                                                                                    ACCEPTED
                                                                                04-14-00758-CV
                                                                    FOURTH COURT OF APPEALS
                                                                         SAN ANTONIO, TEXAS
                                                                           8/27/2015 7:41:14 PM
                                                                                 KEITH HOTTLE
                                                                                         CLERK


                           NO. 04-14-00758-CV
                                                             FILED IN
                IN THE COURT OF APPEALS     4th COURT OF APPEALS
                                             SAN ANTONIO, TEXAS
        FOURTH COURT OF APPEALS DISTRICT OF TEXAS
                                            8/27/2015 7:41:14 PM
                   SAN ANTONIO, TEXAS
                                                          KEITH E. HOTTLE
                                                               Clerk

                 JOHN A. LANCE, DEBRA L. LANCE,
                 F.D. FRANKS AND HELEN FRANKS
                                              APPELLANTS
                                   V.
    JUDITH AND TERRY ROBINSON, GARY AND BRENDA FEST,
           VIRGINIA GRAY, BUTCH TOWNSEND AND
  BEXAR-MEDINA-ATASCOSA COUNTIES WATER CONTROL AND
                IMPROVEMENT DISTRICT NO. 1

                                               APPELLEES
                      th
          From the 198 District Court of Bandera County, Texas
                     Trial Court No. CV-12-0100209
              Honorable M. Rex Emerson, Judge Presiding
         REPLY BRIEF OF APPELLANTS,
        JOHN A. LANCE, DEBRA L. LANCE,
        F.D. FRANKS AND HELEN FRANKS
            Dan Pozza                         Cynthia Cox Payne
     State Bar No. 16224800                 State Bar No. 24001935
         Attorney at Law                         P.O. Box 1178
    239 East Commerce Street                   1118 Main Street
    San Antonio, Texas 78205                 Bandera, Texas 78003
     (210) 226-8888 – Phone                 (830) 796.7030 – Phone
      (210) 224-6373 – Fax                   (830) 796.7945 – Fax
      danpozza@yahoo.com                   cpayne@paynelawfirm.net

                ATTORNEYS FOR APPELLANTS,
JOHN A. LANCE, DEBRA L. LANCE, F.D. FRANKS AND HELEN FRANKS

                  ORAL ARGUMENT REQUESTED
                                        TABLE OF CONTENTS

                                                                                                                  Page

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iv
SUMMARY OF REPLY ARGUMENT ...................................................................1

REPLY ARGUMENT ...............................................................................................4

I.      Reply Argument to Statement of Facts. ......................................................... 4
II.     The Plaintiffs did not sue in equity to remove a cloud or an easement,
        nor did they move for summary judgment on that ground. ............................ 6

III.    Trespass to Try Title is necessary to attack the validity of the
        Defendants’ Deed Without Warranty. ............................................................ 6
IV.     Plaintiffs do not have standing to bring this suit. ......................................... 10

V.      In holding that the Deed Without Warranty conveyed no interest, the
        trial court made a determination of title. ...................................................... 12

VI.     Plaintiffs do not have an express easement. ................................................. 13
1.      The 1917 Spettle Deed is void.......................................................................13

2.      The deed on which Plaintiffs rely for an express easement is not in
        their chain of title. ..........................................................................................13

3.      The easement in the Spettle Deed is invalid for a host of reasons. ...............15

        a.       The easement does not satisfy the statute of frauds. ...........................15

        b.       The easement does not have a dominant and servient estate. .............15
        c.       The easement is not an easement appurtenant. ...................................16

        d.       There is no easement language, explicit or otherwise, in any
                 deed in Plaintiffs’ chain of title. ..........................................................17

        e.       No rights are implied. ..........................................................................17


                                                         -ii-
         f.       The language at most establishes an easement in gross. .....................18

VII. None of the elements of a Chapter 12 claim were conclusively
     established..................................................................................................... 19

PRAYER ..................................................................................................................20

CERTIFICATE OF SERVICE ................................................................................21
CERTIFICATE OF COMPLIANCE .......................................................................22




                                                          -iii-
                                  INDEX OF AUTHORITIES

Cases                                                                                             Page

Altman v. Blake,
     712 S.W.2d 117 (Tex. 1986) ................................................................... 15

Bexar-Medina-Atascosa Counties Water
      Improvement District No. 1 v. Wallace,
      619 S.W.2d 551 (Tex. App.—San Antonio 1981, writ ref’d n.r.e.) ........ 13

City of Dallas v. Leake,
       300 S.W.2d 135 (Tex. Civ. App.—Dallas 1957, writ ref’d n.r.e.) .............9
Drye v. Eagle Rock Ranch, Inc.,
      364 S.W.2d 196 (Tex. 1962) ................................................................... 16
Engelbretson v. Hyder,
     2005 WL 168838
     (Tex. App.—Waco, January 26, 2005, pet. denied) (mem. op.) ............. 18

Gordon v. West Houston Trees, Ltd.,
     352 S.W.3d 32 (Tex. App.—Houston [1st Dist.] 2011, no pet.).................9

Greer v. Greer,
      191 S.W.2d 848 (Tex. 1946) ................................................................... 15
Hubert v. Davis,
     170 S.W.3d 706 (Tex. App.—Tyler 2005, no pet.) ................................. 15
Lance v. Robinson,
     2013 WL 820590
     (Tex. App.—San Antonio, March 6, 2013, no pet.) ................................ 10

Lopez v. Morales,
      2010 WL 3332318
      (Tex. App.—San Antonio, August 25, 2010, no pet.)....................... 10, 11

McDaniel v. Calvert,
    875 S.W.2d 482 (Tex. App.—Ft. Worth 1994, no writ) ......................... 18

Merritt v. Davis,
      331 S.W.3d 857 (Tex. App.—Dallas 2011, pet. denied) ........................ 19

                                                   -iv-
Nobles v. Marcus,
     533 S.W.2d 923 (Tex. 1976) ............................................................. 10, 11

Taylor v. Lane,
      18 Tex. Civ. App. 545, 45 S.W. 317
      (Tex. Court of Civil Appeals of Texas 1898) .......................................... 18
Wallace v. McKinzie,
     869 S.W.2d 592 (Tex. Civ. App.—Amarillo 1994, no writ) .................. 15

West Beach Marina, Ltd., v. Erdeljac,
      94 S.W.3d 248 (Tex. App.—Austin 2002, no pet.) ................................. 15
Wilhoite v. Sims,
      401 S.W.3d 752 (Tex. App.—Austin 2013, no pet.)....................... 7, 8, 12

Statutes and Rules

Tex. Civ. Prac. & Rem Code, Chapter 12................................................ 2, 11, 19
Tex. Civ. Prac. & Rem. Code Ann. § 12.002(a) (West Supp. 2012)................. 19
Texas Rule of Appellate Procedure 38.1(g)..........................................................4




                                                  -v-
TO THE HONORABLE FOURTH COURT OF APPEALS:

       Appellants, John A. Lance, Debra L. Lance, F.D. Franks and Helen Franks

(referred to herein as “Defendants” or as “Lances” or as “Franks”), file this their

Reply Brief of Appellants, and respectfully show the Court as follows:

                      SUMMARY OF REPLY ARGUMENT

       The grantors in the Spettle Deed to MVICO are not the same grantors as

those identified in the Spettle Partition Deed although Plaintiffs suggest otherwise.

Plaintiffs’ Brief at 18-19.

              Grantors in MVICO Deed (admitted as evidence at the
              temporary injunction hearing): Theresa Spettle, Roscoe
              Redus and wife, Mathilda Spettle Redus, Alex Mangold
              and wife, Mary Mangold, Adolph Holzhaus and wife,
              Pauline Holzhaus

              Grantors in Spettle Partition Deed (not admitted as
              evidence at the temporary injunction hearing): Theresa
              Spettle, the widow of John B. Spettle and her three
              daughters Mathilda Spettle Redus, Pauline Spettle
              Holzaus and Mary Theresa Spettle, Mangold, heirs at law
              and the sole heirs at law of said John B. Spettle,
              deceased….

       Notwithstanding the foregoing, even if the term “grantors” is identical in

these two separate and distinct deeds, the MVICO deed is still not in Plaintiffs’

chain of title. Plaintiffs have neither pled nor proved any theory by which they are

entitled to rely on a deed that is not in their chain of title.
      The deed without warranty has not been properly set aside or rendered a

nullity. There is a judgment regarding ownership (trial court’s judgment 1 & 2);

but ownership can only be determined in a Trespass to Try Title suit. Worse, the

Plaintiffs have no standing to contest this deed for fraud because the Plaintiffs were

not the grantors. The deed without warranty is valid under Texas law until a proper

party brings a successful suit to set aside the deed.

      There is no easement appurtenant. The Deed from Spettle to MVIC is void

for lack of a legal description, is not in Plaintiffs’ chain of title, does not contain

language that complies with the statute of frauds and does not identify a dominant

or servient estate. The Deed is consistent with the creation of a license or an

easement in gross. Nothing in the Deed mentions the right to cross over or linger

on and the deed does not give any rights with regard to anyone else’s property. The

Plaintiffs’ own deeds are silent as to any easement rights.

      There is no legal or factual support for the judgment against Defendants

under Texas Civil Practice & Remedies Code, Chapter 12. Chapter 12 is the

fraudulent lien statute. There is no lien involved in this litigation. The Plaintiffs did

not conclusively prove that Lance made, presented, or used a deed with knowledge

that it was fraudulent. Indeed, the evidence shows the opposite.

             Q:     Mr. Lance, you honestly thought you owned this
                    .282 acres tract?
             A:     No doubt.


                                          -2-
             Q:    And it was Mr. Franks, is your testimony, who told
                   you that you owned the land there?
             A:    We hired a lawyer, Billy Walker, out of Houston
                   that we consulted with to make sure that we were
                   doing the right thing.
             Q:    Do you understand that to get a piece of property,
                   you have to obtain it from the person who owns it?
                   Right?
             A:    I have no idea. I mean, we went through an
                   attorney that knew all that.
             Q:    How did you think that Mr. Franks owned this (the
                   disputed tract)?
             A:    Because we went to a lawyer, and Mr. Walker and
                   Mr. Franks discussed it, and that’s the way it came
                   out.

CR 127-29.

      Finally, the Plaintiffs’ reliance on the evidence adduced at the hearing on the

temporary injunction in and of itself shows that the Plaintiffs did not conclusively

prove their entitlement to share the disputed area with Defendants. Their own

expert, Lemuel Sinclair, testified that there are a number of homes that have been

built below elevation 1084 along Medina Lake’s shoreline. The fact that property

is being exclusively controlled by private property owners below elevation 1084,

rather than by BMA, conflicts with the Plaintiffs’ testimony that they believe they

have access to lake property at any location if the property is below elevation 1084.

These facts corroborate Mr. Franks’ testimony that homes have been built below




                                         -3-
elevation 1084. A home is a much more dramatic exclusion of the Plaintiffs’ so-

called easement rights than the Defendants’ fence.

                              REPLY ARGUMENT

I.    Reply Argument to Statement of Facts.
      The statement of facts of Intervenor, Bexar-Medina-Atascosa Counties

Water Control & Improvement District No. 1 (BMA), violates Texas Rule of

Appellate Procedure 38.1(g). That rule requires that the statement of facts be

supported by record references. BMA’s statement of facts has few record

references (reserved for that portion of the statement having to do with the hearing

on its attorney’s fees) and no record references to support statements about its

ownership interests in the disputed property and its administration of global

settlements with other property owners.

      BMA does get one thing right that the Plaintiffs get wrong in their own

statement of facts. BMA admits that “[a]lthough the BMA contends it is the fee

owner of the property in question, that matter was not part of the trial court’s

judgment and is not before this court on appeal.” BMA Brief at 2. As previously

mentioned in Defendants’ statement of facts, the trial court considered additional

evidence at a rehearing of the motions for summary judgment and struck through

its “declaration 3” deleting its prior ruling that the .282-acre area is owned in fee

by BMA. CR 412-15. Tab A to Appellants’ Brief.



                                          -4-
      BMA still contends it is an indispensable party to this litigation. But the trial

court ruling shows that BMA was never an indispensable party to this litigation as

its ownership interest was never determined. In that event, why was it in the

lawsuit? And how can BMA be considered a prevailing party for purposes of being

awarded attorney’s fees when it obtained no relief from the underlying summary

judgment?

      The Plaintiffs’ statement of facts contains record references but it also

contains blatant misstatements. For instance, the Plaintiffs present as a fact that

BMA is the owner of the disputed area. Plaintiffs’ Brief at 12. As previously noted,

this is simply not true.

      The Plaintiffs claimed that at the temporary injunction hearing they “proved

up their rights in the land and chain of title…” Plaintiffs’ Brief at 21. If the

Plaintiffs are referencing the .282 acres, then their title goes back to the Partition

Deed and that deed was not admitted at the Temporary Injunction hearing. Because

that deed was not admitted at the temporary injunction hearing, then it was never

before the trial court as part of the summary judgment evidence even if the trial

court is entitled to consider exhibits from an earlier hearing as summary judgment

evidence.

      Of course, the first time the deeds appear of record connected with

Plaintiffs’ motion for summary judgment is here in the supplemented appellate


                                         -5-
record. The deeds were with the court reporter from the temporary injunction

hearing at all times pertinent to the trial court’s consideration of the motions for

summary judgment. And it is from that court reporter that the deeds were only

recently retrieved and filed here.

II.    The Plaintiffs did not sue in equity to remove a cloud or an easement,
       nor did they move for summary judgment on that ground.
       The Plaintiffs state that “Texas courts have recognized a cause of action in

equity to remove a cloud on an easement.” Plaintiffs’ Brief at 35. But Plaintiffs did

not plead a cause of action in equity to remove a cloud on an easement. And

importantly, they did not move for summary judgment on this ground. The

Plaintiffs sought relief under the Declaratory Judgments Act that the deed without

warranty is an invalid cloud on the ownership rights of Plaintiffs and BMA in the

disputed area. In their brief, Plaintiffs identify the elements of a suit to quiet title,

but, again, that cause of action was not before the trial court.

III.   Trespass to Try Title is necessary to attack the validity of the
       Defendants’ Deed Without Warranty.
       The Plaintiffs sought certain relief pursuant to the Declaratory Judgments

Act. The trial court awarded that relief, finding that “The Deed Without

Warranty…..did not convey any ownership …..in the described property to the

Lances.” The trial court, while not ruling on who was the owner of the described

property, did rule on who was not the owner. But rulings concerning ownership,



                                          -6-
both for and against, must be presented and awarded under Trespass to Try Title

principles.

      Yet the Plaintiffs say that “when a person makes up a deed, like Defendants

did in this case, a party negatively affected by that deed does not have to bring a

trespass to try title to prove that the deed is fake.” The Plaintiffs cite Wilhoite v.

Sims, 401 S.W.3d 752 (Tex. App.—Austin 2013, no pet.) as support for this

position.

      Wilhoite involved a quitclaim deed which one party sought to have set aside

for fraud.

              The issue in this case was whether the quitclaim deed
              was voidable by being obtained by fraud, not whether
              Wilhoite's title was superior to Sims's. A suit for
              cancellation of a deed is an assertion of an equitable
              right, namely, the right to have a voidable deed
              cancelled. It is not a claim of right to title and possession
              of real property. The assertion of an equitable right, such
              as cancellation of a deed procured by fraud, is not
              governed by the trespass-to-try-title statute. Such an
              assertion is clearly distinguishable from the claim of right
              to title and possession of real property, which is the sine
              qua non of a suit in trespass to try title.
Wilhoite at 760. (Internal citations omitted)

      But unlike in Wilhoite, the Plaintiffs here did not seek to have the Deed

Without Warranty declared to have been procured by fraud, and hence, voidable, in

either their pleadings or their dispositive summary judgment motion. The Plaintiffs




                                          -7-
did not seek to have the deed cancelled. Wilhoite does not support their position

that a Tresspass to Try Title suit is not required “to prove that the deed is fake.”

      Defendants have never argued and do not argue that easement rights must be

determined by a Trespass to Try Title suit. But finding ownership, or a lack

thereof, in a party with a valid deed, is a determination involving ownership and

that determination cannot be made under the Declaratory Judgments Act.

      Plaintiffs also state that “[a]nother reason it was not necessary for Plaintiff to

pursue relief in trespass to try title is that Defendants’ deed without warranty does

not raise an issue of title. A quitclaim deed raises no presumption of

ownership…..” Plaintiffs’ Brief at 38. The Plaintiffs are treating the Deed Without

Warranty as the equivalent of a quitclaim deed. The execution of a deed without

warranty conveys all the right of the grantor in the land, and carries with it the

implied covenant as to encumbrances. Taylor v. Lane, 18 Tex. Civ. App. 545, 45

S.W. 317 (Tex. Court of Civil Appeals of Texas 1898).

             A quitclaim deed conveys no more than the ‘rights, title,
             and interest of the grantor.’ In Cook v. Smith, 107 Tex.
             119, 174 S.W. 1094, 1095, 3 A.L.R. 940, our Supreme
             Court said: ‘The character of an instrument, as
             constituting a deed to land or merely a quitclaim deed, is
             to be determined according to whether it assumes to
             convey the property described and upon its face has that
             effect, or merely professes to convey the grantor’s title to
             the property. If, according to the face of the instrument,
             its operation is to convey the property itself, it is a deed.




                                          -8-
City of Dallas v. Leake, 300 S.W.2d 135, 143 (Tex. Civ. App.—Dallas 1957, writ

ref’d n.r.e.).

       The Plaintiffs’ recitation of numerous quitclaim-deed cases is irrelevant to

cases where, like here, the face of the instrument shows an intention to convey the

property itself.

       The Plaintiffs discuss a trial court’s ability to quiet title. But in a suit to

remove a cloud on title or to quiet title, the party bringing that suit must make the

claim that that party’s ownership of the property is superior to another party’s.

Gordon v. West Houston Trees, Ltd., 352 S.W.3d 32 (Tex. App.—Houston [1st

Dist.] 2011, no pet.), cited by Plaintiffs, themselves, establishes this condition to

bringing a suit to remove a cloud or quiet title.

                 A suit to quiet title—also known as a suit to remove
                 cloud from title—relies on the invalidity of the
                 defendant's claim to the property—here, Gordon. It
                 exists to enable the holder of the feeblest equity to
                 remove from his way to legal title any unlawful
                 hindrance having the appearance of better right. A cloud
                 on title exists when an outstanding claim or encumbrance
                 is shown, which on its face, if valid, would affect or
                 impair the title of the owner of the property.

Id. at 42. (Internal citations omitted).

       The Plaintiffs have asserted a claim for an express easement over the

entirety of the .282 acres. The Plaintiffs have not asserted ownership to the .282

acres. Thus, a suit to quiet title is unavailable here because to prevail, the Plaintiffs



                                           -9-
would have to be seeking to have their fee ownership declared superior to Lance

who took title under a deed. The Plaintiffs have not sought such relief.

IV.    Plaintiffs do not have standing to bring this suit.
       The Plaintiffs seek to distance themselves from the holdings in Lopez v.

Morales, 2010 WL 3332318 (Tex. App.—San Antonio, August 25, 2010, no pet.)

and Nobles v. Marcus, 533 S.W.2d 923 (Tex. 1976) based on this Court’s holding

in Lance v. Robinson, 2013 WL 820590 (Tex. App.—San Antonio, March 6, 2013,

no pet.). “As this Court has already recognized, Plaintiffs in this case have an

ownership interest in an easement over the land purported to be conveyed by the

invalid deed.” Plaintiffs’ Brief at 40. But this earlier appeal concerned the denial of

a motion to dissolve a temporary injunction issue.

             Our review in this instance is limited to the narrow
             question of whether the trial court's action in overruling
             the motion to dissolve the temporary injunction
             constituted a clear abuse of discretion.

Id. at *2.

             Although the Lances argue that Appellees own no
             easement or other interest in the property at issue, we
             must presume, based on the record before us, that the
             injunction was providently granted. See id. In both their
             pleadings—which we construe in their favor—and
             argument at the hearing on the motion to dissolve,
             Appellees claimed that they hold an easement allowing
             them to use and access the .282–acre area. …..Based on
             the record before us, we cannot conclude that the trial
             court abused its discretion in denying the motion to
             dissolve the temporary injunction.


                                         -10-
Id. at *5.

       This Court did not hold that the Plaintiffs pled and proved an express

easement or had standing to assert any cause of action other than Plaintiffs’ claim

under Tex. Civ. Prac. & Rem Code, Chapter 12. The existence of an express

easement is now before this Court.

       This Court’s opinion in Lopez v. Morales provides clear guidance on which

parties have standing to bring a claim for fraud in connection with a deed. There, a

successor-in-interest to a grantee in the complained-of-deed brought suit to have

the deed set aside for fraud and failure of consideration. This Court held that

“Morales sought to set aside a deed based on a claim that could only have

been brought by the grantor, J.C.” Id. at *4. (emphasis added.)

       The Plaintiffs do not have the right to challenge the deed; and, until there is

a successful suit to set aside a deed, it is valid and represents prima facie evidence

of title. Nobles v. Marcus, 533 S.W.2d at 926. The Plaintiffs have not pled to have

the deed set aside and they have no standing to do so. The judgment below held

that “[t]he Deed Without Warranty…..did not convey any ownership or other

interest in the described property to the Lances.” Tab A, Appellants’ Brief. Thus,

the Plaintiffs were awarded relief for a successful suit to set aside a deed without

ever pleading that cause of action and without standing to plead that cause of

action.

                                         -11-
V.    In holding that the Deed Without Warranty conveyed no interest, the
      trial court made a determination of title.
      The Plaintiffs claim that “[t]he trial court did not adjudicate, as between two

parties with a possessory right, who had the superior right of possession.”

Plaintiffs’ Brief at 43. The Plaintiffs rely on Wihoite v. Sims, a suit primarily

involving a claim for statutory fraud and for cancellation of a deed.

             A suit for cancellation of a deed is an assertion of an
             equitable right, namely, the right to have a voidable deed
             cancelled. It is not a claim of right to title and possession
             of real property.
Wihoite at 760.

      The trial court here ruled that the Defendants had no ownership interest in

the disputed .282 acres and that Franks “never acquired ownership or other

possessory interest in the disputed area by deed or other written instrument.” Tab

A, Appellants’ Brief. That is a ruling about title and possession.

      Plaintiffs’ case of Wilhoite v. Sims holds that such a finding as made by the

trial court here can only be accomplished in a trespass to try title suit. Plaintiffs did

not plead a suit to quiet title, a suit for cancellation of a deed or a suit for trespass

to try title, nor did they plead any of the elements of those causes of action nor do

they have any proof of each and every element. The trial court’s judgments, nos. 1

and 2, are unsupportable for the myriad of reasons above identified.




                                          -12-
VI.   Plaintiffs do not have an express easement.
      1.       The 1917 Spettle Deed is void.
      Defendants have already briefed this issue and explained that the exact same

deficiency in the legal description of the deed in Bexar-Medina-Atascosa Counties

Water Improvement District No. 1 v. Wallace, 619 S.W.2d 551 (Tex. App.—San

Antonio 1981, writ ref’d n.r.e.) is in the Spettle Deed to MVICO.

      However, Plaintiffs claim that Wallace is instructive because it recognizes a

dividing line between BMA land and adjoining private lands in the high water

mark of Elevation 1084. In Wallace, this Court noted BMA’s operational

jurisdiction included Medina Lake. Wallace makes no findings about ownership of

land below or above the 1084 Elevation:

               ….to prevent the Wallaces from constructing a septic
               tank on land below the “high water mark” around Medina
               Lake, a lake operated by BMA under authority of the
               Texas Legislature.

Id. at 552.

      In fact, BMA lost its appeal to exert control over land in Bandera County.

The Spettle Deed is void because it does not contain the nucleus of a valid

description.

      2.       The deed on which Plaintiffs rely for an express easement is not in
               their chain of title.
      Plaintiffs continue to misstate the deeds that are in their chains of title.



                                         -13-
       Plaintiffs state:

              “The testimony of Lemuel Sinclair, expert surveyor for
              Plaintiffs, establishes that the Spettle Deed is in
              Plaintiffs’ chain of title. CR 69-77.”
Plaintiffs’ Brief at 47.

       But Lemuel Sinclair’s testimony at the temporary injunction hearing was:

              Q:     Based on your review of those deeds, are Lots 1, 2
                     and 3 in this subdivision – the owners of those lots
                     successor in title to the partition lands partitioned
                     to Mathilda Spettle Redus in 1917?
              A:     Yes, sir.
CR 73.

       Plaintiffs’ expert testified that the Plaintiffs’ lots, 1, 2 and 3 trace their

ownership back to the Spettle partition deed. They do not trace their ownership

back to the deed to MVICO which has the language on which the Plaintiffs rely for

an express easement. If the deed to MVICO was in Plaintiffs’ chain of title, there

would have been a deed from MVICO to a grantee. That grantee would have

conveyed to another, up to present title being held by the owners of Lots 1, 2 and 3

(Plaintiffs). But, that did not happen. MVICO held title to the specific land

identified in that deed and BMA is the successor-in-interest. To say that the deed to

MVICO is in Plaintiffs’ chain of title is nonsense. Ownership of the land covered

in that deed has not changed hands since 1917.




                                          -14-
      3.     The easement in the Spettle Deed is invalid for a host of reasons.
             a.     The easement does not satisfy the statute of frauds.

      Plaintiffs contend a description of an easement’s location is not required.

Express easements, like deeds, must comply with the statute of frauds. They must

have a description of the easement’s location. Greer v. Greer, 191 S.W.2d 848

(Tex. 1946); Wallace v. McKinzie, 869 S.W.2d 592, 597 (Tex. Civ. App.—

Amarillo 1994, no writ); West Beach Marina, Ltd., v. Erdeljac, 94 S.W.3d 248,

264 (Tex. App.—Austin 2002, no pet.); and Hubert v. Davis, 170 S.W.3d 706,

710-711 (Tex. App.—Tyler 2005, no pet.). There is no evidence of record of where

the easement lies on the ground and the Spettle Deed is silent on this point.

             b.     The easement does not have a dominant and servient estate.
      Plaintiffs attempt to supplement the express grant in the Spettle deed to

MVICO by identifying the dominant and servient estates. But their interpretation

and extrapolation is not relevant; the language of the grant is what matters. It is the

intent of the parties as expressed within the four corners of the instrument which

controls. Altman v. Blake, 712 S.W.2d 117, 118 (Tex. 1986). The MVICO deed

does not identify a dominant estate.

      Plaintiffs try to explain how an express easement is created where the

dominant estate is impliedly described: “The contours of the burdened estate are

clear—the relevant boundary of the entire conveyance is Elevation 1084.

Plaintiffs’ Brief at 49. Yet the deed itself (i.e., the Spettle Deed to MVICO)

                                         -15-
contains no mention of any elevation. Plaintiffs provide a detailed excerpt from the

Spettle Deed of how the land to be conveyed is described. Plaintiffs’ Brief at 49.

But there is no mention of any elevation readings.

      Plaintiffs fill in the missing provisions in the “easement grant language”

with their own opinion as to where the dominant estates lies: “The easement

attaches to any land between Elevation 1084 and the reservoir that was conveyed

to MVICO in the Spettle Deed,…” Plaintiffs’ Brief at 49. But the easement grant is

construed within the four corners of the instrument. Plaintiffs’ own interpretation is

both wrong and irrelevant.

             c.    The easement is not an easement appurtenant.
      The Texas Supreme Court in Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d

196 (Tex. 1962) states the requirements for an easement appurtenant: “For there to

be an easement appurtenant, either expressed in writing or implied, there must be a

dominant estate and a servient estate.” Id. at 207. (emphasis supplied). Once

again, the deed from a group, including Spettles, plus others, to MVICO, describes

the land to be burdened by the alleged easement and makes no mention of any land

benefitted by the easement. This deficiency cannot be remedied by Plaintiffs

opining as to what the parties meant to designate as the beneficial land, or,

dominant estate. To have an easement appurtenant, easement rights must attach to

real property.



                                        -16-
               d.    There is no easement language, explicit or otherwise, in any
                     deed in Plaintiffs’ chain of title.

       Plaintiffs cite to the Judgment, ruling no. 4, for proof that the easement

language is explicit. But that language is found in the Spettle Deed to MVICO. In

ruling No. 5, the judgment states that the land comprising Redus Point Addition

(where Plaintiffs’ Lots 1, 2 and 3 are located) are part of the land partitioned to

Mathilda Spettle Redus. This is a different deed from the MVICO deed and this

partition deed is not anywhere in the record. The Spettle Partition deed is silent on

any reference to the lake, use of any water in the lake or any rights associated with

the lake and that is the deed in the Plaintiffs’ chain of title. So, even though the

language in the Spettle Deed to MVICO does not create an easement appurtenant,

that is irrelevant because that deed is not in the Plaintiffs’ chain of title.

               e.    No rights are implied.

       Notwithstanding the fact that Plaintiffs rely on language from a deed that is

not in their chain of title, even if the Spettle deed to MVICO had been in the

Plaintiffs’ chain of title, the language says NOTHING about any right to cross,

linger or recreate on land belonging to another. The language of the MVICO deed,

which is recited in the trial court’s judgment, no. 4, is clear on that point. No rights

are implied.




                                           -17-
             f.    The language at most establishes an easement in gross.
      Plaintiffs argue that “the language of the easement clearly indicates that it is

an easement appurtenant, running with the land.” Plaintiffs’ Brief at 52. But a

reading of the language on which they rely (the language from the MVICO deed

which is not in their chain of title), trial court judgment ruling no. 4, describes no

land to which the rights attach.

      Words that give rise to an easement appurtenant were explained in McDaniel

v. Calvert, 875 S.W.2d 482, 484 (Tex. App.—Ft. Worth 1994, no writ):

             …the express easement here provides, “the roadway
             easement[s] [are] not exclusive, but shall be held and
             used jointly and in common, by both the grantors and
             grantees herein, and their respective heirs and assigns in
             title to any lands abutting said roadway.” A fair
             interpretation of this grant is it was created to benefit the
             property abutting the roadway, not a specific person.
             Consequently, it is an easement appurtenant.

Contrast this language with the language relied on by Plaintiffs which states: “The

easement gives said grantors, and their heirs and assign, the following rights to use

the land…and waters…” Trial court judgment, no. 4. An easement appurtenant

attaches to the land and passes with it, while an easement in gross is personal and

attaches only to the grantee. Engelbretson v. Hyder, 2005 WL 168838 (Tex.

App.—Waco, January 26, 2005, pet. denied) (mem. op.).




                                         -18-
      The language relied upon by Plaintiffs, from a deed which is not in their

chain of title, at most establishes an easement in gross in favor of the grantors of

that deed which is a group, including some Spettles.

VII. None of the elements of a Chapter 12 claim were conclusively
     established.
      The elements for a cause of action pursuant to Tex. Civ. Prac. & Rem Code

Chapter 12 are: the plaintiff must show: “(1) the defendant made, presented, or

used a document with knowledge that it was a fraudulent lien, (2) the

defendant intended that the document be given legal effect, and (3) the defendant

intended to cause the plaintiff physical injury, financial injury, or mental anguish.”

Merritt v. Davis, 331 S.W.3d 857, 860–61 (Tex. App.—Dallas 2011, pet. denied);

see Tex. Civ. Prac. & Rem. Code Ann. § 12.002(a) (West Supp. 2012). (emphasis

supplied).

      With regard to element number 1, there is no lien involved in the subject

litigation. Furthermore, Defendant John Lance testified repeatedly at the temporary

injunction hearing that he relied on counsel who prepared the deed without

warranty and testified that this attorney is board certified in residential as well as

farm and ranch real estate law. John Lance clearly believed it to be a valid deed.

With regard to element number 2, since there is no lien involved, Defendants had

no intent with regard to a non-existing lien. The trial court specifically did not find

that Defendants intended to cause Plaintiffs physical injury, financial injury, or


                                         -19-
mental anguish. There is no element 3 established. There is no basis for any

finding with regard to Chapter 12.

                                      PRAYER

      For all of these reasons, the Defendants pray that the summary judgment be

reversed and rendered, or in the alternative, remanded, that the order awarding

attorney’s fees, court costs and interest by reversed and rendered or, in the

alternative, remanded, and that the Defendants have such other and further relief to

which they are entitled at law or in equity.

                                 Respectfully submitted,

                                 Cynthia Cox Payne
                                 State Bar No. 24001935
                                 1118 Main Street
                                 Bandera, Texas 78003
                                 (830) 796-7030 – Phone
                                 (830) 796-7945 – Fax
                                 cpayne@paynelawfirm.net



                                 /s/Dan Pozza
                                 Dan Pozza
                                 State Bar No. 16224800
                                 239 East Commerce Street
                                 San Antonio, Texas 78205
                                 (210) 226-8888 – Phone
                                 (210) 224-6373 – Fax
                                 danpozza@yahoo.com

                                 ATTORNEYS FOR APPELLANTS
                                 JOHN A. LANCE, DEBRA L. LANCE,
                                 F.D. FRANKS AND HELEN FRANKS

                                         -20-
                        CERTIFICATE OF SERVICE

     I hereby certify that a true copy of the above and foregoing REPLY BRIEF
OF APPELLANTS was served via electronic transmission, on this the 28th day of
August, 2015 to:

Stephan B. Rogers
Ross S. Elliott
Rogers & Moore
309 Water Street, Suite 114
Boerne, Texas 78006
Attorney for Plaintiffs
srogerslaw@gmail.com
rors@rogersmoorelaw.com

Edward Hecker
Gostomski & Hecker
607 Urban Loop
San Antonio, Texas 78204
ed@ghlawyers.net


                                           /s/Dan Pozza




                                    -21-
                    CERTIFICATE OF COMPLIANCE



1.   The undersigned certifies that this Reply Brief of Appellants complies with
     the type-volume limitation of Tex. R. App. P. 9.4(i)(2)(D) because this brief
     contains 4,730 words, excluding parts of the brief exempted by Tex. R. App.
     P. 9.4(i)(1).
2.   This brief complies with the typeface requirement of Tex. R. App. P. 9.4(e)
     because this brief has been prepared in a conventional typeface of 14-point
     font in the text.




                                             /s/Dan Pozza




                                      -22-
