                               Fourth Court of Appeals
                                        San Antonio, Texas
                                 MEMORANDUM OPINION

                                          No. 04-18-00847-CV

                                Joe MINIHAN and Sharon Minihan,
                                              Appellants
                                                  v.
                        Martin O’NEILL, and Suzanne O’Neill, Individually,
                      and as Executrix of the Estate of Richard Wayne Bendele,
                                              Appellees

                    From the 198th Judicial District Court, Bandera County, Texas
                                  Trial Court No. CV-XX-XXXXXXX
                              Honorable James L. Rex, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Irene Rios, Justice
                  Beth Watkins, Justice

Delivered and Filed: January 29, 2020

AFFIRMED

           This appeal arises from a dispute between neighbors over the continued shared use of an

on-site sewage facility (“OSSF”) or, in more common parlance, a septic system. Appellants Joe

and Sharon Minihan (collectively, “Minihan”) and appellees Martin and Suzanne O’Neill,

individually and in her capacity as executrix of the estate of Richard Wayne Bendele (collectively,

“O’Neill”) filed competing motions for summary judgment. The trial court granted O’Neill’s

motion and rendered judgment that O’Neill has an express easement appurtenant and an easement

by estoppel permitting the continued use of the subject septic system. We affirm.
                                                                                                  04-18-00847-CV


                                                      Facts

        Alie and Irene Baldridge (collectively, “Baldridge”) owned Lot 11, Block 40, of

Subdivision D of Avalon Subdivision on Medina Lake in Bandera County, Texas (“Lot 11”). In

1982, Baldridge sold a portion of Lot 11 (“Lot 11-A”) to Glenn and Betty Boggs (collectively,

“Boggs”) and Joe and Sharon Minihan. Baldridge retained the remainder of Lot 11 (“Lot 11-B”).1

        Boggs and Minihan built a house on Lot 11-A and, in June 1982, filed an application for a

permit to construct a septic system (“Lot 11 System”). The application identifies the location of

the system as Lot 11 (rather than a subpart thereof), states that it is to serve a three-bedroom house,

and also states that the size of the septic tank is to be 1,000 gallons. The application shows that it

was approved, but the record does not contain a permit for the system. The system was actually

constructed using two 550-gallon tanks, both of which are located on Lot 11-A, rather than one

1,000 gallon tank. In addition, an “as constructed” diagram of the Lot 11 System shows that it was

built so that the water waste from the house on Lot 11-A flowed into one of the 550-gallon tanks,

and the water and waste from a house on Lot 11-B flowed into the other. Both tanks then flowed

into a drain field located on both properties. Baldridge paid Minihan $3,000 to use the Lot 11

System.

        In 1999, Baldridge and Minihan (who had become sole owner of Lot 11-A by buying

Boggs’ interest in that property) signed an agreement (“1999 Agreement”) certifying that

Baldridge had paid a fee for the use of the Lot 11 System, and that joint usage had been continuous

since installation, with the parties sharing equally the costs of maintenance, upkeep, and repairs.

The 1999 Agreement also states,

        it is agreed that if there are any additions to the property by the current owner, Alie
        Baldridge, or future owners, requiring any change to the current Septic System,

1
 These lots did not have street addresses in 1982. Lot 11-A later became identified as 1564 Elmhurst Drive, and Lot
11-B became identified as 1572 Elmhurst Drive.


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       these costs will be paid 100% by Alie Baldridge or the new owner of the property.
       Any normal maintenance expense required will be shared equally.

       Two months after signing this agreement, Baldridge sold Lot 11-B to Richard Wayne

Bendele, who continued to use the Lot 11 System until his death in February 2015. Appellee

Suzanne O’Neill is Bendele’s daughter and the executrix of his estate.

       Shortly after Bendele’s death, Minihan informed O’Neill that he would no longer permit

joint use of the Lot 11 System and that he intended to disconnect the connection to Lot 11-B.

O’Neill filed claims for declaratory and injunctive relief in both district court and probate court in

Bandera County. The probate action was ultimately transferred to the district court and the two

cases were consolidated.

       In the summer of 2015, while this action was pending, O’Neill and Minihan jointly

arranged for an independent inspection of the Lot 11 System. The inspection was performed by a

county-approved inspection service and was attended by Minihan, O’Neill, and a county sewage

facility inspector. The inspection revealed that the system was functioning properly, despite

Minihan’s assertions that it was failing and needed to be replaced.

       In her live pleading at the time of the summary judgment hearing, O’Neill asked the court

to declare the parties’ rights and obligations under the 1999 Agreement. She specifically asserted

that she was entitled to use the Lot 11 System based on an express easement appurtenant or, in the

alternative, an easement by estoppel. In his live pleading, Minihan asserted the affirmative

defenses of failure of consideration, fraud, illegality, and license. He also asserted a counterclaim

seeking declarations that (1) the 1999 Agreement was revocable; (2) O’Neill cannot seek the

benefit of the agreement; and (3) Minihan has no obligation to provide facilities or land for a septic

system serving Lot 11-B “in the event the current septic tank and drain field is deemed in violation




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of rule, code, ordinance or statute of Bandera County or the State of Texas, or otherwise

abandoned.”

          O’Neill filed a motion for summary judgment on her requested declarations of express

easement appurtenant and easement by estoppel. Minihan filed a motion for traditional summary

judgment seeking to negate O’Neill’s claims, combined with a motion for no-evidence summary

judgment alleging that the claim of easement by estoppel fails because there is no evidence of

reliance. Minihan did not raise the issue of illegality either in his own motion or in response to

O’Neill’s motion.

          After the trial court announced that it would grant O’Neill’s motion, Minihan filed a motion

asserting that the court could not grant a final summary judgment because it had not disposed of

Minihan’s affirmative defense of illegality or its third requested declaration. The court was not

persuaded and, on August 10, 2018, it signed a final judgment granting O’Neill’s motion for

summary judgment and declaring the existence of an express easement appurtenant and an

easement by estoppel. The court also awarded O’Neill $45,000 in attorney’s fees, plus contingent

fees on appeal.

          Minihan then filed a motion for new trial, in which he argued that (1) newly-discovered

evidence shows that the septic system is illegal, (2) the court’s judgment does not dispose of his

third requested declaration, and (3) the attorney’s fee award is not equitable and just. The trial

court denied the motion for new trial following an evidentiary hearing, and Minihan filed this

appeal.

                                              Discussion

Standard of review

          We review the granting of summary judgment de novo, taking as true all evidence favorable

to the nonmovant, and indulging every reasonable inference in the nonmovant’s favor. Provident


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Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The burden on the party moving

for summary judgment is to show that there is no genuine issue of material fact and that it is entitled

to judgment as a matter of law. Id. at 215-16; TEX. R. CIV. P. 166a(c). When the parties file

competing motions for summary judgment and the trial court grants one motion and denies the

other, the reviewing court reviews all of the summary judgment evidence, determines all questions

presented, and renders the judgment the trial court should have rendered. S. Crushed Concrete,

LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013); FM Props. Operating Co. v. City of

Austin, 22 S.W.3d 868, 872 (Tex. 2000).

       Appellate courts review a trial court’s ruling on a motion for new trial for abuse of

discretion. BZ Tire Shop v. Brite, 387 S.W.3d 837, 838 (Tex. App.—San Antonio 2012, no pet.);

Cypress-Fairbanks Indep. Sch. Dist. v. Glenn W. Loggins, Inc., 115 S.W.3d 67, 73 (Tex. App.—

San Antonio 2003, pet. denied). “A trial court abuses its discretion when it acts unreasonably or

without regard for any guiding legal principles.” BZ Tire Shop, 387 S.W.3d at 838.

Summary judgment issues

       Express easement

       Minihan contends in his fourth issue on appeal that the trial court erred by granting

summary judgment on the ground that the 1999 Agreement created an express easement. Minihan

argues that the agreement created only a revocable license. We disagree.

       “A license is a privilege or authority given to one or retained by one to do some act or acts

on the land of another, but which does not amount to an interest in the land itself.” Settegast v.

Foley Bros. Dry Goods Co., 270 S.W. 1014, 1016 (Tex. 1925); see H.E.Y. Trust v. Popcorn

Express Co., Inc., 35 S.W.3d 55, 58 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (license

is “a privilege to go on premises for a certain purpose”). An easement, on the other hand, is a

nonpossessory interest in property that authorizes its holder to use the property for a particular


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                                                                                     04-18-00847-CV


purpose. Lance v. Robinson, 543 S.W.3d 723, 736 (Tex. 2018); Marcus Cable Assocs., L.P. v.

Krohn, 90 S.W.3d 697, 700 (Tex. 2002).

       An easement appurtenant is one that attaches to the land and passes with it. Long Island

Owner’s Ass’n, Inc. v. Davidson, 965 S.W.2d 674, 684 (Tex. App.—Corpus Christi 1998, pet.

denied); see Killam Ranch Props., Ltd. v. Webb Cty., 376 S.W.3d 146, 155 (Tex. App.—San

Antonio 2012, pet. denied). It requires a dominant estate, to which the easement is attached, and a

servient estate, “which is subject to the use of the dominant estate to the extent of the easement

granted or reserved.” Seber v. Union Pac. R.R. Co., 350 S.W.3d 640, 646 (Tex. App.—Houston

[14th Dist.] 2011, no pet.) (citing Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex.

1962)). An easement appurtenant most commonly “takes the form of a negative easement: the

owner of the servient estate simply may not interfere with the right of the owner of the dominant

estate to use the servient estate for the purpose of the easement.” Drye, 364 S.W.2d at 207.

       Because express easements are subject to the statute of frauds, the writing creating the

easement must demonstrate “the intent of the parties, the essential terms of the easement, and an

adequate description of the easement’s location.” Cummins v. Travis Cty. Water Control &

Improvement Dist. No. 17, 175 S.W.3d 34, 51 (Tex. App.—Austin 2005, pet. denied). The writing

is interpreted according to basic principles of contract construction. Marcus Cable, 90 S.W.3d at

700. Thus, the intention of the parties is determined from the language used, as given its plain,

ordinary, and generally accepted meaning. Id. at 700-01. In addition, the court may consider the

circumstances surrounding the creation of the easement to give effect to its purpose. Id. at 701. It

is not necessary to use the term “easement,” or any other particular words, to create an express

easement. See Hubert v. Davis, 170 S.W.3d 706, 711 (Tex. App.—Tyler 2005, no pet.) (no special

form or particular words need be used to create easement) (citing Maples v. Erck, 630 S.W.2d 488,

491 (Tex. App.—Corpus Christi 1982, writ ref’d n.r.e.)).


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       The 1999 Agreement does not use the word “easement,” but it contains the elements

necessary to create an express easement. It identifies a dominant estate—“Lot 11, Block 40,

Division D of Avalon Ranch on Elmhurst Drive, Lakehills, Texas”—and a servient estate—“Lot

11, (part of) Block 40, Division D of Avalon Ranch, Lakehills, Texas.” It also identifies the

location of the easement as a septic system located on “Lot 11, (part of).” It defines the purpose of

the easement as joint usage of the septic system. Finally, it states the essential terms as joint usage

of the system, as had been continuous since installation of the system, with both parties sharing

equally in the costs of maintenance, upkeep, and repairs.

       The parties’ intent to create an easement attaching to the land, rather than a license granted

to the then-owner of Lot 11-B, is clearly confirmed by the additional provision that, “if there are

any additions to [Lot 11-B] by the current owner . . . or future owners, requiring any change to the

current Septic System, these costs will be paid 100% by [the current owner] or the new owner of

the property.” (Emphasis added.) The cost of normal maintenance would continue to be shared

equally.

       The 1999 Agreement does not simply permit the then-owner of Lot 11-B “to do some act

or acts” on Lot 11-A. See Settegast, 270 S.W. at 1016. Rather, it permits the current and future

owners of Lot 11-B to use Lot 11-A for the purpose of accessing and using the septic system

located on Lot 11-A. It is undisputed that such usage has entailed running pipes onto Lot 11-A to

connect the house on Lot 11-B to the system on Lot 11-A, and draining water waste originating

from Lot 11-B into a drain field located on Lot 11-A. We note that other courts have recognized

such circumstances as creating easements. See Holmstrom v. Lee, 26 S.W.3d 526, 532 (Tex.

App.—Austin 2000, no pet.) (easement to use existing water lines and septic drain field);

Engelsbretson v. Hyder, No. 10-02-00320-CV, 2005 WL 168838, *1 (Tex. App.—Waco Jan. 26,

2005, pet. denied) (addressing whether septic system easement was appurtenant or in gross).


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       The 1999 Agreement fully satisfies the statute of frauds and conclusively establishes that

the parties intended to, and did, create an express easement appurtenant such that the owner of the

servient estate (Lot 11-A), whomever that is at the time, may not interfere with the use of the Lot

11 System by the owner of the dominant estate (Lot 11-B), whomever that is at the time. See

Davidson, 965 S.W.2d at 684 (easement appurtenant passes with land); Drye, 364 S.W.2d at 207

(owner of servient estate may not interfere with owner of dominant estate’s use of servient estate

for purpose of easement).

       The trial court did not err by granting summary judgment on the ground that the 1999

Agreement created an express easement appurtenant. Issue number four is overruled.

       Easement by estoppel

       In issue number five, Minihan asserts that the evidence of easement by estoppel is legally

and factually insufficient. However, the trial court granted summary judgment based on both an

express easement and an easement by estoppel. Because we have upheld the grant of summary

judgment based on the ground of an express easement, we need not address Minihan’s issue

challenging the alternative ground of an easement by estoppel. See Knott, 128 S.W.3d at 216

(providing the appellate court must affirm the summary judgment “if any of the theories presented

to the trial court and preserved for appellate review are meritorious.”); TEX. R. APP. P. 47.1

(requiring written opinions of the court of appeals to be as brief as practicable while addressing

every issue raised and necessary to the final disposition of the appeal).

Post-summary judgment issues

       Enforcement of an illegal agreement

       In his first issue on appeal, Minihan urges that the trial court erred by rendering judgment

for O’Neill based on the 1999 Agreement, and denying his motion for new trial, because that

agreement is illegal. More precisely, he contends that the Lot 11 System is illegal and, as a result,


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the court cannot enforce an agreement for the continued use of that system. See Miller v. Long-

Bell Lumber Co., 222 S.W.2d 244, 246 (Tex. 1949) (courts will not lend their aid to enforce illegal

contracts); Geis v. Colina Del Rio, LP, 362 S.W.3d 100, 107 (Tex. App.—San Antonio 2011, pet.

denied) (same). Minihan raised illegality as an affirmative defense in his answer to O’Neill’s

counterclaim, but he did not assert illegality in his own summary judgment motion or in response

to O’Neill’s motion for summary judgment.

         “Issues not expressly presented to the trial court by written motion, answer or other

response shall not be considered on appeal as grounds for reversal” of a summary judgment. TEX.

R. CIV. P. 166a(c). We will therefore not consider illegality as a ground for reversing the grant of

summary judgment in this case. We will, however, address the issue in the context of Minihan’s

motion for new trial and will thus employ the abuse of discretion standard applicable to such

motions. See BZ Tire Shop, 387 S.W.3d at 838; Cypress-Fairbanks Indep. Sch. Dist., 115 S.W.3d

at 73.

         Minihan alleged in his motion for new trial that newly-discovered evidence revealed that

the Lot 11 System is illegal. The burden on a party seeking a new trial based on newly-discovered

evidence is to show that “(1) the evidence has come to his knowledge since the trial; (2) it was not

owing to the want of due diligence that it did not come sooner; (3) it is not cumulative; and (4) it

is so material that it would probably produce a different result if a new trial were granted.” GJR

Mgmt. Holdings, L.P. v. Jack Raus, Ltd., 126 S.W.3d 257, 260 (Tex. App.—San Antonio 2003,

pet. denied); see In re City of Houston, 418 S.W.3d 388, 393 (Tex. App.—Houston [1st Dist.]

2013, orig. proceeding). Minihan did not establish either the first, second, or fourth of these

elements.

         The factual basis for Minihan’s assertion that the Lot 11 System is illegal is that the 1982

application states that the system would employ a 1,000-gallon tank to serve a three-bedroom


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house, but the system was actually constructed using two 550-gallon tanks to serve two houses on

separate lots. The County Engineer testified at the new trial hearing that he had a “eureka” moment

around August 1, 2018, after a conversation with Minihan and after the trial court had announced

its summary judgment ruling, that the Lot 11 System is illegal because it was not constructed as

permitted. He thereafter caused citations to issue to Minihan and O’Neill for “an unpermitted

system.”

       Each of the facts underlying the County Engineer’s opinion was known to Minihan well

before the summary judgment hearing. Minihan has known since the Lot 11 System was installed

that it serves two separate properties. He was also aware of the 1982 application at the time it was

filed. He testified that he was informed in 2007, when he tried to sell the Lot 11-A property, that

the Lot 11 System was an illegal cluster system. He also testified that he believed in 2015, when

the system was inspected, that it was not constructed as he remembered it, and that he gave the

County Engineer this information in 2016. None of this evidence is “newly-discovered.” And the

fact that the County Engineer did not tie this evidence together to reach a conclusion of illegality

until after the summary judgment hearing does not make the evidence itself newly-discovered.

       We also note that Minihan raised illegality as an affirmative defense in his pleadings in this

case, and that he argues on appeal that illegality is apparent from the face of O’Neill’s pleadings

and the attachments to those pleadings. This argument belies Minihan’s claim that his assertion of

illegality depends on evidence that came to his knowledge only after the summary judgment

hearing. The record demonstrates that Minihan did not sustain his burden to establish the first

requirement for a claim of newly-discovered evidence. See In re City of Houston, 418 S.W.3d at

393; GJR Mgmt., 126 S.W.3d at 260.

       In addition, to the extent that Minihan required some expert or professional assessment of

the legality of the Lot 11 System, there is no evidence that Minihan used any diligence to procure


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such an assessment. Eleven years elapsed between 2007, when Minihan was first alerted that the

system might be illegal, and 2018, when he raised the issue in his motion for new trial. But Minihan

does not identify what efforts he made to obtain an assessment of illegality, nor does he

demonstrate that he could not have obtained such an assessment in the exercise of due diligence.

Indeed, the County Engineer testified that his “eureka moment” was the result of information

obtained in a conversation with Minihan, himself. There is no explanation in the record for why

Minihan could not have relayed that information in time to raise illegality at the summary judgment

stage. Minihan did not sustain his burden to establish the second requirement for a claim of newly-

discovered evidence. See In re City of Houston, 418 S.W.3d at 393; GJR Mgmt., 126 S.W.3d at

260.

       Minihan likewise failed to sustain his burden to establish the fourth necessary element—

that the allegedly newly-discovered evidence is so material that it would probably produce a

different result if a new trial were granted. See In re City of Houston, 418 S.W.3d at 393; GJR

Mgmt., 126 S.W.3d at 260. Minihan argues that the Lot 11 System is illegal because neither party

nor their predecessors in interest had a permit or approved plan to construct and operate the system

as a cluster system. A cluster system is a sewage system designed to serve two or more sewage-

generating systems on two or more separate legal tracts. 30 TEX. ADMIN. CODE § 285.2(10). Cluster

systems are no longer authorized, but a preexisting cluster system may still be used and may be

repaired or altered in compliance with the administrative code. See id. at § 285.6.

       On appeal, Minihan specifically asserts that the Lot 11 System violates section 285.3 of

the Texas Administrative Code, which provides that “[a] person shall hold a permit and an

approved plan to construct, alter, repair, extend, or operate an on-site sewage facility (OSSF)

unless the OSSF meets one of the exceptions in subsection (f) of this section.” 30 TEX. ADMIN.

CODE § 285.3(a). One such exception is that the system is not creating a nuisance and “was


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installed before September 1, 1989, provided the system has not been altered, and is not in need

of repair.” Id. at § 285.3(f)(1)(A).

         No party contends that the Lot 11 System is creating a nuisance. In addition, there is

evidence that the system was inspected in 2015 and was found to be functioning properly and not

in need of repair. There is no evidence that the system ceased to function properly or became in

need of repair between that inspection and the new trial hearing.

         Minihan argues that the quoted exception to the permit requirement does not apply because

the Lot 11 System was altered after its installation in 1982 to include an unauthorized tie-in to Lot

11-B. 2 But the evidence is to the contrary. As recited in the 1999 Agreement, which Minihan

signed, the Lot 11 System has been jointly used by the owners of Lot 11-A and Lot 11-B since its

installation. Further, a diagram introduced into evidence shows that the system was constructed

with lines running to both properties. Minihan testified that the system was not constructed the

way he remembered it to be, but he did not identify in what respect it differed or even what his

recollection was. This testimony is too vague to have any probative value. See Huang v. Bd. of

Regents, Univ. of Tex. Sys., No. 03-01-00297-CV, 2002 WL 534424, at *4 (Tex. App.—Austin

Apr. 11, 2002, pet. denied) (mem. op., not designated for publication) (testimony vague and of no

probative value).

         It was within the trial court’s discretion to conclude that the evidence presented at the new

trial hearing is not “so material that it would probably produce a different result if a new trial were

granted.” See GJR Mgmt., 126 S.W.3d at 260. That evidence establishes that the Lot 11 System



2
  Minihan also appears to argue that the exception does not apply even if the system was originally installed as a cluster
system, because that constitutes an alteration of the approved plan. But the exception clearly refers to alterations to
the actual system as installed: “installed before September 1, 1989, provided the system has not been altered . . . .” 30
TEX. ADMIN. CODE § 285.3(f)(1)(A) (emphasis added). Indeed, the whole point of the exception is that a permit and
approved plan are not required at all. See id. at 285.3(a) (permit and approved plan are required unless exception
applies).


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was originally constructed as a cluster system, serving both Lot 11-A and Lot 11-B. There is no

evidence that it was altered after its construction to become a cluster system. The evidence thus

supports the conclusion that the Lot 11 System is not illegal because it falls within the permitting

exception noted above for systems that are not creating a nuisance, were installed before

September 1, 1989, have not been altered, and are not in need of repair. See 30 TEX. ADMIN. CODE

§ 285.3(f)(1)(A).

         Minihan also failed to establish that the Lot 11 System violates Administrative Code

section 285.3 for a second reason—Minihan did not affirmatively show that there is no permit to

construct and operate the system as a cluster system. Minihan bases his contention that there is no

such permit solely on the 1982 application that requests permission to construct a septic system on

Lot 11 with a 1,000 gallon tank to serve a three-bedroom house. We agree that this application

does not reveal that the system will serve a second property, i.e., that it is a cluster system. But

additional evidence in the record shows that this fact does not establish that the system is illegal.

         County Engineer Werner testified that the Lot 11 System is illegal because it was not

constructed according to its permit. Werner did not assume his position as County Engineer until

2015, thirty-three years after the system was installed, and did not profess to have any personal

knowledge of how it was constructed or permitted. But Werner also does not have any institutional

knowledge of how the system was permitted because his file does not contain a permit for the

system. 3 Werner’s file is also missing other documents that he stated should be included, such as

an authorization to construct, a site evaluation, inspections, and a license to operate. Werner

acknowledged that many Bandera County records have been lost or destroyed over the years



3
 The 1982 application that is in the record is marked “approved.” But Werner testified that approval of an application
simply starts the process to get authorization to construct. It therefore cannot be the permit to construct or operate
referenced in section 285.3(a). See 30 TEX. ADMIN. CODE § 285.3(a).


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because of flooding, and that it was possible that relevant septic system records had been lost or

destroyed before he became employed by the county in 2015.

       Because his file did not contain the documents necessary to reach his conclusion of

illegality, Werner relied instead on a conversation with Minihan concerning how the system was

constructed. But Minihan testified that he did not know whether the system was constructed

according to its permit. He testified only that it was not constructed the way he remembered it.

The record does not disclose how the construction differed from Minihan’s recollection, or how

that recollection has any bearing on how the system was permitted.

       Minihan did not sustain his burden, as movant on a motion for new trial based on newly-

discovered evidence, to produce evidence of illegality that is so material that it would probably

produce a different result if a new trial were granted. See In re City of Houston, 418 S.W.3d at

393; GJR Mgmt., 126 S.W.3d at 260. The trial court did not abuse its discretion by denying

Minihan’s motion for new trial asserting illegality. Issue number one is overruled.

       Disposition of all claims

       In issue number two, Minihan argues that the trial court’s judgment does not dispose of all

of his counterclaims. Specifically, he contends that the judgment does not resolve his claim for a

declaration that he has “no obligation to provide facilities or land for the treatment, storage,

conveyance, disbursement and/or absorption of septic waste generated from [Lot 11-B] in the

event the current septic tank and drain field is deemed in violation of rule, code, ordinance or

statute of Bandera County or the State of Texas, or otherwise abandoned.” O’Neill responds that

this requested declaration is not ripe for adjudication.

       Ripeness “focuses on whether the case involves uncertain or contingent future events that

may not occur as anticipated, or indeed may not occur at all.” Perry v. Del Rio, 66 S.W.3d 239,




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249 (Tex. 2001). “Ripeness concerns not only whether a court can act—whether it has

jurisdiction—but prudentially, whether it should.” Id. at 249-50 (emphasis in original).

       By declaring that the 1999 Agreement created an express easement appurtenant, the trial

court determined that Minihan does have “an obligation to provide facilities or land for the

treatment, storage, conveyance, disbursement and/or absorption of septic waste generated from

[Lot 11-B].” What Minihan contends is still unresolved is whether these obligations remain “in

the event the current septic tank and drain field is deemed in violation of rule, code, ordinance or

statute of Bandera County or the State of Texas, or otherwise abandoned.” (Emphasis added.) This

requested declaration, by its own language, concerns “uncertain or contingent future events that

may not occur.” See Perry, 66 S.W.3d at 249. The issue is therefore ripe for adjudication only if

the stated contingency had already occurred at the time of adjudication. See id. at 250 (consider

facts at time of adjudication to determine ripeness).

       No party contends that the septic system has been abandoned. Minihan urges, instead, that

it has been deemed in violation of county rules and regulations. He relies on the affidavit of County

Engineer Werner, which states that Werner concluded on or about August 1, 2018, that the Lot 11

System was in violation of its permit because of “un-permitted or un-approved material alterations

of the system from the approved design.” Werner further concluded that continued use of the

system was in violation of county rules and regulations.

       Even if the County Engineer’s conclusion of illegality is sufficient to “deem” the Lot 11

System to be illegal (which we address below), he did not reach that conclusion until after the trial

court rendered judgment on the parties’ summary judgment motions. The contingency on which

Minihan’s third requested declaration depends therefore had not occurred at the time of

adjudication, and the issue was not ripe. See Perry, 66 S.W.3d at 249-50. We will nevertheless

consider the issue in the context of Minihan’s motion for new trial, as Minihan argues that the


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contingency occurred before the trial court signed the final judgment, and the trial court entertained

the issue at the new trial hearing.

       The evidence presented to the trial court, as discussed above, does not show that the Lot

11 System is illegal. At most, it shows that County Engineer Werner is of the opinion that it is

illegal and issued citations to that effect. But Werner’s assessment merely begins the inquiry. As

he, himself, explained, Werner is not the ultimate authority on whether a septic system is in

violation of a rule, regulation, or statute. He simply makes an initial decision and issues a citation.

That citation then goes to the county attorney, who may disagree with his assessment and decline

to prosecute the matter. Thus, despite Minihan’s repeated assertion that Bandera County has

deemed the system to be illegal, Werner’s assessment is not necessarily that of Bandera County.

In addition, Werner admitted that he does not have any knowledge of the appeal process, either in

the context of a county prosecution or a Texas Commission on Environmental Quality (“TCEQ”)

violation. In fact, concerning proceedings following his initial citation, Werner testified, “I don’t

care because at that point I have no say in it.”

       The evidence adduced at the new trial hearing does not demonstrate that the necessary

contingency has occurred to render Minihan’s requested declaration ripe for adjudication. As

discussed above, Werner concluded that the system is illegal because it was not constructed as

permitted even though he does not have, and has never seen, the system permit, which may well

have been lost or destroyed long before he assumed the job of County Engineer. In addition,

Werner is not the arbiter of whether the system is, or is “deemed to be,” illegal. The determination

of illegality necessarily involves a legal process, including a decision by the county attorney to

prosecute and culminating with the exhaustion of legal or administrative appeals, in which Werner

admittedly plays no role.




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       Based on the record before it, even if the trial court had jurisdiction to address Minihan’s

requested declaration, it was within that court’s discretion to determine, prudentially, that it should

not address it because the issue was not ripe. See Perry, 66 S.W.3d at 249-50. In other words, the

trial court did not abuse its discretion by denying Minihan’s motion for new trial to address the

contingent illegality declaration. Issue number two is overruled.

       Equitable and just attorney’s fees

       In his third issue on appeal, Minihan challenges the trial court’s award of attorney’s fees

to O’Neill. The fee award was made pursuant to section 37.009 of the Declaratory Judgments Act,

which provides that a court may award “reasonable and necessary attorney’s fees as are equitable

and just.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.009. Minihan does not contest the

reasonableness and necessity of the awarded fees, but argues that they are not equitable and just.

       The award of attorney’s fees under section 37.009 is within the trial court’s sound

discretion, subject to the requirement that any fees awarded be reasonable and necessary as well

as equitable and just. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Whether fees are

reasonable and necessary are questions of fact, but whether they are equitable and just are questions

of law. Id. The determination of what fees are equitable and just is “not susceptible to direct proof

but is rather a matter of fairness in light of all the circumstances.” Ridge Oil Co., Inc. v. Guinn

Invs., Inc., 148 S.W.3d 143, 162 (Tex. 2004); see Bexar Cty., Tex. v. Deputy Sheriff’s Ass’n of

Bexar Cty., 429 S.W.3d 673, 678 (Tex. App.—San Antonio 2014, no pet.).

       The basis for Minihan’s challenge to the award of attorney’s fees in this case is that it is

neither equitable nor just to award fees for efforts to enforce an illegal agreement. But, for all the

reasons discussed above, O’Neill established that the 1999 Agreement created an enforceable

express easement appurtenant, and Minihan failed to establish that the agreement (or the Lot 11




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System itself) is illegal. The foundation for Minihan’s challenge to the attorney’s fee award thus

fails. Issue number three is overruled.

                                           Conclusion

       The trial court did not err by granting O’Neill’s motion for summary judgment and

declaring the existence of an express easement permitting the owners of Lot 11-B to continue joint

usage of the Lot 11 System. Additionally, the trial court did not abuse its discretion by awarding

attorney’s fees and by denying Minihan’s motion for new trial. The judgment of the trial court is

affirmed.

                                                 Irene Rios, Justice




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