                                Fourth Court of Appeals
                                        San Antonio, Texas

                                   MEMORANDUM OPINION
                                            No. 04-14-00584-CV

                               IN RE EL CABALLERO RANCH, INC.

                                     Original Mandamus Proceeding 1

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: November 26, 2014

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           On August 13, 2014, relator El Caballero Ranch, Inc. filed a petition for writ of mandamus

complaining of the trial court’s interlocutory order granting plaintiff, Grace River Ranch, L.L.C.,

the use of and ability to maintain a disputed easement before all of the defendants’ claims and

defenses regarding the easement have been adjudicated. We conclude the trial court abused its

discretion in permitting immediate access to the disputed easement before the entry of a final

judgment upon determination of all disputed claims. See In re Elmer, 158 S.W.3d 603, 605 (Tex.

App.—San Antonio 2005, orig. proceeding) (citing Hood v. Amarillo Nat’l Bank, 815 S.W.2d 545,

548 (Tex. 1991)). Accordingly, we conditionally grant mandamus relief.




1
 This proceeding arises out of Cause No. 13-04-00108-CVL, styled Grace River Ranch, L.L.C. v. El Caballero Ranch,
Inc. a/k/a El Caballero, LLC and Laredo Marine, L.L.C. v. Robert W. Brittingham, pending in the 218th Judicial
District Court, La Salle County, Texas, the Honorable Stella Saxon presiding.
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                                             BACKGROUND

        Grace River Ranch, L.L.C. brought suit against El Caballero Ranch, Inc. in April 2013

seeking a declaration as to the existence and validity of alleged private and public easements across

El Caballero’s real property located in LaSalle County, and to enjoin interference with Grace

River’s use of those easements. In its answer, El Caballero denied the validity of the claimed

easements asserting defenses of termination, failure of purpose, and abandonment.

        Grace River filed a motion for traditional and no-evidence summary judgment in July

2013. 2 Grace River sought summary judgment that the claimed easements are valid; enjoining

interference by El Caballero; and denying El Caballero’s defenses of termination, impossibility,

abandonment, and failure of purpose. El Caballero timely responded to the summary judgment

motion. Days before the summary judgment motion was set to be heard, El Caballero filed an

amended answer and counterclaim, asserting for the first time an affirmative defense based on

adverse possession and limitations, and counterclaims for declaratory judgment and seeking to

quiet title to the disputed property. On the same day, Laredo Marine, L.L.C., owner of the 7C’s

Ranch, another property affected by Grace River’s claimed easements, filed a petition in

intervention. Laredo Marine also denied the validity of the claimed leases on the basis of

termination, abandonment, and impossibility; asserted affirmative defenses of termination, adverse

possession, and limitations; and raised counterclaims for declaratory judgment and to quiet title.

        The trial court conducted a hearing on Grace River’s summary judgment motion in

September 2013 and, following extensive briefing by the parties, issued an order granting the

motion on July 7, 2014. Specifically, the trial court found:



2
  Grace River filed a supplement to the motion for summary judgment in August 2013 attaching affidavit and
documentary evidence of government permits obtained from the General Land Office allowing repairs to a low water
crossing located along the claimed easement.

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       GRACE RIVER RANCH, LLC (Grace River) has a valid and subsisting non-
       exclusive easement across El Caballero Ranch for vehicular and pedestrian access
       to and egress from Grace River Ranch along that part of the Grace River Easement
       lying within El Caballero Ranch, with the right to use and maintain the road thereon
       and any culverts, low water crossings, or bridges lying along the Grace River
       Easement.

The court also found a valid and subsisting public road across El Caballero Ranch which “has not

been abandoned or relinquished by La Salle County.” The court did not grant any injunctive relief

against El Caballero.

       After the trial court granted Grace River’s motion for partial summary judgment, Grace

River’s counsel requested keys and access codes for the gates located on El Caballero Ranch along

the easement. When El Caballero refused, Grace River filed a motion for contempt. Both parties

also sought clarification of the trial court’s summary judgment order.

       Following a hearing, the trial court entered its first amended order granting Grace River’s

summary judgment motion. In the amended order, signed August 4, 2014, the trial court granted

Grace River’s motion for partial summary judgment, stating:

       IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Order
       Granting Traditional and No-Evidence Motion for Summary Judgment of Grace
       River Ranch, LLC (this “Order”) is intended to be Interlocutory in nature
       adjudicating only those claims made the subject of the Motion. This Order does not
       adjudicate claims filed by any Party hereto and made after the filing date of the
       Motion. Pending adjudication of these claims, GRACE RIVER shall have the use
       of and ability to maintain the Grace River Easement as specified above.

Handwritten below the judge’s signature line is, “This order is effective August 14, 2014.”

       El Caballero filed this petition for writ of mandamus seeking to vacate the portion of the

trial court’s order permitting Grace River’s immediate use of and ability to maintain the disputed

easement before all parties’ defenses to the claimed easements have been fully and finally

determined on the merits.




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                                           ANALYSIS

       Mandamus is an extraordinary remedy available only when the trial court has clearly

abused its discretion and the relator has no adequate remedy by appeal. See Walker v. Packer, 827

S.W.2d 833, 839-40 (Tex. 1992). A failure to correctly analyze or apply the law to the facts of the

case will constitute an abuse of discretion correctable by mandamus. Id.

       The issue in this mandamus proceeding is not the validity of the trial court’s partial

summary judgment in favor of Grace River. The issue for our determination is whether Grace

River is entitled to immediate use of and ability to maintain the claimed easement on the basis of

the partial summary judgment, before all of the claims and defenses regarding the easement have

been fully litigated and adjudicated by the trial court and, possibly, on appeal. El Caballero

contends that the trial court’s order allowing immediate access to the easement denies its right to

suspend enforcement of an adverse judgment as provided by the Texas Rules of Civil and

Appellate Procedure. We agree.

       Generally, a party has the right to suspend enforcement of a judgment pending appeal. See

TEX. R. APP. P. 24.1; see also In re S. Tex. Coll. Of Law, 4 S.W.3d 219, 220 (Tex. 1999). “A

summary judgment which does not dispose of all parties and issues in the pending suit is

interlocutory and not appealable unless a severance is ordered.” Hood, 815 S.W.2d at 547. Appeal

from an interlocutory partial summary judgment is available only after the interlocutory order has

either been severed or merged into a final judgment disposing of the whole case. Id. The party’s

right to supersede a judgment and maintain the status quo while an adverse judgment is on appeal

may be lost if the trial court allows enforcement of a partial summary judgment before all of the

parties’ claims have been adjudicated and a final judgment has been entered. See In re Tarrant

Cnty., 16 S.W.3d 914, 919 (Tex. App.—Fort Worth 2000, orig. proceeding).



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       The trial court made it clear that its amended order granting Grace River’s motion for

summary judgment was interlocutory, and additional claims remained to be determined.

Accordingly, there is no final judgment subject to direct appeal and the procedural tools available

for suspension of enforcement have not been triggered. See Elmer, 158 S.W.3d at 605. By allowing

Grace River access to and the ability to maintain the claimed easement before an appealable

judgment has been entered, the trial court has deprived El Caballero of the right to suspend

enforcement of the partial summary judgment while obtaining appellate review of the trial court’s

determination regarding the validity of the claimed easements. We conclude the trial court abused

its discretion by allowing Grace River the ability to use and maintain the claimed easement prior

to the final determination of all of the parties’ claims, and entry of a final and appealable judgment.

       The easements at issue involve a low water crossing spanning a portion of the Nueces River

which forms the dividing line between the El Caballero and 7 C’s ranches. The low water crossing

was allegedly washed out and became impassable some time in 1998. Grace River has represented

that it intends to “repair and refurbish” the low water crossing once it obtains access to the

easement. Grace River contends that it will be able to accomplish this project with limited

personnel and equipment, creating minimal interference or intrusion upon El Caballero and Laredo

Marine property. Both El Caballero and Laredo Marine are opposed to Grace River’s plan and

contend it will permanently change the nature and quality of their real property. We conclude that,

given the nature of the trial court’s order, El Caballero lacks an adequate remedy by appeal. See

In re Collins, 172 S.W.3d 287, 298 (Tex. App.—Fort Worth 2005, orig. proceeding) (finding

remedy by appeal from final judgment “wholly inadequate” where a party intends to develop real

property after trial court abused its discretion in granting motion to void lis pendens); see also

Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex. 1994) (requirement for inadequate

remedy by appeal is met where party is in danger of permanently losing substantial right).
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                                          CONCLUSION

       For the foregoing reasons, we conditionally grant mandamus relief and direct the trial court

to vacate that portion of its August 2014 order granting Grace River the ability to use and maintain

the claimed easements prior to entry of a final judgment. The writ will issue only if we are notified

the trial court has failed to do as directed within fifteen days from the date of this court’s order.


                                                   Karen Angelini, Justice




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