                                 NUMBER 13-17-00011-CV

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


JOHN CORES,                                                                  Appellant,

                                                   v.

CARROLL F. LABORDE,
BARBARA LABORDE AND
LABORDE PROPERTIES, LP,
A TEXAS LIMITED PARTNERSHIP,                                                 Appellees.


                    On appeal from the 2nd 25th District Court
                          of Gonzales County, Texas.


                            MEMORANDUM OPINION
   Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Benavides

      By six issues, which we construe as three, appellant John Cores challenges the

trial court’s declaratory judgment in favor of appellees Carroll LaBorde,1 Barbara LaBorde,

and LaBorde Properties, L.P. (collectively LaBorde) regarding an easement by estoppel.



      1   Carroll LaBorde died on July 7, 2015, as this suit was pending.
Cores alleges that: (1) the evidence was legally insufficient to support a finding of an

easement by estoppel; (2) that the trial court improperly transferred venue from Hays

County to Gonzales County; and (3) that the trial court erred in entering a declaratory

judgment that was duplicitous of claims already made. We affirm.

                                  I.     BACKGROUND

      This dispute arises between two property owners regarding an easement road.

Cores owns an 89.96-acre tract of land in Gonzales County. LaBorde owns a 386.60-acre

piece of land adjacent to Cores’s. To the southeast of Cores’s property are tracts of land

that are landlocked. An easement road was constructed to allow access to the landlocked

properties. The easement road runs along the northern boundary of Cores’s property,

turns, and then continues south towards the landlocked properties. The western part of

the LaBorde tract also butts up against the easement road and a gate was constructed on

the LaBorde fence line. Cores filed suit to stop the LaBordes from using the easement

road to access their land. Cores claims that the LaBorde property is not landlocked, that

they have access to their property from other roads, and the LaBorde land was not

included as part of the easement properties. The LaBordes argue the former landowners

have continually had access to the easement road and an easement by estoppel was

created due to the access.




                                               2
      A.     History

      Initially, the undivided tract of land that now comprises the LaBorde and Cores

properties was jointly owned by the Francis and Brown families. The families ran a cattle

operation on their land, with the cattle pens being housed on what is now the LaBorde

property. In 1979, the families divided the land. Cores’s property was owned by the Brown

family, and the LaBordes property was owned by the Francis family. However, even after

the land was divided, the cattle operation continued to run, with both families having

access to the cattle pens via the easement road. In 1986, the Brown family divided their

land into multiple tracts, with each separate tract going to members of the Brown family.

In 2004, Rafe Jackson purchased the Francis tract (LaBorde property) as it stands now.



                                               3
In 2008, Cores purchased his tract of land from members of the Brown family. In 2010,

the LaBordes bought Jackson’s land from him.

       B.      Dispute Develops

       Based on testimony presented at the bench trial, all prior owners of both the

LaBorde and Cores’s land had used the easement road to access their properties. Issues

developed once the two parties to this suit became neighbors.                    Both sides put on

deposition testimony from Jackson, Gail Brown Schauer2, and Rebecca Connell3. Based

on the testimony of these three witnesses, the trial court held that an historical use of the

easement road existed. The trial court denied Cores’s petition for a temporary and

permanent injunction and attorney’s fees and granted LaBorde’s request for a declaratory

judgment and held that an easement by estoppel existed on behalf of the LaBordes. This

appeal by Cores followed.

                                       II.     PROPER VENUE

       By what we construe as his second issue, Cores alleges it was error to transfer

venue from Hays County to Gonzales County. Cores originally filed suit in Hays County,

where the LaBordes have a residence. The LaBordes filed a motion to transfer venue to

Gonzales County because that is where the property at issue is located.

       A.      Applicable Law and Discussion

       An easement confers upon one person the valuable right to use the land of another

for a specific purpose. Hubert v. Davis, 170 S.W.3d 706, 710 (Tex. App.—Tyler 2005, no




        2 Gail Brown Schauer previously owned Cores’s property but later traded for a different piece of

property with an aunt, Pat Brown Eckols.
       3  Rebecca Connell is Gail Brown Schauer’s sister and owned landlocked property south of the
LaBorde land.

                                                       4
pet.). Since an easement is an interest in land, the grant of an easement should be drawn

and executed with the same formalities as a deed to real estate. Id. The doctrine of

equitable estoppel, or easement by estoppel, provides an exception to prevent injustice

and protect innocent parties from fraud. Allen v. Allen, 280 S.W.3d 366, 381 (Tex. App.—

Amarillo 2008, pet. denied).

       Under section 15.011 of the Texas Civil Practice and Remedies Code, it states:

       Actions for the recovery of real property or an estate or interest in real
       property, for partition of real property, to remove encumbrances from the title
       to real property, for recovery of damages to real property, or to quiet title to
       real property shall be brought in the county in which all or a part of the
       property is located.

TEX. CIV. PRAC. & REM. CODE ANN. § 15.011 (West, Westlaw through 2017 1st C.S.)

(emphasis added). Although Cores contends that venue was proper in Hays County

because the LaBorde homestead was located there, because an easement is an interest

in real property, venue was proper in Gonzales County, where the property in question

was located. The trial court properly transferred venue from Hays to Gonzales County.

We overrule Cores’s second issue.

                                 III.   LEGAL SUFFICIENCY

       By multiple sub-issues which we construe as one issue, Cores challenges the legal

sufficiency of the trial court’s finding of an easement by estoppel. By his sub-issues, Cores

argues that (1) alleged prior permissive use of an express easement did not give rise to

an easement by estoppel for future property owners, (2) a later-created express easement

precluded a finding of an easement by estoppel, and (3) an owner’s silence regarding use

of an easement is not enough to establish an easement by estoppel.




                                                 5
       A.     Standard of Review

       In an appeal from a bench trial, the trial court’s findings have the same force and

dignity as a jury’s verdict upon questions. Anderson v. City of Seven Points, 806 S.W.2d

791, 794 (Tex. 1991). A trial court’s findings may be reviewed for legal and factual

sufficiency under the same standards that are applied in reviewing evidence to support a

jury’s answers. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel, 881

S.W.2d 295, 297 (Tex. 1994). When the appellate record contains a reporter’s record, as

it does here, findings of fact are not conclusive and are binding only if supported by the

evidence. Horner v. Heather, 397 S.W.3d 321, 324 (Tex. App.—Tyler 2013, pet. denied).

We review the trial court’s conclusions of law de novo. Id. The standard of review for

conclusions of law is whether they are correct. Id. We will uphold conclusions of law on

appeal if the judgment can be sustained on any legal theory the evidence supports. Id.

       A party who challenges the legal sufficiency of the evidence to support an issue on

which it did not have the burden of proof at trial must demonstrate on appeal that there is

no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58

(Tex. 1983). When considering a legal sufficiency challenge after a bench trial, we view

the evidence in the light most favorable to the trial court’s findings, “credit[ing] favorable

evidence if reasonable [fact finders] could, and disregard[ing] contrary evidence unless

reasonable [fact finders] could not.” Horner, 392 S.W.3d at 324 (quoting City of Keller v.

Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). We must indulge every reasonable inference

that would support the trial court’s findings. City of Keller, 168 S.W.3d at 822. “The final

test for legal sufficiency must always be whether the evidence at trial would enable

reasonable and fair-minded people to reach the decision under review.” Id. at 827.



                                                 6
       B.     Applicable Law

       1.     Easement by Estoppel

       “The doctrine of easement by estoppel holds that the owner of the alleged servient

estate may be estopped to deny the existence of an easement by making representations

that have been acted upon by the owner of alleged dominant estate.” Ingham v. O’Block,

351 S.W.3d 96, 100 (Tex. App.—San Antonio 2011, review denied) (quoting Holden v.

Weidenfeller, 929 S.W.2d 124, 131 (Tex. App.—San Antonio 1996, writ denied)). Three

elements are necessary for the creation of an easement by estoppel: (1) a representation

communicated, either by word or action, to the promisee; (2) the communication was

believed; and (3) the promisee relied on the communication. Id. These elements apply at

the time the communication creating the alleged easement is made. Holden, 929 S.W.2d

at 131. An easement by estoppel, once created, is binding upon a successor in title if

reliance upon the existence of the easement continues. Id.

       The gravity of a judicial means of acquiring an interest in land of another solely by

parol evidence requires that equitable estoppel be strictly applied. Horner, 397 S.W.3d at

325. The estoppel should be certain, precise, and clear. Id. Texas case law supports the

notion that for easements, the doctrine of equitable estoppel, or estoppel in pais as it is

sometimes called, operates as an exception to the statute of frauds, which requires a

writing for all transactions involving land, to prevent injustice and to protect innocent parties

from fraud. See Scott v. Cannon, 959 S.W.2d 712, 720 (Tex. App.—Austin 1998, pet.

denied) (citing Storms v. Tuck, 579 S.W.2d 447, 451 (Tex. 1979); Drye v. Eagle Rock

Ranch, Inc., 364 S.W.2d 196, 209 (Tex. 1962)).




                                                   7
       The doctrine of easement by estoppel is not applied as strictly as the doctrine of

implied easement. Id. Being an equitable doctrine, it has not been clearly defined and its

application must depend on the unique facts of each case. Id.

       C.      Discussion

       In order for the LaBordes to establish their entitlement to an easement by estoppel,

they had to meet three elements.

       1.      Representation Communicated by Word or Action

Cores alleges in his brief that there was no evidence of any act of reliance prior to 2004

by the LaBorde property. We disagree.

       To establish the first element of easement by estoppel, the LaBordes must show a

representation was communicated, either by word or action, to the promisee. Ingham, 351

S.W.3d at 100. “It is well-settled that estoppel may arise from conduct or from a failure to

act.” Wallace v. McKinzie, 869 S.W.2d 592, 596 (Tex. App.—Amarillo 1993, writ denied).

       During the bench trial, both parties put on deposition testimony from two members

of the Brown family and a prior owner of the LaBorde property. Schauer testified that she

believed the original families (the Brown and Francis families) would allow access to the

properties on any of the surrounding roads. She also stated that the easement road from

Dam Road had been used by her family in the past to access the cattle pens on the

LaBorde property. Schauer explained that she had previously owned the Cores property,

but traded land with her aunt and that the initial easement went through the property. 4

Schauer testified that no prior owners of the Cores property had restricted use of the




       4    Testimony showed that when Schauer and Eckols traded land, they re-located the easement road
to its current location along the property line, rather than running through the now Cores property.

                                                       8
easement road to any of the landowners and all the prior owners of the LaBorde property

had used the easement road without any issue.

      Connell testified that her two relatives had switched properties and created the new

location of the current easement. Connell had leased an acre of her land to the LaBordes’

so they could continue to use the easement road after the dispute with Cores began.

Connell agreed that wording in a document creating the easement for the southern

landlocked properties did not include the LaBorde property. However, Connell also agreed

that the Brown and Francis families had used the easement road to access the LaBorde

property in the past. She also stated that the Browns continued to use the easement road

after Francis sold his property to Jackson and that she was not aware of any complaints

regarding use of the easement road prior to the LaBordes’ purchase.

      Jackson also testified that he spoke to the Schauer family regarding the cattle pens

and was told he could use the easement road. He stated they told him the easement road

had “been used for years” and whoever leased the LaBorde property had been allowed to

use the road. Jackson explained that he replaced the cattle pens within sixty days of

purchasing the LaBorde property and would enter his land through a gate off the easement

road. Jackson had also allowed the Schauers to take gravel off the LaBorde property for

maintenance and repair of the easement road. Jackson did not believe there had been

complaints about the use of the easement road, except one time when Cores told Jackson

he could not use the gate to get to the easement road.

      The trial court’s findings of facts found:




                                                   9
      13.    Joy Gail Brown Schauer and Rebecca Ann Connell are sisters and
             members of the Brown family. Both Ms. Schauer and Ms. Connell
             testified at trial. The Court finds the testimony of these witnesses to
             be credible and to have personal knowledge of the events they
             testified to.

             ....

      15.    In 1979, the Cattle Pens and LaBorde Property were regularly
             accessed by a road that crossed the Cores Property (the “Easement
             Road”). At some point the Easement Road was relocated, but has
             always run over the Cores Property from Dam Road to the LaBorde
             Property.

      16.    At the time that the Single Tract was divided in 1979, the Brown family
             believed that the Francis family would be able to continue to use the
             Easement Road in order to access the Cattle Pens and the LaBorde
             Property.

             ....

      18.    Between 1979 and 2004, while the Francis family owned the LaBorde
             Property, the Easement Road was regularly and openly used to
             access the LaBorde Property, particularly the Cattle Pens, with no
             objection from the owner of the Cores Property.

             ....

             The findings of law stated:

      6.     The LaBordes have established, by a preponderance of the evidence,
             the first element of easement by estoppel. For more than 30 years
             the owners of the Cores Property did not challenge the open and
             obvious usage of the Easement Road to access the LaBorde
             Property. The owners of the Cores Property thus engaged in
             representations by their conduct.

      Because Cores challenges the legal sufficiency of the evidence to support an issue

on which he did not have the burden of proof at trial, he must demonstrate that there is no

evidence to support the adverse finding. Croucher, 660 S.W.2d at 58. However, the

testimony presented shows factual evidence of prior use and reliance that support the trial




                                               10
court’s findings. Therefore, we agree with the trial court’s finding that the LaBordes’

established the first element.

       2.      Communication was Believed

       Cores next alleges as a sub-issue that Jackson’s reliance was not based upon an

affirmative statement by an owner of the Cores property.

       The second element the LaBordes were required to establish was that the

communication was believed by the promisee. Ingham, 351 S.W.3d at 100. An easement

by estoppel, once created, is binding upon a successor in title if reliance upon the

existence of the easement continues. Id.

       Jackson’s testimony at trial also explained that he had an interest when he

purchased the LaBorde property in re-building the cattle pens, located in the southwest

corner of his property. When he spoke to members of the Schauer family5, Jackson

believed, based on representations of past use, that he was entitled to use the easement

road. Jackson rebuilt the cattle pens, openly using the easement road to move supplies,

without any objection from the surrounding landowners. Jackson’s use of the easement

road was prior to Cores’s purchase of his land.

       In relation to Jackson, the trial court’s findings stated:

       19.     Rafe Jackson purchased the LaBorde Property from the Francis
               family in 2004. Mr. Jackson testified at trial. The Court finds Mr.
               Jackson’s testimony to be credible.

               ....




       5 While Jackson did not speak to Eckols herself, he did speak to members of the Schauer family,
who previously had owned the Cores land. There was no objection by Eckols to Jackson’s use of the
easement road testified to.

                                                     11
      21.    When Rafe Jackson purchased the LaBorde Property, he believed
             the owner of the LaBorde Property had a right to use the Easement
             Road to access the LaBorde Property, particularly the Cattle Pens.

             ....

      23.    Rafe Jackson rebuilt the Cattle Pens in reliance upon what he
             believed to be his right to use the Easement Road.

             ....

      36.    Barbara LaBorde testified at trial. The Court finds her testimony to be
             credible.

             ....

      38.    At the time that LaBorde Properties, L.P. purchased the LaBorde
             Property, the LaBordes believed that they had a right to enter the
             LaBorde Property by way of the Easement Road, including to access
             the Cattle Pens.

      The trial court’s findings of law state:

      7.     The LaBordes have established, by a preponderance of the evidence,
             the second element of easement by estoppel. The owners of the
             LaBorde Property, including the Francis Family, Rafe Jackson, and
             the LaBordes, reasonably believed that they had a right to use the
             Easement Road to access the LaBorde Property.

      Again, Cores must show there was no evidence to support the trial court’s finding

that the second element was met by the LaBordes. See Croucher, 660 S.W.2d at 58. The

evidence presented by Jackson supports the trial court’s findings that the communication

was believed by Jackson. In addition, the information Jackson received was relayed to

him by a prior owner of the Cores property. The LaBordes believed they were entitled to

use the Easement Road based on the prior use by Jackson and prior owners. We again

agree with the trial court that the LaBordes established the second element.

      3.     Communication was Relied On




                                                 12
       Cores’s third sub-issue states that the alleged acts of reliance during the LaBorde

period of ownership were not a result of specific affirmative representation.

       The third element the LaBordes were required to establish was that the

communication was relied on by the promisee. Ingham, 351 S.W.3d at 100. However, as

stated above, an easement runs to the successors in title once it is created. See id.

The trial court’s findings of fact stated:

       24.    While Rafe Jackson was rebuilding the Cattle Pens, including by
              openly bringing materials to the LaBorde Property via the Easement
              Road, no one challenged his right to do so.

       25.    During the time that he owned the LaBorde Property, Rafe Jackson
              openly used the Easement Road to access the LaBorde Property,
              including the Cattle Pens.

       26.    During the time he owned the LaBorde Property, Rafe Jackson
              permitted gravel from the LaBorde Property to be used to repair
              potholes in the Easement Road. Rafe Jackson did so relying upon
              what he believed to be his right to use the Easement Road.

              ....

       30.    During the time that Rafe Jackson owned the LaBorde Property, he
              never received any complaints from Cores about his regular and open
              use of the Easement Road, and Cores never made such complaints.

       31.    Cores knew at the time that he purchased the Cores Property that the
              owners of the LaBorde Property had been using the Easement Road
              to access the LaBorde Property, particularly the Cattle Pens. Among
              other things, Cores knew that the Easement Road had been and was
              being used regularly to move cattle onto and off of the LaBorde
              Property.

              ....

       34.    During the time that Cores has owned the Cores Property, he has not
              personally spent any money or resources to repair or maintain the
              Easement Road.

              ....



                                                13
       39.    The LaBordes purchased the LaBorde Property relying on the use of
              the Easement Road to access the LaBorde Property, including the
              Cattle Pens.

              ....

       41.    The LaBordes purchased the LaBorde Property relying upon their
              ability to use the Easement Road to access the Cattle Pens and the
              Modular Home.

              ....

       43.    Cores did not dispute that the LaBorde Property could be accessed
              by the Easement Road until late in 2010 when he became upset that
              the LaBordes were constructing the Modular Home on the LaBorde
              Property but within sight of the Cores Property.

              ....

       46.    The evidence clearly established that since before 1979 until 2010,
              no one (including no owner of the Cores Property) had ever
              challenged the right of any person to access the LaBorde Property by
              crossing the Cores Property via the Easement Road, despite the fact
              that the Easement Road was openly used for such purpose.

The trial court’s conclusions of law stated:

       8.     The LaBordes have established, by a preponderance of the evidence,
              the third element of easement by estoppel. The owners of the
              LaBorde Property, including the Francis Family, Rafe Jackson, and
              the LaBordes, made numerous decisions in reliance upon their ability
              to use the Easement Road, including their decisions to purchase the
              property and to use, and in some cases improve, the Cattle Pens.

       Based on the testimony presented and the trial court’s findings, the evidence

supported the LaBordes assertion that the easement by estoppel was created due to the

reliance of past owners of the property and their actions. The LaBordes acted in a manner

that followed the actions of Jackson and the Francis family. Cores cannot show there was

no evidence to support the trial court’s finding that the third element was met by the




                                               14
LaBordes. See Croucher, 660 S.W.2d at 58. We again agree with the trial court that the

LaBordes established the third element of easement by estoppel.

       D.     Conclusion

       In order to show lack of sufficient evidence, Cores had to show there was no

evidence to support the trial court’s findings in favor of the LaBordes. However, the trial

court found factually:

       35.    During the time that Rafe Jackson owned the LaBore Property and
              Cores owned the Cores Property, Cores did not challenge Rafe
              Jackson’s right to use the Easement Road to access the LaBorde
              Property. Cores testified at trial. The Court finds Cores’s testimony
              that he was generally unaware of Mr. Jackson’s use of the Easement
              Road not to be credible, and finds Cores’s testimony generally not
              credible when it conflicted with the testimony of other witnesses.

              ....

       44.    The evidence clearly established that since before 1979, up until
              Cores brought this lawsuit, the Easement Road crossing the Cores
              Property has been used openly and regularly to access the LaBorde
              Property, including the Cattle Pens.

Legally, the trial court found:

       9.     Accordingly, LaBorde Properties, L.P. established by a
              preponderance of the evidence all the essential elements of its
              declaratory judgment claim. LaBorde Properties, L.P. has the right to
              an easement by estoppel over that part of the Easement Road
              extending from Dam Road roughly westward to the gate entering
              LaBorde Properties, L.P.’s land, as set forth on the plan and legal
              description. . . .

       Because we must view the evidence in the light most favorable to the trial court’s

findings and indulge every reasonable inference to support the findings, we hold that the

evidence was sufficient to support the trial court’s extensive findings of fact and

conclusions of law. See Horner, 392 S.W.3d at 324; City of Keller, 168 S.W.3d at 822.

We overrule Cores’s first issue.

                                               15
                                    IV.    COUNTERCLAIMS

         By his third issue, Cores alleges that the trial court erred in entering a declaratory

judgment that was duplicative of claims already before the court.

         A.     Applicable Law

         “Texas’s Declaratory Judgments Act (“the Act”) is based upon the Uniform

Declaratory Judgments Act.” Garden Oaks Maintenance Organization v. Chang, 542

S.W.3d 117, 123 (Tex. App.—Houston [14th Dist.] 2017, no pet.). The Act’s purpose is to

settle and to afford relief from uncertainty and insecurity with respect to rights, status, and

other legal relations. TEX. CIV. PRAC. & REM. CODE ANN. § 37.002(b) (West, Westlaw

through 2017 1st C.S.). The Act is to be liberally construed and administered. Id. Under

the Act:

         A person interested under a deed, will, written contract, or other writings
         constituting a contract or whose rights, status, or other legal relations are
         affected by a statute, municipal ordinance, contract, or franchise may have
         determined any question of construction or validity arising under the
         instrument, statute, ordinance, contract, or franchise and obtain a
         declaration of rights, status, or other legal relations thereunder.

Id. § 37.004(a) (West, Westlaw through 2017 1st C.S.). A court of record within its

jurisdiction has power to declare rights, status, or other legal relations whether or not

further relief is or could be claimed. Id. § 37.003(a) (West, Westlaw through 2017 1st

C.S.).

         Although the Act generally is not available to settle disputes already pending before

a court, the Supreme Court of Texas has recognized that “in certain instances, . . . a

defensive declaratory judgment may present issues beyond those raised by the plaintiff,”

such as where “there is an ongoing and continuing relationship.” Garden Oaks, 542

S.W.3d at 123 (quoting BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d 838, 841–42 (Tex.

                                                  16
1990)); Drexel Corp. v. Edgewood Dev., Ltd., 417 S.W.3d 672, 678 (Tex. App.—Houston

[14th Dist.] 2013, no pet.) (“[I]n certain instances, a ‘defensive’ declaratory judgment will

survive a nonsuit when there are continuing obligations between the parties.”). To qualify

as a claim for affirmative relief, a defensive pleading must allege that the defendant has a

cause of action, independent of the plaintiff’s claim, on which he could recover benefits,

compensation or relief, even if the plaintiff abandons his cause of action or fails to establish

it. Garden Oaks, 542 S.W.3d at 124.

       B.     Discussion

       In response to Cores’s allegation that the LaBordes’ declaratory judgment was

duplicitous of claims before the court, LaBorde responds by stating that they were required

to assert a counterclaim for declaratory judgment in order to receive affirmative relief.

       In Cores’s first amended petition, he asked for a temporary and permanent

injunction to deny the LaBordes from using the Easement Road. In addition, Cores

requested attorney’s fees. In the LaBordes’ first amended answer and counterclaim, they

generally deny the allegations set forth in Cores’s petition. The LaBordes then raise a

counterclaim in which they seek a declaratory judgment allowing use of the Easement

Road under the theories of easement by estoppel or implied easement.

       Here, even if Cores dismissed his case, because the LaBordes raised an issue

beyond those raised by Cores, the LaBordes would be entitled to a ruling on their request

for an easement by estoppel. See Garden Oaks, 542 S.W.3d at 123. Therefore, we hold

the trial court did not err in ruling on the LaBordes’ request for a declaratory judgment. We

overrule Cores’s third issue.




                                                  17
                                   V.     CONCLUSION

      We affirm the judgment of the trial court.



                                                       GINA M. BENAVIDES,
                                                       Justice



Delivered and filed the
21st day of June, 2018.




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