Goodenberger v. Ellis, 343 S.W.3d 536

Bire Properties acquired a 1.24-acre parcel and platted four lots: 12A, 12B, 12C, 12D, with an alley at the north; Lot 12B lies north of Lot 12A, sharing a disputed tract between them.
Newman Homes purchased Lot 12B and then Lot 12A, and constructed homes and improvements including driveways intended to allow Lot 12A owners to access the alley via the driveway on Lot 12A, with Lot 12B fenced to separate the two lots.
Goodenberger bought Lot 12A in September 2008; Ellis bought Lot 12B in December 2008; Ellis sent a notice in February 2009 asserting ownership and demanding vacatur of the disputed tract.
Ellis filed a trespass to try title action; Goodenberger answered, claiming Ellis’s claim was barred by the statute of limitations and asserting easements by estoppel, implied easement, and use of a public easement over the disputed land.
Goodenberger attached two affidavits (his and an unsigned Newman affidavit); the trial court sustained some objections to the affidavits and granted Ellis’s no-evidence summary judgment, denying attorney’s fees to Ellis on cross-petition.
The appellate court reversed in part, holding a genuine issue of material fact remained regarding easement by estoppel; the remainder of the trial court’s judgment (implied/public easements and attorney’s fees handling) was affirmed or left unaddressed as to fees.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether summary judgment on easement by estoppel was proper	Goodenberger claims evidence shows estoppel easement by reliance.	Ellis contends no probative evidence of an estoppel easement exists.	Fact issue exists; estoppel issue remanded.
Whether the trial court erred by sustaining Ellis's objections to Goodenberger's summary judgment evidence	Objections were improper; affidavits admissible as verbal acts.	Objections were proper or waivable; multiple grounds listed.	Waived on appeal; issue overruled.
Whether there was an implied easement or a public/utilities easement over the disputed tract	There is implied easement by unity of ownership and use; or a public easement may prevent obstruction.	No showing of unity of ownership or necessary elements for implied easement; no evidence of public utility easement.	Implied easement: no fact issue; upheld summary judgment; public easement: waived.
Whether Ellis was entitled to attorney's fees	Cross-claim supports fees; error in denial.	Fees denied; not proper on record.	Not addressed due to partial reversal on estoppel.

LaTaste Enter. v. City of Addison, 115 S.W.3d 730 (Tex. App.—Dallas 2003) (easement by estoppel elements)
Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex. 1962) (easement by estoppel and writing exception)
Holden v. Weidenfeller, 929 S.W.2d 124 (Tex. App.—San Antonio 1996) (elements for easement creation and reliance)
Koonce v. Brite Estate, 663 S.W.2d 451 (Tex. 1984) (implied easement by necessity when unity and access exist)
Storms v. Tuck, 579 S.W.2d 447 (Tex. 1979) (easement by estoppel with representations relied upon)
Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868 (Tex. App.—Austin 1988) (limitations on easements and notice)
RTLC Prods., Inc. v. Treatment Equip. Co., 195 S.W.3d 824 (Tex. App.—Dallas 2006) (standard for no-evidence summary judgment)
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (summary judgment standards)
Boudreau v. Fed. Trust Bank, 115 S.W.3d 740 (Tex. App.—Dallas 2003) (no evidence standard and burdens)
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979) (burden-shifting in summary judgment)
Jensen Constr. Co. v. Dallas Cnty., 920 S.W.2d 761 (Tex. App.—Dallas 1996) (fees and cross-claims context)
U-Haul Int'l, Inc. v. Waldrip, 322 S.W.3d 821 (Tex. App.—Dallas 2010) (waiver for inadequate legal argument)