# Joel A. Kolb and Tracey A. Kolb v. Edward C. Scarbrough, Individually and as Trustee for ECS Trust, ECS Trust and Cheryl Scarbrough

> Texas Court of Appeals, 1st District (Houston) · March 26, 2015

URL: https://www.frixlaw.com/law-library/cases/3081233

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** March 26, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3081233

## How later opinions describe it (automated extraction)

- reversing summary judgment because copy of promissory note included in summary-judgment evidence was unverified, after holding that complaint 10 regarding substantive defect could be raised for first time on appeal

## Opinion text

Opinion issued March 26, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00671-CV
———————————
JOEL A. KOLB AND TRACEY A. KOLB, Appellants
V.
EDWARD C. SCARBROUGH, INDIVIDUALLY AND AS TRUSTEE FOR
ECS TRUST, ECS TRUST AND CHERYL SCARBROUGH, Appellees

On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Case No. 13-DCV-205374

MEMORANDUM OPINION

The Kolbs sued their neighbors, the Scarbroughs, alleging that the

Scarbroughs’ underground drainage system and other property improvements

caused excessive erosion on their lower-elevation lot. The Kolbs’ petition included

claims for negligence, gross negligence, violations of the Water Code, nuisance,
and trespass. In addition to monetary damages, the Kolbs sought a permanent

injunction requiring the Scarbroughs to “implement a plan to alter the grade” of

their property “to avoid future flooding.”

The Scarbroughs moved for summary judgment on all claims. They

contended that the previous owners of the Kolb property gave them permission to

install the drainage system before the property was sold to the Kolbs, thereby

creating an easement by estoppel to which the Kolbs continued to be bound. They

also asserted that the Kolbs had no evidence of causation or damages.

The trial court granted the Scarbroughs’ summary-judgment motion without

specifying the grounds for the ruling and entered a final judgment dismissing all

claims against the Scarbroughs.

In two issues, the Kolbs contend that the trial court erred by (1) granting

summary judgment to the Scarbroughs on the trespass claim because discrepancies

between the affidavit and earlier deposition testimony of David Easterling, who

sold his property to the Kolbs, created a fact issue and (2) granting final judgment

against them on their remaining claims because the Scarbroughs’ summary-

judgment motion did not address those claims.

We affirm.

2
Background

The Scarbroughs purchased their residential lot in 2001, began building a

home in 2005, and moved into the home in 2009. Their neighbors, the Easterlings,

owned the lot next door, which was at a lower elevation. In 2011, the Easterlings

sold their lot to the Kolbs.

The entire neighborhood is situated on naturally sloping terrain, and rain-

water runoff is an issue. The rain water naturally flows from higher lots, through

the Scarbrough lot, to the Kolb lot, and down into a natural ravine within the

Kolbs’ property. The Kolb lot is within a designated 100-year flood zone. When

the Kolbs bought it, though, the area was experiencing a “drought.”

David Easterling testified that the ravine appeared as through it had been

there for many years. Tree roots near the edge of the ravine were exposed and had

grown bark, indicating that the soil had been washed away a long time ago.

Easterling also testified that the Easterling/Kolb lot had a low spot that would hold

water after each rain. The “bog,” which was approximately 10 feet in diameter,

became a breeding ground for mosquitoes.

Ed Scarbrough installed various drainage inlets and pipes on his property to

address water runoff and erosion. Some pipes drained towards a river behind his

house; others drained in the opposite direction towards the ravine on the Kolb

property. Ed testified that he had concerns about the bog next door and persistent

3
mosquito problem. He also was concerned that the ravine on the Easterling/Kolb

lot was steadily expanding towards his property line and would, eventually,

encroach on his land. Due to these concerns, in 2011, Scarbrough approached

Easterling and offered to install a drainage system on the Easterling lot, at the

Scarbroughs’ expense, if Easterling agreed. Easterling told Scarbrough that he

“could do whatever he wanted on my property to make the drainage improvements

that he envisioned making, as long as he was paying for the cost.” These

conversations occurred shortly before the Easterlings sold their property to the

Kolbs.

When the Kolbs were doing a pre-sale “walk-through” of the property, they

saw Ed Scarbrough using wooden forms and concrete to construct a bulkhead at

the ravine. Joel Kolb testified that, on that day, he also saw two underground pipes

draining into the ravine. Kolb admitted that Ed told him he was doing the work on

the Easterling—soon to be Kolb—land to address drainage issues and erosion. The

Kolbs did not object to the work.

After the Kolbs moved in, their initially friendly relationship with the

Scarbroughs deteriorated. The property line between their lots was within a gas-

pipeline easement, and, due to easement restrictions, was not marked by a fence.

Disputes arose concerning the exact location of the property line. The Kolbs

believed that the Scarbroughs were physically entering their property without

4
permission and adding landscaping on the Kolbs’ side of the property line.

Additionally, the Kolbs began to question whether the underground drainage pipes

the Scarbroughs installed were harming their property.

There were two drainage pipes that were of particular concern. One began

and ended within the Kolbs’ property—it drained the standing water from the bog

to the ravine. The other pipe was connected to the Scarbroughs’ underground

irrigation system, ran across the property line between the two lots, and emptied

into the ravine near the bulkhead the Kolbs saw Scarbrough building.

Eventually—though without discussing the issue with the Scarbroughs—

Tracey Kolb dug up the two pipes, broke them apart, and filled them with concrete.

For a short time afterwards, Scarbrough brought his drainage system up to the

surface and added an exit point to the piping about 10 feet on his side of the

property line. That exit point was later capped at the Kolbs’ insistence. Once the

two pipes were plugged or capped, the water runoff returned to the surface-level

and again flowed across the Scarbrough property, down to the Kolb property, and

into the Kolbs’ ravine. The bulkhead remained.

After the Kolbs disabled the two underground drainage pipes, they sued the

Easterlings and Scarbroughs, asserting that the Scarbroughs’ diversion of water

caused damage to their property, including flooding and excessive erosion. David

Easterling was deposed. The Easterlings were later nonsuited. Several months after

5
that, the Scarbroughs filed a motion for summary judgment, combining no-

evidence and traditional summary-judgment challenges in the same motion. They

included within their summary-judgment evidence an affidavit from David

Easterling stating that he gave the Scarbroughs permission to install the

underground drainage system. The trial court granted the Scarbroughs’ summary-

judgment motion without specifying the basis for its ruling.

The Kolbs timely appealed.

Standard of Review

The standard for reviewing a summary judgment is de novo. Provident Life

& Accident Ins. Co .v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); see TEX. R. CIV. P.

166a. “The movant for summary judgment has the burden of showing that there is

no genuine issue of material fact and it is entitled to judgment as a matter of law.”

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). “In deciding

whether there is a disputed material fact issue precluding summary judgment,

evidence favorable to the non-movant will be taken as true.” Id. at 548–49. “Every

reasonable inference must be indulged in favor of the non-movant and any doubts

resolved in its favor.” Id. at 549.

When a defendant moves for summary judgment, he must either disprove at

least one essential element of the plaintiff’s cause of action or plead and

conclusively establish each essential element of his affirmative defense. Cathey v.

6
Booth, 900 S.W.2d 339, 341 (Tex. 1995); Centeq Realty, Inc. v. Siegler, 899

S.W.2d 195, 197 (Tex. 1995). If a defendant conclusively establishes his

affirmative defense, the burden shifts to the nonmovant to raise a genuine issue of

material fact to defeat summary judgment. Centeq Realty, 899 S.W.2d at 197;

Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.—Houston [1st

Dist.] 2014, no pet.); see Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425

(Tex. 1997).

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) (per curiam); Lujan, 433 S.W.3d at 704. To determine if the nonmovant has

raised a fact issue, we review the evidence in the light most favorable to the

nonmovant, crediting favorable evidence if reasonable jurors could do so, and

disregarding contrary evidence unless reasonable jurors could not. See City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. Sw. Elec. Power Co. v.

Grant, 73 S.W.3d 211, 215 (Tex. 2002).

Normally, when a party includes both traditional and no-evidence points in

his summary-judgment motion, we review the no-evidence points first. Ford Motor

Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Brookshire Katy Drainage

7
Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 307 (Tex. App.—Houston [1st Dist.]

2010, pet. denied); see TEX. R. CIV. P. 166a(i). If no-evidence summary judgment

was properly granted, we do not reach the traditional summary-judgment

arguments. Brookshire Katy Drainage Dist., 333 S.W.3d at 307. Thus, in

reviewing whether summary judgment was properly granted to the Scarbroughs,

we start with whether the Kolbs produced more than a scintilla of evidence on each

element of their asserted causes of action.

No-Evidence Summary Judgment

The Kolbs asserted five causes of action against the Scarbroughs:

negligence, gross negligence, violations of the Water Code, nuisance, and trespass.

In their summary-judgment motion, the Scarbroughs argued that the Kolbs “have

no evidence that they have suffered injury[,] as the damage caused by the natural

flow of water was actually stopped by the drainage improvements.” Additionally,

they argue that the Kolbs “have no evidence that increase in the flow of water

allegedly related to the construction of the Scarbrough home . . . caused any

erosion . . . or . . . damages to the Kolbs at all.” Thus, for those causes of action

that require evidence of causation and damages, we must determine whether the

Kolbs presented more than a scintilla of evidence of those two elements.

8
A. Negligence and gross negligence

A negligence cause of action has three elements: (1) a legal duty owed by

one person to another, (2) a breach of that duty, and (3) damages proximately

caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002);

Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 310 (Tex. App.—Houston [1st Dist.]

2007, no pet.).

The Scarbroughs argued in their summary-judgment motion that the Kolbs

presented no evidence of causation or damages. The Kolbs responded by

referencing a report prepared by their retained expert, which stated as follows:

Erosion has taken place in the gully on the owners’ property. This
erosion is likely to have been caused from the concentration of
stormwater runoff from the sub-surface drainage system while it was
functional. In addition, the headwall has caused overland sheetflow to
back up behind it and flow over, producing a waterfall effect. These
factors would contribute to increased runoff within the gully
compared to runoff allowed to flow across the ground surface and
produce serious erosion issues.

According to the Kolbs, “This clearly establishes that Defendants’ conduct in

installing the drainage system and the headwall caused substantial and continued

erosion.”

The Scarbroughs argue that the “unsworn hearsay report” is no evidence and

that the Kolbs failed to provide any other evidence of causation or damages. They

raise this issue for the first time on appeal. We, therefore, must consider whether

the Scarbroughs have waived their argument that the expert report is not competent

9
summary-judgment evidence. See TEX. R. APP. P. 33.1(a); Bushnell v. Dean, 803

S.W.2d 711, 712 (Tex. 1991).

The resolution of this issue depends on whether the alleged defect is one of

form or substance. Form defects must be objected to at the trial court or are waived

on appeal. TEX. R. CIV. P. 166a(f); Seaprints, Inc. v. Cadleway Prop., Inc., 446

S.W.3d 434, 441 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Bastida v.

Aznaran, 444 S.W.3d 98, 104–05 (Tex. App.—Dallas 2014, no pet.). Substantive

defects, however, may be raised for the first time on appeal. Seaprints, 446 S.W.3d

at 441; Bastida, 444 S.W.3d at 105.

“The absence of an affidavit verifying a copy of the instrument attached as

summary judgment proof amounts to no proof.” In re Estate of Guerrero, No. 14–

13–00580–CV, 2014 WL 4377465, at *10 (Tex. App.—Houston [14th Dist.] Sept.

4, 2014, no pet.) (mem. op.). Thus, unverified summary-judgment evidence is a

substantive defect that can be raised for the first time on appeal. Mansions in the

Forest, L.P. v. Montgomery Cnty., 365 S.W.3d 314, 317 (Tex. 2012) (per curiam)

(stating that “an unverified copy of a promissory note offered as summary

judgment evidence, which was complained about for the first time on appeal” will

not support summary judgment); Perkins v. Crittenden, 462 S.W.2d 565, 568 (Tex.

1970) (reversing summary judgment because copy of promissory note included in

summary-judgment evidence was unverified, after holding that complaint

10
regarding substantive defect could be raised for first time on appeal); see Blanche

v. First Nationwide Mtg. Corp., 74 S .W.3d 444, 451 (Tex. App.—Dallas 2002, no

pet.) (stating that “complete absence of authentication is a defect of substance”);

see also Judge David Hittner & Lynne Liberato, Summary Judgments in Texas:

State and Federal Practice, 46 Hous. L. Rev. 1379, 1470 (2010) (“Non-summary

judgment evidence, such as unsworn witness statements, expert’s reports, or

unauthenticated documents . . . is not proper summary judgment evidence and

cannot defeat a no-evidence summary judgment motion.”).

Accordingly, the Kolbs’ failure to attach an affidavit or otherwise

authenticate their expert report is a substantive defect that the Scarbroughs can

raise for the first time on appeal. See Perkins, 462 S.W.2d at 568; Guerrero, 2014

WL 4377465, at *10; accord Mansions, 365 S.W.3d at 317. Because the expert

report is not verified, it is not competent summary-judgment evidence and cannot

defeat the Scarbroughs’ no-evidence motion. Perkins, 462 S.W.2d at 568. The

Kolbs point to no other summary-judgment evidence on causation or damages and,

without any, we conclude that the trial court did not err in granting summary

judgment to the Scarbroughs on the negligence cause of action.

Because there was no evidence to support the negligence claim, the gross

negligence claim also fails. See Garay v. G.R. Birdwell Const., L.P., No. 01-13-

01088-CV, 2014 WL 6680347, at *9 (Tex. App.—Houston [1st Dist.] Nov. 25,

11
2014, no pet.) (mem. op.); Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex.

App.—Houston [14th Dist.] 1994, writ denied).

B. Violations of Texas Water Code section 11.086

Section 11.086, “Overflow Caused by Diversion of Water,” provides:

(a) No person may divert or impound the natural flow of surface
waters in this state, or permit a diversion or impounding by him
to continue, in a manner that damages the property of another
by the overflow of the water diverted or impounded.
(b) A person whose property is injured by an overflow of water
caused by an unlawful diversion or impounding has remedies at
law and in equity and may recover damages occasioned by the
overflow.

TEX. WATER CODE ANN. § 11.086 (West 2013). “The elements of the statutory

cause of action are (1) a diversion or impoundment of surface water which

(2) causes (3) damage to the property of the plaintiff landowner.” Kraft v.

Langford, 565 S.W.2d 223, 229 (Tex. 1978); accord Bily v. Omni Equities, Inc.,

731 S.W.2d 606, 611 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.).

Similar to the negligence claim, the only evidence the Kolbs offered that the

Scarbroughs’ diversion of water caused damage to their property was the

unverified expert report. Because the report is not competent summary-judgment

evidence, we conclude that the trial court did not err in granting summary

judgment to the Scarbroughs on this cause of action.

12
C. Nuisance

“A private nuisance is a nontrespassory invasion of another’s interest in the

private use and enjoyment of land.” Lethu Inc. v. City of Houston, 23 S.W.3d 482,

489 (Tex. App.—Houston [1st Dist.] 2000, pet. denied); Bily, 731 S.W.2d at 611.

Conduct that is “abnormal” and “out of place in the surroundings” will support a

claim of private nuisance; the defendant’s actions need not be negligent. City of

Tyler v. Likes, 962 S.W.2d 489, 504 (Tex. 1997).

“[A] nuisance occurs in one of three ways: by (1) physical harm to property,

such as by the encroachment of a damaging substance or by the property’s

destruction; (2) physical harm to a person [on his] property . . . ; and (3) emotional

harm to a person from the deprivation of the enjoyment of [his] property . . . .”

Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 99 (Tex. App.—

Houston [1st Dist.] 1994, writ denied). The Kolbs alleged only the first variety.

Thus, to survive summary judgment on their claim, they were required to present

more than a scintilla of evidence that the alleged nuisance caused physical harm to

their property. See id.

Like with the other causes of action, the only evidence the Kolbs offered on

causation and damages was the unverified expert report; therefore, the trial court

did not err in granting summary judgment on this claim.

13
D. Trespass

There are three elements to a trespass claim: (1) entry (2) onto the property

of another (3) without the property owner’s consent or authorization. Envt’l.

Processing Sys., L.C. v. FPL Farming Ltd., No. 12-0905, 2015 WL 496336, at *4

(Tex. Feb. 6, 2015) Stated differently, “[e]very unauthorized entry upon land of

another is a trespass even if no damage is done.” Coinmach Corp. v. Aspenwood

Apts. Corp., 417 S.W.3d 909, 920 (Tex. 2013) (quoting Watson v. Brazos Elec.

Power Coop., 918 S.W.2d 639, 645 (Tex. App.—Waco 1996, writ denied));

Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 12 n.36 (Tex.

2008). The lack of damages evidence that resulted in no-evidence summary

judgment on the Kolbs’ other claims does not also defeat the trespass claim.

We overrule the Kolbs’ second issue challenging summary judgment on all

claims other than trespass. We turn next to whether the trial court erred in granting

traditional summary judgment on that claim.

Traditional Summary Judgment

The Scarbroughs contend that they are not liable to the Kolbs for trespass

because they received permission to install the drainage system from the previous

owner, David Easterling. According to the Scarbroughs, the Easterlings’ consent to

the drainage system created an easement by estoppel, and the Kolbs—who

purchased the land from the Easterlings—are bound by the easement.

14
A. Elements of easement by estoppel

Generally, the grant of an easement must be made in writing and cannot be

created by a parol agreement. Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983);

Stallman v. Newman, 9 S.W.3d 243, 247 (Tex. App.—Houston [14th Dist.] 1999,

pet. denied). The equitable doctrine of easement by estoppel is an exception to the

writing requirement. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 209 (Tex.

1962); Horner v. Heather, 397 S.W.3d 321, 325 (Tex. App.—Tyler 2013, no pet.).

“The owner of land, under some circumstances, may be estopped to deny the

existence of an easement by making representations which have been acted upon

by a purchaser to his detriment.” Drye, 364 S.W.2d at 209–10 (noting that doctrine

has been applied when party allows other party to expend money erecting drainage

ditch across his land).

There are three elements to an easement by estoppel: (1) the owner of the

servient estate (here, the Easterling/Kolb property) communicated a representation,

either by words or conduct, to the promisee (here, Scarbrough); (2) the promisee

believed the communication; and (3) the promisee relied on the communication.

See Storms v. Tuck, 579 S.W.2d 447, 452 (Tex. 1979); Mitchell v. Garza, 255

S.W.3d 118, 122 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).

An easement by estoppel may be imposed against a subsequent purchaser for

value if the subsequent purchaser had notice—actual or constructive—of the

15
easement claimed, Mitchell, 255 S.W.3d at 122–23, or if reliance upon the

existence of the easement continued after the sale. Whaley v. Cent. Church of

Christ of Pearland, No. 01-02-01354-CV, 2004 WL 1405701, at *4 (Tex. App.—

Houston [1st Dist.] June 24, 2004, no pet.) (mem. op.). The grant of an easement

by estoppel “depend[s] on the unique facts of each case.” Holden v. Weidenfeller,

929 S.W.2d 124, 131 (Tex. App.—San Antonio 1996, writ denied); see Mack v.

Landry, 22 S.W.3d 524, 528 (Tex. App.—Houston [14th Dist.] 2000, no pet.);

Drye, 364 S.W.2d at 209.

B. Scarbroughs’ evidence that an easement by estoppel was created

In support of their assertion that Easterling gave them permission to

construct the drainage system, the Scarbroughs included in their summary-

judgment evidence Easterling’s affidavit. He averred as follows:

I specifically gave permission for Ed Scarbrough . . . . to install any
drainage pipes or drainage inlets on the Scarbrough property that
would then cross over onto my property and discharge water into the
ravine. In short, Ed Scarbrough had my full and explicit permission to
construct all of the drainage improvements that he built on both his
property and my property and he had my explicit permission that he
could direct water into the ravine from his property or my property in
whatever fashion he designed . . . .

C. The Kolbs’ challenges to Easterlings’ affidavit

The Kolbs contend that Easterling is an interested witness and, therefore, his

affidavit cannot support summary judgment unless “(1) it is uncontroverted; (2) it

is clear, positive, and direct; (3) it is otherwise credible and free from

16
contradictions and inconsistencies; and (4) it could have been readily

controverted.” RRR Farms, Ltd. v. Am. Horse Prot. Ass’n, Inc., 957 S.W.2d 121,

132 (Tex. App.—Houston [14th Dist.] 1997, pet. denied), modified on other

grounds, Baty v. ProTech Ins. Agency, 63 S.W.3d 841 (Tex. App.—Houston [14th

Dist.] 2001, pet. denied) (setting forth requirements for affidavit from interested

witness to support summary judgment). According to the Kolbs, the affidavit fails

on all accounts.

1. Whether Easterlings’ affidavit is free from contradictions

The Kolbs’ first challenge is that Easterling’s affidavit contradicts his earlier

deposition testimony. Specifically, they contend that the following portion of his

deposition demonstrates that he could not have given the “explicit permission” his

affidavit discusses:

Q: Do you know whether the black pipe or the white pipe
connected to Ed’s property?

A: No. All I know is: The one that was right there where the
pooling was—and that was the French drain, we’ll call it, I
guess—that’s the only one I remember seeing.
....
Q: You didn’t see any that ran to his property?

A: I didn’t notice any. I mean, all I saw was just the one that he
had dug there. I didn’t know if there were any other going there.
The only one I remember seeing is just that one channel going
from the drain over to the bulkhead.

17
According to the Kolbs, if Easterling did not realize that one of the pipes drained

from the Scarbrough property, it is impossible that Easterling gave Scarbrough

“explicit permission” to drain water onto his land.

While we agree that the affidavit deals more directly and in greater detail

with Easterling’s knowledge about the drainage pipes than his earlier deposition

testimony, we do not agree that the two are inconsistent. Nothing in Easterling’s

deposition states that he did not authorize drainage from the Scarbroughs’

property. In fact, it indicates the opposite. Easterling explained that, due to the

slope of the terrain, rain runoff was flowing from higher lots, including the

Scarbroughs’ lot, onto his own. Ed Scarbrough’s drainage project took the existing

surface-level runoff, moved it underground, and released it into the naturally

created ravine, in a manner that both the Scarbroughs and Easterlings described as

an improvement to the previous, more erosive process.

In his deposition, Easterling acknowledged that he knew there were two

pipes and only one of the two drained from his low spot. He knew the pipes were

pulling rain water underground so that it would not cross the surface of his lot on

its way to the ravine. That he could not describe in his deposition exactly where the

pipes were positioned is not inconsistent with him giving Scarbrough express

permission to lay pipes. He told Scarbrough that he had permission to do what he

felt was necessary to address the surface-level runoff, bring it underground, and

18
minimize erosion. He left the details of the project to Scarbrough, but he expressly

authorized the work.

We conclude that the affidavit and deposition testimony are not inconsistent

and, therefore, overrule this challenge to the summary-judgment evidence.

Next, we address the Kolbs’ contention that Easterling is an interested

witness.

2. Whether Easterling is an interested witness

The Kolbs’ original petition named the Scarbroughs and the Easterlings as

defendants. David Easterling was deposed in September 2013. The Kolbs

nonsuited their claims against the Easterlings one month later. The affidavit from

Easterling that was attached to the Scarbroughs’ summary-judgment motion was

executed nine months after Easterling was nonsuited.

At the time he executed his affidavit, Easterling no longer had an interest in

the outcome of the litigation. See Nicholson v. Smith, 986 S.W.2d 54, 59 (Tex.

App.—San Antonio 1999, no pet.) (holding that deponent was not interested

witness “because he did not have a stake in the litigation or a material interest in its

outcome.”); see also Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 877 (Tex.

App.—Dallas 1990, no writ). He also no longer had an interest in the property

underlying the claims. Cf. Hayes v. E.T.S. Enter. Inc., 809 S.W.2d 652, 656 (Tex.

App.—Amarillo 1991, writ denied) (stating that individual who has stake in other

19
litigation involving subject matter of lawsuit in question qualified as interested

witness). Accordingly, Easterling does not qualify as an interested witness.

The Kolbs respond that Easterling should be considered an interested

witness, nonetheless, because the Scarbroughs previously helped him get a job at

AFLAC—where both of the Scarbroughs worked—which, the Kolbs allege, made

Easterling “beholden” to the Scarbroughs.

The record contains deposition testimony from the Scarbroughs and David

Easterling to the effect that they were friendly neighbors. According to Cheryl

Scarbrough, Easterling was unemployed for a time and was having difficulty

finding new employment. To assist him with his financial situation, she mentioned

that AFLAC was looking for salespeople. In February 2010—before the drainage

pipes were installed and three years before this litigation—Easterling took the

Scarbroughs’ advice and pursued a position at AFLAC. He stayed with the

company until 2012. By the time the Kolbs sued him in 2013, he had left AFLAC

and had been working at Home Depot for over a year.

The Kolbs cite no authority for the proposition that a friendly gesture to aid

a neighbor looking for employment causes one neighbor to be “beholden” to the

other such that he may be considered an “interested witness” in his neighbor’s

litigation. In our view, it does not.

Accordingly, we overrule this challenge to David Easterling’s affidavit.

20
D. Whether the evidence established reliance

The Kolbs’ next challenge whether the summary-judgment evidence

established the element of reliance to create an easement by estoppel. The Kolbs

argue that Scarbrough could prove reliance only through evidence that he paid

consideration to the Easterlings for the use of their land or that he incurred

expenses creating the drainage system. They contend there is no evidence of either.

We disagree.

The record contains evidence that Scarbrough relied on Easterling’s consent

to the use of his land for drainage. Ed Scarbrough testified that he approached the

Easterlings about the possibility of adding a drainage system on their property and

had several conversations with them before reaching an agreement. David

Easterling specifically agreed to allow Scarbrough to build the concrete headwall

and install underground pipes on his land, but his consent was conditioned on

Scarbrough agreeing to pay for the project and do the work himself.

Scarbrough testified that he bought pipe as needed for specific projects. He

stated that he did not buy the pipe he used for this project until after Easterling

agreed to allow the drainage system. Further, Scarbrough, along with a paid helper,

performed the manual labor to pour the concrete forms, dig the ditches, and lay the

pipe.

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For his part, Easterling averred that Scarbrough was a “good neighbor” who

expended his own money “to buy the materials and to install the concrete headwall

and drainage pipes” and “paid for the labor of a helper that aided him in the

installation.” Easterling stated his belief that “Scarbrough would not have spent the

time and money to construct these drainage improvements if he did not have

[Easterling’s] explicit permission to enter my property to install” them. Easterling

added that he “was pleased with the results.”

Scarbrough presented evidence that he expended funds and performed

manual labor in reliance on Easterling’s representation. See LaTaste Enter. v. City

of Addison, 115 S.W.3d 730, 736–37 (Tex. App.—Dallas 2003, pet. denied)

(noting that reliance can be shown by expending funds to improve the dominant

estate). We conclude that the Scarbroughs established that they relied on David

Easterling’s communication in constructing the drainage system on the

Easterling/Kolb land. Evidence that Scarbrough paid consideration was not

required.

E. Whether grant of use of land can be clear and specific enough to create
an easement by estoppel as matter of law

The Kolbs’ final challenge concerns whether a landowner’s permission can

be specific and certain enough to support judgment as a matter of law on the

creation of an easement by estoppel. The Kolbs suggest that the imposition of an

easement by estoppel necessarily requires a trial and cannot be resolved by a

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summary disposition. However, none of the cases cited by the Kolbs suggest that

an easement by estoppel cannot be granted as a matter of law. Instead, to the extent

those courts denied judgment as a matter of law, it was because, under the facts of

each particular case, the opposing party successfully raised a fact issue. See, e.g.,

McClung v. Ayers, 352 S.W.3d 723, 731 (Tex. App.—Texarkana 2011, no pet.)

(holding that conflicting evidence prevented judgment as matter of law on

easement by estoppel). It does not follow that every subsequent case must also

contain a fact issue to prevent judgment as a matter of law.

We overrule this challenge to the trial court’s order granting summary

judgment.

Having reject each of the Kolbs’ challenges, we overrule their first issue.

Conclusion

We affirm the judgment of the trial court.

Harvey Brown
Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3081233. Public record. Not legal advice.