                                                                                                 ACCEPTED
                                                                                             04-15-00127-CV
                                                                                 FOURTH COURT OF APPEALS
                                                                                      SAN ANTONIO, TEXAS
                                                                                        6/19/2015 9:22:59 AM
                                                                                              KEITH HOTTLE
                                                                                                      CLERK

                                      No. 04-15-00127CV

                                 IN THE COURT OF APPEALS

                    FOR THE 4TH JUDICIAL DISTRICT OF TEXAS

                                      AT SAN ANTONIO


                            EL CABALLERO RANCH, INC.
                        AND LAREDO MARINE, L.L.C., Appellants
                                               V.
                              GRACE RIVER RANCH, LLC, Appellee


                                        Appealed from
                                   the 218th District Court of
                                    La Salle County, Texas


                                MOTION TO DISMISS APPEAL
                                FOR WANT OFJURISDICTION


                                             MOORMAN TATE HALEY
                                             UPCHURCH & YATES, LLP

                                             By:    STEVEN C. HALEY
                                                    State Bar No. 08741900
                                                    207 East Main
                                                    P.O. Box 1808
                                                    Brenham, Texas 77834-1808
                                                    Telephone: (979) 836-5664
                                                    Telecopier: (979) 830-0913
                                                    shaley@moormantate.com




{18705.43065-00388949.DOCX}
                              MONTEZ & PATTERSON

                                    John H. Patterson, Jr.
                                    State Bar No. 24027716
                                    Thornton Plaza
                                    508 Thorton, Suite 4
                                    Cotulla, Texas 78014
                                    Telephone: (830) 483-5191
                                    Telecopier: (830) 483-5192
                                    john@montezandpatterson.com

                              JOE RUBIO LAW FIRM

                                    JOE RUBIO
                                    State Bar No. 17362100
                                    1000 Washington St., Ste. 4
                                    Laredo, Texas 78040
                                    Telephone: (956) 712-2223
                                    Telecopier: (956) 712-2225
                                    joerubio@joerubiolawfirm.com

                              Attorneys for Appellee,

                              Grace River Ranch, LLC




{18705.43065-00388949.DOCX}
                                        TABLE OF CONTENTS


REFERENCES TO PARTIES................................................................................2
REFERENCES TO RECORD................................................................................2
STATEMENT OF THE CASE ...............................................................................2
STATEMENT OF FACTS ......................................................................................3
  1. Grace River Ranch ......................................................................................3
    2.     El Caballero Ranch .....................................................................................3
    3.     7 C’s Ranch ..................................................................................................3
    4.     Common Source of Title of Grace River Ranch, El Caballero Ranch,
           and 7 C’s Ranch .........................................................................................3
    5.     Northerly Grace River Easement ..............................................................6
    6.     Easterly Access Easement ..........................................................................6
    7.     Grace River Easements ..............................................................................7
    8.     Grace River Ranch the Successor Dominant Estate Owner of the
           Grace River Easements .............................................................................8
    9.     El Caballero and Laredo Marine are the Successor Servient Owners
           Under the Grace River Easements ...........................................................8
    10. Additional Private and Public Easements Along the Route of the
        Northerly Grace River Easement .............................................................9
    11. Use of the Northerly Grace River Easement ..........................................10
    12. Use of Easterly Grace River Easement ...................................................12
    13. Grace River Buys Grace River Ranch ....................................................13
    14. Permitting ..................................................................................................13
    15. Grace River Notifies El Caballero That Grace River is the Current
        Owner of the Northerly Grace River Easement ...................................14
    16. Grace River Requests Keys and Access to the Northerly Grace River
        Easement ...................................................................................................14
    17. El Caballero Refuses Access Along the Northerly Grace River
        Easement ...................................................................................................14



                                                           iii
{18705.43065-00388949.DOCX}
     18. El Caballero Falsely and Unilaterally Attempted to Terminate the
         Northerly Grace River Easement, the Berry Easement, and the La
         Salle County Easement ............................................................................14
     19. The Original Basis for El Caballero’s Excluding Grace River from the
         Northerly Grace River Easement are Failure of Purpose,
         Abandonment, and Impossibility ...........................................................15
     20. Traditional and No-Evidence Motion for Summary Judgment Filed by
         Grace River ...............................................................................................15
     21. El Caballero Files its First Amended Answer ........................................15
     22. Intervention by Laredo Marine ...............................................................16
     23. Grace River’s Traditional and No-Evidence Motion for Summary
         Judgment Heard and Submitted ............................................................16
     24. Court Issues Letter Ruling .......................................................................16
     25. Order Entered ...........................................................................................16
     26. Amended Order Entered ..........................................................................17
     27. Second Traditional and No-Evidence Motion for Summary Judgment
          by Grace River .........................................................................................17
     28. Second Traditional and No-Evidence Motion for Summary Judgment
          Granted .....................................................................................................18
     29. Judge Saxon Retires ..................................................................................18
     30. Judge Saxon Assigned to Stay With This Case ......................................18
     31. Objection to Assignment of Judge Saxon ...............................................18
     32. Motion for Entry of Partial Summary Judgment ..................................18
     33. Partial Summary Judgment .....................................................................18
     34. Interlocutory Appeal.................................................................................20
ARGUMENTS AND AUTHORITIES.................................................................20
     1.    Partial Summary Judgment Includes an Interlocutory Permanent
           Injunction ..................................................................................................20
PRAYER .................................................................................................................22




                                                           iv
{18705.43065-00388949.DOCX}
                                       TABLE OF AUTHORITIES

Cases

Aloe Vera of America, Inc. v. CIC Cosmetics Int’l Corp., 517
      S.W.2d 433 (Tex. Civ. App. – Dallas 1974, no writ) .......................... 21, 22

Brelsford v. Old Bridge Lake Community Serv. Corp., 784 S.W.2d
      700 (Tex. App. – Houston [14th Dist.] 1989, no writ) ......................... 21, 22

Gensco, Inc. v. Thomas, 609 S.W.2d 650 (Tex. Civ. App. – San
     Antonio 1980, no writ) .......................................................................... 21, 22

James v. Hubbard, 985 S.W.2d 516 (Tex. App. – San Antonio 1998,
     no pet.)...........................................................................................................21

Kelso v. Thorne, 710 S.W.2d 735(Tex. App. – Corpus Christi 1986,
      no writ.) .........................................................................................................22

Quest Communications Corp. v. AT&T Corp., 245 S.W.3d 334 (Tex.
      2000) ..............................................................................................................22

Young v. Golfing Green, 2012 WL 6685472 (Tex. App. – Dallas
     2012) ....................................................................................................... 21, 22


Statutes

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) .............................................20


Rules

TEX. R. CIV. P. Rule 166a(a) ..................................................................................21




                                                             v
{18705.43065-00388949.DOCX}
                                      No. 04-15-00127CV

                                 IN THE COURT OF APPEALS

                    FOR THE 4TH JUDICIAL DISTRICT OF TEXAS

                                      AT SAN ANTONIO


                            EL CABALLERO RANCH, INC.
                        AND LAREDO MARINE, L.L.C., Appellants
                                               V.
                              GRACE RIVER RANCH, LLC, Appellee


                                        Appealed from
                                   the 218th District Court of
                                    La Salle County, Texas


                                MOTION TO DISMISS APPEAL
                                FOR WANT OF JURISDICTION


TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS:

        Appellee, Grace River Ranch, LLC respectfully files this, its Motion to

Dismiss Appeal for Want of Jurisdiction, in this appeal from a Partial Summary

Judgment entered in the 218th District Court of La Salle County, Texas, the

Honorable Stella Saxon, presiding.




                                               1
{18705.43065-00388949.DOCX}
                                  REFERENCES TO PARTIES

        Appellee, Grace River Ranch, LLC, is sometimes referred to herein simply

as “Grace River.” Appellant, El Caballero Ranch, Inc., is sometimes referred to

herein simply as “El Caballero.” Appellant, Laredo Marine, L.L.C., is sometimes

referred to herein simply as “Laredo Marine.” Intervenor, Robert W. Brittingham,

is sometimes referred to herein simply as “Brittingham.”

                                  REFERENCES TO RECORD

        References to the transcript from the District Court of La Salle County are

referred to as “CR” (Clerk’s Record), or similar reference, followed by the

appropriate Volume and Page number(s). Reference to the Reporter’s Record are

referred to as “RR” followed by the appropriate Volume and Page number(s).

                                 STATEMENT OF THE CASE

        This suit was brought in the trial court by Grace River against El Caballero

and Laredo Marine for declaratory relief, injunctive relief, and damages seeking to

gain access to certain deeded private easements (collectively the “Grace River

Easements”) and a public easement (the “Public Easement”) crossing both El

Caballero Ranch (belonging to El Caballero) and 7 C’s Ranch (belonging to

Laredo Marine).               These easements were and are blocked by locked gates

maintained by both El Caballero and Laredo Marine. Intervenor, Brittingham,

brought suit against El Caballero and Laredo Marine seeking similar relief.


                                               2
{18705.43065-00388949.DOCX}
Brittingham has now settled with El Caballero and Laredo Marine gaining

complete access to Brittingham’s similar easement as sought in Brittingham’s Plea

in Intervention.          Additionally, El Caballero and Laredo Marine paid all of

Brittingham’s attorney’s fees.

                                   STATEMENT OF FACTS

         1.        Grace River Ranch. Grace River is the owner of the 6,779.066 acre “Grace

River Ranch” located in La Salle County, Texas.1

         2.        El Caballero Ranch. El Caballero is the owner of at least 9,220.993 acres

comprising the “El Caballero Ranch” also located in La Salle County.2

         3.        7 C’s Ranch. Laredo Marine is the owner of a 30,074.41 acre tract known as the

“7 C’s Ranch” located in La Salle and Webb Counties, Texas.3

         4.        Common Source of Title of Grace River Ranch, El Caballero Ranch, and 7

C’s Ranch. The Grace River Ranch, the El Caballero Ranch, and the 7 C’s Ranch, have a

common source of title, being Patrick H. Welder, Jr. The parent tract was acquired by Patrick H.

Welder, Jr. by deed dated January 28, 1963. The histories of Grace River Ranch, the El

Caballero Ranch, and the 7 C’s Ranch subsequent to that common source of title appear below in

tabular form:




1
 CR I, 38-39, 61-77, 263-264. Grace River is a Texas limited liability company formed on
December 28, 2012 as “Rio Gracia, LLC.” On January 30, 2013, the registered name of Rio
Gracia LLC was changed to “Grace River Ranch, LLC. CR I, 8, 56-60.
2
    CR I, 39-40, 81-91, 263-64; CR III, 105-125.
3
    CR I, 40-42.


                                                   3
{18705.43065-00388949.DOCX}
                                               Figure 1.
                                Title History – Grace River Ranch

                         Document                      Date           Reference to
                                                                        Record

            General Warranty Deed, Patrick September 6, 1995        CR I, 92-103
            H. Welder, Jr. to John T. Mundy
            and Sue E. Mundy

            Special Warranty Deed, John T. December 17, 2012        CR I, 104-112
            Mundy and Sue E. Mundy to
            The Roy and Bonnie Goodwin
            Family Ranch Trust (Veda Gwen
            Goodwin Treat and Kelly
            Maxwell Goodwin, as Co-
            Trustees)

            Special Warranty Deed, Veda December 31, 2012           CR I, 61-77
            Gwen Goodwin Treat and Kelly
            Maxwell Goodwin, Co-Trustees
            of the Roy and Bonnie Goodwin
            Family Ranch Trust Dated
            December 17, 2012 to Rio
            Gracia, LLC


                                               Figure 2.

                               Title History – El Caballero Ranch

                         Document                      Date         Reference to the
                                                                        Record

            Vendor’s Lien Deed, Patrick H.      February 3, 1997    CR I, 113-129
            Welder, Jr. to Knight Oil Tools,
            Inc.

            Warranty Deed, Knight Oil           March 30, 1998      CR I, 81-91
            Tools, Inc. to El Caballero
            Ranch, Inc.




                                                  4
{18705.43065-00388949.DOCX}
                                             Figure 3.

                                    Title History – 7 C’s Ranch

                         Document                    Date         Reference to the
                                                                      Record

            Warranty Deed, Patrick H. October 6, 1999             CR III, 126-144
            Welder, Jr. to E. J. Cop
            (30,074.41 ac.)

            Warranty Deed, E.J. Cop to March 22, 2000             CR III, 146-164
            Dennis J. Wilkerson, Trustee
            (15,000 ac.)

            Warranty Deed, E.J. Cop to March 22, 2000             CR III, 165-191
            Dennis J. Wilkerson, Trustee,
            Samuel H. Vester, Jr. and Joseph
            P. Gerlich (15,074.41 ac.)

            Warranty Deed With Vendor’s March 22, 2000            CR III, 192-222
            Lien, Dennis J. Wilkerson,
            Trustee, Samuel H. Vester, Jr.,
            and Joseph P. Gerlich to Damon
            Chouest, Inc.

            Correction Warranty Deed With April 18, 2011 CR III, 223-258
            Vendor’s Lien, Dennis J. (Effective March
            Wilkerson, Trustee, Samuel H. 22, 2000)
            Vester, Jr. and Joseph P. Gerlich
            to Damon Chouest, Inc.

            General Warranty Deed With December 18, 2000          CR III, 259-295
            Assumption       of      Security
            Documents, Damon Chouest,
            Inc. to Laredo Marine, L.L.C.

            Correction General Warranty       April 20, 2011      CR III, 105-125
            Deed With Assumption of           (Effective
            Security Documents, Damon         December 18,
            Chouest, Inc. to Laredo Maine,    2000)
            L.L.C.
                                                                                     4




4
    See also CR I, 42-44.


                                                5
{18705.43065-00388949.DOCX}
         5.      Northerly Grace River Easement. Contemporaneously with the creation and

sale of the present Grace River Ranch by Patrick H. Welder, Jr. on September 6, 1995, Welder

created and granted an “Access Easement Agreement” for vehicular and pedestrian access in

favor of purchasers, John T. Mundy and Sue E. Mundy, leading from Grace River Ranch over

and across Welder’s retained property inclusive of the present El Caballero Ranch and 7 C’s

Ranch and passing along a prescribed and surveyed route northward from Grace River Ranch

toward FM 624. This Access Easement Agreement provided in pertinent part:

                 (1)      the easement was 80 feet in width;

                 (2)      the access was for vehicular and pedestrian access along the described
                          route of the easement for each owner of the present Grace River Ranch,
                          their employees, agents, and invitees;

                 (3)      no barriers were to be erected to interfere with the free flow of vehicular
                          and pedestrian traffic across the present El Caballero Ranch and/or 7 C’s
                          Ranch other than gates through which the easement owner might pass
                          without assistance;

                 (4)      the servient owner was to provide the easement owner with all necessary
                          keys to open gates such that all gates could be freely opened and closed
                          without assistance;

                 (5)      the easement was binding upon and inured to the benefit of all subsequent
                          owners of the servient and dominant estates;

                 (6)      the easement could not be subsequently amended except by a writing by
                          the owners of the servient and dominant estates and signed and filed of
                          record in La Salle County;

                 (7)      the easement was appurtenant to the present Grace River Ranch.

(hereinafter the “Northerly Grace River Easement”).5

         6.      Easterly Access Easement. Contemporaneous with the creation and sale of the

present Grace River Ranch by Patrick H. Welder, Jr. on September 6, 1995, Welder also created

5
    CR I, 44-45, 130-146, 263-264.


                                                   6
{18705.43065-00388949.DOCX}
and granted an additional “Access Easement Agreement” for vehicular and pedestrian access in

favor of purchasers, John T. Mundy and Sue E. Mundy, to the present Grace River Ranch over

and across Welder’s retained property inclusive of the present 7 C’s Ranch property and passing

along a described route towards State Highway 44. This second Access Easement Agreement

provided in pertinent part:

                 (1)      the easement was 80 feet in width;

                 (2)      the access was for vehicular and pedestrian access along the described
                          route of the easement for each owner of the present Grace River Ranch,
                          their employees, agents, and invitees;

                 (3)      no barriers were to be erected to interfere with the free flow of vehicular
                          and pedestrian traffic across the present 7 C’s Ranch property other than
                          gates through which the easement owner might pass without assistance;

                 (4)      the servient owner was to provide the easement owner with all necessary
                          keys to open gates such that all gates could be freely opened and closed
                          without assistance;

                 (5)      the easement was binding upon and inured to the benefit of all subsequent
                          owners of the servient and dominant estates;

                 (6)      the easement could not be subsequently amended except by a writing by
                          the owners of the servient and dominant estates and signed and filed of
                          record in La Salle County, Texas.

                 (7)      The easement was appurtenant to the present Grace River Ranch.

(hereinafter the “Easterly Access Easement”).6

         7.      Grace River Easements. The Northerly Grace River Easement and the Easterly

Grace River Easement are herein sometimes collectively referred to as the “Grace River

Easements”.




6
    CR I, 45-46, 263-264; CR III, 296-308.


                                                   7
{18705.43065-00388949.DOCX}
         8.      Grace River Ranch the Successor Dominant Estate Owner of the Grace

River Easements. Grace River is the successor in title to the dominant estate of the Grace River

Easements per the following chain of title:

                                                  Figure 4.
                      Grace River Easements Title History (Dominant Estate)

                       Instrument                             Date        Reference to the
                                                                              Record

            Access Easement Agreement                September 6, 1995   CR I, 130-146
          (Northerly), Patrick H. Welder, Jr.
               to John T. Mundy, et ux

             Access Easement Agreement               September 6, 1995   CR III, 296-308
          (Easterly), Patrick H. Welder, Jr. to
                 John T. Mundy, et ux

            Special Warranty Deed, John T.          December 17, 2012    CR I, 101-112
           Mundy and Sue E. Mundy to Roy
          and Bonnie Goodwin Family Ranch
           Trust (Veda Gwen Goodwin Treat
            and Kelly Maxwell Goodwin, as
                    Co-Trustees) 7

            Special Warranty Deed, Veda             December 31, 2012    CR I, 61-77
           Gwen Goodwin Treat and Kelly
          Maxwell Goodwin, Co-Trustees of
            the Roy and Bonnie Goodwin
          Family Ranch Trust of December
            17, 2012 to Rio Gracia, LLC8
                                                                                             9

         9.      El Caballero and Laredo Marine are the Successor Servient Owners Under

the Grace River Easements. El Caballero, as the owner of the El Caballero Ranch, is the

successor in title to that part of the servient estate encumbered by the Northerly Grace River

7
    The Grace River Easements were expressly conveyed as part of this transaction.
8
    The Grace River Easements were expressly conveyed as part of this transaction.
9
    See also CR I, 46-47.


                                                     8
{18705.43065-00388949.DOCX}
Easement and lying within the El Caballero Ranch per the chain set out in Figure 2. Laredo

Marine, as the owner of the 7 C’s Ranch, is the successor in title to that part of the servient estate

encumbered by both the Northerly Grace River Easement and the Easterly Grace River Easement

and lying within 7 C’s Ranch per the chain of title set out in Figure 3.

        All vesting deeds into El Caballero and Laredo Marine, and their predecessors in title,

made after September 6, 1995 (the date the Grace River Easements were created), are expressly

made subject to the Northerly Access Agreement, the Easterly Access Agreement, and the Public

Easement (as applicable).10

        10.      Additional Private and Public Easements Along the Route of the Northerly

Grace River Easement. The Northerly Grace River Easement is non-exclusive. Additional

parties have valid public and/or private easements along the route of the Northerly Grace River

Easement and across El Caballero Ranch and the 7 C’s Ranch, which easements were originally

created by the following instruments:

                                              Figure 5.

                              Additional Public and/or Private Easements
                              Along the Northerly Grace River Easement

                       Instrument                         Date              Reference to the
                                                                                Record
         Access     Easement     Agreement, March 31, 1995                 CR I, 157-173
         Patrick H. Welder, Jr. to Jim Berry
         and Bob Berry (hereafter the “Berry
         Easement”)
         (now owned by Brittingham)




10
  CR I, 10, 81-91, 113-129; CR III, 105-125, 126-144, 146-164, 165-191, 192-222, 223-258,
259-295.


                                                  9
{18705.43065-00388949.DOCX}
                              Additional Public and/or Private Easements
                              Along the Northerly Grace River Easement

                       Instrument                       Date             Reference to the
                                                                             Record

          Vendor’s Lien Deed, Patrick H.          February 3, 1997      CR I, 113-129
          Welder, Jr. to Knight Oil Tools,
          Inc.  (hereafter  the   “Welder
          Easement”)11

          Right-of-Way Deed, Ruth Bradley February 3, 1939              CR I, 174-177
          Watkins, Individually and as
          Independent Executor of the Will
          and Estate of Griffin Watkins,
          Deceased, et al to G.A. Welhausen,
          County Judge, La Salle County,
          Texas (the “Public Easement”).
                                                                                                12



These additional easements have not been subsequently revoked, released, or terminated.

          11.    Use of the Northerly Grace River Easement. After the creation and recordation

of the Northerly Grace River Easement in favor of John T. Mundy and Sue E. Mundy

(hereinafter collectively “Mundy”), Mundy extensively used the Northerly Grace River

Easement for access to the Grace River Ranch (then the Mundy Ranch). Mundy was originally

supplied with a key to all gates across the Northerly Grace River Easement by Patrick H. Welder,

Jr. The Northerly Grace River Easement crossed the Nueces River over a low water crossing

originally constructed by La Salle County decades prior to Mundy’s easement on a public road

(the “Public Easement”) along the same path as the Northerly Grace River Easement (hereafter

called the “Low Water Crossing”).



11
     This instrument expressly retained an access easement in favor of Patrick H. Welder, Jr.
12
     See also CR I, 47-48.


                                                  10
{18705.43065-00388949.DOCX}
        On February 3, 1997, Knight Oil Tools acquired the current El Caballero Ranch by

Vendor’s Lien Deed made expressly subject to the Northerly Grace River Easement, the Berry

Easement, and the Public Easement. Knight Oil Tools, Inc. then conveyed the El Caballero

Ranch to a related entity, El Caballero, on March 30, 1998 also expressly subject to the same

preexisting easements.

        Eddie Knight, a principal of both Knight Oil Tools, Inc. and El Caballero Ranch supplied

Mundy with keys to a new gate lock placed by Knight Oil Tools/El Caballero Ranch along the

route of the Northerly Grace River Easement. Later Knight Oil Tools/El Caballero Ranch

supplied a second and updated key to a replacement lock along the route of the Northerly Grace

River Easement.        Mundy continued to make extensive use of the Northerly Grace River

Easement for access and egress to the Mundy Ranch.

        Sometime thereafter, there was a washout of 65 feet of the southern approach to the

decades old Low Water Crossing. The majority of the span of the Low Water Crossing remains

intact. This washout limited the use of the Northerly Grace River Easement as a through way to

FM 624 by Mundy while Mundy waited for the repair of the Low Water Crossing. Crossing the

Nueces River required a 4WD vehicle thereafter. Mundy temporarily limited Mundy’s travel

along the entirety of the Northerly Grace River Easement for this reason only. Mundy mostly

utilized alternative access. However, there was no change in the road that indicated to Mundy

that any party was attempting to deny Mundy the use of the Northerly Grace River Easement as

it crossed either the El Caballero Ranch or the 7 C’s Ranch. There were no visual indications on

the road that either servient owner then failed to recognize the continuity of the Northerly Grace

River Easement.        Nothing about the gates or road indicated any change in circumstances.

Nothing indicated that Mundy’s key was no longer valid to access the road. Neither El Caballero



                                                11
{18705.43065-00388949.DOCX}
nor Laredo Marine repudiated the easement to Mundy. Mundy never intended to nor did Mundy

relinquish Mundy’s right to use the Northerly Grace River Easement after the washout. No one

connected with El Caballero Ranch or 7 C’s Ranch ever challenged Mundy’s right to use the

Northerly Grace River Easement. Mundy would have vigorously opposed any such effort.

        The Northerly Grace River Easement also crosses the present 7 C’s Ranch between Grace

River Ranch and the Nueces River to the north along the route described in the Northerly Grace

River Easement. During the time that Damon Chouest, Inc. and Laredo Marine, L.L.C. owned

the 7 C’s Ranch, they had a Ranch Manager running operations named Chad Edwards. During

this period, all gates lying along the Northerly Grace River Easement on the 7 C’s Ranch were

taken down and/or unlocked except one new gate lying several hundred yards south of the

Nueces River. This gate was kept locked with a lock requiring a key. Mundy was originally

provided with a duplicate copy of this key by Chad Edwards after the southern approach to the

Low Water Crossing washed out in anticipation of its later use. At all times while Mundy and

Mundy-related entities owned the Grace River Ranch, Mundy had the use of the Northerly Grace

River Easement. Mike Treat, a caretaker for the Mundy Property, utilized the 7 C’s Ranch

portion of the Northerly Grace River Easement several times a year each year for the period

extending between 2000 and 2013. No one connected with 7 C’s Ranch ever disputed that use.13

        12.      Use of Easterly Grace River Easement. After the creation and recordation of

the Easterly Grace River Easement in favor of Mundy, Mundy extensively used the Easterly

Grace River Easement for access to the Grace River Ranch (then the Mundy Property). The

Easterly Grace River Easement provided access to the Mundy Ranch from an easterly direction

across the present 7 C’s Ranch Property. This was one of the preferred routes to reach the Ranch
13
   CR I, 81-91, 113-129, 130-146, 178-183, 184-189, 263-264, 273-278, 279-280; CR II, 1; CR
III, 310-314.


                                              12
{18705.43065-00388949.DOCX}
convenient to Mundy. There was a locked gate where the Easterly Grace River Easement

entered the present 7 C’s Ranch. Mundy maintained Mundy’s own lock on this gate to allow

them to come and go along the Easterly Grace River Easement. During the entire time of

Mundy’s ownership of the Ranch, no one connected with any of the owners of the present 7 C’s

Ranch ever attempted to restrict or prohibit Mundy’s use of the Easterly Grace River Easement.

Mundy used it frequently and without protest from anyone.            No one connected with the

ownership of 7 C’s Ranch ever challenged Mundy’s right to use the Easterly Grace River

Easement for as long as Mundy owned the Ranch. If they had, Mundy would have vigorously

opposed any such effort. Representatives of Grace River Ranch have used the Easterly Access

Easement freely since Grace River purchased the Grace River Ranch without complaint or

opposition by anyone connected with 7 C’s Ranch.14

          13.    Grace River Buys Grace River Ranch. On December 31, 2012 Grace River

bought the Grace River Ranch and appurtenant easements, inclusive of the Grace River

Easements.15

          14.    Permitting. Grace River then obtained all necessary governmental permitting

and easements from the General Land Office of Texas (GLO) and the U.S. Army Corps of

Engineers to repair and utilize the Low Water Crossing.

          The GLO has now issued a Miscellaneous Easement to Grace River for the Nueces River

Crossing. The Miscellaneous Easement was applied for and issued in complete conformity with

the statutes and regulations governing such easements. The GLO issued the Miscellaneous




14
     CR I, 53, 178-183, 184-189, 263-64; CR III, 105-125, 310-314.
15
     CR I, 49, 61-77.


                                                13
{18705.43065-00388949.DOCX}
Easement in the public interest notwithstanding objection by El Caballero and Laredo Marine.

The GLO has no plans to revoke, suspend, or modify the Miscellaneous Easement.16

          15.    Grace River Notifies El Caballero That Grace River is the Current Owner of

the Northerly Grace River Easement. In February, 2013 Grace River notified El Caballero

that Grace River was the current owner of the Northerly Grace River Easement.17

          16.    Grace River Requests Keys and Access to the Northerly Grace River

Easement.       Beginning February 22, 2013, Grace River requested keys and access to the

Northerly Grace River Easement as it traverses El Caballero Ranch.18

          17.    El Caballero Refuses Access Along the Northerly Grace River Easement. In

response to requests by Grace River for access along the Northerly Grace River Easement, El

Caballero refused any access along the easement.19

          18.    El Caballero Falsely and Unilaterally Attempted to Terminate the Northerly

Grace River Easement, the Berry Easement, and the La Salle County Easement. In direct

response to Grace River’s request for access, on or about March 5, 2013, El Caballero attempted

to falsely and unilaterally terminate the Northerly Grace River Easement, the Berry Easement

(now owned by Intervenor, Robert W. Brittingham), and the Public Easement by recording in the

Official Records of La Salle County, a “Notice of Revocation and Termination of Easement and

Access Easement Agreements” by claims of abandonment, failure of purpose, and impossibility.




16
     CR I, 14-15; CR II 23-55; CR III, 2-33, 34-102.
17
     CR I, 49, 256-257, 258-260.
18
     CR I, 49, 258-260, 261-262.
19
     CR I, 50, 190-193, 194-195, 268-270; CR II, 5-16.


                                                 14
{18705.43065-00388949.DOCX}
Prior to that date neither El Caballero nor its predecessors in title had taken an action to cancel or

repudiate the Northerly Grace River Easement.20 This suit followed shortly thereafter.

          19.    The Original Basis for El Caballero’s Excluding Grace River from the

Northerly Grace River Easement are Failure of Purpose, Abandonment, and Impossibility.

The original basis of El Caballero’s refusal to allow use of the Northerly Grace River Easement

was failure of purpose, abandonment, and impossibility. El Caballero’s initial legal position,

long since abandoned, was that Grace River could not secure the necessary permitting to rebuild

the Low Water Crossing.21

          20.    Traditional and No-Evidence Motion for Summary Judgment Filed by Grace

River. On July 18, 2013, Grace River filed in the trial court its Traditional and No-Evidence

Motion for Summary Judgment to determine and declare the validity of the Northerly Grace

River Easement and of the public roadway along the route of the Northerly Grace River

Easement based on the original failure of purpose, abandonment, and impossibility defenses

raised to El Caballero. This Motion was set for hearing before the Court on September 26,

2013.22

          21.    El Caballero Files its First Amended Answer. On or about September 18, 2013

approximately seven days prior to the scheduled hearing on the above Traditional and No-

Evidence Motion for Summary Judgment, El Caballero filed in the trial court its First Amended




20
     CR I, 50, 196-255.
21
     CR I, 190-193, 196-255, 268-270; CR II, 17-22.
22
     Second Supplemental CR I, 426; Second Supplemental CR II, 55.


                                                 15
{18705.43065-00388949.DOCX}
Answer, Defenses & Counterclaim (the “Amended Answer”). The Amended Answer raised the

additional defense of adverse possession under TEX. CIV. PRAC. & REM. CODE ANN. § 16.026.23

         22.     Intervention by Laredo Marine. On that same day, September 18, 2013, Laredo

Marine filed in the trial court its Original Petition in Intervention and Counterclaim contesting

the validity of the Northerly Grace River Easement and the public road running along the path of

the Northerly Grace River Easement on grounds of abandonment, failure of purpose, and adverse

possession/limitations.24

         23.     Grace River’s Traditional and No-Evidence Motion for Summary Judgment

Heard and Submitted. The Traditional and No-Evidence Motion for Summary Judgment filed

by Grace River was heard by the Court on September 26, 2013. The Motion was extensively and

exhaustively argued and briefed by the Parties.25

         24.     Court Issues Letter Ruling. On or about June 12, 2014, the Court entered its

letter ruling that was granting the Traditional and No-Evidence Motion for Summary Judgment

of GRACE RIVER.26

         25.     Order Entered. Over eight months after the hearing date, on July 7, 2014, the

Court entered its Order Granting Traditional and No-Evidence Motion for Summary Judgment in

favor of Grace River.27




23
     Second Supplemental CR I, 427-433.
24
     Second Supplemental CR I, 433-438.
25
     Second Supplemental CR II, 55.
26
     Second Supplemental CR II, 8-9.
27
     Second Supplemental CR II, 10-13.


                                               16
{18705.43065-00388949.DOCX}
          26.    Amended Order Entered.         On August 4, 2014, the Court entered its First

Amended Order Granting Traditional and No-Evidence Motion for Summary Judgment in favor

of Grace River. The Court by its First Amended Order Granting Traditional and No-Evidence

Motion for Summary Judgment found as follows:

                 1. Private Easement. GRACE RIVER RANCH, LLC (GRACE RIVER) has a
                    valid and subsisting non-exclusive express easement across El Caballero
                    Ranch for vehicular and pedestrian access to and egress from Grace River
                    Ranch along that part of the Grace River Easement lying within El Caballero
                    Ranch, with the right to use and maintain the road thereon and any culverts,
                    low water crossings, or bridges lying along the Grace River Easement which
                    has not been abandoned, become impossible, or relinquished, or failed of its
                    purpose.

                 2. Public Road. There is a valid and subsisting express public road across El
                    Caballero Ranch along the route and of the width described in the County
                    Road Easement for that part of the County Road Easement lying within El
                    Caballero Ranch which public road has not been abandoned or relinquished
                    by La Salle County, become impossible, or failed of its purpose.28

          The trial court’s order was expressly made interlocutory.       It made no attempt to

adjudicate claims filed after the filing date of the original Motion.

          27.    Second Traditional and No-Evidence Motion for Summary Judgment by

Grace River. Grace River then filed its Second Motion for Traditional and No-Evidence

Motion for Summary Judgment seeking summary judgment on the additional issues and against

the additional parties raised and/or intervening after the filing of the original Motion (as granted

by the Court on July 7, 2014 and again on August 4, 2014) and pertaining to all matters

concerning the validity and continuity of the Grace River Easements and the Public Easement.

This was heard on September 18, 2014.29



28
     Second Supplemental CR II, 55-57.
29
     CR I, 1-280; CR II, 1-55; CR III, 1-408.


                                                 17
{18705.43065-00388949.DOCX}
         28.      Second Traditional and No-Evidence Motion for Summary Judgment

Granted.       On December 17, 2014, Judge Saxon issued her letter ruling that the Second

Traditional and No-Evidence Motion for Summary Judgment of Grace River was granted.30

         29.      Judge Saxon Retires. Judge Saxon retired effective December 31, 2014. Grace

River sent to Judge Saxon a proposed Partial Summary Judgment consistent with her letter ruling

prior to this date. However, no formal order was entered prior to Judge Saxon’s retirement date.

         30.      Judge Saxon Assigned to Stay With This Case. On January 6, 2015, Presiding

Judge for the Fourth Administrative Region, David Peeples, assigned Judge Saxon to this case.31

         31.      Objection to Assignment of Judge Saxon. On January 9, 2015, El Caballero

and Laredo Marine both filed their Objection to Assignment of Visiting Judge objecting to Judge

Saxon’s assignment to this case.32

         32.      Motion for Entry of Partial Summary Judgment. Pursuant to a Motion for

Entry of Partial Summary Judgment filed by Grace River, a hearing was conducted by Judge

Saxon on March 3, 2015.33

         33.      Partial Summary Judgment. At the conclusion of the March 3, 2015 hearing,

Judge Saxon entered a Partial Summary Judgment making a final determination of all issues

relating to the validity, continuity, and extent of the Grace River Easements and the Public

Easement.34 The only claims remaining unadjudicated after March 3, 2015 were:

30
     CR V, 166.
31
     CR V, 169.
32
     CR V, 170-171.
33
     RR, 3.
34
     CR V, 285.


                                               18
{18705.43065-00388949.DOCX}
                  (1.)    All damage claims by Grace River against El Caballero and Laredo
                          Marine by reason of the disruption or blocking of the Grace River
                          Easements and the La Salle County Easement.

                  (2.)    All claims for attorney’s fees and costs.35

         The Partial Summary Judgment made a final determination of all issues relating to the

validity, continuity, and extent of the Grace River Easements and the Public Easement as

follows:

                  (1.)    Private Easement. Grace River has valid and subsisting non-exclusive
                          express easements across El Caballero Ranch, 7 C’s Ranch, and the
                          Nueces River Crossing for vehicular and pedestrian access to and egress
                          from Grace River Ranch along that part of the Grace River Easements
                          lying within El Caballero Ranch, 7 C’s Ranch, and/or the Nueces River
                          Crossing with the right to use and maintain the road thereon and any
                          culverts, low water crossings, or bridges lying along the Grace River
                          Easement in conformity with the rights and privileges and subject to the
                          requirements set out in the Grace River Easements and the Miscellaneous
                          Easement.

                  (2.)    Public Road. There is a valid and subsisting public road across El
                          Caballero Ranch, 7 C’s Ranch, and Nueces River Crossing along the route
                          and of the width described in the County Road Easement for that part of
                          the County Road Easement lying within El Caballero Ranch, 7 C’s Ranch,
                          and the Nueces River Crossing.36

         The Partial Summary Judgment, after finally determining all issues regarding the

existence of the Grace River Easements and the Public Easement permanently enjoined El

Caballero and Laredo Marine as follows:

         1. Private Easements. El Caballero and Laredo Marine are enjoined from:

                  (a.)    Erecting or maintaining any barriers, fences, or gates of any kind that
                          would interfere with or obstruct the free flow of vehicular or pedestrian
                          access, on, over, or across the Grace River Easements other than gates
                          currently located on El Caballero Ranch or 7 C’s Ranch. All such gates
                          must be maintained and/or secured such that Grace River may pass

35
     CR V, 285.
36
     CR V, 284.


                                                    19
{18705.43065-00388949.DOCX}
                          through them without assistance. Laredo Marine shall remove the fence
                          along the Northerly Grace River easement and located within 7 C’s Ranch
                          within 30 days of the date entry of this Partial Summary Judgment.

                 (b.)     Maintaining any gate or barrier along or across the Grace River Easements
                          without providing all necessary keys, combinations, or codes to GRACE
                          RIVER to open such gates without assistance. Such keys, combinations,
                          or codes are to be delivered to Grace River not later than 3 days from the
                          entry hereof, and prior to an installation of any future rekeyed,
                          reconfigured, or recoded lock.

                 (c.)     Taking any action to prevent Grace River from freely opening and closing
                          any gates in the Grace River Easements without assistance.

                 (d.)     Preventing or obstructing Grace River from using, having access across, or
                          undertaking the maintenance or repair of the roadway, bridges, low water
                          crossings, culverts, grades, trimming, etc. along the Grace River
                          Easements and Nueces River Crossing.

         2. Public Road. El Caballero and Laredo Marine are permanently enjoined from:

                 (a.)     Preventing or obstructing maintenance or repair of the roads, bridges,
                          culverts, grades, or low water crossings lying along the County Road
                          Easement.37

         34.     Interlocutory Appeal.           From the Partial Summary Judgment, El

Caballero and Laredo Marine have brought this Interlocutory Appeal pursuant to

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (appeal of grant of temporary

injunction).38

                              ARGUMENTS AND AUTHORITIES

         1.      Partial Summary Judgment Includes an Interlocutory Permanent

Injunction. Appellants’ appeal is based on the unsupported misconception that


37
     CR V, 284-285.
38
     CR V, 287-294.


                                                  20
{18705.43065-00388949.DOCX}
the Partial Summary Judgment, because interlocutory, of necessity, includes a

“temporary injunction.”39 This misapprehends the law and the state of the record.

An interlocutory judgment may contain a permanent injunction.40

          The Partial Summary Judgment makes it clear that the trial court intended to

issue a permanent injunction. The Court expressly stated that the Partial Summary

Judgment decided “all claims of the Parties relating to the validity, continuity, and

extent of the [easements]” and leaving only damage claims for later adjudication.41

The injunction does not contemplate any further order of the court or have any

time limitations on its application.42 There was no trial necessary to resolve the

merits of Grace River’s easement claims.

          The true character of an injunction is to be determined by its characteristics

and functions.43 Whether an injunction is temporary or permanent is determined

by looking at the substance of the order.44 The purpose of a temporary injunction

39
     See, e.g., Appellants’ Brief at 12.
40
  See Young v. Golfing Green, 2012 WL 6685472 at *1 (Tex. App. – Dallas 2012); Aloe Vera of
America, Inc. v. CIC Cosmetics Int’l Corp., 517 S.W.2d 433, 436 (Tex. Civ. App. – Dallas 1974,
no writ); Brelsford v. Old Bridge Lake Community Serv. Corp., 784 S.W.2d 700, 701-02 (Tex.
App. – Houston [14th Dist.] 1989, no writ).
41
   CR V, 285. Because the damage claims presented genuine issue of fact, the trial court
rendered interlocutory relief as expressly authorized by TEX. R. CIV. P. Rule 166a(a).
42
     CR V, 284-285.
43
  Gensco, Inc. v. Thomas, 609 S.W.2d 650, 651 (Tex. Civ. App. – San Antonio 1980, no writ);
James v. Hubbard, 985 S.W.2d 516, 518 (Tex. App. – San Antonio 1998, no pet.)
44
     Gensco v. Thomas, supra at 651.

                                             21
{18705.43065-00388949.DOCX}
is to preserve the status quo pending a final hearing to determine the merits.45

Conversely, a permanent injunction is not dependent on any further action on the

merits by the trial court.46 A permanent injunction grants all relief the trial court

intends to grant on that subject matter.47 This is clearly the case with the Partial

Summary Judgment. It expressly resolves the merits of the easement claims and

the injunctive relief necessary to enforce adherence to the Court’s Order. No more

permanent order could be made with respect to Grace River’s claims for injunctive

relief than the trial court made.48           The Partial Summary Judgment is an

interlocutory order granting a permanent injunction. Because the trial court’s order

grants a permanent injunction, there is no jurisdiction supporting the present

appeal.49

                                         PRAYER

           WHEREFORE, PREMISES CONSIDERED, Appellee prays that appeal be

dismissed for want of jurisdiction.
45
     Id.
46
     Id.
47
     Id.
48
     Id.
49
   See Quest Communications Corp. v. AT&T Corp., 245 S.W.3d 334, 336 (Tex. 2000); Brelsford
v. Old Bridge Lake Community Serv. Corp., 784 S.W.2d 700, 702 (Tex. App. – Houston [14th
Dist.] 1989, no writ); Aloe Vera of America, Inc. v. CIC Cosmetics Int’l Corp., 517 S.W.2d 433,
436-37 (Tex. Civ. App. – Dallas 1974, no writ); Young v. Golfing Green Homeowners Ass’n,
Inc., 2012 WL 6685472 at *1 (Tex. App. – Dallas 2012); Kelso v. Thorne, 710 S.W.2d 735, 736-
37 (Tex. App. – Corpus Christi 1986, no writ.).


                                              22
{18705.43065-00388949.DOCX}
        Dated:            June 19, 2015

                                          Respectfully submitted,

                                          MOORMAN TATE HALEY
                                           UPCHURCH & YATES, L.L.P.

                                          By:     /s/ STEVEN C. HALEY
                                                 STEVEN C. HALEY
                                                 State Bar No. 08741900
                                                 207 East Main
                                                 P.O. Box 1808
                                                 Brenham, Texas 77834-1808
                                                 Telephone: (979) 836-5664
                                                 Telecopier: (979) 830-0913
                                                 shaley@moormantate.com

                                          MONTEZ & PATTERSON

                                                 John H. Patterson, Jr.
                                                 State Bar No. 24027716
                                                 Thornton Plaza
                                                 508 Thorton, Suite 4
                                                 Cotulla, Texas 78014
                                                 Telephone: (830) 483-5191
                                                 Telecopier: (830) 483-5192
                                                 john@montezandpatterson.com

                                          JOE RUBIO LAW FIRM

                                                 JOE RUBIO
                                                 State Bar No. 17362100
                                                 1000 Washington St., Ste. 4
                                                 Laredo, Texas 78040
                                                 Telephone: (956) 712-2223
                                                 Telecopier: (956) 712-2225
                                                 joerubio@joerubiolawfirm.com

                                          Attorneys for Appellee,


                                            23
{18705.43065-00388949.DOCX}
                                      Grace River Ranch, LLC



                              CERTIFICATE OF SERVICE

      I, Steven C. Haley, do hereby certify that on the 19th day of June, 2015, I
served a true and correct copy of the foregoing pleading to the following, in
accordance with the Texas Rules of Civil Procedure:

        Annalyn G. Smith
        Schmoyer Reinhard, LLP
        17806 I-10W, Ste. 400
        San Antonio, Texas 78257
        E-mail: asmith@ar-llp.com

        Kimberly S. Keller
        Keller Stolarczyk PLLC
        234 West Bandera Road, No. 120
        Boerne, Texas 78006
        E-mail: kim@kellsto.com

        Donato D. Ramos
        Donato D. Ramos, Jr.
        Law Offices of Donato D. Ramos
        6721 McPherson
        P.O. Box 452009
        Laredo, Texas 78045
        donatoramosjr@ddrlex.com


                                              /s/ STEVEN C. HALEY
                                                  STEVEN C. HALEY




                                         24
{18705.43065-00388949.DOCX}
