle the sewage.

      We conclude the evidence at trial supported the trial court’s findings of fact
and conclusions of law as to the establishment of the four elements necessary for a



                                         11
prior use easement in favor of ALST Realty to use the sewer line on the Servient
Property. See Hamrick, 446 S.W.3d at 383.

       MTNV’s first issue is overruled.

B.     Admission of Evidence

       In its second issue, MTNV argues that Webb’s testimony related to
Tomlinson should have been excluded as hearsay (Texas Rules of Evidence Rule
801(d) and/or under Rule 601 of the Texas Rules of Evidence (the “Dead Man’s
Rule”)).5 We review evidentiary rulings for abuse of discretion. Sw. Energy Prod.
Co. v. Berry-Helfand, 491 S.W.3d 699, 728 (Tex. 2016).

       MTNV did not object at trial as to the statements made by Tomlinson to
Webb:

       Q.   (By Mr. Smith): Did you have any personal conversations with
       Mr. Tomlinson about the MUD District going on out there?
       A.     He only said he had to have a lift station to provide the sewer
       for his businesses.
       Q.    When he was saying that, did he own both the Plaintiff’s
       Property and the Defendant’s property together?
       A.    The best of my knowledge, yes, sir, he developed both
       properties.
To preserve a complaint for review, a party must have presented to the trial court a
timely request, objection, or motion that states the specific grounds for the desired


       5
           The “Dead Man’s Rule,” provides in relevant part:
       (1) Applicability. The “Dead Man’s Rule” applies only in a civil case:
              (A) by or against a party in the party’s capacity as an executor,
       administrator, or guardian; or
              (B) by or against a decedent’s heirs or legal representatives and based in
       whole or in part on the decedent’s oral statement.
Tex. R. Evid. 601(b).

                                               12
ruling, if it is not apparent from the context of the request, objection, or motion.
See Tex. R. App. P. 33.1(a)(1). When a party fails to do so, error is not preserved,
and the complaint is waived. See Bushell v. Dean, 803 S.W.2d 711, 712 (Tex.
1991). MTNV failed to object to Webb’s testimony at trial; thus, MTNV failed to
preserve error and cannot complain about this testimony for the first time on
appeal.

      To the extent MTNV asserts that the testimony is prohibited under the
“Dead Man’s Rule,” MTNV is mistaken. This rule of evidence is construed
narrowly and is only applicable when the civil action is “by or against executors,
administrators, or guardians.” Tex. R. Evid. 601(b) (emphasis added); see also
Seymour v. Am. Engine & Grinding co., 956 S.W.2d 49, 55 (Tex. App.—Houston
[14th Dist.] 1996, writ denied). Rule 601(b) has no applicability to the lawsuit
between ALST Realty and MTNV because the parties being sued are individuals
and entities, not executors, administrators, or guardians. See id. (citations omitted)
(determining factor capacity in which parties sued). As such, MTNV’s contention
is without merit.

      MTNV’s second issued is overruled.

C.    Permanent Injunction not an abuse of discretion

      In its third issue, MTNV maintains the trial court abused its discretion in
granting ALST Realty a permanent injunction in the absence of a pleading
requesting such relief. MTNV asserts that the trial court did not have authority to
enjoin MTNV from interfering with the easement rights of ALST Realty.

      Contrary to MTNV’s contention, ALST Realty’s petition put MTNV on
notice that ALST Realty was seeking a “temporary injunction and injunction in
this lawsuit.” ALST Realty set forth the grounds to enjoin MTNV from severing


                                         13
the Dominant Property access to the sewer lines. Additionally, ALST Realty made
MTNV aware that it was seeking a declaration of its rights in the easement and
further sought to quiet title to the easement. MTNV was aware ALST Realty was
seeking to use the sewer line without interference, based on ALST Realty’s prayer
in its Petition, and by MTNV’s counterclaim threatening to cut off access to the
sewer lines used by ALST Realty.

      The purpose of pleadings is to give the parties notice of claims, defenses and
the relief sought. Perez v. Briercroft Serv. Corp., 809 S.W.2d 216, 218 (Tex.
1991). When a defendant pleads a defense that contemplates a particular remedy,
despite the plaintiff not having specifically requested such relief, the pleading
notice requirement is met, and defendant cannot claim the relief sought is not at
issue. See id. The propriety of a remedy depends not on the specific relief sought
but on the facts pleaded and proven. See Holmstrom v. Lee, 26 S.W.3d 526, 533
(Tex. App.—Austin 2000, no pet.).

      When the trial court found that an implied prior use easement existed for the
sewer line, it is a logical conclusion that MTNV is precluded from interfering with
the easement rights of ALST Realty. See Dry v. Eagle Rock Ranch, Inc., 364
S.W.2d 196, 207 (Tex. 1962). Thus, the trial court did not abuse its discretion in
granting this remedy.

      The appellant’s third issue is overruled.




                                         14
D.     Trial court properly found no liability against third-party Do

      In its fourth, alternative issue, MTNV contends the trial court erred as a
matter of law in finding third-party defendant Do not liable to MTNV for the
damage to the sewer line and/or water line which broke in 2013.

      In its pleading, MTNV brought suit against Do seeking a declaratory
judgment that Do never had an easement while she owned the Dominant Property,
and that Do illegally trespassed on MTNV’s property to tap into MTNV’s sewer
line, causing MTNV to suffer economic damages. MTNV also sued Do to recover
attorney’s fees and court costs. The trial court found “Do did not trespass illegally
on the property of MTNV, INC to tap into the sewer line. Based on the testimony
from the witnesses at trial, the Court found no credible evidence to support
allegations of trespass.” The trial court further found “no ground for MTNV, INC.
to seek declaratory judgment against TUOI DO for any purported wrongful
conduct by TUOI DO.” MTNV does not challenge either finding. Instead, MTNV
asserts an alternate argument that was neither pled nor tried by consent—that Do
had a maintenance and repair responsibility as owner of the Dominant Property
and Do’s alleged negligence of maintenance and repair when the water line broke
in 2013 resulted in $5,000.00 in property damages to MTNV for which it seeks
reimbursement. Because MTNV did not plead the issue and it was not tried by
consent, MTNV has failed to demonstrate an abuse of discretion by the trial court.

      As such, MTNV’s fourth issue is overruled.




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                                III.   Conclusion

      The judgment of the trial court is affirmed.




                                       /s/    Margaret “Meg” Poissant
                                              Justice



Panel consists of Justices Christopher, Hassan, and Poissant.




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