                         NUMBER 13-12-00004-CV

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JOHN WRIGHT,                                                             Appellant,

                                          v.

VIRGINIA DIERLAM,                                                        Appellee.


                  On appeal from the 267th District Court
                        of Victoria County, Texas.


                         MEMORANDUM OPINION

              Before Justices Rodriguez, Garza, and Perkes
               Memorandum Opinion by Justice Rodriguez
      This is an appeal from an order granting summary judgment on limitations in favor

of appellee Virginia Dierlam. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.025 (West

2002). By two issues, appellant John Wright contends that the trial court erred (1) in

granting summary judgment in favor of Dierlam on her affirmative defense; and (2) in
awarding attorney’s fees to Dierlam. We affirm.

                                         I. BACKGROUND

       Dierlam owns a ranch of approximately 1300 acres. Wright owns land adjacent to

Dierlam’s property. Prior to 2002, Wright used an unimproved road or lane across

Dierlam’s property for ingress and egress to his property.                Dierlam concedes, for

purposes of this appeal only, that Wright had an easement across her property. 1

Nonetheless, Dierlam averred, in her affidavit, that in August 2002 she notified Wright that

she was withdrawing her permission to use the easement and denying him access to his

property. Wright agreed that for eight years Dierlam locked him out and told him he had

no right to cross her land. Wright testified at his deposition that between 2002 and 2010,

the only time he entered his property was when he went to pick up things he could not

leave behind. The Dierlams escorted him onto his property on that occasion.

       On September 27, 2010, Wright filed suit under the Texas Uniform Declaratory

Judgment Act (UDJA) seeking the trial court’s declaration of the validity of the easement.

Wright also sought a temporary injunction enjoining Dierlam from interfering with his use

of the easement until the case was resolved. On October 28, 2010, the trial court

granted Wright’s request for a temporary injunction, which allowed him access to his

property. Dierlam filed her answer and counterclaim asserting a general denial and

pleading, among other things, the affirmative defense of limitations. Both parties sought

attorney’s fees.

       1
           In 2002, Dierlam instituted suit against Wright and other parties seeking declaratory and
injunctive relief to bar the defendants from using a roadway on her property to access their land. See
Schilhab v. Dierlam, No. 13-04-00185-CV, 2003 Tex. App. LEXIS 7260, at *1 (Tex. App.—Corpus Christi
Aug. 12, 2004, no pet.) (mem. op.). Dierlam obtained a summary judgment that none of the defendants
had an easement across her property. Id. at *15. However, it is undisputed that Dierlam non-suited
Wright before judgment in that case.
                                                  2
         On July 7, 2011, Dierlam filed a motion for summary judgment claiming that she

was entitled to summary judgment on the basis of the two-, three-, residual four-, and

five-year statutes of limitations. Wright filed his response and a brief, which challenged

Dierlam’s cited authority. After a hearing on Dierlam’s motion, the trial court granted

Dierlam summary judgment and dissolved the temporary injunction. It did not award

either party attorney’s fees. Wright filed a motion for new trial, and Dierlam filed a motion

for reconsideration of the trial court’s ruling on attorney’s fees.     After hearing both

motions, the trial court entered a final judgment granting summary judgment in favor of

Dierlam and awarding Dierlam her attorney’s fees. This appeal followed.

                          II. FIVE-YEAR STATUTE OF LIMITATIONS

         By his first issue, Wright contends that the trial court erred when it granted

summary judgment in favor of Dierlam on her affirmative defense of limitations.

A.       Applicable Law and Standard of Review

         To prevail on a traditional summary-judgment motion, a movant must prove that

there is no genuine issue regarding any material fact and that she is entitled to judgment

as a matter of law. See TEX. R. CIV. P. 166a(c); Little v. Tex. Dep't of Criminal Justice,

148 S.W.3d 374, 381 (Tex. 2004); Mercier v. Sw. Bell Yellow Pages, Inc., 214 S.W.3d

770, 773 (Tex. App.—Corpus Christi 2007, no pet.) (op. on reh’g). A defendant moving

for summary judgment on a statute of limitations affirmative defense must prove

conclusively all elements of that defense. Shah v. Moss, 67 S.W.3d 836, 842 (Tex.

2001).

         An appellate court reviews a trial court’s summary judgment de novo. Provident

Life & Accident Inc. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).             A summary
                                             3
judgment can only be upheld on the grounds asserted in the trial court and not on grounds

not asserted, even if the summary judgment evidence may support those unasserted

grounds. McConnell v. Southside Ind. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993).

       An easement, once established, can be extinguished or lost under the five-year

statute of limitations.   Schnitzendable v. Hastings, 97 S.W.2d 715, 718 (Tex. Civ.

App.—San Antonio 1936, writ ref’d). Section 16.025(a) of the Texas Civil Practice and

Remedies Code provides that “[a] person must bring suit not later than five years after the

day the cause of action accrues to recover real property held in peaceable and adverse

possession . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 16.025(a).

B.     Discussion

       Specifically, as to the five-year statute of limitations, Wright claims that his cause of

action accrued in 2009 when Dierlam permanently blocked him from using the easement,

not in 2002 when Dierlam claims she denied Wright access to the easement. Because

he filed suit in 2010, less than two years after his cause of action accrued in 2009, Wright

claims that Dierlam’s five-year statute-of-limitations defense fails.

       For his argument that he used the easement until 2009, Wright relies on evidence

that his daughters used the easement between 2002 and 2009.                   However, even

assuming that Wright’s daughters used the easement until 2009, Wright does not develop

his argument regarding how the use of the easement by his adult daughters, who have no

property interests in Wright’s property, impacts his property claims or Dierlam’s limitation

defense. Without more, this contention fails.

       Rather, the legal precedent set out in Schnitzendable applies in this case. There,

the court of appeals stated the following:
                                               4
      It is true, as contended by appellant, that a road or right of way may be
      established by prescription. It is likewise true that such rights which may
      have been so established may be entirely lost under our statutes of
      limitation. If appellants ever had or intended to establish their claim to the
      old road as a right of way or otherwise, under the facts presented in this
      record, they certainly waived or lost all such claims by their failure or refusal
      to assert their rights within the time and in the manner provided by law.

97 S.W.2d at 718. Dierlam’s summary judgment evidence established that in August

2002 Dierlam notified Wright that she was withdrawing her permission to use the

easement and denying him access to it. Wright, himself, testified that he had been

barred from the premises for almost eight years before filing this lawsuit and that he had

not used the easement during those eight years. Dierlam asserted the five-year statute

of limitations as a defense against Wright’s suit and urged it as a summary-judgment

ground. See McConnell, 858 S.W.2d at 342.

      Reviewing the trial court’s summary judgment de novo, we conclude Dierlam

established her affirmative defense. See TEX. R. CIV. P. 166a(c); Knott, 128 S.W.3d at

215, Shah, 67 S.W.3d at 842. The trial court did not err in granting summary judgment in

her favor on this basis. We overrule Wright’s first issue.

                                  III. ATTORNEY’S FEES

      By his second issue, Wright asserts that this Court should reverse and vacate the

judgment awarding Dierlam attorney’s fees because the substance of his claim is a

trespass to try title action, and attorney’s fees are not available under such an action.

However, courts have determined that the UDJA is a proper vehicle for determining the




                                             5
validity of an easement.2 See Roberson v. City of Austin, 157 S.W.3d 130, 135 (Tex.

App.—Austin 2005, pet. denied).             Therefore, we are not persuaded by Wright’s

trespass-to-try-title contention.

       Instead, we conclude that the trial court did not abuse its discretion when it

properly awarded Dierlam her attorney’s fees in this declaratory judgment action. 3 See

TEX. CIV. PRAC. & REM. CODE § 37.009 (West 2008) (“In any proceeding under [the UDJA],

the court may award costs and reasonable and necessary attorney's fees as are

equitable and just.”); Mercier, 214 S.W. 3d at 775 (citing Bocquet v. Herring, 972 S.W. 2d

19, 21 (Tex. 1998); Ragsdale v. Progressive Voters League, 801 S.W. 2d 880, 881 (Tex.

1990) (per curiam)) (setting out that a trial court’s award of attorney’s fees is reviewed for

an abuse of discretion). We overrule Wright’s second issue.

                                         IV. CONCLUSION

       We affirm the judgment of the trial court.


                                                                      NELDA V. RODRIGUEZ
                                                                      Justice

Delivered and filed the
21st day of March, 2013.




       2
         We express no opinion regarding whether trespass to try title is also an appropriate means of
determining easement rights. See Roberson v. City of Austin, 157 S.W.3d 130, 135–37 & n.5 (Tex.
App.—Austin 2005, pet. denied).
       3
          Wright does not challenge the amount of the fee or the evidentiary support for the award of
attorney’s fees.
                                                  6
