      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-09-00610-CV



                              Infiniti Hotel Group, LLC, Appellant

                                                  v.

                          Vinay Patel and Sai Laxmi, LLC, Appellees


     FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
          NO. C2009-0138B, HONORABLE DIB WALDRIP, JUDGE PRESIDING



                             MEMORANDUM OPINION


               This appeal arises from a dispute between adjoining property owners regarding an

easement. Appellant Infiniti Hotel Group, LLC filed suit against appellees Vinay Patel and

Sai Laxmi, LLC (collectively “Sai Laxmi”) seeking to enjoin Sai Laxmi from constructing a hotel

and parking lot that would require access over Infiniti’s lot. Sai Laxmi counterclaimed for

declaratory judgment regarding a claimed easement. Infiniti appeals from a summary judgment in

favor of Sai Laxmi on their counterclaims, asserting that the trial court erred by (1) failing to hold

a separate evidentiary hearing on the admissibility of Infiniti’s expert affidavit, (2) sustaining Sai

Laxmi’s objections to Infiniti’s expert affidavit, (3) granting Sai Laxmi’s summary judgment motion,

and (4) denying Infiniti’s motion to enforce a rule 11 agreement. We will affirm the judgment.
                      FACTUAL AND PROCEDURAL BACKGROUND

                The parties own a total of three lots located on the frontage road of IH-35 in New

Braunfels, Texas. Sai Laxmi owns two lots along the frontage road and Infiniti owns a T-shaped lot

located behind Sai Laxmi’s lots. The “stem” of Infiniti’s “T” ends at the frontage road and connects

the main portion of Infiniti’s otherwise landlocked property to the IH-35 frontage. Sai Laxmi’s lots

are located on either side of Infiniti’s lot. The following is a simplified drawing of the lots.




The light gray area of this drawing, which is the “stem” of Infiniti’s lot, is a private road connecting

the IH-35 frontage to Infiniti’s main lot. It provides the only access from the IH-35 frontage to the

three lots because the Texas Department of Transportation (“TxDOT”) has designated the areas

where lots 1D-3 and 1D-4 adjoin the IH-35 frontage as “no access” areas. Lot 1D-1, which is not

part of this suit, has separate access to another road.

                Sai Laxmi wanted to construct a multistory hotel on lot 1D-3 and use the smaller lot

1D-4 as a parking lot. Because New Braunfels’ zoning ordinances require that parking spaces be



                                                   2
located on the same lot as the structures they serve, Sai Laxmi sought a variance from the city to

allow construction of parking spaces on the second lot across the “shared access roadway”—i.e.,

Infiniti’s private road—from the hotel lot. Infiniti objected to the request on various grounds, but,

after a public hearing, the city’s zoning board approved Sai Laxmi’s variance.

                Infiniti filed this suit in district court against the zoning board and Sai Laxmi, seeking

review of the zoning board’s decision and an injunction to prevent Sai Laxmi from beginning

construction on its hotel and parking lot. Infiniti asserted that the zoning board’s variance created

a public safety hazard and increased Infiniti’s liability exposure. Infiniti also argued that the board’s

decision “erroneously assume[d] that Sai Laxmi had an easement across Infiniti’s private road.” In

response, Sai Laxmi filed a counterclaim, seeking declaratory judgment that its two lots benefitted

from an “express easement for utilities and shared access” to Infiniti’s private road that provided

“unrestricted rights to ingress and egress” for Sai Laxmi’s two adjoining lots.

                Sai Laxmi then filed a motion for summary judgment, asserting that it was entitled

to summary judgment on its counterclaim for declaratory relief. It argued that the plat records for

the three lots, which were referenced in the warranty deeds for all three lots, show as a matter of law

that the Sai Laxmi’s two lots benefit from a “non-exclusive Easement Appurtenant for Shared

Access and Utilities with Rights.” In support of its motion, Sai Laxmi offered the affidavit of Vinay

Patel, which included the warranty deeds and the plat record referenced in those warranty deeds.

                Four days before the hearing on Sai Laxmi’s motion for summary judgment, after

having unsuccessfully sought a continuance of that hearing, Infiniti nonsuited its claims against Sai

Laxmi and filed a response to Sai Laxmi’s motion for summary judgment. Infiniti’s response



                                                    3
asserted that Sai Laxmi was not entitled to summary judgment because the plat did not grant Sai

Laxmi’s lots an easement for shared access to Infiniti’s private road. In support of its response,

Infiniti attached the affidavit of its expert, Robert Miller. Sai Laxmi objected to Miller’s affidavit,

asserting that his testimony was inadmissible because (1) Miller was not qualified to render expert

testimony in the case, (2) his underlying methodology was unreliable, and (3) his affidavit contained

legal conclusions.

                 After hearing argument, the district court took the matter under advisement. Ten days

after the hearing, on August 20, 2009, the trial court issued an order sustaining Sai Laxmi’s

objections to Miller’s affidavit and granting partial summary judgment in favor of Sai Laxmi on its

counterclaim against Infiniti.1 The trial court found that Sai Laxmi’s lots “held an express easement

for utilities and shared access along the entirety of [Infiniti’s private road].” The trial court notified

the parties of its decision in the matter by a letter dated and file marked August 21, 2009.

                 On August 24, 2009, the parties, apparently unaware of the court’s August 20, 2009

ruling, entered into a rule 11 letter agreement regarding various scheduling and discovery matters,

including an agreed date for a rehearing on Sai Laxmi’s summary-judgment motion. After learning

of the summary judgment, Infiniti filed a motion asking the trial court to reconsider its summary

judgment and enforce the rule 11 agreement. The trial court did not make an express ruling on either

of these two motions, but did grant the parties’ agreed motion to sever this case from Infiniti’s claims

against the zoning board, rendering the trial court’s partial summary judgment final. Infiniti appeals.




        1
            Infiniti’s claims against the city remained pending.

                                                    4
                                            DISCUSSION

Expert-witness affidavit

                In its first two issues, Infiniti contends that the trial court erred in finding that its

expert-witness affidavit was inadmissible as summary-judgment evidence.                 The admission

and exclusion of expert testimony are matters within the trial court’s discretion. See E.I. du Pont

de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also City of

Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995) (discussing admission and exclusion of

evidence in general). To successfully challenge an evidentiary ruling, the complaining party must

show that the judgment turned on the particular evidence being challenged and that the error in

admitting or excluding the evidence probably resulted in the rendition of an improper judgment.

Tex. R. App. P 44.1(a); Alvarado, 897 S.W.2d at 753-54. The evidence at issue consisted of Miller’s

expert-witness affidavit regarding the proper construction and effect of the relevant plat records. The

dispositive issue in this case is whether the plat record created an express easement for shared access

to Infiniti’s private road. For reasons discussed in greater detail below, we hold that the plat

records here are “susceptible to only one reasonable, definite interpretation after applying the rules

of contract construction” and thus present purely legal questions. See Marcus Cable Assocs.,

L.P. v. Krohn, 90 S.W.3d 697, 703 (Tex. 2002). As such, the issue in this case is not a matter for

which expert-opinion testimony will assist the trier of fact. See Upjohn Co. v. Rylander, 38 S.W.3d

600, 611 (Tex. App.—Austin 2000, pet. denied) (expert witness may not testify regarding an opinion

on a pure question of law); Tex. R. Evid. 702 (providing that expert witness may testify if “scientific,

technical, or other specialized knowledge will assist the trier of fact to understand the evidence or



                                                   5
to determine a fact in issue”). Infiniti makes no showing of how the exclusion of Miller’s affidavit

probably caused the rendition of an improper judgment, and, after reviewing the summary-judgment

record, we conclude any error in excluding the affidavit testimony was harmless. See Tex. R. App.

P. 44.1. Accordingly, we overrule Infiniti’s first and second issues.


Summary Judgment

               In its third issue, Infiniti argues that the trial court erred in granting Sai Laxmi’s

summary judgment because it incorrectly interpreted the phrase “U.E. & Shared Access” in the plat

records as granting an “express easement for utilities and shared access” to Infiniti’s road that

benefitted Sai Laxmi’s two lots. Infiniti asserts that Sai Laxmi purchased two landlocked lots—i.e.,

they have no access to the IH-35 frontage over Infiniti’s private road—because “shared access”

merely indicates the one place—i.e., shared—where these three lots can legally access IH-35, but

that Sai Laxmi failed to obtain “appropriate internal access easements” to use the access point.

               We review summary judgments de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). A movant is entitled to summary judgment if (1) there are no

genuine issues of material fact, and (2) it is entitled to judgment as a matter of law. Tex. R. Civ. P.

166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690S.W.2d 546, 548-49 (Tex. 1985). We indulge

every reasonable inference and resolve any doubts in favor of the non-movant. Nixon, 690 S.W.2d

at 548-49.

               An easement is a nonpossessory right to use the real property of another. Marcus

Cable, 90 S.W.3d at 700. An express easement is created by agreement of the parties and is subject

to the statute of frauds. Cummins v. Travis County Water Control & Improvement Dist. No. 17,

                                                  6
175 S.W.3d 34, 51 (Tex. App.—Austin 2005, pet denied). To satisfy the statute of frauds, the

written document creating the easement must show the intent of the parties, the essential terms of

the easement, and an adequate description of the easement’s location. Id. No particular words or

forms, however, are required to create an easement as long as the language shows the intention to

grant or reserve an easement. Mitchell v. Castellaw, 246 S.W.2d 163, 166-67 (Tex. 1952). An

easement’s express terms, which are to be given their plain meaning, define the purposes for which

the easement holder may use the property. Id.

                “We apply basic principles of contract construction and interpretation when

considering an express easement’s terms.” Marcus Cable, 90 S.W.3d at 700. The scope of the

easement must be determined by the intent of the parties as expressed in the terms of the grant. Id.

(citing DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 103 (Tex. 1999)); see also

Restatement (Third) of Property (Servitudes) § 4.1 (providing that 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”). “When the grant’s terms are not specifically defined, they should be given their

plain, ordinary, and generally accepted meaning.” Marcus Cable, 90 S.W.3d. at 701; Restatement

(Second) of Contracts § 202(3)(a) (“Unless a different intention is manifested, where language has

a generally prevailing meaning, it is interpreted in accordance with that meaning.”). “When an

easement is susceptible to only one reasonable, definite interpretation after applying established rules

of contract construction, we are obligated to construe it as a matter of law even if the parties offer

different interpretations of the easement’s terms.” Marcus Cable, 90 S.W.3d. at 703.



                                                   7
               The plat record at issue here is a professional survey. It was approved by the city and

filed of record in the county records. It is titled “Resubdivision of Plat of Lot 1D” and it shows the

original lot 1D divided into four lots—1D-1 through 1D-4. The plat shows lot 1D-2’s private road

as the only permitted access to IH-35 for lots 1D-2, 1D-3, and 1D-4. “U.E. & Shared Access” is

written inside the private road and two solid lines extend from that phrase to other areas on the plat:

one line extends from the front of the “U” to the boundary line between the private road and lot ID-3;

the other line extends from the end of “Shared Access” to the boundary line between the private road

and lot ID-4. The only other information regarding the private road on the survey is the width of the

private road, which the plat indicates with a line drawn from “A=48.03'” to the boundary between

the road and IH-35. The following is a simplified drawing of the survey as discussed here.




Infiniti asserts that the ampersand between the “U.E.” and “Shared Access” makes the two phrases

“separate and distinct rights.” Specifically, Infiniti argues that while “U.E.” creates a utility



                                                   8
easement over the private road, the term “Shared Access” does not create an easement because

“U.E.” is separated from that phrase by the ampersand—i.e., the easement does not apply to “shared

access.” In an argument that we do not fully understand, Infiniti asserts that “Shared Access” only

indicates that the three lots “share” the only authorized ingress and egress point to the IH-35

frontage. Infiniti asserts, however, that because Sai Laxmi failed to obtain internal easements

necessary to use the access point, Sai Laxmi’s lots lack a legal means of accessing the IH-35

frontage—i.e., they are landlocked. Infiniti bases its assertion on the TxDOT’s definition of that

phrase as a “single connection serving two or more adjoining lots or parcels.” Access Mgmt. Manual

1-12 (June 2004) (Tex. Dep’t of Transp.). We disagree with Infiniti’s construction.

               Assuming without deciding that TxDOT’s definition of “shared access” is somehow

applicable to the plat record here, Infiniti’s construction is not reasonable given the plat record’s

placement of and designation for that phrase. The phrase is written inside the boundaries of the

private road and has lines extending from each end of the phrase to the boundaries between the lots

and the private road. These type of lines are used on this plat to designate the point on the plat to

which the information applies, usually because it would not be clear based on the information’s

placement on the plat. For example, to indicate the width of the private road where it meets IH-35,

the plat shows “A=48.03'” written inside Sai Laxmi’s 1D-3 lot with a line running from it to the line

indicating the boundary between the private road and IH-35. Also, to show the boundary for the 20'

utility easement along IH-35 and to indicate the width of the lot 1D-3, which would be otherwise

ambiguous given the proximity of this information on the plat, there are separate lines running from

“20' U.E.” and from “A=202.20'” to the areas of the plat to which they refer. Presumably then, if



                                                 9
“Shared Access” means, as Infiniti argues, the entry point along IH-35 for the properties, there would

be a line extending from “Shared Access” to the point where the private road intersects IH-35.

Instead, the lines extend from each end of the phrase “U.E. & Shared Access” to the boundaries

between Sai Laxmi’s lots and the private road. This indicates the intent that both “U.E.” and

“Shared Access” together refer to the entirety of Infiniti’s private road.

                Infiniti argues that the resubdivision of lot 1D into four lots resulted in lots 1D-3 and

1D-4 being “landlocked”—i.e., without access to a right of way—because Sai Laxmi failed to ensure

that, in addition to the shared access to the entrance point to IH-35, it also had access to the private

road that would allow it to use that shared access point. In support of its interpretation, Infiniti relies

on TxDOT’s warnings to purchasers of resubdivided lots. See Access Mgmt Manual 2-11 (June

2004) (Tex. Dep’t of Transp.). While Infiniti is correct that TxDOT urges purchasers to ensure

access to resubdivided lots with shared access points, the plat here does that because the phrase

“Shared Access” modifies the sides of the private road and not the point at which the road adjoins

IH-35. Thus, the two “landlocked” lots have the right to access IH-35 along the length of the private

road; in other words, an easement. See Marcus Cable, 90 S.W.3d at 700 (definition of easement).

Construing the plat as Infiniti suggests renders the phrase “Shared Access” as used on the plat

meaningless. We decline to interpret the plat record in a way that renders a provision meaningless.

Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006) (noting that

court must “examine and consider the entire writing in an effort to harmonize and give effect to all

the provisions of the contract so that none will be rendered meaningless.”).




                                                    10
               Finally, Infiniti argues that the plat records do not sufficiently identify the easement

as required by the statute of frauds. See AIC Mgmt. v. Crews, 246 S.W.3d 640, 645 (Tex. 2008) (“To

be valid, a conveyance of real property must contain a sufficient description of the property to be

conveyed.”) The statute of frauds is satisfied, however, as long as the writing “furnishes within

itself, or by reference to some other existing writing, the means or date by which the land to be

conveyed may be identified with reasonable certainty.” Id.; West Beach Marina, Ltd. v. Erdeljac,

94 S.W.3d 248, 264 (Tex. App.—Austin 2002, no pet.). The plat record here, which is a survey of

the property, indicates that the “U.E. & Shared Access” refers to the area inside the boundary lines

between Sai Laxmi’s two lots and the private road. This is sufficient to satisfy the statute of frauds

requirements regarding description of the real property interest. We overrule Infiniti’s third issue.


Rule 11 agreement

               In its final issue on appeal, Infiniti contends that the trial court erred in denying its

motion to enforce the parties’ rule 11 agreement. The rule 11 agreement was signed after the trial

court rendered summary judgment, but prior to the parties’ receiving notice of the judgment. When

Infiniti learned that the trial court had granted summary judgment on Sai Laxmi’s counterclaim, it

filed a motion to reconsider the summary judgment and a motion to enforce the rule 11 agreement,

asserting that the rule 11 agreement somehow rendered the trial court’s grant of summary judgment

“moot.” The trial court did not rule on either motion.

               In addition to the fact that Infiniti fails to provide any support for its assertion that the

rule 11 agreement rendered the trial court’s summary judgment “moot,” Infiniti failed to preserve

error on this issue. To preserve error for appellate review, the record must show that the trial court

                                                   11
ruled on or refused to rule on the motion complained of on appeal. See Tex. R. App. P. 33.1(a)(2).

Although rule 33.1 contemplates that implied rulings may, in certain circumstances, be sufficient to

preserve error, there is no indication here that Infiniti requested consideration of its motion to enforce

either by submission or oral hearing.

                Finally, we would note that under the circumstances presented here—i.e., a rule 11

agreement that contemplates further pre-trial action in a case that, unknown to either party, had

already been resolved by the trial court in summary judgment, but which did not agree to disregard

a previous dispositive ruling—the trial court did not abuse its discretion in refusing to enforce the

agreement. See Mantas v. Fifth Circuit Court of Appeals, 925 S.W.2d 656, 659 (Tex. 1996) (trial

court’s decision to enforce rule 11 agreement reviewed for abuse of discretion). Accordingly, we

overrule Infiniti’s fourth issue.


                                           CONCLUSION

                Having overruled Infiniti’s four issues, we affirm the judgment of the trial court.



                                                __________________________________________

                                                David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: April 8, 2011




                                                   12
