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Court of Appeals of Texas, Houston (1st Dist.).


NO. 01-16-00060-CV

Decided: February 23, 2017

Panel consists of Justices Massengale, Brown, and Huddle.


Appellant First Colony Community Services Association, Inc. appeals the trial court's rendition of summary judgment in favor of appellees Arthur J. Valentz and Lynn Valentz (the “Valentzes”). The Valentzes are homeowners in First Colony. They are also grantees of a non-exclusive landscape easement the Association granted them in 2000. The Association sued the Valentzes, claiming the Valentzes' erection of a fence with a locked gate violated the terms of the easement. The trial court granted summary judgment in favor of the Valentzes, and the Association appealed. We reverse and render partial summary judgment in favor of the Association, and we remand for further proceedings consistent with this opinion.


The Association is a property owners' association that represents residential and commercial properties within the development community known as First Colony. The Valentzes reside in a home in First Colony on a street named Pipers Walk.

In 2000, the Association granted the Valentzes a non-exclusive landscape easement on a strip of land running alongside the Valentzes' lot connecting Pipers Walk to the Sweetwater Country Club golf course, which is behind the Valentzes' home. The easement refers to the strip of land as Reserve E and grants the Valentzes a recorded “non-exclusive landscape easement on, over, under, across, along, and through” Reserve E.

The Valentzes accepted the easement subject to “[a]ll valid and subsisting easements” and certain other limitations. Two are of importance here. The first limitation sets forth the purposes for which the easement shall be used:

Grantee's use of the Easement Area shall be for the installation, construction, maintenance, operation, replacement, change, or removal of landscaping and appurtenances (“landscaping and appurtenances” being defined to include but not limited to, all plants, trees, bushes, shrubs, flowers, grasses, soil, mulch, bark, gazebos, decking, fences and walks, rocks and boulders, benches, fountains, sprinkler systems, lighting systems and other landscape treatment items).

Another limitation requires that the Valentzes' and their successors' use of the easement be consistent with the Declaration, which is the Association's governing document:

As part of the consideration for this easement, Grantee covenants and agrees that any landscaping and appurtenances installed and maintained by Grantee or their heirs, successors, or assigns pursuant to this easement shall comply with the requirements and standards set out in (i) the Declaration ․ and any amendments thereto.

The Declaration referenced in the easement details covenants, conditions and restrictions that are binding on all parties having any right, title or interest in any property subject to its provisions or any portion thereof. Article III of the Declaration explains residential owners' property rights in the common areas, including Reserve E:

Each Owner of a Residential Unit shall have a right and easement of enjoyment in and to the Common Area, subject to any restrictions or limitations on use set forth in any deed or this Declaration and subject to any rules and regulations promulgated and published by the Board of Directors of the Association.

The Valentzes installed landscaping and appurtenances, including a brick walkway and wrought iron fencing on Reserve E. The Valentzes also eventually installed a gate on Reserve E that, when closed, prohibited access to the Reserve. In 2011, without receiving the Association's approval, the Valentzes began locking the gate, thereby excluding other owners. The Association asked the Valentzes to remove the lock and leave the gate open so as to allow other owners to freely access Reserve E. The Valentzes refused to remove the lock, but they provided owners with access to Reserve E upon request for various reasons, including for taking photographs.

In October 2012, the Association sued the Valentzes for breach of the easement and the Declaration, seeking damages and injunctive and declaratory relief. The Association sought declarations that (1) Reserve E is a common area as that term is defined in the Declaration; (2) owners of property in the Association have the right to use and enjoy Reserve E; (3) the Association may enforce the Declaration; and (4) the Association has standing to bring suit. The Association also sought a permanent injunction directing the Valentzes to remove the locked gate and prohibiting the erection of fences, gates or other improvements that exclude other owners.

Both parties moved for summary judgment and the trial court granted the Valentzes' motion. The Association appealed.

Appellate Jurisdiction

Before reaching the merits, we first address the Valentzes' jurisdictional challenge in which they argue that the Association's notice of appeal was untimely and the Association failed to reasonably explain the need for its request for an extension.

A. Procedural History

The trial court's order granting summary judgment is dated October 16, 2015. The Association moved for reconsideration on November 16, 2015, extending the time to file the notice of appeal until January 14, 2016. TEX. R. APP. P. 26.1(a). Within twelve days after January 14, 2016, the Association filed a notice of appeal and motion for an extension; however, the Association failed to provide any explanation justifying the untimely filing at that time.

This Court notified the Association of the defect, directing it to provide a written explanation for untimely filing the notice of appeal within ten days. The following day, the Association filed a second opposed motion for extension of time, stating: “the delay in filing the notice of appeal was not a result of conscious indifference, and Appellant was acting in good faith.” Four days later, before the Valentzes responded, the Association's motion for extension was granted.

The Valentzes subsequently filed an objection to the Association's motion for extension, arguing that the Association had still not offered a sufficient reason for the late filing of its notice of appeal. In response, the Association explained that it filed the notice of appeal late because it “erroneously calendared the deadline to file the Notice of Appeal for a date after the actual deadline by selecting the wrong month.”

B. Applicable Law

Pursuant to Rule 26.3 of the Texas Rules of Appellate Procedure, an appellate court may extend the time to file a notice of appeal if, within 15 days after the deadline for filing the appeal notice, the party files a notice of appeal in the trial court and a motion for extension of time in the court of appeals. TEX. R. APP. P. 10.5(b)(1)(C), (2)(A). Rule 10.5 requires that a motion to extend time for filing a notice of appeal contain facts to reasonably explain the need for an extension. TEX. R. APP. P. 10.5(b)(1)(C), (2)(A). A reasonable explanation is “any plausible statement of circumstance indicating that failure to file within the [required] period was not deliberate ․ or intentional but was the result of inadvertence, mistake or mischance.” Garcia v. Kastner Farms, Inc. 774 S.W.2d 668, 670 (Tex. 1989). The Texas Supreme Court has held that “[a]ny conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance ․” Hone v. Hanafin, 104 S.W.3d 884, 886–87 (Tex. 2003) (noting that unless conduct was deliberate or intentional, “the court of appeals should ordinarily accept the appellant's explanations as reasonable”); Smith v. Cudd Pressure Control, Inc., 126 S,W,3d 106, 108 n.2 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (granting implied motion for extension where appellant filed affidavit presenting “plausible statement of circumstance” indicating delay was not intentional or deliberate).

C. Analysis

The Valentzes contend that the Association failed to provide a reasonable explanation for untimely filing the notice of appeal as required by Texas Rule of Appellate Procedure 10.5(b)(1)(C), depriving this Court of jurisdiction. Our review of the record leads us to conclude we have jurisdiction. Based on its verification that its late filing was not the result of conscious indifference and its later explanation that it had mistakenly calendared the deadline for filing the notice of appeal, we conclude that the Association has stated facts reasonably explaining its need for an extension and that its conduct was not deliberate or intentional. See Hone, 104 S.W.3d at 886–87; see also Hernandez v. Lopez, 288 S.W.3d 180, 184 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (holding appellant's explanation that he in good faith believed he filed notice of appeal on time and had inadvertently miscalculated dates was reasonable and supported extension of time to file). Accordingly, we conclude we have appellate jurisdiction to consider the merits of the appeal.

No-Evidence Motion for Summary Judgment

In its sole issue, the Association contends that the trial court erred in granting the Valentzes' no-evidence motion for summary judgment.

A. Standard of Review

We review a trial court's grant of summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When, as here, the parties file cross-motions for summary judgment on overlapping issues, and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by each party, determine all questions presented and “render the judgment that the trial court should have rendered.” FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

To prevail on a no-evidence motion for summary judgment, the movant must establish that there is no evidence to support an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. TEX. R. CIV. P. 166(a)(i); Brewer v. Coll. of the Mainland, 441 S.W.3d 723, 728 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Hahn v. Love, 321 S.W.3d 517, 523–24 728 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the nonmovant to present evidence raising a genuine issue of material fact as to each of the elements specified in the motion. Hahn, 321 S.W.3d at 524.

A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions.” Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). If a trial court grants summary judgment without specifying the grounds, we must uphold the trial court's judgment if any of the grounds are meritorious. Brewer, 441 S.W.3d at 728 (citing Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)).

B. Breach of Easement

1. Applicable Law

An easement is a non-possessory interest that authorizes its holder to use the property for a particular purpose. Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2000); Koelsch v. Industrial Gas Supply Corp., 132 S.W.3d 494, 497 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). When considering the terms of an easement, we apply basic principles of contract construction and interpretation. Marcus Cable, 90 S.W.3d at 700; Koelsch, 132 S.W.3d at 497. The contracting parties' intentions, as expressed in the grant, determine the scope of the interest conveyed. Marcus Cable, 90 S.W.3d at 700–01; Koelsch, 132 S.W.3d at 497–98.

We read the terms of the easement as a whole to reach an adequate interpretation of the parties' intentions and to carry out the purpose for which the easement was created. Marcus Cable, 90 S.W.3d at 701; Koelsch, 132 S.W.3d at 498. When the provisions appear to conflict, we harmonize them, if possible, to reflect the intentions of the parties. Koelsch, 132 S.W.3d at 498 (first citing Ogden v. Dickinson State Bank, 662 S.W.2d 330, 332 (Tex. 1983); and then citing Dorsett v. Cross, 106 S.W.3d 213, 220 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)). We consider the entire contract to give effect to all of its provisions, so that none will be rendered meaningless. Koelsch, 132 S.W.3d at 498 (citing Dorsett, 106 S.W.3d at 220). “When the grant's terms are not specifically defined they should be given their plain, ordinary, and generally accepted meaning.” Marcus Cable, 90 S.W.3d at 701 (citing Dewitt Cty. Elec. Coop., Inc. v. Parks, 1 S.W. 3d 96, 103 (Tex. 1999)).

When an express easement is stated in general terms, it “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 v. Lindsay, 326 S.W.3d 276, 282 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (quoting Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974)). No rights pass to the easement holder by implication except those that are “reasonably necessary” to enjoy the rights that the easement grants expressly. CenterPoint Energy, 264 S.W. 3d at 388–89 (quoting Marcus Cable, 90 S.W.3d at 701). Accordingly, if the grant expressed in the easement cannot be construed to apply to a particular purpose, a use for that purpose is not allowed. Id.

2. Analysis

The Valentzes moved for summary judgment on the Association's claim for breach of the easement, asserting that there is no evidence of a breach, given that the easement expressly allows the Valentzes to erect a fence on Reserve E. The Association contends that it presented more than a scintilla of evidence that the Valentzes' installation and maintenance of a locked gate excludes other owners' access to Reserve E and thereby constitutes a breach of the express terms of the nonexclusive easement.

The easement grants the Valentzes a non-exclusive landscape easement on, over, under, across, along, and through Reserve E. The easement is expressly nonexclusive. See Common Easement, BLACK'S LAW DICTIONARY (9th ed. 2009). (equating “nonexclusive easement” with “common easement” and defining it as “[a]n easement allowing the servient landowner to share in the benefit of the easement”). The easement limits the purpose for which the Valentzes may use Reserve E to: “the installation, construction, maintenance, operation, replacement, change or removal of landscaping and appurtenances (‘landscaping and appurtenances' being defined to include, but not limited to, all plants, trees, bushes, shrubs, flowers, grasses, soil mulch, bark, gazebos, decking, fences and walks, rocks and boulders, benches, fountains, sprinkler systems, lighting systems, and other landscape treatment items).”

In Hilburn v. Providian Holdings, Inc., we held that where an unambiguous non-exclusive “easement for access” provided the grantee access to property and the grantor expressly reserved the right to continue the right to use all or part of the easement, a locked gate prohibiting access by the grantor violated the terms of the easement. No. 01-06-00961-CV, 2008 WL 4836840, *4–6 (Tex. App.—Houston [1st Dist.] Nov. 6, 2008, no pet.). Relying on Hilburn, the Association argues that permitting the Valentzes to maintain a locked gate that limits other owners' access to Reserve E expands the easement from a “non-exclusive” one to one that permits exclusion of the grantor and other owners. We agree.

The non-exclusive nature of the easement requires the Valentzes to permit use and enjoyment of Reserve E by other owners in the Association, which is the possessor of the servient estate. While the express inclusion of “fences and walks” in the easement's definition of “landscaping and appurtenances” may permit the erection of fences on Reserve E, we must consider the terms “fences and walks” in the context of the entire easement and harmonize the provisions to reflect the grantor's intent. See Koelsch, 132 S.W.3d at 498 (noting that when provisions in easement appear to conflict, appellate court harmonizes them, if possible, to reflect intentions of parties).

Additionally, the express terms of the easement reflect that it was granted subject to all valid and subsisting easements. The Declaration expressly provides that all First Colony owners have an easement of enjoyment in the Association's Common Areas, including Reserve E. Because the easement is unequivocally “nonexclusive” and the Declaration provides that all First Colony owners have an easement of enjoyment in and to Reserve E, we conclude that the use of a locked gate on Reserve E to exclude the Association's members violates the express nonexclusive grant. Accordingly, we conclude that the trial court erred in granting summary judgment in favor of the Valentzes on the Association's breach of easement claim and that the Association is entitled to summary judgment on its claim that the Valentzes breached the terms of the easement by using a locked gate to restrict other First Colony property owners' access to Reserve E. See Hilburn, 2008 WL 4836840, at *4–6.


We sustain the Association's sole issue. We reverse the trial court's order granting the Valentzes' motion for summary judgment, and render judgment granting the Association's motion for summary judgment on its breach of easement claim. We remand the case to the trial court for further proceedings consistent with this opinion, deny the Valentzes' motion to dismiss, and dismiss the Association's motion to strike as moot.

Rebeca Huddle Justice