                                                                                   ACCEPTED
                                                                               04-15-00272-CV
                                                                   FOURTH COURT OF APPEALS
                                                                        SAN ANTONIO, TEXAS
                                                                         11/10/2015 9:50:51 AM
                                                                                KEITH HOTTLE
                                                                                        CLERK

                       NO. 04-15-00272-CV

                                                              FILED IN
                                                       4th COURT OF APPEALS
                 IN THE FOURTH COURT OF APPEALS         SAN ANTONIO, TEXAS
                       SAN ANTONIO, TEXAS              11/10/2015 9:50:51 AM
                                                           KEITH E. HOTTLE
                                                                Clerk

                        KYU IM ROBINSON,
                                        APPELLANT,

                                V.

                 JESS L. MAYFIELD, TRUSTEE, ET AL.,
                                          APPELLEES.


         ON APPEAL FROM THE 131ST JUDICIAL DISTRICT COURT
                      BEXAR COUNTY, TEXAS
              HON. RENEE A. YANTA, PRESIDING JUDGE
              TRIAL COURT CAUSE NO. 2013-CI-07766


                 APPELLANT’S REPLY BRIEF


                                     JoAnn Storey
                                     State Bar No. 19315300
                                     JOANN STOREY, P.C.
                                     1005 Heights Boulevard
                                     Houston, Texas 77008
                                     Telephone: 713/529-0048
                                     Telecopier: 713/529-2498
                                     storeyj@heightslaw.com

                                     Counsel for appellant,
                                     Kyu Im Robinson


O RAL A RGUMENT R EQUESTED
                                            TABLE OF CONTENTS


Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

I.       Riddick misrepresents the record... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.      Riddick misrepresents Robinson’s briefing... . . . . . . . . . . . . . . . . . . . . . . . . 7

III.     Holden and the other cases Riddick cites are distinguishable... . . . . . . . . . 10

IV.      Notice of use and notice of an easement are two different things... . . . . . . 15

V.       This Court has rejected the Scott exception... . . . . . . . . . . . . . . . . . . . . . . . 16

Conclusion and Prayer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
                                      INDEX OF AUTHORITIES

Cases                                                                                                 Page

Allen v. Allen,
      280 S.W.3d 366 (Tex.App.─Amarillo 2008, pet. denied). . . . . . . . . . . . . . 18

Callan v. Walters,
      190 S.W. 829 (Tex.Civ.App.─Austin 1916, no writ). . . . . . . . . . . . . . . . . . 15

Holden v. Weidenfeller,
     929 S.W.2d 124 (Tex.App.─San Antonio
     1996, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 15, 16

In re CMH Homes, Inc.,
       No. 04-13-00050-CV, 2013 WL 2446724
       (Tex.App.─San Antonio 2013, orig. proceeding).. . . . . . . . . . . . . . . . . . . . . 2

Lakeside Launches, Inc. v. Austin Yacht Club, Inc.,
      750 S.W.2d 868 (Tex. App.─Austin 1988, writ denied). . . . . . . . . . . . . . . 15

Mack v. Landry,
     22 S.W.3d 524 (Tex.App.─Houston [14th Dist.] 2000, no pet.). . . . . . . . . . 17

Montange v. Hagelstein,
     No. 10-05-00291-CV, 2006 WL 648115
     (Tex.App.─Waco 2006, pet. denied)
     (mem. op.) (Gray, C.J., dissenting). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

North Clear Lake Development Corp. v. Blackstock,
      450 S.W.2d 678 (Tex.Civ.App.─Houston
      [14th Dist.] 1970, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

RDG Partnership v. Long,
    350 S.W.3d 262 (Tex.App.─San Antonio 2011, no pet.). . . . . . . . . . . . . . . 17




                                                    -ii-
Rinn v. Wennenweser,
      No. 01-07-00763-CV, 2008 WL 2611921
      (Tex.App.─Houston [1st Dist.] 2008, no pet.) (mem. op.). . . . . . . . . . . . . . 18

Russell v. Rawls,
      No. 08-00-00546-CV, 2003 WL 1361534
      (Tex.App.─El Paso 2003, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . 13

Smith v. Reid,
      No. 04-13-00550-CV, 2015 WL 3895465
      (Tex. App.─San Antonio 2015, pet. filed) (mem. op.). . . . . . . . . . . . . . . . . . 9

Storms v. Tuck,
     579 S.W.2d 447 (Tex.1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Suarez v. City of Texas City,
      465 S.W.3d 623 (Tex.2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 15

Thompson v. Houk,
     No. 12-04-00315-CV, 2005 WL 2035831
     (Tex.App.─Tyler 2005, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . 12, 13

Wallace v. McKinzie,
     869 S.W.2d 592 (Tex.App.─Amarillo 1993, writ denied). . . . . . . . . . . . . . 12




                                                  -iii-
                                  No. 04-15-00272-CV


                            In The Fourth Court of Appeals
                                 San Antonio , Texas


                                   Kyu Im Robinson,
                                                       Appellants,

                                            v.

                            Jess L. Mayfield, Trustee, et al.,
                                                     Appellees.


TO THE HONORABLE COURT OF APPEALS:

         Appellant, Kyu Im Robinson (Robinson or appellant), files this brief in reply

to Appellee’s Brief filed by William P. Riddick, Individually and as Trustee of the

Wm P. Riddick ─ 76 Trusts (Riddick or appellee).

I.       Riddick misrepresents the record.

         Robinson objects to the following misrepresentations of the record in Riddick’s

brief.

         1.    Misrepresentation: The Roadway was constructed sometime before

January 1954. RIDDICK BR. at p. 3 (citing DX9).

               Record: DX9 is a Warranty Deed executed by Walter G. Laguerquist, Jr.

conveying Riddick’s property to Riddick and his brother, Thomas R. Riddick. DX9.
The deed does not mention any roadway, nor does the deed purport to reflect any

condition of the property before the date of its execution on January 31, 1977.

        2.   Misrepresentation: At the time the Roadway was built, the Steves

Brothers still owned the property on both sides of the Roadway. RIDDICK BR. at p.

3 (citing DX1).

             Record: DX1 consists of plats dated in 1966. DX1. They do not reflect

the roadway, much less the date the roadway was built.

        3.   Misrepresentation: By 1954 there was already a structure built on the

north side of the Roadway, as indicated in the below aerial photograph taken on

January 16, 1954, with the Roadway highlighted. RIDDICK BR. at p. 3 (citing CR33,

DX9).

             Record: No “aerial photograph taken on January 16, 1954, with the

Roadway highlighted” was ever introduced into evidence at trial. CR33 is Riddick’s

pleading. It is not evidence. See In re CMH Homes, Inc., No. 04-13-00050-CV, 2013

WL 2446724, at *9 (Tex.App.─San Antonio 2013, orig. proceeding) (citing Laidlaw

Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.1995)). The Warranty

Deed, DX9, does not include, or reference, any aerial photograph, nor does it show

a “highlighted roadway.”




                                        -2-
       4.    Misrepresentation: Prior to purchasing the Riddick Property,

architectural and engineering drawings were created, evidencing Mr. Lifshutz’s plans

for the Riddick Property. RIDDICK BR. at p. 6 (citing DX28A, B, C; 3RR58, 59, 61-

63).

             Record: The record conclusively establishes the opposite of Riddick’s

assertion. As Riddick’s own counsel conceded: “We don’t know who actually

designed those drawings. Everybody is dead. Mr. Bernard Lifshutz is dead. Mr.

Albert Steves is dead.” 2RR45.

       5.    Misrepresentation: The Apartments and associated carport parking

structures were constructed in clear reliance on, and contemplation of, the continued

use of the Roadway. RIDDICK BR. at p. 6 (citing 3RR26-27).

             Record: The record cite is to Riddick’s statements made on voir dire to

establish Riddick’s expertise on real estate issues. 3RR23-27. Nothing in the cited

pages reflect that whoever built the Apartments relied on or contemplated continued

use of the Roadway.

       6.    Misrepresentation: Other aspects of the Apartments - - stairs, hot water

boilers, electrical infrastructure - - were designed so as to make continuous use of the

Roadway necessary. RIDDICK BR. at p. 7 (citing 3RR48-49).




                                          -3-
             Record: The cited portion of the record is Riddick’s testimony

concerning a video of the premises. Nothing in the cited part of the record, or

anywhere else in the record, reflects that the stairs, hot water boilers, and electrical

infrastructure were part of a “design” that contemplated continuous use of the

roadway. The current condition of the premises is not relevant to any issue in the

case.

        7.   Misrepresentation: The Apartments as designed clearly envisioned and

necessitated the use of the Roadway by the Apartments’ owners and its tenants.

RIDDICK BR. at p. 7 (citing CTX1 and 3RR26-27).

             Record: CTX1 is Dr. Lifshutz’s deposition testimony; 3RR26-27 is the

voir dire of Riddick. The cited portions of the record do not show what the design

of the apartments envisioned or necessitated. To the contrary, Dr. Lifshutz’s first

memory of the roadway was after all the hoopla of the construction of the apartments

was over. CTX1(p.13).

        8.   Misrepresentation: The covered parking spots are required for code

compliance for operation as an apartment complex. RIDDICK BR. at p. 7 (citing

3RR26-27, 30).

             Record: The cited portions of the record do not indicate that such “code

compliance” was in effect and relied upon at the time the apartments were designed



                                          -4-
or constructed. Whatever “code compliance” is now required is not relevant to any

issue in this case.

      9.     Misrepresentation: The original developer of the Riddick Property

actually built the Apartments and permanent parking structures in a way that required

use of the Roadway. RIDDICK BR. at p. 24.

             Record: The record conclusively establishes the opposite of Riddick’s

assertion. As Riddick’s own counsel conceded: “We don’t know who actually

designed those drawings. Everybody is dead. Mr. Bernard Lifshutz is dead. Mr.

Albert Steves is dead.” 2RR45.

      10.    Misrepresentation: Lifshutz believed and relied on the Steves Brothers’

representations when they failed to halt or preclude the construction of the

Apartments. RIDDICK BR. at p. 24 (citing DX28A, B, C).

             Record: The drawings depicted in DX28A, B, and C do not contain any

representations by silence or acquiescence by the Steves Brothers.

      11.    Misrepresentation: Photographs in the record clearly show that the

Roadway existed before the Apartments were constructed. RIDDICK BR. at p. 33

(citing PX10B; DX26A, B; DX27; CR33).

             Record: CR33 is Riddick’s pleading. It is not evidence. PX10B is not

dated and, thus, is no evidence that the roadway existed before the apartments were



                                         -5-
constructed. DX26A and DX26B are not dated and, thus, are no evidence the

roadway existed before the apartments were constructed.1/ DX27 is not dated and,

thus, is no evidence the roadway existed before the apartments were constructed.

Indeed, Dr. Lifshutz testified that DX27 correctly depicts where the Regency House

Apartments are located. CTX1(p.33). That testimony is contrary to the notion that

“the Roadway existed before the Apartments were constructed.”

       12.     Misrepresentation: Every owner of the Apartments since construction

has relied on a right to use of the Roadway. RIDDICK BR. at p. 36 (citing 3RR26-27).

               Record: The record cite consists of Riddick’s statements on voir dire

about code compliance and the effect on the value of his property if he does not have

use of the roadway. 3RR26-27. There is nothing in that exchange about what his

predecessors relied on “since construction” of the roadway. The testimony in the

cited pages of the record is “so weak as to do no more than create a mere surmise or

suspicion of” the existence of reliance and, thus, “is no evidence.” Suarez v. City of

Texas City, 465 S.W.3d 623, 634 (Tex.2015) (quoting Browning─Ferris, Inc. v.

Reyna, 865 S.W.2d 925, 927 & n.3 (Tex.1993)).




       1/
         As Robinson pointed out in her opening brief, the court reporter’s reference in her index
to photos dated 1/16/54 is not supported by the photos themselves. ROBINSON BR. at p. 16, n.2.

                                               -6-
II.   Riddick misrepresents Robinson’s briefing.

      Riddick claims Robinson mischaracterizes the applicable legal standards and

the evidence and “misses the point” of the law. RIDDICK BR. at p. 37. Riddick is

referring to Robinson’s argument that there is no evidence that Steves or his

independent executrix - - predecessors to Robinson, the servient-estate owner - -

induced Riddick’s acceptance of the grant of his property. ROBINSON BR. at p. 28.

      Riddick says that the law does not require reliance on representations made by

the predecessor to the owner of the dominant estate. RIDDICK BR. at p. 37. But,

Robinson never claimed that Steves or his independent executrix were predecessors

in title to Riddick (the owner of the dominant estate). Rather, as she clearly pointed

out, the Robinson property (which is the servient estate) was owned either by Steves

or by his independent executrix when Riddick purchased his property and that there

is no evidence that “either of those persons induced Riddick’s acceptance of the

grant.” ROBINSON BR. at p. 28. It is the law that an easement by estoppel may be

based on representations by the owner of the servient estate to the owner of the

dominant estate and Robinson cited that law in her argument. Id. (citing Lakeside

Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 872 (Tex.App.─Austin

1988, pet. denied)).




                                         -7-
          In short, it is Riddick who has missed the point or has created a classic straw-

man argument.

          Riddick also says that Robinson’s argument, that use of the roadway was

permissive, is disingenuous.         RIDDICK BR. at p. 38.       According to Riddick,

Robinson’s argument is disingenuous because there is no evidence that the use of the

roadway was ever permissive and, “in fact there is evidence of the opposite.” Id.

Riddick’s contention ignores - - and, hence, does not address - - Robinson’s legal

argument that the law presumes that use is by permission based on undisputed

evidence of joint use of the roadway. See ROBINSON BR. at pp. 23, 31, 33, 37, 38, 40,

41 (citing Callan v. Walters, 190 S.W. 829, 831-32 (Tex.Civ.App.─Austin 1916, no

writ)).

          Riddick further claims Robinson mischaracterizes the state of the law regarding

the requirement of a vendor/vendee relationship to impose a duty. RIDDICK BR. at p.

39. According to Riddick, this Court has not required a vendor/vendee relationship

in recognizing easements by estoppel. Id. (citing Holden v. Weidenfeller, 929 S.W.2d

124 (Tex.App.─San Antonio 1996, writ denied)). Riddick ignores the following

precedent from this Court and, thus, misstates Robinson’s briefing:




                                             -8-
        An easement by estoppel may not be predicated upon silence and
        passive acquiescence alone.

        In the absence of a vendor/vendee relationship, there was no duty on the
        Reids [servient estate owner] to caution or warn Smith or his
        predecessors-in-title that they should make no improvements upon their
        property without a secure right of ingress and egress appurtenant to their
        land.

Smith v. Reid, No. 04-13-00550-CV, 2015 WL 3895465, at *7 (Tex. App.─San

Antonio 2015, pet. filed) (mem. op.) (citations and internal quotations omitted).

Robinson cited this Court’s opinion in Smith in support of her argument that there

was no duty in the absence of a vendor/vendee relationship. ROBINSON BR. at pp. 34,

39, 42.

        Riddick accuses Robinson of “ignoring precedent like Holden that clearly

supports the trial court’s judgment.” RIDDICK BR. at p. 40. Riddick overlooks

Robinson’s discussion of Holden - - and how it applies to this case - - on pages 13,

19-20, 21, and 22 of her brief. Riddick’s accusation is unfounded. More importantly,

the compelling facts supporting this Court’s holding in Holden are missing in this

case.

        Finally, Riddick asserts that Robinson does not cite any authority supporting

her argument that recovery of attorney’s fees in easement cases under the TDJA is

limited to those instances involving the construction of a written agreement. RIDDICK

BR. at p. 48. Riddick’s statement is a complete falsehood. Robinson cites three cases

                                           -9-
in support of her argument - - including two cases from this Court - - with

parenthetical explanations. ROBINSON BR. at pp. 52-53 (citing Smith v. Reid and

Herring v. Bocquet from this Court and Roberson v. City of Austin from the Austin

Court of Appeals).

III.   Holden and the other cases Riddick cites are distinguishable.

       Riddick argues that Holden’s facts make its holding dispositive in this case.

RIDDICK BR. at p. 28. But, the doctrine of easement by estoppel depends on the

unique facts of each case. Holden, 929 S.W.2d at 131. Even Riddick recognizes this

maxim: Easements by estoppel are “addressed on a case-by-case basis” and “are fact

specific.” RIDDICK BR. at p. 32. In any event, the table below demonstrates that the

facts that compelled the conclusion in Holden are absent here.

         Holden v. Weidenfeller                      Robinson v. Riddick
 Deed of property to claimant’s             No reference to roadway in question in
 predecessor referenced the road in         any deed
 question, 929 S.W.2d at 131
 Claimant’s property is landlocked        Riddick’s property is not landlocked,
 without the use of the road in question, DX6, 2RR86
 id.
 The roadway was the only means of          Riddick’s property is accessible by
 ingress and egress between a public        three public roads: Burr Road, Raphail
 road and the claimant’s property, id. at   Drive, and Harry Wurzbach Road
 127                                        (formerly Military Highway), DX6;
                                            2RR86.




                                        -10-
         Holden v. Weidenfeller                        Robinson v. Riddick
 Claimant’s predecessors testified that:      None of Riddick’s predecessors - -
                                              Albert Steves, III, B. Lee Lifshutz,
 ● the property was purchased with the        Skylark Investment Company, or
 understanding that the road was the          Walter G. Laguerquist, Jr., DX3, DX5,
 means of access, and                         DX7, DX9 - - testified at trial

 ● the property was purchased because
 they believed, based on the previous
 use of the road, they had a right to
 access their property via the old road

 Id. at 131
 The owners of the servient estate            No evidence Kim took any action that
 encouraged the claimants’ belief they        encouraged Riddick’s belief he had a
 had a right to cross the owner’s             right to use the roadway to access the
 property to access their own property        parking spaces
 by allowing the claimants to put their
 own lock on a gate on the roadway to
 gain access to their property, id. at
 131-32
 The owners of the servient estate built      No evidence Robinson took any action
 a new roadway on their land to allow         that “indicated her knowledge” of
 the claimants an alternative access to       Riddick’s right to cross Robinson’s
 their land, id. at 132                       land to access the parking spaces
 The owners of the servient estate saw a There is no evidence the roadway in
 gate across the roadway leading to the question was never gated.
 claimant’s property before they
 purchased the property and never
 inquired about the use of the gate and
 road, id. at 132

      The Court should reject Riddick’s attempt to apply Holden’s holding to the

vastly different facts of this case.


                                           -11-
      The other cases Riddick cites are similarly distinguishable. In Wallace v.

McKinzie, the claimant’s property was landlocked.            869 S.W.2d 592, 594

(Tex.App.─Amarillo 1993, writ denied). In contrast to Wallace, Riddick’s property

in this case is accessed via three public roadways. DX6; 2RR86. Further, the

claimant in Wallace had a conversation with the owner of the roadway, believed what

he was told, and thereafter maintained the road and made improvements to his

property. 869 S.W.2d at 595. In contrast to Wallace, it is undisputed in this case that

Riddick has never had any oral communication with Robinson about the roadway

between the two properties. 3RR87. Finally, the parties in Wallace reached an

agreement to place double locks on the gate to allow both parties access to the road

and, following that agreement, the claimant continued to maintain the road. 869

S.W.2d at 595. There is no agreement between the parties in this case.

      In Thompson v. Houk, the claimants could reach their land only by helicopter

or by boat if they were unable to use the roadway in question. No. 12-04-00315-CV,

2005 WL 2035831, at *1 (Tex.App.─Tyler 2005, no pet.) (mem. op.). Here,

Riddick’s property is not landlocked. Further, the Tyler court reached its holding

based on - - to quote the court itself - - “nothing but permissive and acquiescing

behavior” on the part of the owners of the servient estate and their predecessors. Id.,




                                         -12-
at *3. Thus, Thompson stands in stark contrast to the facts that compelled this

Court’s conclusion in Holden.

      There further is no discussion in Thompson of the duty requirement imposed

by the Texas Supreme Court. See Storms v. Tuck, 579 S.W.2d 447, 452 (Tex.1979)

(estoppel by silence arises “where a person is under a duty to another to speak, but

refrains from doing so and thereby leads the other to act in reliance on a mistaken

understanding of the facts.”). Finally, the holding in Thompson far exceeds the legal

bounds established by the Texas Supreme Court in Storms: There is no estoppel to

deny the existence of an alleged easement where the owner of the servient estate

“mere[ly] acquiesce[s] in the making of improvements to the dominant estate.” 579

S.W.2d at 453 n.7.

      The Russell v. Rawls case is distinguishable from this case because - - to quote

the El Paso court - - the servient estate owner’s “conduct was more than mere

acquiescence to the use of the road on her property.” No. 08-00-00546-CV, 2003 WL

1361534, at *4 (Tex.App.─El Paso 2003, no pet.) (mem. op.). Russell is also

distinguishable from this case because, again like so many of these cases, the

dominant estate owner’s property was landlocked. 2003 WL 1361534, at *4.

Further, the court found “no evidence to contradict the strong inference” that the

owner of the servient estate (Van Neiman) was aware of the landlocked owner’s daily



                                        -13-
use of Van Neiman’s roadway to tend to Van Neiman’s needs and to bring her

groceries and her mail. Id. Finally, there was evidence that, despite several

opportunities, Van Neiman never objected to the use of the road. Id.

      In North Clear Lake Development Corp. v. Blackstock, 450 S.W.2d 678

(Tex.Civ.App.─Houston [14th Dist.] 1970, writ ref’d n.r.e.), the court, in finding an

easement by estoppel, considered the fact that improvements which had been made

were permanent and substantial, that such improvements were open and obvious to

the owner of the servient estate, that the servient estate had constructive notice of the

activities of the dominant estate holders, and that such use and improvements had the

tacit consent of the servient estate owners because there was no complaint made when

the improvements were constructed.            In contrast to Blackstock, Riddick’s

improvement to his property consisted of a concrete pad to support his Waste

Management dumpster that, by Riddick’s own admission, he installed - - not because

of anything Robinson did or did not say or do - - to prevent damage caused by Waste

Management trucks and to eliminate the need for constant repair of the asphalt.

3RR75.

      In short, the compelling facts in Holden are not present in this case. As for the

other cases Riddick cites, none involves the unique fact distinguishing this case from

them: Because the roadway is located between, and may be accessed by, two public



                                          -14-
roads, it is used by the public as well as by Riddick and Robinson. The Court should

resist Riddick’s effort to have this case resolved by examining the facts of other

cases.

IV.      Notice of use and notice of an easement are two different things.

         According to Riddick, Robinson “clearly had notice of the easement” because

she knew the roadway was used by the apartment tenants, because she knew Riddick

maintained the roadway, and because the roadway had been designated for

commercial use. RIDDICK BR. at pp. 34-35. Riddick conflates notice of use with

notice of an easement. They are two different things in the law.

         “[N]o easement by estoppel may be imposed against a subsequent purchaser

for value, who has no notice, actual or constructive, of the easement claimed.”

Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 873 (Tex.

App.─Austin 1988, writ denied); see also Holden, 929 S.W.2d at 132 (affirming

easement where servient owner had notice of claimant’s claim of right of way on

roadway in question); Callan v. Walters, 190 S.W. at 831-32 (to operate as notice, use

must be exclusive, thereby giving notice of a claim of right). Under the applicable

law, the evidence Riddick relies on for notice of an easement - - in contrast to notice

of use - - is nothing more than “some suspicion linked to other suspicion produc[ing]

only more suspicion, which is not the same as some evidence.” Suarez v. City of



                                         -15-
Texas City, 465 S.W.3d at 634 (quoting Marathon Corp. v. Pitzner, 106 S.W.3d 724,

727-28 (Tex.2003).

      Further, Riddick omits a key factor supporting this Court’s determination in

Holden that the owner of the servient estate had notice of the easement. “The deed

[from the grantor of the servient estate] referencing the road should have put [the

grantor’s successor] on notice of a potential claim of right of way.” Holden, 929

S.W.2d at 132. There is no deed in this case referencing the roadway and, thereby,

putting Robinson on notice of a potential claim of right of way over the roadway.

Nor is there any evidence of the other fact establishing notice of an easement in

Holden: the servient owner’s knowledge, before he bought his property, of a gate “in

plain view” on the road leading to the claimant’s property. Id.

      As Robinson discussed in her opening brief, the evidence conclusively

establishes the contrary of notice because Riddick’s use of the roadway was not

exclusive but had been used by Robinson and her predecessors for decades.

ROBINSON BR. at pp. 22-23. The Court should decline Riddick’s invitation to expand

the law to the facts of this case.

V.    This Court has rejected the Scott exception.

      Riddick acknowledges that this Court holds that “joint use is fatal to a

prescriptive-easement claim[.]” RIDDICK BR. at p. 41 (citing Estate of Trevino v.



                                        -16-
Melton, No. 04-07-00654-CV, 2009 WL 891881, at *4 (Tex.App.─San Antonio 2009,

pet. denied) (mem. op.)). Yet, Riddick asks this Court to adopt an exception carved

out by the Austin Court of Appeals and followed by the Waco Court of Appeals. Id.

at pp. 42-47 (citing Scott v. Cannon, 959 S.W.2d 712 (Tex.App.─Austin 1998, pet.

denied), and Montange v. Hagelstein, No. 10-05-00291-CV, 2006 WL 648115

(Tex.App.─Waco 2006, pet. denied) (mem. op.). Riddick fails to mention this Court

expressly rejected the reasoning in Scott.

      Significantly, this Court has expressly determined that Scott’s exception is

legally infirm because “both the Texas Supreme Court and this court continue to cite

joint use as a basis for rejecting a claim of easement by prescription.” RDG

Partnership v. Long, 350 S.W.3d 262, 275 (Tex.App.─San Antonio 2011, no pet.).

Based on RDG Partnership’s precedent, this Court should again decline to adopt

Scott’s exception.

      Further, this Court and others have distinguished Scott’s self-described

“unique” facts and have refused to expand the exception beyond those facts. See id.

(finding no evidence of “independent acts to show adversity . . . that would be

similar to the evidence in Scott.”) (emphasis added); Mack v. Landry, 22 S.W.3d 524,

531-32 (Tex.App.─Houston [14th Dist.] 2000, no pet.) (finding, after reciting the

unique facts in Scott, that there was “no such independent act of hostility to turn the



                                         -17-
joint permissive use of the road into a prescriptive easement.”) (emphasis added);

Allen v. Allen, 280 S.W.3d 366, 379 (Tex.App.─Amarillo 2008, pet. denied) (finding

Scott was “readily distinguishable” because of its facts); Rinn v. Wennenweser, No.

01-07-00763-CV, 2008 WL 2611921, at *5 n.3 (Tex.App.─Houston [1st Dist.] 2008,

no pet.) (mem. op.) (finding Scott was factually distinguishable because of its facts).

And, the dissent in Montange points out the legal infirmity of Scott. 2006 WL

648115, at *6 (Gray, C.J., dissenting) (explaining the anomaly of Scott’s acceptance

of an argument that “exclusive use” should change based upon the nature of the case).

      Riddick also posits that because “[o]nly the Apartments’ tenants and their

visitors are allowed to use the parking spaces accessible by the Roadway,” their use

is “exclusive.” RIDDICK BR. at p. 43. The argument is nonsensical and, if adopted,

would eviscerate the Texas Supreme Court’s century-old rule that joint use is not

exclusive. It goes without saying that every easement claimant uses someone else’s

property to access his or her [the claimant’s] property. Common sense dictates that

the owner of the servient estate does not use the easement over his or her own

property to access the dominant-estate-owner’s property. No case can be found - -

and Riddick does not cite any - - that holds that the easement claimant’s use of an

easement to access his or her own property equates to “exclusive” use of the




                                         -18-
easement. The Court should decline to create new law to hold that the undisputed

joint use of the roadway in this case not fatal to a prescriptive easement.

                            CONCLUSION AND PRAYER

      For the reasons stated in appellant’s opening brief and in this Reply Brief, the

Court should reverse the trial court’s judgment granting Riddick an easement by

estoppel and render judgment declaring that Riddick has no easement by estoppel.

The trial court’s judgment alternatively granting Riddick an easement by prescription

should be reversed and judgment rendered that Riddick take nothing. The trial

court’s judgment granting Riddick his attorney’s fees should be reversed and

judgment rendered that Riddick take nothing, or, alternatively, the parties’ attorney’s

fees should be remanded for a new trial.

                                        Respectfully submitted,

                                        JOANN STOREY, P.C.

                                        BY: /s/ JoAnn Storey
                                            JoAnn Storey
                                            State Bar No. 19315300
                                            1005 Heights Boulevard
                                            Houston, Texas 77008
                                            Telephone: 713/529-0048
                                            Facsimile: 713/529-2498
                                            Email: storeyj@heightslaw.com

                                                Counsel on appeal for appellant,
                                                Kyu Im Robinson


                                         -19-
                         CERTIFICATE OF COMPLIANCE

      Relying on the word count function in the word processing software used to
produce this document, I certify that the number of words in this Appellants’ Reply
Brief is 4,013, excluding the following: captions, table of contents, index of
authorities, signature, proof of service, and certificate of compliance.

      This brief complies with the typeface requirements of TRAP 9.4(e) because it
uses a conventional typeface no smaller than 14-point (WordPerfect X4 14-point
Times New Roman).


                                              /s/ JoAnn Storey
                                              JoAnn Storey

                           CERTIFICATE OF SERVICE

      On November 10, 2015, I sent a true and correct copy of the foregoing
Appellant’s Reply Brief via ProDoc® electronic filing to the following:

Michael B. Knisely
Jeffrey T. Knebel
OSBORNE, HELMAN, KNEBEL & SCOTT, LLP
301 Congress Avenue, Suite 1910
Austin, Texas 78701

Counsel for appellee, William P. Riddick,
     Individually and as Trustee of the
     Wm P. Riddick ─ 76 Trust

                                              /s/ JoAnn Storey
                                              JoAnn Storey




                                       -20-
