                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-09-00383-CV


PATSY WHITEHEAD                                                   APPELLANT

                                       V.

GAVIN MACKENZIE AND                                               APPELLEES
PATRICIA MACKENZIE


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          FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

      This appeal arises from a dispute between appellant Patsy Whitehead and

appellees Gavin and Patricia Mackenzie over the Mackenzies’ authority to use a

strip of land on Whitehead’s property to access their own adjacent property. In

two issues, Whitehead contends that the trial court erred by denying her motion

for summary judgment and by granting the Mackenzies’ motion for summary
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      See Tex. R. App. P. 47.4.
judgment, finding that an easement for ingress and egress exists on Whitehead’s

property to access the Mackenzies’ property. We will affirm.

                                II. BACKGROUND

      The Mackenzies are the owners of an approximate thirty-acre tract of land

located within Mansfield, Tarrant County, Texas. Since the purchase of their

property in 1998, the Mackenzies have accessed their property via an existing

paved roadway which travels west across the southern portion of Whitehead’s

property and terminates at the eastern edge of the Mackenzies’ property. No

one has particular recollection as to exactly when the roadway came into

existence, but it is known that the roadway has existed in excess of fifty years.

By one neighbor’s account, the roadway was gravel until the 1960s but was later

paved. After it was paved, neighbors aver that the City of Mansfield maintained

the roadway, even repairing potholes.

      Aside from being utilized by the Mackenzies, it was also the main path of

ingress and egress by the Mackenzies’ predecessors in title. Additionally, public

servants of various kinds have used the roadway over the years, beginning in at

least the 1950s, when Tarrant County used the road to obtain gravel from a pit

previously located on what is now the Mackenzies’ property, and continuing until

approximately 2000, when the City of Mansfield employees ceased using the

road for maintenance purposes. According to neighbors and a previous owner,

the Mackenzies’ property was a dairy farm in the 1950s and milk trucks regularly




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accessed the Mackenzies’ property, using the disputed roadway for ingress and

egress to the farm and a neighboring dairy farm.

      The Mackenzies maintain that this roadway has been the exclusive means

of ingress and egress to their property since the purchase of their property in

1998. In June 2006, Whitehead began constructing a fence along the southern

portion of her property line. Believing that this was an attempt by Whitehead to

prevent further use of the roadway, the Mackenzies filed this suit.

      In their complaint, the Mackenzies sought injunctive relief to prevent

Whitehead from continuing construction of the fence, and they also sought

declaratory relief.   The trial court granted a temporary restraining order,

preventing further construction.      Whitehead filed a countersuit.       In her

countersuit, Whitehead made claims for trespass to try title and abuse of

process. The Mackenzies filed their motion for summary judgment, contending

that no genuine issues of material fact exist that the Mackenzies, by prescriptive

easement, enjoy the right to use the roadway. Alternatively, the Mackenzies

argued that they have the right to use the roadway because it is a public roadway

by way of an implied dedication.

      Whitehead countered with her own no-evidence and traditional motions for

summary judgment. Whitehead contended that the Mackenzies failed to provide

any evidence that they have a right to use the roadway through either

prescriptive easement or dedication to the public and that the Mackenzies had




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abused process as a matter of law. The trial court denied Whitehead’s motion

and granted the Mackenzies’ motion. This appeal followed.

                                  III. DISCUSSION

      In two issues, Whitehead contends that the trial court erred by denying her

motion for summary judgment and by granting the Mackenzies’ motion for

summary judgment.

      A.   Standard of Review

      In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,

289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo.

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).

      We take as true all evidence favorable to the nonmovant, and we indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor.

20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We consider the

evidence presented in the light most favorable to the nonmovant, crediting

evidence favorable to the nonmovant if reasonable jurors could and disregarding

evidence contrary to the nonmovant unless reasonable jurors could not. Mann

Frankfort, 289 S.W.3d at 848. We must consider whether reasonable and fair-

minded jurors could differ in their conclusions in light of all of the evidence

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presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.

2006); City of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005).

      When a trial court’s order granting summary judgment does not specify the

ground or grounds relied on for its ruling, summary judgment will be affirmed on

appeal if any of the theories presented to the trial court and preserved for

appellate review are meritorious. Knott, 128 S.W.3d at 216; Star-Telegram, Inc.

v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

      When both parties move for summary judgment and the trial court grants

one motion and denies the other, the reviewing court should review both parties’

summary judgment evidence and determine all questions presented.           Mann

Frankfort, 289 S.W.3d at 848; see Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n,

300 S.W.3d 746, 753 (Tex. 2009).       The reviewing court should render the

judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d

at 848.

      B.    Implied Dedication

      In her first issue and in parts of her second issue, Whitehead argues that

genuine issues of material fact exist with regard to whether the roadway in

question is an easement by implied dedication. Common law dedication can

either be express or implied. Gutierrez v. Cnty. of Zapata, 951 S.W.2d 831, 837

(Tex. App.—San Antonio 1997, no writ). Both parties agree that this case does

not involve an express dedication; thus, the question presented is whether the

summary judgment evidence conclusively established an implied dedication of

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the roadway to the public. Specifically, Whitehead argues that there are fact

questions regarding donative intent and no evidence of public usage of the

roadway.

      Whether a road has been dedicated to public use is generally a question of

fact. Broussard v. Jablecki, 792 S.W.2d 535, 537 (Tex. App.—Houston [1st Dist.]

1990, no writ). Implied dedication requires both a clear and unequivocal intention

on the part of the landowner to appropriate the land to public use and an

acceptance by the public. Gutierrez, 951 S.W.2d at 838. Because an implied

dedication results in ―the appropriation of private property for public use without

any compensation to the landowner,‖ the Mackenzies bear a heavy burden to

establish an implied dedication. Cnty. of Real v. Hafley, 873 S.W.2d 725, 728

(Tex. App.—San Antonio 1994, writ denied).

      The elements of an implied dedication are: (1) the landowner induced the

belief that the landowner intended to dedicate the road to public use; (2) the

landowner was competent to do so; (3) the public relied on the landowner’s

actions and will be served by the dedication; and (4) there was an offer and

acceptance. Las Vegas Pecan & Cattle Co. v. Zavala Cnty., 682 S.W.2d 254,

256 (Tex. 1984); Stein v. Killough, 53 S.W.3d 36, 42 n.2 (Tex. App.—San

Antonio 2001, no pet.). Generally, an owner’s donative intent may not be implied

from evidence showing only that the public used the land without objection from

the landowner. Fazzino v. Guido, 836 S.W.2d 271, 274 (Tex. App.—Houston

[1st Dist.] 1992, writ denied). But ―evidence of long and continued use by the

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public raises a presumption of dedication by the owner when the origin of the

public use and the ownership of the land at the time it originated cannot be

shown, one way or the other, due to the lapse of time.‖ Id.; see also O'Connor v.

Gragg, 161 Tex. 273, 279, 339 S.W.2d 878, 882 (1960).

            1.     Presumption of Dedication

      For the presumption of dedication to apply, the origin of the public use and

the ownership at that time must be ―shrouded in obscurity, and no proof can be

adduced showing the intention of the owner in allowing the use.‖ Fazzino, 836

S.W.2d at 274 (quoting Dunn v. Deussen, 268 S.W.2d 266, 269 (Tex. Civ.

App.—Fort Worth 1954, writ ref'd n.r.e.)); O'Connor, 339 S.W.2d at 882. The

O'Connor Court explained that we analyze whether the open and known acts

―are of such a character as to induce the belief that the owner intended to

dedicate the way to public use, and the public and individuals act upon such

conduct, proceed as if there had been in fact a dedication, and acquire rights

which would be lost if the owner were allowed to reclaim the land, [if so,] then the

law will not permit him to assert that there was no intent to dedicate.‖ O'Connor,

339 S.W.2d at 882–83 (internal quotations omitted).

      Thus, we must determine whether the Mackenzies conclusively proved

that the origin of the roadway in question was ―shrouded in obscurity‖ and that

from that time, it was subject to long and continuous use by the public.

      Surrounding neighbors testified that the roadway was used by the public

as far back as they could remember, that it was originally paved in the 1960s,

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and that it was later maintained by the City of Mansfield. Multiple witnesses

testified that for as long as they could remember, the roadway was the only

means of access to the Mackenzies’ property. Yet no witness could precisely

recall the exact point in time when the roadway came into existence or the owner

of the property at such time. But long and continued use by the public is evident.

Witness testimony states that milk trucks regularly used the roadway to collect

milk from dairy farms operated on adjacent property and on the Mackenzies’

property by the Mackenzies’ predecessors in title beginning at least in the mid-

1950s. Tarrant County roadway maintenance vehicles utilized the roadway to

collect gravel from a gravel pit located on the Mackenzies’ property and also put

the same gravel on the roadway during the same period of time. In short, a

number of witnesses indicate that this roadway has been in existence for a long

time. Additionally, a four-foot fence separates the roadway from the remainder of

Whitehead’s property.     The totality of this evidence merits application of the

presumption of donative intent. See Hatton v. Grigar, 66 S.W.3d 545, 555–57

(Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding similar evidence legally

sufficient to support implied dedication).

      While a presumption does not result in shifting the burden of proof, it does

shift the burden of producing or going forward with the evidence to the party

against whom it operates. Gen. Motors Corp. v. Saenz, 873 S.W.2d 353, 359

(Tex. 1993).    In the context of a summary judgment, this principle required

Whitehead, as the nonmovant, to produce evidence creating a genuine issue of

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material fact to challenge this element. Bush v. Fayette Cnty., No. 03-05-00274-

CV, 2006 WL 952413, at *3 (Tex. App.—Austin, Apr. 13, 2006, no. pet.). But

Whitehead failed to produce any evidence regarding the element of intent or the

applicability of the presumption of intention to dedicate the area to the public.

Therefore, because the Mackenzies established through their proof that the

presumption applies and Whitehead did not offer evidence to the contrary, we

hold that the Mackenzies satisfied this element of implied dedication.

            2.     Public Use

      Next, Whitehead complains that there is no evidence that the public relied

on the dedication or that the dedication served a public purpose. Specifically,

Whitehead contends that only the Mackenzies and the Whiteheads now use the

roadway. But, as discussed above, there was ample testimony from witnesses

who had either used the road or seen the road used by the public since the

1950s. Evidence of long, continued, unquestioned use of a road supports a

finding that the public relied on an implied dedication of that road. Supak v.

Zboril, 56 S.W.3d 785, 791 (Tex. App.—Houston [14th Dist.] 2001, no pet.)

(holding that public use element of implied dedication was met when evidence

demonstrated public had used roadway for more than fifty years and roadway

had been separated from adjoining property by fences); Graff v. Whittle, 947

S.W.2d 629, 638–39 (Tex. App.—Texarkana 1997, writ denied) (holding public

use element met when multiple witnesses testified to long, continued use of

roadway).   Furthermore, Whitehead’s complaint that the public allegedly no

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longer uses the roadway is not evidence that it is not a public road. Baker v.

Peace, 172 S.W.3d 82, 90 (Tex. App.—El Paso 2005, pet. denied) (―A public

road does not depend upon its length or upon the places to which it leads, nor

upon the number of persons who actually travel upon it. In fact, proof that a road

is only slightly traveled by the public is not proof that a road is not a public road.‖)

(citations omitted). We conclude that the Mackenzies established public use of

the roadway.

      We therefore hold that the trial court did not err by granting the

Mackenzies’ summary judgment motion predicated on the theory that the

roadway had been impliedly dedicated to the public. See Owens v. Hockett, 151

Tex. 503, 506–07, 251 S.W.2d 957, 959 (Tex. 1952) (implied dedication where

evidence showed roadway was segregated from land by fencing, landowner and

others knew of county maintenance, and public used the road prior to the

landowner obstructing the road). We overrule Whitehead’s first issue and these

portions of her second issue. Furthermore, because we hold that the trial court

properly granted the Mackenzies’ motion for summary judgment, we overrule the

portion of Whitehead’s second issue predicated on her trespass to try title claim.

      C.     Abuse of Process

      In the remainder of her second issue, Whitehead argues that the trial court

erred by not granting her motion for summary judgment because, according to

Whitehead, the Mackenzies as a matter of law had abused process.




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      Abuse of process is the malicious use or misapplication of process in order

to accomplish an ulterior purpose. Hunt v. Baldwin, 68 S.W.3d 117, 129 (Tex.

App.—Houston [14th Dist.] 2001, no pet.); Detenbeck v. Koester, 886 S.W.2d

477, 480 (Tex. App.—Houston [1st Dist.] 1994, no writ). To prove a claim for

abuse of process, Whitehead needed to show that (1) the Mackenzies made an

illegal, improper or perverted use of the process, a use neither warranted nor

authorized by the process; (2) the Mackenzies had an ulterior motive or purpose

in exercising such illegal, perverted, or improper use of the process; and

(3) damage occurred as a result of such illegal act. See Hunt, 68 S.W.3d at 129.

Texas law recognizes a cause of action for abuse of process where the original

process has been used to accomplish an end other than that which it was

designed to accomplish. Id. at 130. In other words, the original issuance of the

legal process was justified, but the process itself was subsequently used for a

purpose for which it was not intended. See id. When the process is used for the

purpose for which it is intended, even though accompanied by an ulterior motive,

no abuse of process occurs.       Baubles & Beads v. Louis Vuitton, S.A., 766

S.W.2d 377, 378–79 (Tex. App.—Texarkana 1989, no writ).

      Here, the Mackenzies used the process for the purpose for which it was

intended; namely, the trial court initially granting injunctive relief and ultimately

granting judgment in favor of the Mackenzies that they had the right to use the

roadway.   Thus, the trial court did not err by denying Whitehead’s summary




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judgment motion based on her abuse of process claim.            We overrule the

remainder of Whitehead’s second issue.

                                  IV. CONCLUSION

         Having overruled both of Whitehead’s issues, we affirm the trial court’s

order.



                                                   BILL MEIER
                                                   JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DELIVERED: July 14, 2011




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