                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION

                                        No. 04-18-00694-CV

                                 Paul D. RICE and M. Susan Rice,
                                            Appellants

                                                 v.

                         Charles C. HICKERSON and Eva M. Hickerson,
                                         Appellees

                        From the 452nd District Court, Mason County, Texas
                                     Trial Court No. 175739
                          Honorable Robert R. Hofmann, Judge Presiding

Opinion by:      Patricia O. Alvarez, Justice

Sitting:         Patricia O. Alvarez, Justice
                 Irene Rios, Justice
                 Beth Watkins, Justice

Delivered and Filed: March 25, 2020

AFFIRMED; STAY LIFTED

           This appeal centers on access to an easement—and whether the dominant estate owners

may replace a pre-existing, manual gate with a cattle guard or electric gate. The dominant estate

owners tried to replace the manual gate with an electric gate, but the servient estate owners stopped

them. When negotiations failed, the dominant estate owners sued for declaratory and injunctive

relief. After a bench trial, the court granted the requested relief, and the servient estate owners

appeal. For the reasons given below, we affirm the trial court’s judgment.
                                                                                      04-18-00694-CV


                                           BACKGROUND

        Appellants Paul and Susan Rice, the servient estate owners, owned over 500 acres of land

in Mason County, Texas. In 2006, the Rices divided their property and sold a landlocked tract of

about 175 acres, along with two access easements, to the Webers.

A.      Easement

        The easement at issue allows the dominant estate “free and unobstructed” access over a

portion of the Rices’ property. The easement clauses in the 2006 deed read as follows:

            The easements, rights and privileges herein granted shall be perpetual. Grantees
        and grantees’ guests, invitees, lessees, agents and others permitted by grantees shall
        have free and unobstructed ingress, egress and regress, by foot, on horseback, with
        automobiles, trucks and other vehicles, livestock and equipment, over and across
        the easement tracts described herein as to grantees shall be deemed necessary or
        convenient at all times and seasons.
           The easements granted herein are non-exclusive. Grantors reserve the right to
        grant use of said two easement tracts to others.

Paralleling the Rices’ property line, the easement is shaped like a backwards “L” as shown below.


                                         L4
      Drawing not to scale                              Rices’
                                                       entrance
                                                       Manual
            N         Adjacent                          gate
                      property

                                                    Rices’
     Hickersons’        Easement                    property
     property
                                        L8


B.      Hickersons Purchase Property

        In 2015, Chris and Eva Hickerson (the Hickersons) purchased the 175-acre tract from the

Webers, and the manual gate was still in place. The Hickersons live in the home on the property

as their primary residence. The Hickersons use the manual gate to access their property.


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                                                                                       04-18-00694-CV


C.     Hickersons Sue

       Shortly after they purchased the land, the Hickersons tried to replace the manual gate with

an electric gate, but the Rices stopped the installation. After negotiations about the gate failed, the

Hickersons sought a declaratory judgment. They asked the trial court to construe the easement

and declare that their access to the easement must be free and unobstructed. They asked the court

to order the Rices to remove the manual gate and allow them to replace it with a cattle guard or

electric gate. The Hickersons also sought attorney’s fees and costs.

D.     Trial Court Awards Discovery Sanctions

       In a discovery dispute, the Rices failed to respond to numerous discovery requests, and the

Hickersons sought discovery sanctions. In response, the Rices sought sanctions against the

Hickersons. After a hearing, the trial court denied the Rices’ motion for sanctions and sanctioned

Susan Rice $1,500 for failure to cooperate in discovery.

E.     Bench Trial, Appeal

       Both sides moved for summary judgment, but the trial court denied both motions and the

case proceeded to trial. After a bench trial, the trial court rendered a final judgment. The judgment

declares “that the present manual gate across the easement constitutes an obstruction to [the

Hickersons’] necessary and convenient use of the easement.” It permanently enjoins the Rices

from maintaining the manual gate or any other obstruction across the easement. And it prohibits

the Rices from interfering with the Hickersons’ installation of an electric gate, cattle guard, or

other device to replace the manual gate. The judgment also orders that the Hickersons recover

their attorney’s fees from the Rices.

       The Rices requested findings of fact and conclusions of law, which the trial court made.

       On appeal, the Rices identified eleven issues but organized their arguments into five:

            the trial court erred in granting injunctive and declaratory relief,


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                                                                                         04-18-00694-CV


             some of the declaratory relief granted was advisory,
             there was insufficient evidence to find the easement’s dimensions,
             the trial court’s sanctions against Susan Rice were an abuse of discretion, and
             the award of attorney’s fees was not equitable and just.

       We address each issue in the same order argued by the Rices.

                               INJUNCTIVE, DECLARATORY RELIEF

       In their first issue, the Rices argue the trial court erred in granting injunctive and declaratory

relief for the Hickersons. As subparts to their first issue, the Rices argue the easement language is

ambiguous, the evidence was neither legally nor factually sufficient to support the trial court’s

findings on the Hickersons’ control over the easement, the judgment changes the nonexclusive

easement into an exclusive easement, and the declaratory relief misconstrues the terms of the

easement. We address each argument in turn.

A.     Easement Ambiguity

       For the ambiguity question, the relevant portion of the easement reads as follows:

       Grantees and grantees’ guests, invitees, lessees, agents and others permitted by
       grantees shall have free and unobstructed ingress, egress and regress, by foot, on
       horseback, with automobiles, trucks and other vehicles, livestock and equipment,
       over and across the easement tracts described herein as to grantees shall be deemed
       necessary or convenient at all times and seasons.

       The trial court concluded that the easement’s plain language was not ambiguous and as

grantees, the Hickersons were entitled to “free and unobstructed ingress, egress and regress . . .

over and across the easement” and thus the manual gate across the Hickersons’ entrance violated

their easement rights. The trial court added that if the easement terms are ambiguous, it found the

necessary facts to reach the same conclusions.

       1.      Parties’ Arguments

       The Rices contend the easement terms contain both patent and latent ambiguities.

According to the Rices, a patent ambiguity exists because the easement does not expressly address


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                                                                                        04-18-00694-CV


gates, and a latent ambiguity exists because the Rices’ use of the easement to raise livestock

conflicts with the “free and unobstructed ingress [and] egress” term.

       The Hickersons argue the easement’s terms are not ambiguous, the plain language grants

them “free and unobstructed” access to the easement, and the trial court properly decided that the

manual gate was an unauthorized obstruction.

       Before we analyze the arguments, we recite the standards of review and the applicable law

for construing the easement language.

       2.      Standards of Review

       For questions of law, such as construction of an unambiguous deed, we review the trial

court’s ruling de novo. Godoy v. Wells Fargo Bank, N.A., 575 S.W.3d 531, 536 (Tex. 2019);

Kardell v. Acker, 492 S.W.3d 837, 842 (Tex. App.—San Antonio 2016, no pet.).

       If a party challenges the legal or factual sufficiency of the evidence to support a trial court’s

findings of fact, we use the same standards for reviewing a jury’s verdict. Catalina v. Blasdel, 881

S.W.2d 295, 297 (Tex. 1994); see Teal Trading & Dev., LP v. Champee Springs Ranches Prop.

Owners Ass’n, No. 17-0736, 2020 WL 499243, at *6 (Tex. Jan. 31, 2020).

       For legal sufficiency, we determine “whether the evidence at trial would enable reasonable

and fair-minded people to reach the verdict under review.” Teal Trading, 2020 WL 499243, at *6

(quoting City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). “[We] consider evidence in

the light most favorable to the verdict, and [we] indulge every reasonable inference that would

support it.” City of Keller, 168 S.W.3d at 822; accord Lightning Oil Co. v. Anadarko E&P

Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017).

       “For legal sufficiency points, if there is more than a scintilla of evidence to support the

finding, the no evidence challenge fails.” BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d

789, 795 (Tex. 2002); accord Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners


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                                                                                       04-18-00694-CV


Ass’n, 534 S.W.3d 558, 582 (Tex. App.—San Antonio 2017), aff’d, No. 17-0736, 2020 WL

499243 (Tex. Jan. 31, 2020).

       When a party attacks the factual sufficiency of an adverse finding on which the party did

not have the burden of proof at trial, we consider and weigh all the relevant evidence, and we will

“set[] aside the finding only if . . . [we] determine that the credible evidence supporting the finding

is so weak . . . that the answer should be set aside and a new trial ordered.” Crosstex N. Tex.

Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 615 (Tex. 2016); see W. Wendell Hall & Ryan G.

Anderson, Standards of Review in Texas, 50 ST. MARY’S L.J. 1099, 1135 (2019).

       3.      Deed Construction

       “A deed is subject to the same rules of interpretation and construction as a contract.” Cooke

v. Morrison, 404 S.W.3d 100, 111 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing Luckel

v. White, 819 S.W.2d 459, 461–62 (Tex. 1991)); accord Marcus Cable Assocs., L.P. v. Krohn, 90

S.W.3d 697, 700 (Tex. 2002) (“We apply basic principles of contract construction and

interpretation when considering an express easement’s terms.”).

       “Whether a [deed] is ambiguous is a question of law for the court to decide by looking at

the [deed] as a whole in light of the circumstances present when the contract was entered.” Coker

v. Coker, 650 S.W.2d 391, 394 (Tex. 1983); accord Rico v. Judson Lofts, Ltd., 404 S.W.3d 762,

767 (Tex. App.—San Antonio 2013, pet. denied). “If a deed is worded in such a way that it can

be given a definite or certain legal meaning, then the deed is not ambiguous.” Combest v. Mustang

Minerals, LLC, 502 S.W.3d 173, 185 (Tex. App.—San Antonio 2016, pet. denied) (citing

CenterPoint Energy Houston Elec., L.L.P. v. Old TJC Co., 177 S.W.3d 425, 430–31 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied)). “A deed is ambiguous only if its meaning is uncertain or

if it is subject to two or more reasonable interpretations.” Combest, 502 S.W.3d at 185; accord

Old TJC Co., 177 S.W.3d at 431.


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                                                                                     04-18-00694-CV


       If an ambiguity exists, it may be either patent or latent. Nat’l Union Fire Ins. Co. of

Pittsburgh, PA v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995); Old TJC Co., 177 S.W.3d at

431. “A patent ambiguity is evident on the face of the [deed].” Old TJC Co., 177 S.W.3d at 431

(quoting CBI Indus., 907 S.W.2d at 520). “A latent ambiguity arises when a [deed] which is

unambiguous on its face is applied to the subject matter with which it deals and an ambiguity

appears by reason of some collateral matter.” CBI Indus., 907 S.W.2d at 520; accord Old TJC

Co., 177 S.W.3d at 431.

       “[A]ny ambiguity in an instrument granting an easement is to be resolved against the

grantor.” Hous. Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 665 (Tex. 1964); accord Ferrara v.

Moore, 318 S.W.3d 487, 500 (Tex. App.—Texarkana 2010, pet. denied). When we construe an

express easement, “we resolve doubts about the parties’ intent against the grantor, or servient,

estate and adopt the interpretation that is the least onerous to the grantee, or dominant, estate in

order to confer on the grantee the greatest estate permissible under the instrument.” CenterPoint

Energy Hous. Elec. LLC v. Bluebonnet Drive, Ltd., 264 S.W.3d 381, 388–89 (Tex. App.—Houston

[1st Dist.] 2008, pet. denied) (citing Dwyer, 374 S.W.2d at 665).

       4.      Easement Language Ambiguities

       Citing three opinions, the Rices argue that a patent ambiguity exists because the easement’s

plain language does not expressly address gates.

               a.      Sister Courts’ Opinions

       They rely on three of our sister courts’ opinions, but on the question of patent ambiguity,

each is readily distinguishable. Cf. Robles v. Mann, No. 13-14-00211-CV, 2016 WL 1613316, at

*3, *5 (Tex. App.—Corpus Christi Apr. 21, 2016, no pet.) (mem. op.); Greenwood v. Lee, 420

S.W.3d 106, 119 (Tex. App.—Amarillo 2012, pet. denied); Reaves v. Lindsay, 326 S.W.3d 276,

281–82 (Tex. App.—Houston [1st Dist.] 2010, no pet.).


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                                                                                   04-18-00694-CV


       Like the Hickersons’ easement language, none of the easement’s provisions in the three

cases expressly addressed gates. But unlike the Hickersons’ easement, none of the three easements

cited by the Rices define the access to the easement to be “free” or “unobstructed.” Cf. Robles,

2016 WL 1613316, at *3 (defining “a 60' wide easement [such] that no other additional rights-of-

way shall encroach upon or be common to this right-of-way” (emphasis removed)); Greenwood,

420 S.W.3d at 110 (defining “a 45 ft. wide strip or tract of land to be used as an access road”);

Reaves, 326 S.W.3d at 280 (defining “a non-exclusive perpetual right-of-way and easement for

the purpose of maintaining and keeping in repair a roadway”).

       The easement language in the Rices’ three cases are substantively distinguishable, which

makes the cases’ reasoning—on patent ambiguity for lack of addressing gates—inapposite.

               b.     No Mention of Gates is not Patent Ambiguity

       Even though it does not mention gates, the Hickersons’ easement’s plain language states

the Hickersons “shall have free and unobstructed ingress, egress and regress . . . across the

easement.” This portion of the easement language, on its face, is susceptible to only one

reasonable, definite interpretation; it is not patently ambiguous. Cf. Reaves, 326 S.W.3d at 281–

82; Old TJC Co., 177 S.W.3d at 431.

       5.      Latent Ambiguity

       The Rices also argue the easement has a latent ambiguity because the “free and

unobstructed” language does not expressly address the Rices’ use of their land to raise livestock.

They argue that “free and unobstructed” access cannot mean gate-free access because that is

inconsistent with their raising livestock on their land—which they were doing at the time the

Hickersons purchased the property. The Rices rely on McKenna v. Caldwell, which is helpful in

our analysis. 387 S.W.3d 830 (Tex. App.—Eastland 2012, no pet.).




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                                                                                       04-18-00694-CV


                 a.    McKenna v. Caldwell

       In McKenna, the partition deed created an easement “for purposes of providing a perpetual

free, uninterrupted and unobstructed easement for access, ingress and egress to and from”

Caldwell’s land. Id. at 833. The court determined that the easement was unambiguous on its face,

but it noted a latent “ambiguity arises when the reservation is applied to the subject matter of the

actual easement and the collateral matter of McKenna’s use of his property for cattle.” Id. at 835.

       The court queried “whether, when the easement was created, the parties intended the access

easement to be free of gates or cattle guards.” Id. Quoting Reaves, the court noted that “[a]s a

general rule, the questions of whether the use of an easement by the dominant estate is reasonably

necessary and convenient and of whether the use is as little burdensome as possible on the servient

estate are questions of fact for the trial court or jury.” Id. at 836 (alteration in original) (quoting

Reaves, 326 S.W.3d at 282).

       McKenna “conclude[d] that a question of fact exists as to whether, when the easement was

created, the parties intended the access easement to be free of gates or cattle guards,” and it denied

the motion for summary judgment. Id.

                 b.    Free and Unobstructed Access with Livestock

       Like McKenna, the Hickersons’ easement’s plain language provides for “free and

unobstructed” access, but it does not expressly address the use of gates, either manual or electric,

or cattle guards to confine the livestock. Cf. id. at 833–34. But unlike McKenna, on the question

of free and unobstructed access across a servient estate that has a pre-existing and longstanding

use of raising livestock, cf. id. at 833, the Hickersons’ easement has additional language that we

must consider.




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                                                                                      04-18-00694-CV


               c.      As to Grantees Clause

       The Hickersons’ easement grants “free and unobstructed ingress, egress and regress . . .

across the easement tracts described herein as to grantees [which] shall be deemed necessary or

convenient at all times and seasons.” When we construe the granting language in an express

easement, “we resolve doubts about the parties’ intent against the grantor, or servient, estate and

adopt the interpretation that is the least onerous to the grantee, or dominant, estate in order to

confer on the grantee the greatest estate permissible under the instrument.” Bluebonnet Drive, 264

S.W.3d at 388–89 (citing Dwyer, 374 S.W.2d at 665); accord McKenna, 387 S.W.3d at 834.

       Considering the easement’s plain language as a whole, and applying the principles of

construction, we construe the “as to grantees” clause to designate the grantees—the Hickersons—

as the ones who decide what is necessary or convenient for their free and unobstructed access to

the servient estate. See Bluebonnet Drive, 264 S.W.3d at 388–89; see also Dwyer, 374 S.W.2d at

665.

               d.      Construing Free and Unobstructed with Necessary or Convenient

       Regarding the servient estate, it is undisputed that the Rices were raising livestock on it

when the easement was created and when the Hickersons purchased the property. It is indisputable

that the easement’s plain language does not expressly address cattle guards or gates, either manual

or electric. Therefore, on the question of whether an electric gate or cattle guard provides free and

unobstructed access and is necessary or convenient as to the Hickersons given the Rices’ use of

the servient estate to raise livestock, the easement’s plain language presents a question of fact,

which was addressed by the parties at trial. See McKenna, 387 S.W.3d at 836.

       We turn next to the Rices’ evidentiary challenges on the trial court’s findings.




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B.     Evidentiary Challenges

       In the second part of their first issue, the Rices challenge the legal and factual sufficiency

of the evidence supporting the trial court’s findings. Specifically, they argue that the reasonable

use balancing test recited in Greenwood (and discussed below) should apply, see Greenwood v.

Lee, 420 S.W.3d 106, 119 (Tex. App.—Amarillo 2012, pet. denied), and the Hickersons “failed to

show that their request to install an electric gate and cattle guard is reasonably necessary and

convenient.” The Rices also complain that the Hickersons “fail[ed] to show how their proposed

relief imposes the lightest possible burden on the Rices’ ongoing use of their property to raise

cattle and livestock.” See id.

       Before we address the sufficiency of the evidence, we determine whether the reasonable

use balancing test applies.

       1.      Reasonable Use Balancing Test

       In Greenwood, the court adopted the reasonable use balancing test recited by Reaves. Id.

at 119 (citing Reaves v. Lindsay, 326 S.W.3d 276, 282 (Tex. App.—Houston [1st Dist.] 2010, no

pet.)). Reaves stated the test as follows: “When an express easement is stated in general terms,

the easement ‘implies a grant of unlimited reasonable use such as is reasonably necessary and

convenient and as little burdensome as possible to the servient owner.’” Reaves, 326 S.W.3d at

282 (emphasis added) (quoting Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974)).

       Before we consider what to balance, we must determine whether the test applies.

               a.      Easement Not Stated in General Terms

       The reasonable use balancing test applied in Reaves and Greenwood because the courts

determined the express easements at issue were “stated in general terms.”

       In Greenwood, the easement was stated as “[a]n Easement and right-of-way over a certain

tract or parcel of land.” Greenwood, 420 S.W.3d at 110. In Reaves, the easement was stated as


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                                                                                     04-18-00694-CV


“a non-exclusive perpetual right-of-way and easement . . . for the use, liberty, privilege and

easement of passing . . . over and across the [servient estate].” Reaves, 326 S.W.3d at 279.

       Neither easement expressly addressed reasonable necessity or convenience; therefore,

Greenwood and Reaves implied a requirement that the easement’s use was limited to that which

was “reasonably necessary and convenient and as little burdensome as possible to the servient

[estate] owner.” See Reaves, 326 S.W.3d at 279 (quoting Coleman, 514 S.W.2d at 903); accord

Greenwood, 420 S.W.3d at 110.

       But unlike Greenwood or Reaves, on the matter of necessity and convenience, the

Hickersons’ easement language was not silent or merely stated in general terms. Cf. Greenwood,

420 S.W.3d at 110; Reaves, 326 S.W.3d at 279. The plain language states that the Hickersons

“shall have free and unobstructed [access] over and across the easement . . . as to [the Hickersons]

shall be deemed necessary or convenient at all times and seasons.”

       As we have construed it, this language gives the Hickersons the right to decide what is

necessary or convenient for their free and unobstructed access to the servient estate. Thus, the

Greenwood and Reaves objective “reasonably necessary and convenient” test does not apply. Cf.

Greenwood, 420 S.W.3d at 110; Reaves, 326 S.W.3d at 279. Because the test does not apply, the

Rices’ argument—that the Hickersons failed to show that an electric gate or cattle guard was

reasonably necessary and convenient—is inapposite and is no basis to reverse the trial court’s

judgment.

               b.      Lightest Possible Burden

       The Rices also sought to challenge the legal and factual sufficiency of the evidence of a

cattle guard or electric gate being “as little burdensome as possible to the servient owner,” see

Reaves, 326 S.W.3d at 282 (quoting Coleman, 514 S.W.2d at 903), but they failed to present any

legal arguments for our review. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and


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                                                                                        04-18-00694-CV


concise argument for the contentions made, with appropriate citations to authorities and the

record.” (emphasis added)); ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex.

2010).

         The Rices cited portions of the reporter’s record regarding gates and cattle guards, but in

the two pages they used to express their concerns, they did not cite any authorities to construct or

support a legal argument. Contra TEX. R. APP. P. 38.1(i); Swinnea, 318 S.W.3d at 880. They did

not cite a single statute, rule, or case to show how the trial court erred, and we cannot create their

argument for them. Cf. Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931 (Tex. App.—

Houston [14th Dist.] 2008, no pet.) (“Failure to cite legal authority or to provide substantive

analysis of the legal issues presented results in waiver of the complaint.”).

         We conclude the Rices waived this complaint. See TEX. R. APP. P. 38.1(i); Canton-Carter,

271 S.W.3d at 931.

C.       Judgment Changes Easement Use to Exclusive

         In the third part of their first issue, the Rices argue the trial court’s judgment “transforms

the non-exclusive easement into an exclusive easement.”            They argue that the judgment’s

declaration that “[t]he manner and means for the reasonable confinement of livestock shall be as

[the Hickersons] deem[] convenient” gives the Hickersons “total control over access to the

easement” and defies the easement’s express language that it is non-exclusive.

         The Rices rely on Orange County for the following proposition: “a nonexclusive easement

in gross is ‘one which does not give, as against the owner of the servient tenement and others who

may be privileged under him, the sole privilege of making the use authorized by the easement.’”

Orange Cty., Inc. v. Citgo Pipeline Co., 934 S.W.2d 472, 476 (Tex. App.—Beaumont 1996, writ

denied) (quoting RESTATEMENT (FIRST) OF PROPERTY § 493 (1944)). But the Rices’ argument

necessarily fails for at least two reasons.


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                                                                                       04-18-00694-CV


       First, the use the Hickersons may make of the easement is to enter and traverse it, cf. id.,

and the manual gate is not the only access to the easement. There is a second gate, adjacent to the

manual gate, which the Rices regularly use to access the easement, and the judgment does not

affect the Rices’ ability to enter or traverse the easement using the Rices’ gate. Cf. id.

       Second, the Rices do not explain or provide any legal authorities to show how the

Hickersons’ replacing the manual gate with an electric gate or cattle guard would prevent the Rices

from accessing the easement using the electric gate or crossing a cattle guard. Cf. id.

       We overrule this subissue.

D.     Judgment Changes Easement Terms

       In the fourth part of their first issue, the Rices argue the judgment “improperly changes the

plain terms of the easement.” The Rices complain that the judgment’s declaration that a cattle

guard does not interfere with the servient estate “is nonsensical” because “the experts for both

parties agreed that [a] cattle guard is unsafe for horses, livestock and people to cross.”

       Again, the Rices failed to cite a single statute, rule, or case to show how the trial court

erred. Contra TEX. R. APP. P. 38.1(i); Canton-Carter, 271 S.W.3d at 931. We simply cannot

discern whether they are challenging the sufficiency of the evidence or the trial court’s construction

of the easement language, and we cannot create their argument for them. See Canton-Carter, 271

S.W.3d at 931. Even if we could surmise, which we may not, that the Rices were raising an

evidentiary challenge, we would note the Rices failed to distinguish the testimony that cattle guards

can be safely crossed by horses, livestock, and people using vehicles; people can safely cross cattle

guards on foot; and horses, livestock, and people can all access the easement on foot (or hoof)

using the Rices’ entrance. In this fourth part of their first issue, the Rices failed to present any

legal argument for our review.

       Having considered each of the subparts in their first issue, we overrule the Rice’s first issue.


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                                                                                                      04-18-00694-CV


                                                ADVISORY RELIEF

         In their second issue, the Rices contend a portion of the trial court’s judgment is advisory

and should be stricken. 1 The complained of portion of the judgment reads as follows:

         Plaintiffs’ use and enjoyment of the easement in a manner and means as deemed
         convenient by Plaintiffs (whether now or in the future) will not unreasonably
         interfere with Defendants’ use of the servient estate, and such use is as lightly and
         little burdensome as possible on the servient estate, so long as said use and
         enjoyment allows for the reasonable confinement of livestock to Defendants’ land.
         The manner and means for the reasonable confinement of livestock shall be as
         Plaintiff deems convenient (whether now or in the future). . . . In the future, some
         novel and new manner for reasonably confining livestock while permitting
         unobstructed passage upon the easement may be developed which Plaintiffs may
         deem convenient and may substitute in place of the confining structure in use at
         that time.

         The Rices argue that this portion of the judgment decides “in advance . . . a future

hypothetical dispute between the Hickersons and the Rices as to whether some new invention in

lieu of a cattle guard and electric gate adequately protects the Rices[’] livestock.”

         We disagree.

A.       Ripeness

         “A court has no jurisdiction to render an advisory opinion on a controversy that is not yet

ripe.” Pub. Util. Comm’n of Tex. v. Hous. Lighting & Power Co., 748 S.W.2d 439, 442 (Tex.

1987); accord Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc., 971 S.W.2d 439, 443

(Tex. 1998).

         “Ripeness . . . focuses on whether the case involves ‘uncertain or contingent future events

that may not occur as anticipated, or indeed may not occur at all.’” Patterson, 971 S.W.2d at 442




1
  On appeal, the Hickersons argue that the Rices failed to preserve their advisory opinion complaint for appellate
review. But the Rices challenge a portion of the trial court’s judgment for ripeness, and ripeness may be raised for
the first time on appeal. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998) (“Ripeness is an element
of subject matter jurisdiction.”); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993) (“Subject
matter jurisdiction is an issue that may be raised for the first time on appeal . . . .”).


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(quoting 13A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL

PRACTICE AND PROCEDURE § 3532 (2d ed. 1984)).

          “Under the ripeness doctrine, we consider whether, at the time a lawsuit is filed, the facts

are sufficiently developed ‘so that an injury has occurred or is likely to occur, rather than being

contingent or remote.’” Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851–52 (Tex. 2000)

(quoting Patterson, 971 S.W.2d at 442). “A case is not ripe when determining whether the plaintiff

has a concrete injury depends on contingent or hypothetical facts, or upon events that have not yet

come to pass.” Id. at 852 (citing Patterson, 971 S.W.2d at 443).

          Ripeness is a question of law which we review de novo. Heckman v. Williamson Cty., 369

S.W.3d 137, 149 (Tex. 2012) (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.

1998)).

B.        Discussion

          In their suit, the Hickersons asked the trial court to construe the easement and to declare

the parties’ rights under the easement.

          The easement language states that “Grantees . . . shall have free and unobstructed [access]

across the easement . . . as shall be deemed necessary or convenient at all times and seasons.”

(emphasis added). By its plain language, the easement gives the Hickersons the right to determine

what form of access is necessary or convenient, now and in the future. The easement language

allows the Hickersons to subjectively determine what easement access means is necessary or

convenient for their free and unobstructed access.

          The judgment reiterates that the Hickersons may substitute, in the future, “some new and

novel manner for reasonably confining livestock while permitting unobstructed passage upon the

easement . . . which [the Hickersons] may deem convenient and may substitute in place of the

confining structure in use at that time.” The trial court’s judgment declaring the parties’ rights


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under the easement was the present determination of actual, existing facts. Cf. Gibson, 22 S.W.3d

at 851–52; Patterson, 971 S.W.2d at 442.

       Further, the judgment restricts the Hickersons’ rights to “so long as said use and enjoyment

allows for the reasonable confinement of livestock to [the Rices’] land.” The judgment requires

that the Hickersons’ selected manner or means be objectively reasonable to confine livestock to

the Rices’ land.

       Contrary to the Rices’ assertion, the portion of the judgment that construes the easement

language and declares that the easement allows the Hickersons to substitute a “new and novel”

manner in the future does not decide in advance a future hypothetical dispute about whether a

novel manner or means reasonably confines the Rices’ livestock to their land. Cf. Gibson, 22

S.W.3d at 851–52; Patterson, 971 S.W.2d at 442. The judgment merely declares the Hickersons’

rights under the easement—which include future rights.

       We conclude the challenged portion of the judgment is not an advisory opinion on a matter

that is not yet ripe. Cf. Pub. Util. Comm’n of Tex., 748 S.W.2d at 442. We overrule the Rices’

second issue.

                                    EASEMENT DIMENSIONS

       In their third issue, the Rices argue the trial court committed reversible error by (1)

admitting a plat into evidence that was not properly authenticated and (2) making a finding on the

easement’s dimensions based on the improperly admitted plat.

       The Hickersons contend the trial court did not abuse its discretion in admitting the plat

because both parties agreed the plat accurately depicted the properties and the easement, and any

error admitting the plat was harmless because the plat was merely duplicative of other evidence.

       Before we address the parties’ arguments, we briefly recite the applicable law and standard

of review.


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A.     Admitting Evidence, Standard of Review

       “The admission and exclusion of evidence is committed to the trial court’s sound

discretion.” City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); accord Tex. Dep’t

of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).

       “We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.”

D & M Marine, Inc. v. Turner, 409 S.W.3d 693, 699 (Tex. App.—Houston [1st Dist.] 2013, pet.

denied). “The test for abuse of discretion is . . . whether the court acted without reference to any

guiding rules and principles.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42

(Tex. 1985).

       “[We] must uphold the trial court’s evidentiary ruling if there is any legitimate basis for

the ruling.” Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). And

“[u]nless the trial court’s erroneous evidentiary ruling probably caused the rendition of an

improper judgment, we will not reverse the ruling.” Horizon/CMS Healthcare Corp. v. Auld, 34

S.W.3d 887, 906 (Tex. 2000); see TEX. R. APP. P. 44.1(a)(1) (reversible error).

B.     Admitting Plat as Evidence

       At trial, the deed from the Hickersons’ grantors to the Hickersons was admitted without

objection. In Exhibit B to the deed, the metes and bounds describe the easement and its

dimensions. Chris Hickerson testified that the easement’s dimensions were shown on the metes

and bounds.

       Initially the plat was offered for demonstrative evidence and discussed by the witnesses.

In their examinations, Chris Hickerson and Paul Rice both testified that the plat showed the

Hickersons’ easement. After the trial court heard detailed testimony about the easement, its

dimensions, and the plat showing the easement, the Hickersons offered the plat into evidence.




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       The Rices objected that the plat had not been properly authenticated by a surveyor, but the

trial court overruled the objection and admitted the plat.

       Having reviewed the record, we cannot conclude the trial court abused its discretion in

admitting the plat. See Bent Morales v. Lugo, 464 S.W.2d 694, 697 (Tex. App.—Corpus Christi

1971, writ ref’d n.r.e.) (admitting a plat); see also Downer, 701 S.W.2d at 241–42 (abuse of

discretion); Malone, 972 S.W.2d at 43 (any legitimate basis).

C.     Finding on Easement Dimensions

       The trial court found that “[t]he Easement is approximately 40 feet in width until its

northernmost point where it expands to approximately 60 feet in width.” The plat’s field notes

give dimensions for annotated portions of the easement, i.e., L4, L8. The field notes show L4, the

northernmost dimension of the easement as 59.67 feet wide and L8, the width of the north-south

portion of the easement as 40.43 feet.

       The Rices complain that the trial court erred by relying on the plat to make its finding on

the easement’s dimensions, but their argument is unavailing.

       Although the plat was used repeatedly as a demonstrative for the witnesses’ examination,

the trial court could have relied on other evidence to make its easement dimensions finding. For

example, Chris Hickerson testified the easement was forty feet wide, and he noted the metes and

bounds description in Exhibit B of his deed—which was admitted—showed the main easement

width as being forty feet. Paul Rice acknowledged that the top of the easement was sixty feet wide

but insisted the easement’s main width was only thirty feet.

       As the factfinder, the trial court was free to accept the deed, the metes and bounds, and

Chris Hickerson’s testimony and reject the contradictory portions of Paul Rice’s testimony. See

Lemus v. Aguilar, 491 S.W.3d 51, 59 (Tex. App.—San Antonio 2016, no pet.) (“The judge may

take into consideration all the facts and surrounding circumstances in connection with the


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testimony of each witness and accept or reject all or any part of that testimony.” (quoting Munters

Corp. v. Swissco-Young Indus., Inc., 100 S.W.3d 292, 297 (Tex. App.—Houston [1st Dist.] 2002,

pet. dism’d))).

       We conclude the evidence was sufficient to support the trial court’s finding—even without

the plat being admitted as evidence.

D.     No Reversible Error

       If the trial court erred in admitting the plat, the Rices were required to show how the

admission of the plat “probably caused the rendition of an improper judgment.” See TEX. R. APP.

P. 44.1(a)(1); Able, 35 S.W.3d at 617. But as we have already determined, the plat was merely

cumulative, and “[w]hen erroneously admitted evidence is merely cumulative, any error in its

admission is harmless.” See Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 559

(Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998).

       We overrule the Rices’ third issue.

                                       DISCOVERY SANCTIONS

       In their fourth issue, the Rices complain that the trial court abused its discretion when it

sanctioned Susan Rice for discovery abuses.

       After the Hickersons filed their lawsuit, the parties got into a dispute about discovery. The

Hickersons sent several discovery requests and inquiries about the status of the Rices’ discovery

responses.   Susan Rice, the Rices’ lawyer, responded to other matters in the Hickersons’

correspondence, but on three separate occasions, she did not respond to the Hickersons’ discovery

inquiries. The Hickersons filed a motion to compel the unanswered discovery and requested

attorney’s fees for the time they spent trying to get Susan Rice to respond to their discovery.

       After a hearing, the trial court signed an order sanctioning Susan Rice $1,500 for failing to

confer and cooperate in discovery with opposing counsel.


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A.      Parties’ Arguments

        The Rices challenge the sanctions order because, in their view, the trial court “fail[ed] to

analyze or apply the law related to Rule 47 correctly to the facts of this case.” See TEX. R. CIV. P.

47 (Claims for Relief). They insist that because the Hickersons failed to comply with Rule 47, the

Rices were not obliged to comply with the Hickersons’ discovery requests until thirty days after

the Hickersons complied with Rule 47, and therefore, the trial court sanctioned Susan Rice before

the Rices’ discovery responses were due.

        The Hickersons argue the trial court’s sanctions order should be upheld because the trial

court’s findings of fact “demonstrate[] multiple recognized bases for the trial court’s sanctions

order.” They assert that the trial court could properly sanction Susan Rice based on her violation

of Rule 191.2 and under the court’s inherent authority. See TEX. R. CIV. P. 191.2 (Conference),

215.3 (discovery process abuse); Altesse Healthcare Sols., Inc. v. Wilson, 540 S.W.3d 570, 572

(Tex. 2018) (“Trial courts have broad [inherent] authority to impose appropriate sanctions on

recalcitrant litigants.”).

B.      Sanctions Order

        At the hearing on the parties’ cross-motions for sanctions, the trial court denied the Rices’

motion for sanctions and took the Hickersons’ motion to compel discovery and request for

sanctions under advisement. Later the same day, the trial court signed its sanctions order. The

relevant portion of the order reads as follows:

            The Court finds that, despite good faith attempts at cooperation and resolution
        made by counsel for Plaintiff, Defendant/Counsel M. Susan Rice failed and refused
        to confer and cooperate in discovery with opposing counsel as required by the
        Texas Rules of Civil Procedure.
            IT IS THEREFORE ORDERED that M. Susan Rice is sanctioned $1,500.00
        for violation of said rules. Said sanction is due and payable by December 1, 2017.




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The trial court also filed its six-page findings of fact and conclusions of law which comprised

forty-nine findings and conclusions. Before we analyze the order, we briefly recite the standard

for our review.

C.     Standard of Review

       “A trial court’s ruling on a motion for sanctions is reviewed under an abuse of discretion

standard.” Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); accord Am. Flood Research, Inc.

v. Jones, 192 S.W.3d 581, 583 (Tex. 2006). “In determining whether the trial court abused its

discretion, the appellate court must ensure that the sanctions were appropriate or just.” Am. Flood

Research, 192 S.W.3d at 583 (citing TransAm. Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 916

(Tex. 1991)). To make that determination, we engage in a two-part inquiry. Id.

       First, [we] must ensure that there is a direct relationship between the improper
       conduct and the sanction imposed; in other words, [we] examine whether
       punishment was imposed upon the true offender and tailored to remedy any
       prejudice discovery abuse caused. Second, [we] must make certain that less severe
       sanctions would not have been sufficient to promote compliance.

Id. As we conduct our review, we “are not bound by a trial court’s findings of fact and conclusions

of law; rather, [we] must independently review the entire record to determine whether the trial

court abused its discretion.” Id.

D.     Pertinent Facts

       In our review, we are not limited to the trial court’s findings to determine whether the

sanctions were appropriate or just, but having reviewed the entire record, we conclude that the trial

court’s findings are consistent with the record. See id.

       The record shows that the Hickersons sent the Rices discovery requests, but the Rices did

not timely respond. Twice the Hickersons followed up with e-mails asking about the late discovery

responses. Susan Rice responded to another topic in the e-mails, but she did not acknowledge or

explain the failure to produce discovery.


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                                                                                      04-18-00694-CV


       About four weeks after the second e-mail, the Hickersons’ attorney sent Susan Rice a letter

noting the Rices’ discovery responses were overdue and asking to resolve the matter without

resorting to a motion to compel. In her e-mail response, Susan Rice noted that “if you proceed

with filing a Motion to Compel let me know the possible hearing dates.” She did not explain why

she had failed to comply with discovery or make any attempt to confer with opposing counsel to

resolve the dispute without the court’s intervention. Contra TEX. R. CIV. P. 191.2.

       At the sanctions hearing, Susan Rice repeatedly insisted she had no obligation to respond

to the Hickersons’ discovery requests because the Hickersons failed to include the Rule 47(c)

notice regarding the amount of monetary relief sought, and she had no obligation to tell them the

reason for her failure to respond. The Hickersons’ attorney noted, and Susan Rice acknowledged,

that the Rices’ initial counterclaim also failed to include the Rule 47(c) statement, but despite the

omission, the Hickersons responded to six discovery requests from the Rices.

       The trial court found that Susan Rice failed to comply with Rule 191.2 and the totality of

her conduct abused the discovery process. We agree.

E.     Appropriateness of Sanctions

       The trial court could have disallowed the Rices from obtaining additional discovery,

charged the Hickersons’ discovery expenses against the Rices, deemed admissions against the

Rices, barred the Rices from presenting evidence on defenses, stricken portions of their pleadings,

or ordered Susan Rice to pay the reasonable expenses, including attorney’s fees, that the

Hickersons incurred based on Susan Rice’s failure to respond. See TEX. R. CIV. P. 215.3; Cire,

134 S.W.3d at 839.

       The trial court did not impose any of the available sanctions against the Rices that restricted

their ability to seek additional discovery or respond to the Hickersons’ requests. See TEX. R. CIV.

P. 215.3; Cire, 134 S.W.3d at 839. Instead, based on her violations of Rule 191.2, the trial court


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simply ordered Susan Rice to pay the Hickersons $1,500—less than the amount of their attorney’s

fees for the delays caused by Susan Rice. See TEX. R. CIV. P. 215.3; Cire, 134 S.W.3d at 839.

         The trial court did not sanction the Rices as parties; it sanctioned only Susan Rice in her

role as the Rices’ attorney, and we conclude “the sanction was imposed upon the true offender.”

See Am. Flood Research, 192 S.W.3d at 583. And the sanctions order was “no more severe than

necessary to satisfy its legitimate purposes,” see Powell, 811 S.W.2d at 917, to remedy the

prejudice caused the Hickersons by Susan Rice’s abuse of the discovery process, see Am. Flood

Research, 192 S.W.3d at 583.

         Having reviewed the entire record and applying the required two-part inquiry, we conclude

the trial court’s sanctions order was appropriate or just. See id. We overrule the Rices’ fourth

issue.

                                          ATTORNEY’S FEES

         In their fifth issue, the Rices argue that the award of attorney’s fees to the Hickersons based

on their declaratory judgment action is not equitable and just.

         The Rices’ sole argument is that because “the trial court’s judgment lacks any basis in law

and fact, the award of attorneys’ fees to the Hickersons is not equitable and just.” See TEX. CIV.

PRAC. & REM. CODE ANN. § 37.009 (allowing courts to “award costs and reasonable and necessary

attorney’s fees as are equitable and just”).

         Having overruled each of the Rices’ other issues, we necessarily conclude that their sole

argument against the award of attorney’s fees fails. We overrule the Rices’ fifth issue.

                                               CONCLUSION

         For the reasons given above, we affirm the trial court’s judgment.

                                                     Patricia O. Alvarez, Justice




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