Affirmed in Part, Reversed and Remanded in Part, and Majority and Concurring
and Dissenting Opinions filed December 29, 2011.




                                          In The

                      Fourteenth Court of Appeals

                                  NO. 14-10-00560-CV

    DAVID HAMRICK, MAGGIE HAMRICK, SUE BERTRAM, AND STEVE
                   BERTRAM, Appellants/Cross-Appellees

                                            V.

          TOM WARD AND BETSEY WARD, Appellees/Cross-Appellants

                       On Appeal from the 125th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2005-61600



           CONCURRING AND DISSENTING OPINION

       The majority concludes that the property description in the appellees’ deed of trust
raises a genuine issue of material fact as to whether the appellants had constructive notice
of the appellees’ claimed easement. Applying the familiar summary-judgment standard
of review mandates a determination that reasonable and fair-minded jurors could not
differ in their conclusions as to whether appellants had knowledge of facts that would
have caused a reasonably prudent person to have made an inquiry that would have led to
the discovery of the appellees’ claimed easement. Therefore, this court should overrule
all of the appellants’ issues and address the second and fourth issues in the appellees’
cross-appeal.

                                  Standard of Review
      In reviewing the trial court’s summary judgment, this court considers all the
evidence in the light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors
could differ in their conclusions in light of all of the summary-judgment evidence.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

                        Legal Standard for Constructive Notice
      Appellants/cross-appellees David and Maggie Hamrick and Sue and Steve
Bertram (collectively, the ―Hamricks‖) assert that they are bona fide purchasers as to the
easement claimed by appellees/cross-appellants Tom and Betsey Ward (collectively, the
―Wards‖). For there to be a genuine issue of fact as to whether the Hamricks are bona
fide purchasers, there must be, among other things, a genuine issue of material fact as to
whether the Hamricks had constructive notice of the easement claimed by the Wards.
See Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001).              Under principles of
constructive notice, even if the Hamricks had no actual knowledge of the Wards’ claimed
easement, the Hamricks are charged with notice of the claimed easement if the Hamricks
had knowledge of facts that would have caused a reasonably prudent person to make an
inquiry that would have led to the discovery of the claimed easement. See id.; Westland
Oil Development Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 908 (Tex. 1982); F.J.
Harrison & Co. v. Boring & Kennard, 44 Tex. 255, 263–64 (Tex. 1875); Cleaver v.
Cundiff, 203 S.W.3d 373, 378–79 (Tex. App.—Eastland 2006, no pet); see also Fish v.
Marsters, No. 14-06-00129-CV, 2007 WL 1438555, at *7–9 (Tex. App.—Houston [14th

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Dist.] May 17, 2007, pet. denied) (applying constructive notice principles in context of
discovery rule).
                             Analysis of Constructive Notice
       The majority correctly points out that the Hamricks had actual knowledge of the
dirt road over the property that they were purchasing and that they had actual knowledge
of the easement described by developer Cook in the Special Restrictions. The majority
also correctly concludes that knowledge of these facts would have caused a reasonably
prudent person to ask Mrs. Gomez (the prior owner and holder of a life estate) about the
easement, to determine that the Wards owned the land to which the dirt road leads, and to
ask the Wards about this easement. See ante at pp. 18–19. But the majority errs in
determining that reasonable and fair-minded jurors could differ in their conclusions as to
whether a reasonably prudent inquiry would have led to the discovery of the claimed
easement.
       In his affidavit, Tom Ward testifies as follows:
       In February 2004, Tom and his wife Betsey purchased from Mrs. Gomez
       two acres of land and the rights to an easement at least twenty-five feet
       wide connecting the property to Richardson Road, with Mrs. Gomez
       retaining a life estate as to her house.

       Tom Ward has been familiar with the two acres and the use of this
       easement since 1985.

       Tom Ward purchased the property in reliance on the fact that he and his
       wife could continue to use this easement.

       Tom and his wife designed and then began construction of a large house on
       the property in reliance on the fact that they could continue to use this
       easement.

       Tom has repaired and maintained the easement since purchasing the
       property from Mrs. Gomez.

       Since purchasing the property, Tom has always used the easement to access
       the property.

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       Considering all the evidence in the light most favorable to the Hamricks, crediting
evidence favorable to the Hamricks if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not, this court should conclude that reasonable
and fair-minded jurors could not differ in their conclusions as to whether the Hamricks
had knowledge of facts that would have caused a reasonably prudent person to make an
inquiry leading to the discovery of the easement claimed by the Wards.            See F.J.
Harrison & Co., 44 Tex. at 263–65 (holding that, as a matter of law, purchasers were not
bona fide purchasers because they had constructive notice of an easement on their land
based upon their knowledge of facts that would have led a reasonably prudent person to
make an inquiry leading to the discovery of the easement); Cleaver, 203 S.W.3d at 378–
79 (holding that, as a matter of law, purchasers were not bona fide purchasers because
they had constructive notice of easement on their land based upon their knowledge that a
person in an old pickup truck used a gravel road to cross the property and that the road
led to a locked gate and continued on to other property owned by somebody else); see
also Fish, 2007 WL 1438555, at *7–9 (holding that plaintiff, as a matter of law, was on
constructive notice of his claims for negligent construction because he had knowledge of
facts that would have led a reasonably prudent person to make an inquiry leading to the
discovery of these claims);     Cornerstones Mun. Util. Dist. v. Monsanto Corp., 889
S.W.2d 570, 576 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (holding that
discovery rule tolled limitations only until plaintiff learned of damaged pipe, rather than
until plaintiff discovered widespread problems with the sewer system, because, as a
matter of law, knowledge of the damaged pipe would cause a reasonably prudent person
to make an inquiry that would lead to the discovery of the system-wide problems); Bayou
Bend Towers Council of Co-Owners v. Manhattan Const. Co., 866 S.W.2d. 740, 743–45
(Tex. App.—Houston [14th Dist.] 1993, writ denied) (concluding that discovery rule
tolled limitations only until discovery of water leaks in roof because, as a matter of law,
this discovery would cause a reasonably prudent person to make an inquiry that would
lead to the discovery of the cause of the leaks).

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       The majority concludes that there is a genuine issue of material fact as to whether
the Wards would have told the Hamricks about the claimed easement if the Hamricks had
asked. The majority finds this fact issue based upon the property description contained in
a deed of trust that the Wards signed in September 2005, to provide security for a bank
loan. In identifying the property that the Wards were conveying in the deed of trust, the
Wards described their land and then described an easement over the Hamricks’ land by
referring to the easement described by developer Cook in the Special Restrictions.
Though the Wards may have pledged as security for their bank loan less than the entire
easement interest they claim in litigation, this does not raise a fact issue as to what the
Wards would have told the Hamricks if the Hamricks had asked the Wards what
easement, if any, the Wards were claiming. The record does not reflect how the property
description in the deed of trust was created. The Wards claimed an implied easement
based upon prior use, and the real property records contain no reference to this easement
by prior use. The easement described by developer Cook in the Special Restrictions was
referred to in the real property records.
       Parties are free to pledge less than all of their assets to a lender, and the deed of
trust contains no language to the effect that the Wards were not claiming the implied
easement by prior use that they assert in the case under review. The deed-of-trust
document addressed the question, ―what real property are the Wards conveying in trust to
secure the payment of their bank debt?‖ The deed of trust did not answer the question,
―what is the nature and extent of the implied easement that the Wards are claiming and
does this claimed easement extend beyond the easement described by developer Cook in
the Special Restrictions recorded in the real property records?‖ The language of the deed
of trust does not raise a genuine issue of material fact. For this reason, the court should
not sustain the Hamricks’ challenge to the summary judgment.




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       This court should overrule all of the Hamricks’ issues and address the second and
fourth issues raised by the Wards in their cross-appeal. To the extent the court does not
do so, I respectfully dissent.




                                          /s/       Kem Thompson Frost
                                                    Justice


Panel consists of Justices Frost, Jamison, and McCally. (Jamison, J., majority).




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