                                                                                                ACCEPTED
                                                                                           04-15-00127-CV
                                                                                FOURTH COURT OF APPEALS
                                                                                     SAN ANTONIO, TEXAS
                                                                                      3/12/2015 4:41:59 PM
                                                                                             KEITH HOTTLE
                                                                                                    CLERK




                                      No. 04-15-00127CV
                                                                         FILED IN
                                                                  4th COURT OF APPEALS
                                 IN THE COURT OF APPEALS           SAN ANTONIO, TEXAS
                                                                  03/12/2015 4:41:59 PM
                     FOR THE 4TH JUDICIAL DISTRICT OF            TEXASKEITH E. HOTTLE
                                                                           Clerk

                                      AT SAN ANTONIO


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


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


              RESPONSE TO MOTION FOR EMERGENCY STAY OF
                  TEMPORARY INJUNCTION CHALLENGED
                      IN INTERLOCUTORY APPEAL


                                             MOORMAN TATE HALEY
                                              UPCHURCH & YATES, LLP

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

                                             Attorney for Appellee,
                                             Grace River Ranch, LLC

(18705.43065-00374336.DOCX)
                                       No. 04-15-00127CV

                                 IN THE COURT OF APPEALS

                    FOR THE 4TH JUDICIAL DISTRICT OF TEXAS

                                      AT SAN ANTONIO


                            EL CABALLERO RANCH, INC.
                        AND LAREDO MARINE, L.L.C., Appellants

                                                V.

                              GRACE RIVER RANCH, LLC, Appellee


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


             RESPONSE TO MOTION FOR EMERGENCY STAY OF
                 TEMPORARY INJUNCTION CHALLENGED
                     IN INTERLOCUTORY APPEAL


TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS:

        GRACE RIVER RANCH, LLC (GRACE RIVER), Appellee in this appeal

and Plaintiff below, respectfully files this, its Response to Motion for Emergency

Stay of Temporary Injunction Challenged in Interlocutory Appeal and in support of

same would show this Court the following:

                                                 2

{18705.43065-00374336.DOCX}
                              STATEMENT OF FACTS

        1.        Grace River Ranch. GRACE RIVER is the owner of the 6,779.066

acre "Grace River Ranch" located in La Salle County, Texas and more particularly

described by metes and bounds in Special Warranty Deed, Veda Gwen Goodwin

Treat and Kelly Maxwell Goodwin, Co-Trustees of the Roy and Bonnie Goodwin

Family Ranch Trust Dated December 17, 2012 to Rio Gracia Ranch, LLC dated

December 31, 2012 and recorded at Volume 664, Page 227, Official Public

Records, La Salle County, Texas (hereinafter the "Grace River Ranch").

        2.       El Caballero Ranch. EL CABALLERO is the owner of at least

9,220.993 acres comprising the "El Caballero Ranch" located in La Salle County

and described in Warranty Deed from Knight Oil Tools, Inc. to EL CABALLERO

dated March 30, 1998 and filed of record at Volume 400, Page 83, Deed Records,

La Salle County, Texas (hereinafter the "El Caballero Ranch").

        3.       7 C's Ranch. LAREDO MARINE is the owner of a 30,074.41 acre

tract known as the "7 C's Ranch" located in La Salle and Webb Counties, Texas

and more particularly described in Correction General Warranty Deed With

Assumption of Security Documents, Damon Chouest, Inc. to Laredo Marine Dated

April 20, 2011 and filed of record at Volume 572, Page 120, Deed Records, La

Salle County, Texas (hereafter the "7 C's Ranch").

                                          3

(18705.43065-00374336.DOCX)
        4.       Common Source of Title of Grace River Ranch, El Caballero

Ranch, and 7 C's Ranch. The Grace River Ranch (owned by GRACE RIVER),

the El Caballero Ranch (owned by EL CABALLERO), and the 7 C's Ranch (owed

by LAREDO MARINE), have a common source of title, being Patrick H. Welder,

Jr. The parent tract was acquired by Patrick H. Welder, Jr. by deed dated January

28, 1963 and recorded at Volume 130, Page 116, Deed Records, La Salle County,

Texas on February 19, 1963. The histories of Grace River Ranch, the El Caballero

Ranch, and the 7 C's Ranch subsequent to that common source of title appear

below in tabular form:

                                          Fi ure 1.
                              Title History of Grace River Ranch

                        Document                  Date             Recorded

             General Warranty Deed, September             6, Volume     381,
             Patrick H. Welder, Jr. to 1995                  Page 563, Deed
             John T. Mundy and Sue E.                        Records,    La
             Mundy                                           Salle County,
                                                             Texas        on
                                                             September 12,
                                                             1995




                                              4

{18705.43065-00374336.DOCX}
                              Title History of Grace River Ranch

                        Document                  Date             Recorded
            Special Warranty Deed, December              17, Volume      664,
            John T. Mundy and Sue E. 2012                    Page        219,
            Mundy to The Roy and                             Official Public
            Bonnie Goodwin Family                            Records,     La
            Ranch Trust (Veda Gwen                           Salle County,
            Goodwin Treat and Kelly                          Texas         on
            Maxwell Goodwin, as Co-                          January 2, 2013
            Trustees)

            Special Warranty Deed, December              31, Volume      664,
            Veda Gwen Goodwin Treat 2012                     Page        227,
            and      Kelly     Maxwell                       Official Public
            Goodwin, Co-Trustees of                          Records,     La
            the Roy and Bonnie                               Salle County,
            Goodwin Family Ranch                             Texas         on
            Trust Dated December 17,                         January 2, 2013
            2012 to Rio Gracia, LLC




                                              5

(18705.43065-00374336.DOCX)
                                           Figure 2.

                              Title History of El Caballero Ranch

                        Document                   Date             Recorded

           Vendor's Lien Deed, Patrick February            3,    Volume 392,
           H. Welder, Jr. to Knight Oil 1997                    Page 229, Deed
           Tools, Inc.                                            Records, La
                                                                 Salle County,
                                                                   Texas on
                                                                  February 6,
                                                                     1997

           Warranty Deed, Knight Oil March 30, 1998             Volume    400,
           Tools, Inc. to El Caballero                          Page 83, Deed
           Ranch, Inc.                                          Records,   La
                                                                Salle County,
                                                                Texas on April
                                                                22, 1998


                                           Figure 3.

                                 Title History of 7 C's Ranch

                        Document                   Date             Recorded

           Warranty Deed, Patrick H. October 6, 1999            Volume     407,
           Welder, Jr. to E. J. Cop                             Page 409, Deed
           (30,074.41 ac.)                                      Records,
                                                                LaSalle County,
                                                                Texas

           Warranty Deed, E.J. Cop to March 22, 2000            Volume     411,
           Dennis J. Wilkerson,                                 Page 179, Deed
           Trustee (15,000 ac.)                                 Records,
                                                                LaSalle County,
                                                                Texas

                                               6

{18705.43065-00374336.DOCX}
                              Title History of 7 C's Ranch

                        Document                    Date         Recorded

           Warranty Deed, E.J. Cop to March 22, 2000           Volume     411,
           Dennis J. Wilkerson, (Effective                     Page 208, Deed
           Trustee, Samuel H. Vester, March 22, 2000)          Records,
           Jr. and Joseph P. Gerlich                           LaSalle County,
           (15,074.41 ac.)                                     Texas

           Warranty       Deed     With March 22, 2000         Volume     411,
           Vendor's Lien, Dennis J.                            Page 234, Deed
           Wilkerson, Trustee, Samuel                          Records,
           H. Vester, Jr., and Joseph P. (Effective            LaSalle County,
           Gerlich to Damon Chouest, March 22, 2000)           Texas
           Inc.

           Correction Warranty Deed April 18, 2011             Volume    572,
           With Vendor's Lien, Dennis (Effective               Page 85, Deed
           J. Wilkerson, Trustee, March 22, 2000)              Records,   La
           Samuel H. Vester, Jr. and                           Salle County,
           Joseph P. Gerlich to Damon                          Texas
           Chouest, Inc.

           General Warranty Deed December                  18, Volume    417,
           With     Assumption   of 2000                       Page 11, Deed
           Security       Documents,                           Records,   La
           Damon Chouest, Inc. to                              Salle County,
           Laredo Marine, L.L.C.                               Texas

           Correction              General    April 20, 2011   Volume     572,
           Warranty     Deed          With    (Effective       Page 120, Deed
           Assumption of           Security   December     18, Records,    La
           Documents,               Damon     2000)            Salle County,
           Chouest, Inc. to         Laredo                     Texas
           Maine, L.L.C.



                                                7

{18705.43065-00374336.DOCX}
         5.       Northerly Grace River Easement. Contemporaneously with the

creation and sale of the present Grace River Ranch by Patrick H. Welder, Jr. on

September 6, 1995, Welder created and granted an "Access Easement Agreement"

for vehicular and pedestrian access in favor of buyers, John T. Mundy and Sue E.

Mundy, to the present Grace River Ranch over and across Welder's retained

property which included the present El Caballero Ranch and 7 C's Ranch and

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

toward FM 624. This Access Easement Agreement (recorded at Volume 382, Page

1, Deed Records, La Salle County, Texas) provided in pertinent part:

                  (1)         the easement was 80 feet in width;

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

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

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

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



                                                   8

{18705.43065-00374336.DOCX}
                 (6)      the easement could not be subsequently amended except by a
                          writing by the owners of the servient and dominant estates and
                          signed and filed of record in La Salle County;

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

(hereinafter the "Northerly Grace River Easement").

        6.       Easterly Access Easement. Contemporaneous with the creation and

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

1995, Welder also created and granted a second "Access Easement Agreement" for

vehicular and pedestrian access in favor of buyers, John T. Mundy and Sue E.

Mundy, to the present Grace River Ranch over and across Welder's retained

property which included the present 7 C's Ranch property and passing along a

described route eastward from Grace River Ranch eastward towards State

Highway 44. This second Access Easement Agreement (recorded at Volume 382,

Page 9, Deed Records, La Salle County, Texas similarly provided in pertinent part:

                 (1)      the easement was 80 feet in width;

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

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

                                                9

{18705.43065-00374336.DOCX}
                 (4)      the servient owner was to provide the easement owner with all
                          necessary keys to open gates such that all gates could be freely
                          opened and closed without assistance;

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

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

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

(hereinafter the "Easterly Access Easement").

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

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

the "Grace River Easements".

        8.       Grace River Ranch the Successor Dominant Estate Owner of the

Grace River Easements. GRACE RIVER is the successor in title to the dominant

estate of the Grace River Easements per the following chain of title:




                                               10

{18705.43065-00374336.DOCX}
                                            Figure 4.
                              Title History of Grace River Easements

                      Instrument                     Date              Recorded

        Access Easement Agreement September                   6, Volume      382,
        (Northerly), Patrick H. 1995                             Page 1, Deed
        Welder, Jr. to John T. Mundy,                            Records,     La
        et ux                                                    Salle    County,
                                                                 Texas         on
                                                                 September 12,
                                                                 1995

        Access Easement Agreement September                   6, Volume      382,
        (Easterly), Patrick H. Welder, 1995                      Page 9, Deed
        Jr. to John T. Mundy, et ux                              Records,     La
                                                                 Salle    County,
                                                                 Texas         on
                                                                 September 12,
                                                                 1995

        Special Warranty Deed, John December                 17, Volume       664,
        T. Mundy and Sue E. Mundy 2012                           Page         219,
        to Roy and Bonnie Goodwin                                Official Public
        Family Ranch Trust (Veda                                 Records,      La
        Gwen Goodwin Treat and                                   Salle    County,
        Kelly Maxwell Goodwin, as                                Texas          on
        Co-Trustees) 1                                           January 2, 2013

        Special Warranty Deed, Veda December                 31, Volume       664,
        Gwen Goodwin Treat and 2012                              Page         227,
        Kelly Maxwell Goodwin, Co-                               Official Public
        Trustees of the Roy and                                  Records,      La
        Bonnie Goodwin Family                                    Salle    County,
        Ranch Trust of December 17,                              Texas          on
        2012 to Rio Gracia, LLC2                                 January 2, 2013

1 TheGrace River Easements were expressly conveyed as part of this transaction.
2
 The Grace River Easements were expressly conveyed as part of this transaction.
                                                11

{18705.43065-00374336.DOCX}
          9.     El Caballero and Laredo Marine are the Successor Servient

Owners Under the Grace River Easements. EL CABALLERO, as the owner of

the El Caballero Ranch, is the successor in title to that part of the servient estate

encumbered by the Northerly Grace River Easement and lying within the El

Caballero Ranch per the chain set out in Figure 2.

          LAREDO MARINE, as the owner of the 7 C's Ranch, is the successor in

title to that part of the servient estate encumbered by both the Northerly Grace

River Easement and the Easterly Grace River Easement and lying within 7 C's

Ranch per the chain of title set out in Figure 3.

          All vesting deeds into EL CABALLERO and LAREDO MARINE, and their

predecessors in title, made after September 6, 1995 (the date the Grace River

Easements were created by Patrick H. Welder, Jr.), as well as all relevant title

policies of Appellants and their predecessors in title expressly made subject to the

Northerly Grace River Easement, the Easterly Grace River Easement, and the La

Salle County Easement3 (as applicable).

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

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

exclusive. Additional parties have valid public and/or private easements along the


3
    Refer to Figure 5.
                                           12

{18705.43065-00374336.DOCX}
route of the Northerly Grace River Easement and across El Caballero Ranch and

the 7 C's Ranch, which easements were originally created by the following

instruments:

                                             Fi ure 5.
            Additional Easements Along Northerly Grace River Easement

                      Instrument                        Date                Recorded

          Access Easement Agreement, March 31, 1995                     Volume 52, Page
          Patrick H. Welder, Jr. to Jim                                 379,       Deed
          Berry     and   Bob     Berry                                 Records,     La
          (hereafter    the      "Berry                                 Salle    County,
          Easement")                                                    Texas on May
                                                                        15, 1995

          Vendor's Lien Deed, Patrick February 3, 1997 Volume      392,
          H. Welder, Jr. to Knight Oil                 Page 229, Deed
          Tools, Inc. (hereafter the                   Records,     La
          "Welder Easement")4                          Salle    County,
                                                       Texas

          Right-of-Way Deed, Ruth February 3, 1939                      Volume     M-3,
          Bradley Watkins, Individually                                 Page 390, Deed
          and as Independent Executor                                   Records,     La
          of the Will and Estate of                                     Salle    County,
          Griffin Watkins, Deceased, et                                 Texas
          al to G.A. Welhausen, County
          Judge, La Salle County, Texas
          (the "La Salle County
          Easement").
These additional easements have not been subsequently revoked, released, or

terminated.

4
    This instrument expressly retained an access easement in favor of Patrick H. Welder, Jr.
                                                  13

{18705.43065-00374336.DOCX}
        11.      Use of the Northerly Grace River Easement. After the creation and

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

Sue E. Mundy (hereinafter collectively "Mundy") Mundy extensively used the

Northerly Grace River Easement for access to the Grace River Ranch (then the

"Mundy Ranch"). Mundy was originally supplied a key to all gates across the

Northerly Grace River Easement by Patrick H. Welder, Jr. The Northerly Grace

River Easement crossed the Nueces River over a low water crossing originally

constructed by La Salle County for the La Salle county Easement decades prior on

the county road lying along the same path as the Northerly Grace River Easement

(hereafter the "Low Water Crossing").

        On February 3, 1997, Knight Oil Tools acquired the current El Caballero

Ranch by Vendor's Lien Deed made expressly subject to the Northerly Grace

River Easement, the Berry Easement, and the La Salle County Easement. Knight

Oil Tools, Inc. then conveyed the El Caballero Ranch to a related entity, EL

CABALLERO, on March 30, 1998 expressly subject to the same pre-existing

easements.

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

Ranch supplied Mundy with keys to the new gate lock placed by Knight Oil

Tools/Caballero Ranch along the route of the Northerly Grace River Easement.

                                           14

{18705.43065-00374336.DOCX}
Later Knight Oil Tools/Caballero Ranch supplied a second updated key to a

replacement lock along the route of the Northerly Grace River Easement. Mundy

continued to make extensive use of the Northerly Grace River Easement for access

and egress.

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

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

Low Water Crossing remains intact. This washout caused an interruption of the

use of the Northerly Grace River Easement as a through way to FM 624 by Mundy

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

Mundy temporarily did not travel this way along the entirety of the Northerly

Grace River Easement for this reason only. Mundy utilized alternate access.

However, there was nothing that changed about the road that indicated to Mundy

that any party was attempting to deny Mundy permission to use of the Northerly

Grace River Easement as it crossed either the El Caballero Ranch or the 7 C's

Ranch. There were no visual indications on the road that either servient owner

then failed to recognize the continuity of the Northerly Grace River Easement.

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

indicated that Mundy's key was no longer valid to access the road. Mundy never

intended to relinquish nor did Mundy relinquish Mundy's right to use the

                                       15

(18705.43065-00374336.DOCX)
Northerly Grace River Easement after the washout. No one connected with Knight

Oil Tools, Inc. or EL CABALLERO ever challenged Mundy's right to use the

Northerly Grace River Easement. Mundy would have vigorously opposed any

such effort.

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

between Grace River Ranch and the Nueces River to the north along the route

described in the Northerly Grace River Easement. During the time that Damon

Chouest, Inc. and Laredo Marine, L.L.C. owned the 7 C's Ranch, they had a Ranch

Manager running operations there by the name of Chad Edwards. During this

period, all gates lying along the Northerly Grace River Easement on the 7 C's

Ranch were taken down and/or unlocked except one new gate lying several

hundred yards south of the Nueces River. This gate was kept locked with a lock

requiring a key. Mundy was provided with a duplicate copy of this key by Chad

Edwards after the Low Water Crossing washed out and in anticipation of it being

repaired. At all times while Mundy and Mundy-related entities owned the Grace

River Ranch, Mundy had the use of the Northerly Grace River Easement. Mike

Treat, a caretaker for the Mundy Property, utilized the 7 C's Ranch portion of the

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



                                        16

{18705.43065-00374336.DOCX}
extending between 2000 and 2013. No one connected with 7 C's Ranch ever

disputed that use.

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

recordation of the Easterly Grace River Easement in favor of Mundy, Mundy

extensively used the Easterly Grace River Easement for access to the Grace River

Ranch (then the "Mundy Ranch"). The Easterly Grace River Easement provided

access to the Mundy Ranch from easterly direction across the present 7 C's Ranch

Property. This was one of the preferred routes to reach the Ranch convenient to

Mundy. There was a locked gate where the Easterly Grace River Easement

entered the present 7 C's Ranch. Mundy maintained Mundy's own lock on this

gate to allow them to come and go along the Easterly Grace River Easement.

During the entire time of Mundy's ownership of the Ranch, no one connected with

any of the owners of the present 7 C's Ranch ever attempted to restrict or prohibit

Mundy's use of the Easterly Grace River Easement. Mundy used it frequently and

without protest from anyone. No one connected with the ownership of 7 C's

Ranch ever challenged Mundy's right to use the Easterly Grace River Easement for

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

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



                                         17

{18705.43065-00374336.DOCX}
Easterly Access Easement freely since GRACE RIVER purchased the Grace River

Ranch without complaint or opposition by anyone connected with 7 C's Ranch.

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

GRACE RIVER bought the Grace River Ranch and appurtenant easements from a

Mundy family trust, inclusive of the Grace River Easements.

         14.      Grace River Notified El Caballero That Grace River is the

Current Owner of the Northerly Grace River Easement. In February, 2013

GRACE RIVER notified EL CABALLERO that GRACE RIVER was the current

owner of the Northerly Grace River Easement.

         15.      Grace River Requested Keys and Access to the Northerly Grace

River Easement. Beginning February 22, 2013, GRACE RIVER requested keys

and access to the Northerly Grace River Easement as it traverses El Caballero

Ranch.

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

River Easement Through Counsel. Beginning not later than March 7, 2013,

GRACE RIVER by and through its counsel requested EL CABALLERO to

provide keys and access along the Northerly Grace River Easement.

        17.      El Caballero Refused Access Along the Northerly Grace River

Easement. In response to requests by GRACE RIVER for access along the

                                         18

{18705.43065-00374336.DOCX}
Northerly Grace River Easement, EL CABALLERO refused any access along that

easement.

        18.      El Caballero Falsely and Unilaterally Attempted to Terminate the

Northerly Grace River Easement, the Berry Easement, and the La Salle

County Easement. In direct response to Grace River's request for access, on or

about March 5, 2013, EL CABALLERO attempted to falsely and unilaterally

terminate the Northerly Grace River Easement, the Berry Easement (now owned

by ROBERT W. BRITTINGHAM), and the La Salle County Easement by

recording in the Official Records of La Salle County, a "Notice of Revocation and

Termination of Easement and Access Easement Agreements" by claims of

abandonment, failure of purpose, and impossibility. Prior to that date neither EL

CABALLERO nor its predecessors in title had taken an action to cancel or

repudiate the Northerly Grace River Easement.

        19.      The Original Basis for El Caballero's Excluding Grace River

from the Northerly Grace River Easement are Failure of Purpose.

Abandonment, and Impossibility. The original basis of EL CABALLERO's

refusal to allow use of the Northerly Grace River Easement was failure of purpose,

abandonment, and impossibility.



                                          19

{18705.43065-00374336.DOCX}
         20.      Suit Filed by Grace River. In April, 2013, GRACE RIVER filed the

present suit against EL CABALLERO seeking to open up and gain access to the

Grace River Easements and the La Salle County Easement and enjoin EL

CABALLERO' s interference with the easements.

         21.      Traditional and No-Evidence Motion for Summary Judgment

Filed by Grace River. On July 18, 2013, GRACE RIVER filed herein its

Traditional and No-Evidence Motion for Summary Judgment to determine and

declare the validity of the Northerly Grace River Easement and of the public

roadway along the route of the Northerly Grace River Easement against the failure

of purpose, abandonment, and impossibility claims made by EL CABALLERO.

This Motion was set for hearing before the trial court on September 26, 2013.

         22.     El Caballero Files its First Amended Answer. On or about

September 18, 2013 (approximately seven days prior to the scheduled hearing on

the above [first] Traditional and No-Evidence Motion for Summary Judgment), El

Caballero filed herein its First Amended Answer, Defenses & Counterclaim (the

"Amended Answer"). The Amended Answer raised the additional defense of

adverse possession/limitation to the easements.

        23.      Intervention by Laredo Marine. Also on or about September 18,

2013, LAREDO MARINE filed herein its Original Petition in Intervention and

                                           20

{18705.43065-00374336.DOCX}
Counterclaim contesting the validity of the Northerly Grace River Easement and

the public road running along the path of the Northerly Grace River Easement on

grounds of abandonment, failure of purpose, and adverse possession/limitations.

        24.      Grace River's Traditional and No-Evidence Motion for Summary

Judgment Heard and Submitted. The [first] Traditional and No-Evidence

Motion for Summary Judgment filed by GRACE RIVER was heard by the Court

on September 26, 2013. The Motion was extensively and exhaustively argued and

briefed by the Parties on that date with the Court taking the matter under

advisement.

        25.      Court Issues Letter Ruling. On or about June 12, 2014, the Court

entered its letter ruling that was granting the [first] Traditional and No-Evidence

Motion for Summary Judgment in favor of GRACE RIVER.

        26.      Order Entered. On July 7, 2014, the Court entered its Order

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

GRACE RIVER.

        27.      Amended Order Entered. The Court later entered its Second

Amended Order Granting Traditional and No-Evidence Motion for Summary

Judgment in favor of GRACE RIVER.



                                          21

{18705.43065-00374336.DOCX}
        28.      Second Traditional and No-Evidence Motion for Summary

Judgment by Grace River. GRACE RIVER then filed its Second Motion for

Traditional and No-Evidence Motion for Summary Judgment seeking summary

judgment on all issues and against all parties intervening after the filing of the

original Motion (as granted by the Court on July 7, 2014).

        29.      Second Traditional and No-Evidence Motion for Summary

Judgment Heard and Considered. The Second Traditional and No-Evidence

Motion for Summary Judgment was heard and considered by the Court on

September 18, 2014.

        30.      Court Issues Letter Ruling. On December 17, 2014, the Court

entered its letter ruling that it was granting the Second Traditional and No-

Evidence Motion for Summary Judgment.

        31.      Partial Summary Judgment. On March 3, 2015, the Court entered

its Partial Summary Judgment incorporating all of its rulings in favor of GRACE

RIVER on the [first] Traditional and No-Evidence Motion for Summary Judgment

and Second Traditional and No-Evidence Motion for Summary Judgment. A copy

of the Partial Summary Judgment is appended "Exhibit A".




                                         22

{18705.43065-00374336.DOCX}
        The Partial Summary Judgment confirmed the existence of the Grace River

Easements and La Salle County Easement across both El Caballero Ranch and 7

C's Ranch as follows:

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

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

        The Partial Summary Judgment further enjoined EL CABALLERO and

LAREDO MARINE from interfering with the use of the Grace River Easements

and La Salle County Easement by GRACE RIVER as follows:

               1.  Private Easements. EL CABALLERO and LAREDO
             MARINE are enjoined from:

                      (a) Erecting or maintaining any barriers, fences, or gates of any
                            kind that would interfere with or obstruct the free flow of
                            vehicular or pedestrian access, on, over, or across the Grace
                            River Easements other than gates currently located on El
                                               23

(18705.43065-00374336.DOCX)
                              Caballero Ranch or 7 C's Ranch. All such gates must be
                              maintained and/or secured such that GRACE RIVER may
                              pass through them without assistance. LAREDO MARINE
                              shall remove the fence along the Northerly Grace River
                              Easement and located within 7 C's Ranch within 30 days of
                              the date entry of this Partial Summary Judgment.

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

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

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

                2. Public Road. EL CABALLERO and LAREDO MARINE are
             permanently enjoined from:

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

        32. Effect of Partial Summary Judgment. The Partial Summary

Judgment finally and completely adjudicated all claims between GRACE RIVER

and Appellants regarding the validity, continuity, and extent of the Grace River

                                                 24

{18705.43065-00374336.DOCX}
Easements and the La Salle County Easement. The Partial Summary Judgment

was interlocutory only in the sense that it did not adjudicate:

                  (1.) All claims of GRACE RIVER for damages against EL
                       CABALLERO and LAREDO MARINE claimed to be sustained
                       by reason of any disruption or blocking of the Grace River
                       Easements or the La Salle County Easement.

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

         33.      Severance Sought. On December 23, 2014, GRACE RIVER filed

herein its Motion for Severance of Actions seeking to sever the matters finally

determined by the Partial Summary Judgment into a separate suit from remaining

issues of damages and attorney's fees. That Motion for Severance is set for

hearing for April 1,2015.

         34.      Request for Key(s) or Code(s). On March 4, 2015, counsel for

GRACE RIVER once again requested counsel for EL CABALLERO and

LAREDO MARINE to provide the key(s), code(s), or combination(s) for the gates

across the Grace River Easements and La Salle County Easement as necessary for

GRACE RIVER to access the easements in accordance with the Partial Summary

Judgment.

        35.      Refusal to Provide Access in Violation of Partial Summary

Judgment. EL CABALLERO and LAREDO MARINE have contumaciously

failed and refused and continue to fail and refuse to provide the necessary key(s),
                                              25

{18705.43065-00374336.DOCX}
code(s), and/or combination(s) to the gates or to provide access to GRACE RIVER

to the Grace River Easements and La Salle County Easement all in violation of the

injunctions provided for by the Partial Summary Judgment.

         36.      Notice of Interlocutory Appeal.            On March 9, 2015, EL

CABALLERO and LAREDO MARINE filed with the trial court an Interlocutory

Notice of Appeal.

         37.      Motion for Emergency Stay.               On March 11, 2015, EL

CABALLERO and LAREDO MARINE filed herein their Motion for Emergency

Stay of Temporary Injunction Challenged in Interlocutory Appeal.

         38.      Response. To this Motion, GRACE RIVER files this Response.

                              PRIOR MANDAMUS PROCEEDING

         Appellants suggest that the Partial Summary Judgment proceeding "directly

conflicts" with the ruling of this Court in a prior mandamus proceeding.5 This

statement is patently insupportable.

         This Court's earlier ruling in the mandamus proceeding depended on the

inability of the Appellants to suspend the enforcement of the Order Granting

Traditional and No-Evidence Motion for Summary Judgment (July 7, 2014) while

obtaining appellate review of the trial court's determination on the validity of the
5
 Appellant's Motion for Emergency Stay of Temporary Injunction Challenged in Interlocutory
Appeal (hereinafter simply the "Motion") at 7. The prior mandamus action was styled In re: El
Caballero Ranch, Inc.; No. 04-14-00584-CV, Fourth Court of Appeals at San Antonio.
                                             26

{18705.43065-00374336.DOCX}
easements.6 However, since that Memorandum Opinion, the procedural landscape

of this case has dramatically changed. The trial court has now finally determined

against the Appellants as meritless all claims that remained unadjudicated at the

time of the Memorandum Opinion.' Appellants have now sought an Interlocutory

Appeal of the Partial Summary Judgment under TEX. CIV. PRAC. & REM. CODE

ANN. § 51.014(a)(4).8

        As a consequence of the present interlocutory appeal, Appellants have the

right to seek to suspend the enforcement of the interlocutory judgment as with a

traditional appea1.9 Appellants have made no attempt to suspend enforcement of

the Partial Summary Judgment under TEX. R. APP. P. Rule 24.1. Nor has the trial

court, consequently, refused to supersede the Partial Summary Judgment. As the

result, Appellants are not entitled to move this Court to review a decision of the

trial court which has not yet been made.1° Appellants, by the Motion, have

provided no evidence that their rights cannot be adequately protected by

supersedeas or other mode under TEX. R. Cw. P. Rule 24.11




6
  Memorandum Opinion [Exhibit B] at 5.
7 Memorandum Opinion [Exhibit B] at 5; Partial Summary Judgment at 4.
8 Notice of Appeal [Exhibit C].
9 TEX. R. APP. P. Rule 29.2.
10 TEX. R. APP. Rule 29.2.
11 TEX. R. APP. P. Rule 29.3.
                                             27
{18705.43065-00374336.DOCX}
         Appellants' right to seek suspension of the Partial Summary Judgment is

available, but has not been attempted. As a result, the underlying basis of the

Memorandum Opinion is not present in the instant interlocutory appea1.12

                              PROBABLE RIGHT OF RECOVERY

         Appellants suggest (without any elucidation) that GRACE RIVER's Second

Traditional and No-Evidence Motion for Summary Judgment, which providing

hundreds of pages of summary judgment proof, failed to provide any evidence of a

probable right to the Grace River Easements. The voluminous nature of GRACE

RIVER's proof makes in impracticable to scan and transmit its summary judgment

evidence on one day's notice. GRACE RIVER will be scanning and transmitting

to the Court its Second Traditional and No-Evidence Motion for Summary

Judgment and voluminous appended summary judgment proof in the next

succeeding days. GRACE RIVER's summary judgment proof is extensive and

compelling beginning with the deeded, recorded, and written Grace River

Easements never revoked, abandoned, or superceded. The trial court took three

months to carefully read, review, and consider all summary judgment proof of the

parties. The Court considered this evidence conclusive of the existence of the

easements.


12
     See Memorandum Opinion at 5.
                                          28

{18705.43065-00374336.DOCX}
        Appellants suggest that GRACE RIVER failed to offer additional summary

judgment proof at the hearing on the Motion for Entry of Partial Summary

Judgment.13 Appellants fail to suggest how such live proof could possibly be

consistent with summary judgment procedure.14

                               IRREPARABLE INJURY

         GRACE RIVER having established conclusively its rights in the Grace

River Easements has conclusively prevailed by summary judgment on all matters

concerning the validity, continuity, and extent of those easements.15 The

establishment of the easements sufficiently establishes irreparable injury.16 The

issue on appeal of a temporary injunction granting a right to use an easement is

whether there is a bona fide proof of the existence of the easement and whether

injunctive relief is required to preserve the continued existence of that right." The

temporary injunction is not dependent upon the merits of the easement claim."


13 Motion at 6; Reporter's Record of Motion for Entry of Partial Summary Judgment.
14 See TEX. R. Civ. P. Rule 166a(c) (prohibiting oral proof). It should be remembered that the
hearing on the Second Traditional and No-Evidence Motion for Summary Judgment was
conducted on September 18, 2014 not March 3, 2015. By the date of the March 3, 2015 hearing
the trial court had already rendered judgment thereon by letter ruling. Refer to Partial Summary
Judgment [Exhibit A]; Letter Ruling [Exhibit D].
15 Partial Summary Judgment [Exhibit A] at 4.
16 Mobil Pipe Line Co. v. Smith, 860 S.W.2d 157, 160 (Tex. App. — El Paso 1993, no writ);
Aimco Properties, L.P. v. Time Warner Entertainment — Advance/Newhouse Partnership, 1997
WL 590675 at *3-4.
17 Richter v. Hickman, 243 S.W.2d 466, 468 (Tex. Civ. App. — Galveston 1951, no writ); Egan v.
Woodell, 720 S.W.2d 169, 171 (Tex. App. — San Antonio 1986, writ red n.r.e.).
18 Egan v. Woodell, supra at 171.
                                                29
{18705.43065-00374336.DOCX}
Rather, the question is whether the trial judge abused discretion in preserving the

status quo.19 The status quo is the last actual, peaceable, non-contested status

which preceded the present controversy.20 In this case, the last peaceable status

between the parties was before EL CABALLERO refused access to GRACE

RIVER and unilaterally attempted to revoke the easements with its "Notice of

Revocation and Termination of Easement and Access Easement Agreements."21

         Appellants disingenuously suggest that to require them to remove their

"fencing" unreasonably alters the status quo unfair and unjust.22 Appellants

neglect to advise the Court that that fencing was erected by LAREDO MARINE

during the pendency of this suit with full knowledge of the claims of GRACE

RIVER. LAREDO MARINE altered the status quo by erecting IN mid-litigation

fencing along the length of and blocking the Northerly Grace River Easement.

This brinksmanship by LAREDO MARINE should not be the basis of

bootstrapping their legal position.

        Appellants suggest that GRACE RIVER is attempting to alter the status quo

by building "a permanent concrete bridge connecting the two ranches."23


19
   Id.
20
   Id. at 172.
21
   In easement cases the typical status quo is when the easement right was last used. See Aimco
Prop. v. Time Warner Entertainment — Advanced/Newhouse, supra at *4•
22
   Motion at 10.
23

                                              30

{18705.43065-00374336.DOCX}
Appellants neglect to advise the Court that the Low Water Crossing at issue has

existed at its present location for decades.24 GRACE RIVER, in accordance with

permits/easement obtained from the General Land Office of Texas and U.S. Army

Corps of Engineers has all necessary authorization to repair 65 feet of the southern

approach to the Low Water Crossing pursuant to engineered plans to span a bypass

channel created by a high water event on the Nueces River.25

                  A FINAL DETERMINATION OF GRACE RIVER'S
                      EASEMENT RIGHTS HAS BEEN MADE

        The Final Summary Judgment finally adjudicated all claims of the parties

regarding GRACE RIVER's private easement claims.26 The adjudication of the

remaining claims of damages and attorney's fees will not have the effect of altering

this final resolution regarding the validity and existence of the Grace River

Easements. While Appellants suggest that there is "ongoing litigation" to

determine the existence of the easements,27 the Partial Summary Judgment is

explicit on this point. There are no remaining unadjudicated claims or defenses to

the private easement rights of GRACE RIVER in the Grace River Easements.28 By



24 Affidavit of Kenney Newville [Exhibit E] at 14. This Affidavit was "Exhibit 1" to GRACE
RIVER' s Second Traditional and No-Evidence Motion for Summary Judgment.
25
   Id.
26
   Partial Summary Judgment [Exhibit A] at 4.
27 Motion at 3.
28 Partial Summary Judgment [Exhibit A] at 4.
                                            31

{18705.43065-00374336.DOCX}
their Motion, Appellants do not direct the Court to any unadjudicated claims which

remain on the validity, continuity, or extent of the Grace River Easements.

         Appellants inexplicably suggest to this Court that the Second Traditional and

No-Evidence Motion for Summary Judgment has not been granted.29 The Second

Traditional and No-Evidence Motion for Summary Judgment was rendered and

granted.3°

                              INJUNCTIVE RELIEF APPROPRIATE
                               TO ENFORCE EASEMENT RIGHTS

         Injunctive relief is manifestly the appropriate remedy to prevent obstruction

of a private easement by a servient owner.31

                                   MOOTNESS DOCTRINE

        Appellants suggest (without elucidation) that enjoining their continued

obstruction of the Grace River Easements renders moot "their remaining claims

that are pending in the underlying case."32 Under the Partial Summary Judgment,


29 Motion at 3. "This [Second Tradition and No-Evidence] Motion [for Summary Judgment] if
granted, like the first summary judgment motion, would not finally dispose of the case..."
30
   Letter Ruling [Exhibit D]; Final Summary Judgment [Exhibit A].
31 City of Mission v. Popplewell, 294 S.W.2d 712, 714 (Tex. 1956); Mobil Pipe Line Co. v.
Smith, 860 S.W.2d 157, 160 (Tex. App. — El Paso 1993, no writ); Egan v. Woodell, 720 S.W.2d
169, 171-72 (Tex. App. — San Antonio 1986, writ ref d n.r.e.); Meredith v. Eddy, 616 S.W.2d
235, 241 (Tex. Civ. App. — Houston 11st Dist.] 1981, no writ); Chicago Rock Island and Pacific
Railroad Company v. Spool Stockyards Company, 220 F. Supp. 433, 437 (W.D. Tex. 1963);
Aimco Prop., L.P. v. Time Warner Entertainment — Advanced/Newhouse Partnership, 1997 WL
590675 at *3-4 (Tex. App. — Austin 1997); County of Harris v. Southern Pac. Transp. Co., 457
S.W.2d 336, 341 (Tex. Civ. App. — Houston [is Dist.] 1970, no writ).
32 Motion at 8.
                                              32

(18705.43065-00374336.DOCX)
Appellants have no remaining unadjudicated claiming regarding the private

easement claims of GRACE RIVER.33 The claims remaining involve only

GRACE RIVER's claims for damages and attorney's fees.34 It is impossible to

conceive how these remaining claims are rendered moot by allowing GRACE

RIVER to utilize the easement the trial court has now determined that it owns.

Indeed, immediate access would have the salutary effect of mitigating accruing

damages and attorney's fees.

        Even further afield are claims by Appellants that the Partial Summary

Judgment renders moot the direct appeal that Appellants intend to bring regarding

the validity of the Grace River Easements. It is rationally inconceivable that

allowing GRACE RIVER access prevents the Appellants in any way from

pursuing an appeal on the validity of the easements.

        WHEREFORE, PREMISES CONSIDERED, GRACE RIVER prays that the

Motion be in all things denied.

                                           Respectfully submitted,


                                           MOORMAN TATE HALEY
                                            UPCHURCH & YATES, LLP




33
   Partial Summary Judgment [Exhibit A] at 4.
34 1d.
                                                33

{18705.43065-00374336.DOCX}
    S        -C: HAL
    State Bar No. 0874 910
    207 East Main
    P.O. Box 1808
    Brenham, Texas 7J854-
    Telephone: (979) 836-5664
    Telecopier: (979) 830-0913
    shaley@moormantate.com

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

Attorneys for GRACE RIVER RANCH,
L.L.C.
                              CERTIFICATE OF SERVICE

       I, Steven C. Haley, do hereby certify that on the 12th day of March, 2015, I
served a true and correct copy of the foregoing Response to Motion for Emergency
Stay of Temporary Injunction Challenged in Interlocutory Appeal to the following,
deposited in a post paid, depository under the care and custody of the United States
Postal Service, duly addressed to such party at the address stated, by certified mail,
return receipt requested, facsimile, e-mail, and/or hand-delivery.

        Annalyn G. Smith
        Schmoyer Reinhard, LLP
        17806 I-10W, Ste. 400
        San Antonio, Texas 78257
        E-mail: asmith@ar-11p.com

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



                                       STEVEN C. HALEY




                                          35

{18705.43065-00374336.DOCX}
