Jon Hobson v. Darrell Francis and Catherine Francis ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00180-CV
___________________________
JON HOBSON, Appellant
V.
DARRELL FRANCIS AND CATHERINE FRANCIS, Appellees
On Appeal from the 415th District Court
Parker County, Texas
Trial Court No. CV17-0052
Before Sudderth, C.J.; Kerr and Pittman, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
The underlying case involved whether the owner of a landlocked tract has an
easement by necessity against the adjacent property owners from whom the owner’s
father initially acquired the tract, when for over thirty years that owner’s father had
accessed two of the three possible public roads by crossing other adjoining tracts.
But whatever the merits of Jon Hobson’s claim to a necessity easement, this
case’s procedural posture neither requires nor allows us to reach those merits, and so
we will affirm the summary judgment in favor of Darrell and Catherine Francis, the
defendant–appellees who in 1978 severed and sold, from their larger landholdings, the
tract now owned by plaintiff–appellant Hobson.
Chronology and Background
We preface the sequence of events and give context to the facts of this dispute
by reproducing the hand-drawn map attached to Hobson’s affidavit responding to the
Francises’ summary-judgment motion:
2
1965: The Francises bought Tract 2.
1973: The Francises bought Tract 1 and, until they sold it five years later,
accessed Highway 281 from Tract 1 by a “lane” across Tract 3.
1978: The Francises sold Tract 1 to Hobson’s father. At the time of this
transaction and for at least 12 years afterwards, the then-owner of Tract 3, Jack
Patton, allowed Hobson’s father to use the existing private road across Tract 3 to get
3
to Highway 281.1 Tract 1’s mailing address is on Highway 281. According to the
Francises, between 1973 and 1978 Tract 1 was “contained within a fence perimeter,”
and “[n]o portion of [their] lands described as Tract Two has ever been used as access
for ingress and egress to a public road” (presumably Hardy Road, as Tract 2 fronts
that road only) by Hobson or his father.
1990s: Sometime in the 1990s, Patton sold Tract 3 to Roy Thomas. For roughly
two years after his purchase, Thomas allowed Hobson’s father to keep using the
private road to Highway 281 but later blocked off that road.
1999: Hobson’s father (and mother) bought Tract 4, which “touches corners”
with Tract 1. Because Tract 4 is also landlocked, in 1997 its previous owners were
parties to an assignable agreement for a “perpetual easement” over a “strip of land
thirty (30) feet in width along and adjacent to the western boundary line of” Tract 5,
which is owned by the F.B. Hill Family Partnership 2 and fronts on Logan’s Run Road.
Contemporaneously with the conveyance to Hobson’s parents, the sellers of Tract
4 quitclaimed their interest in the easement over Tract 5 so that Hobson’s parents
could access Logan’s Run Road, which is the roadway associated with Tract 4’s
We incorporate into this background many of the facts from Hobson’s
1
petition, as well as from the summary-judgment evidence filed by the Francises and by
the Ezells, the latter of whom currently own Tract 3. The Ezells are not parties to this
appeal.
The F.B. Hill Family Partnership appears to be the same entity as the “Hill
2
Family Trust” that appears in various filings and briefs as owning Tract 5.
4
address. Hobson’s father constructed a road on the easement across Tract 5 so that
both Tract 1 and Tract 4 would have access to Logan’s Run Road.
2003: Hobson’s parents divorced. As part of a Mediated Settlement
Agreement, Hobson’s mother Yvonne got Tract 4, and Hobson’s father kept Tract 1.
Under the MSA, Yvonne was to have provided Hobson Sr. an easement across Tract
4:
Wife is to deed Husband an easement being 30 feet in width allowing
Husband ingress and egress to his property [Tract 1]. This easement is to
be surveyed at Husband’s expense. Husband shall have the right to use
the current roadway crossing Wife’s property [Tract 4] for a period of 5
years and as long thereafter as Wife agrees. Husband is to provide to
Wife a proposed location of the easement which is to be along Wife’s
fence lines so as not to unreasonably impact or utilize the current
roadway within said 5 year period. Wife agrees to execute a deed setting
out this easement so long as it is located reasonably and does not cross
the middle of wife’s land. Husband agrees that he waives and abandons
any right he may have to any easement across Wife’s property except for
the specific easement that shall be surveyed and dedicated to him at the
conclusion of the 5 year period.
It is undisputed that neither party to the divorce followed through with this MSA
provision, and although for some time Hobson’s father (and Hobson) continued to
cross Tracts 4 and 5 to get to Logan’s Run Road, Hobson’s father never obtained an
express easement across Tract 4 during that five-year MSA period. 3
Nothing in the record suggests that Hobson’s father ever even paid for the
3
survey that, according to the MSA, he was to obtain within five years and that was to
take the place of the “current roadway” that Hobson’s father had been allowed to use
for five years after the divorce.
5
2006: Alfred and Kim Ezell acquired Tract 3. The Ezells allowed Hobson “on
two or three occasions to use an approximate 100 yard portion of Tract 3 in order for
him to access Tract 4, located to the south of Tract 3.” But, as they each also averred
in their summary-judgment affidavits,4 they have “never agreed to give Jon Hobson
an easement across any portion of” Tract 3, and in 2014, when Hobson asked that
they “sign an easement agreement for his use of the approximate 100 yard portion of
Tract 3,” they both refused.
2009: Yvonne sold Tract 4 and the associated Tract 5 “easement property” to
Hobson’s sister, Erika, who continued to allow Hobson and his father to travel across
Tract 4. The record does not indicate that either Hobson or his father sought a formal
easement from Erika over Tract 4.
2013: Hobson’s father died.
2015: Erika sold Tract 4, along with a “non-exclusive easement for ingress and
egress over” Tract 5, to SX3 Properties, LLC. SX3’s principal, Neil Southerland, then
blocked Hobson’s access from Tract 1 to the private road that crosses Tract 4 on its
way to the Tract 5 easement.
The trial court granted summary judgment for the Ezells, which Hobson did
4
not appeal.
6
Unrelatedly, also in 2015 the Francises bought Tract 2A, which does not abut
Tract 1 (nor did it have any unity of ownership with Tract 2, from which Tract 1 was
severed in 1978).
Later: At some point after Southerland blocked Hobson’s access over Tract 4,
Hobson asked the Francises about an easement by necessity across Tract 2 so that—
for the first time—he could access Hardy Road to the north. The Francises declined.
2017: Hobson sued all his contiguous neighbors save the Hill Family
Partnership (owner of Tract 5), 5 seeking various types of easements depending on the
status of the adjoining tract. Later that year, the trial court granted summary judgment
in the Ezells’ favor regarding Tract 3; the following month, the Francises moved for
summary judgment. The Francises’ combined traditional and no-evidence motion
challenged the existence of an easement by necessity as a matter of law on various
grounds:
• a necessity did not exist at the time of severance (1978) or on a continuing
basis;
• if a necessity did exist in 1978, it terminated when Hobson’s father owned
Tracts 1 and 4 and obtained an express easement across Tract 5 to Logan’s Run
Road; or
• any easement of necessity was lost by the ten- or 25-year limitations period.
By agreement, the Partnership was temporarily allowing Hobson to cross
5
Tract 5 to reach Logan’s Run Road but—according to Hobson—would not give him
a formal easement.
7
Seven days before the hearing scheduled for December 15, 2017, Hobson
responded to the Francises’ motion, submitting his affidavit, the hand-drawn map
reproduced above (which was “not to scale”), and an unsigned supplemental affidavit
as his only controverting evidence. Four days before the hearing, without seeking
leave of court, Hobson filed his supplemental affidavit in executed form.
The day before the hearing, on December 14, 2017, the Francises filed general
and specific objections to Hobson’s summary-judgment evidence. Their general
objections attacked both of Hobson’s affidavits on the grounds that they “lack[ed] any
facts sufficient to establish a basis of personal knowledge of the Affiant as to any of
the information contained therein”; were “replete with conclusory statements, legal
opinion and legal conclusion”; and further “attempt[ed] to include and incorporate
impermissible hearsay information,” all in violation of evidentiary rules 602, 701, and
802. In addition, the Francises raised specific objections to Hobson’s affidavit on a
paragraph-by-paragraph basis, objected to the map under procedural rule 193.6, and
also objected to Hobson’s executed supplemental affidavit because it was filed late.
Hobson did not file a motion seeking leave to submit his executed
supplemental affidavit or to amend either affidavit, nor did he file a motion to
continue the summary-judgment hearing so that he could correct any alleged defects
in form in his summary-judgment evidence.
Following the December 15, 2017 hearing (which was not transcribed), that
same day the trial court signed two orders. The first granted the Francises’ hybrid
8
summary-judgment motion, and the second order (1) sustained the Francises’s general
objections to Hobson’s initial affidavit; (2) made no ruling on any of their specific
objections, which were charted by paragraph on the order; (3) overruled the
objections to the map attached as Exhibit 1 to Hobson’s initial affidavit; (4) sustained
the Francises’ untimeliness objection to the supplemental affidavit; and (5) overruled
their specific objection that the second sentence of the supplemental affidavit’s
paragraph 2 constituted inadmissible opinion testimony and failed to show personal
knowledge.
Some two weeks later, Hobson filed a motion to reconsider the summary
judgment and the order on the Francises’ objections, combined with a motion for
leave to file an amended affidavit and to set aside the summary-judgment order. The
trial court never ruled on this motion.
2018: Shortly after SX3 and Southerland filed their own summary-judgment
motion concerning Tract 4, Hobson nonsuited with prejudice his claims against those
remaining defendants. This appeal followed.
Hobson’s Issues
Although the Issues Presented section of Hobson’s brief lays out five discrete
issues, we will construe them broadly as raising two appellate complaints and will
discuss them in reverse order, as Hobson did in organizing his argument: (1) that the
trial court erred in sustaining the Francises’ allegedly meritless general objections to
his summary-judgment affidavit without ruling on their specific objections or,
9
alternatively, by not ruling on Hobson’s motion for leave to file an amended
affidavit;6 and (2) that the trial court erred in granting summary judgment to the
Francises on the merits of their motion. We overrule Hobson’s first issue—
technically, his fourth and fifth Issues Presented—and because the practical effect of
this holding is that Hobson thus failed to proffer more than a scintilla of evidence to
raise a genuine issue of material fact in response to the Francises’ no-evidence
summary-judgment motion, we also overrule his second issue, comprising his first
through third Issues Presented.
Summary Judgment Was Appropriate on This Record
A. Standard of Review
We review summary judgments de novo. Travelers Ins. v. Joachim, 315 S.W.3d
860, 862 (Tex. 2010).
6
Hobson framed these issues as follows:
4. The trial court erred in sustaining Appell[ees’] general objections to
Appell[ant’s] summary judgment affidavit timely submitted to the
court on 12/08/2017, because those objections were not sufficiently
specific to constitute valid objections, nor did such objections
otherwise have merit.
5. Alternatively, the trial court erred in refusing to rule on and grant
Appellant’s motion for leave to file an amended affidavit responding
to Appellees’ form objections based on the alleged lack of personal
knowledge of Appellant, because Texas law requires that non-
movants be granted leave to file amended affidavits to correct
alleged form deficiencies.
10
Under Rule 166a(i), after an adequate time for discovery, the party without the
burden of proof may, without presenting evidence, move for summary judgment on
the ground that no evidence supports an essential element of the nonmovant’s claim
or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements for
which no evidence exists. Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.
2009). The trial court must grant the motion unless the nonmovant produces
summary-judgment evidence that raises a genuine, material fact issue. See Tex. R. Civ.
P. 166a(i) & 1997 cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d
291, 292 (Tex. 2006). The “entire record” does not mean everything on file with the
trial court, though: we are “limited to the summary judgment proof produced in the
response” and are “not free to search the entire record, including materials not cited
to . . . the trial court.” Rollins v. Texas Coll., 515 S.W.3d 364, 369 (Tex. App.—Tyler
2016, pet. denied); see also De La Garza v. Bank of New York Mellon, No. 02-17-00427-
CV, 2018 WL 5725250, at *3 (Tex. App.—Fort Worth Nov. 1, 2018, no pet.) (mem.
op.) (noting that, in the context of a no-evidence motion, even though evidence is
before the trial court that would compel denial of the motion if the nonmovant
produced it, that evidence must be ignored if the nonmovant did not point it out to
the trial court); Arredondo v. Rodriguez, 198 S.W.3d 236, 238–39 (Tex. App.—San
11
Antonio 2006, no pet.) (providing that in a summary-judgment proceeding, a party
“must specifically identify the supporting proof on file that it seeks to have considered
by the trial court”; an appellate court cannot search the record for materials not cited
to or relied on by the trial court); Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521,
525 (Tex. App.—San Antonio 2003, no pet.) (same).7
We review a no-evidence summary judgment for evidence that would enable
reasonable and fair-minded jurors to differ in their conclusions. Hamilton, 249 S.W.3d
at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). We credit
evidence favorable to the nonmovant if reasonable jurors could, and we disregard
evidence contrary to the nonmovant unless reasonable jurors could not. Timpte Indus.,
7
This principle was not affected by the Texas Supreme Court’s recent decision
in Lance v. Robinson, 543 S.W.3d 723 (Tex. 2018). There, the supreme court held that
the summary-judgment movants’ failure to attach relevant deeds to their motion was
not fatal to the judgment because the movants had “expressly ‘referenced and
specified’ the [earlier] injunction-hearing transcript and exhibits ‘as evidence in
support of’ the motion,” and at the hearing, the trial court “had the injunction-hearing
transcript—including the deeds and other exhibits—in front of him, reviewed the
deeds, and discussed them with counsel.” Id. at 732. We have also distinguished
Lance’s procedural posture—dealing with a traditional-summary-judgment movant’s
unattached evidence—from a nonmovant’s response to a no-evidence motion. De La
Garza, 2018 WL 5725250, at *3 n.4. In any event, Hobson does not argue that the trial
court should have looked to or sua sponte considered the Ezells’ earlier summary-
judgment evidence or the trial court’s granting summary judgment to the Ezells as
demonstrating that he had no legal and enforceable easement across Tract 3. Absent
Hobson’s ability to establish a legal and enforceable easement across some other tract
(such as Tract 4, without having to first encroach on Tract 3), this lack of a legal and
enforceable easement across Tract 3 would be a necessary element of his easement-
by-necessity claim against the Francises.
12
286 S.W.3d at 310 (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).
If the nonmovant brings forward more than a scintilla of probative evidence that
raises a genuine issue of material fact, then a no-evidence summary judgment is not
proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
When, as here, a party moves for summary judgment under both rules 166a(c)
and 166a(i) in a hybrid motion, we will first review the trial court’s judgment under
the standards of rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
2004). If the appellant failed to produce more than a scintilla of evidence under that
burden, we need not analyze whether the appellee’s summary-judgment proof
satisfied the rule 166a(c) burden. Id.
When a trial court’s order granting summary judgment does not specify the
ground or grounds relied on for its ruling, we will affirm the summary judgment if any
of the theories presented to the trial court and preserved for appellate review are
meritorious. Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003);
Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). When the trial court’s
judgment rests on more than one independent ground or defense, the aggrieved party
must assign error to each ground, or we will affirm the judgment on the
uncomplained-of ground. Scott v. Galusha, 890 S.W.2d 945, 948 (Tex. App.—Fort
Worth 1994, writ denied).
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B. Summary-Judgment Procedure and Evidentiary Rulings, Generally
When a party objects to formal defects in summary-judgment affidavits, such as
lack of personal knowledge or hearsay, the opposing party must be given an
opportunity to amend the affidavits to correct such nonsubstantive deficiencies. See
Tex. R. Civ. P. 166a(f) (“Defects in the form of affidavits or attachments will not be
grounds for reversal unless specifically pointed out by objection by an opposing party
with opportunity, but refusal, to amend.”). But this opportunity to cure must be
properly and timely invoked. See, e.g., Lewis v. Rucker, No. 02-16-00254-CV,
2017 WL 4172063, at *3 (Tex. App.—Fort Worth Sept. 21, 2017, pet. denied) (mem.
op.) (holding that trial court did not err by not giving nonmovant an opportunity to
cure defect in summary-judgment affidavit when nonmovant did not seek to do so
before trial court entered summary judgment; nonmovant “did not avail himself of
the opportunity that he had to cure the defect. The trial court did not err by failing to
grant relief that Lewis did not request.”).
A subsection (f) request to amend a summary-judgment affidavit comes too
late if judgment has already been entered. See Tex. R. Civ. P. 166a(c) (“The judgment
sought shall be rendered forthwith if . . . the . . . affidavits . . . on file at the time of the
hearing, or filed thereafter and before judgment with permission of the court, show that”
no genuine issue of material fact exists and that movant is entitled to judgment as a
matter of law (emphasis added)); cf. A.J. Morris, M.D., P.A. v. De Lage Landen Fin.
Servs., Inc., No. 02-06-00430-CV, 2009 WL 161065, at *3 (Tex. App.—Fort Worth Jan.
14
22, 2009, no pet.) (mem. op.) (noting that “any evidence on which Appellants relied to
raise fact issues had to be presented to the trial court before it ruled on the claims”).
In contrast, a party has no right to amend a summary-judgment affidavit to
correct substantive defects. See Threlkeld v. Urech, 329 S.W.3d 84, 89 (Tex. App.—
Dallas 2010, pet. denied) (noting that trial court is “required to provide an opportunity
to amend a summary judgment affidavit only where the defect is one of form, not
substance”); EOG Res., Inc. v. Killam Oil Co., Ltd., 239 S.W.3d 293, 302 (Tex. App.—
San Antonio 2007, pet. denied) (observing rule that “[i]f a defect in a summary
judgment affidavit is one of substance, the trial court is not required to provide an
opportunity to amend”). And “[a] conclusory statement in an affidavit is a defect of
substance.” Threlkeld, 329 S.W.3d at 89 (citing EOG Res., 239 S.W.3d at 302). A
conclusory statement is one that “does not provide the underlying facts to support the
conclusion.” Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192, 198 (Tex. App.—
Fort Worth 2006, no pet.); see also Trinity River Estates, L.P. v. DiFonzo, No. 02-08-393-
CV, 2009 WL 1506928, at * 3 (Tex. App.—Fort Worth May 28, 2009, no pet.) (mem.
op.) (noting that competent summary-judgment evidence “must provide an
explanation linking the basis of the conclusion to the facts”). Conclusory affidavits are
“not enough to raise facts issues” because they are “not credible, nor susceptible to
being readily controverted.” Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.
1996); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (same).
15
If a trial court has properly sustained objections to summary-judgment
evidence, we may not consider those parts of the record. Miller v. Great Lakes Mgmt.
Serv., Inc., No. 02-16-00087-CV, 2017 WL 1018592, at *2 (Tex. App.—Fort Worth
Mar. 16, 2017, no pet.) (mem. op.).
We review a trial court’s decision to exclude summary-judgment evidence for
an abuse of discretion. Miller, 2017 WL 1018592, at *3 (citing Pipkin v. Kroger Tex.,
L.P., 383 S.W.3d 655, 667 (Tex. App.—Houston [14th Dist.] 2012, pet. denied); In re
Estate of Denman, 362 S.W.3d 134, 140 (Tex. App.—San Antonio 2011, no pet.)). But
even if the trial court wrongly excluded evidence in a summary-judgment proceeding,
to obtain a reversal on that basis the appellant must show that the exclusion probably
resulted in an improper judgment. Id. at 3. “A successful challenge to the trial court’s
evidentiary rulings generally requires the complaining party to demonstrate that the
judgment turns on the particular evidence excluded.” Id. (citing Chandler v. CSC
Applied Techs., LLC, 376 S.W.3d 802, 824 (Tex. App.—Houston [1st Dist.] 2012, pet.
denied)).8
8
Hobson’s appellate brief does not mention this or any standard of review, nor
does he explicitly attempt to show that the “judgment turn[ed] on” his affidavits’
exclusion. The Francises made the latter point to the trial court in responding to
Hobson’s motion for reconsideration: “While the Plaintiff attempts to characterize
the Court’s granting of the Defendants’ Motion for Summary Judgment as being
solely based on objections to Plaintiff’s affidavits, the Court made no such specific
ruling within the granting of the Summary Judgment.” Cf. Seim v. Allstate Tex. Lloyds,
551 S.W.3d 161, 166 (Tex. 2018) (holding that trial court’s failure to rule on
evidentiary objections did not imply a ruling because “even without the objections,
16
C. Analysis
The elements of an easement by necessity are (1) a unity of ownership of the
dominant and servient estates must have existed before they were separated; (2) the
access must be a necessity and not a mere convenience; and (3) the necessity must
have existed at the time the two estates were severed. E.g., Koonce v. Brite Estate,
663 S.W.2d 451, 452 (Tex. 1984); Duff v. Matthews, 311 S.W.2d 637 (Tex. 1958). The
no-evidence portion of the Francises’ motion asserted that Hobson lacked sufficient
evidence of every element.
With that motion, the Francises put the burden on Hobson to come forward
with more than a scintilla of evidence for each element of an easement by necessity.
Hobson’s response proffered his affidavit, the hand-drawn map, and an unsigned
supplemental affidavit9 to ostensibly provide such evidence. He did not ask the trial
court to take judicial notice of its file, nor did he refer to, attach, or incorporate by
the trial court could have granted summary judgment against the Seims if it found that
their evidence did not generate a genuine issue of material fact”).
9
Fewer than seven days before the hearing, Hobson filed an executed
supplemental affidavit, although he did not seek leave of court to do so. That
supplement added but one substantive sentence: “Other than an easement by
necessity across the Francis Defendants’ property (‘Tract 2’), and the easement on
Tract 4 discussed in my original affidavit, neither I nor my father have ever had an
easement or other enforceable legal right to use any other real property to access
Tract 1.”
17
reference any additional evidence to support one or more elements of his easement-
by-necessity claim.
We construe Hobson’s first appellate issue, as he reframed his fourth and fifth
Issues Presented, as encompassing the arguments to which we now turn.
1. Hobson’s appellate complaint does not match his complaint
before the trial court.
The Francises objected globally to Hobson’s affidavit and its supplement and
also objected paragraph by paragraph. For their general objections, the Francises
stated,
Generally, the Affidavit of Jon Hobson and the Supplemental
Affidavit of Jon Hobson completely lack any facts sufficient to establish
a basis of personal knowledge of the Affiant as to any of the information
contained therein. The global and conclusory boilerplate that “the facts
set forth in this affidavit are within my personal knowledge” is no basis
for the trier of fact to conclude that the affiant actually has personal
knowledge. As such, these Defendants object to the Affidavit and
Supplemental Affidavit of Jon Hobson in their entirety for the reason
such documents violate Rule 602 of the Texas Rules of Evidence.
Further, Defendants object to both affidavits for the reason same
are replete with conclusory statements, legal opinion and legal
conclusion, and further attempt to include and incorporate
impermissible hearsay information, all of which these Defendants allege
should not be considered for any purpose in this summary judgment
proceeding for the reason same violates Rules 802, 602, and 701 of the
Texas Rules of Evidence.
As noted, Hobson did not respond to any of the Francises’ objections, whether
general or specific, before the summary-judgment hearing, nor did he seek written
18
leave to amend his affidavits or move for a continuance so that he might correct any
formal defects.
Roughly two weeks after the trial court entered summary judgment against him
and sustained the Francises’ general objections, Hobson filed a motion for
reconsideration of both the summary judgment itself and of the order on the
Francises’ objections, combined with a motion for leave to file an amended affidavit
and to set aside the summary-judgment order. We will consider that motion for
reconsideration to have been the functional equivalent of a motion for new trial.
Hobson’s motion—which the trial court never expressly ruled on—did not call
to the trial court’s attention his appellate complaint that it was error to sustain the
general objections because they were not specific enough.10 The rules of error
preservation apply to summary-judgment proceedings as well as to trials. Tex. R. App.
P. 33.1(a); Seim, 551 S.W.3d at 163–64 (“The same evidentiary standards that apply in
trials also control the admissibility of evidence in summary-judgment proceedings. But
the rules of error preservation also apply.” (citation omitted)); cf. Cunningham v. Anglin,
No. 05-12-00039-CV, 2014 WL 3778907, at *3 (Tex. App.—Dallas July 31, 2014, pet.
denied) (mem. op.) (noting rule 33.1(a)’s requirements and stating that party whose
10
The pertinent part of Hobson’s fourth Issue Presented states that “[t]he trial
court erred in sustaining Appell[ees’] general objections to Appell[ant’s] summary
judgment affidavit timely submitted to the court on 12/08/2017, because those
objections were not sufficiently specific to constitute valid objections.”
19
summary-judgment evidence was excluded “may not argue on appeal any and every
new issue he can think of nor may he resurrect issues he abandoned at the hearing”; if
a party “fails to object to the trial court’s ruling that sustains an objection to his
summary judgment evidence, he has not preserved the right to complain on appeal
about the trial court’s ruling,” and “[e]ven if the objections appear meritorious on
appeal, they are not preserved for appellate review if the record does not show the
complaint was made to the trial court” (citing Cantu v. Horany, 195 S.W.3d 867,
871 (Tex. App.—Dallas 2006, no pet.)). This principle applies equally to motions for
new trial: the trial court must know what is being complained about. See Tex. R. App.
P. 33.1(b) (“In a civil case, the overruling by operation of law of a motion for new
trial or a motion to modify the judgment preserves for appellate review a complaint
properly made in the motion, unless taking evidence was necessary to properly
present the complaint in the trial court.”); cf. Cooper v. Tex. Dept. of Criminal Justice Corr.
Insts. Div., No. 12-17-00182-CV, 2018 WL 1940395, at *2 (Tex. App.—Tyler Apr. 25,
2018, no pet.) (mem. op.) (holding that by reasserting sham-affidavit argument in
motion to reconsider that was overruled by operation of law, appellant preserved
argument for appellate review).
By not apprising the trial court of this particular complaint, Hobson has waived
the argument that the trial court erred in sustaining the Francises’ general objections
to his affidavit and supplemental affidavit because, in Hobson’s view, those objections
were insufficiently specific to constitute valid objections. Rather, Hobson’s motion for
20
reconsideration sought only to persuade the trial court that his original affidavit
“recited sufficient facts to show how he obtained personal knowledge of the facts set
forth in the affidavit,” and that the Francises were wrong to lodge a hearsay objection
to Hobson’s recounting out-of-court statements that he made to them asking for an
easement. Moreover, Hobson’s motion for reconsideration did not even mention or
analyze a third category of the Francises’ general objections: that both affidavits were
“replete with conclusory statements, legal opinion and legal conclusion.”
2. Did the Francises’ objections have merit?
As a subpart of his fourth Issue Presented, Hobson contends that the
Francises’ general objections should not have been sustained because they did not
“otherwise have merit.”11 But in the argument section of his brief dealing with this
subissue, Hobson goes through most, but not all, of his affidavit’s statements as
referenced in the Francises’ specific objections, in claiming that those statements were
unobjectionable on grounds of lack of personal knowledge, hearsay, or “conclusory
statements, legal opinion and legal conclusion.” Although we need not (and cannot)
address the specific formal objections dealing with personal knowledge and hearsay
because the trial court did not rule on them, see Seim, 551 S.W.3d at 166, we can
11
Again, Hobson did not argue to the trial court that the Francises’ general
objections did not “otherwise have merit,” and thus waiver seemingly applies to this
subissue as well. See Tex. R. App. P. 33.1(a). Despite the wording of Hobson’s issue,
which is not on its face entirely clear, his brief analyzes the Francises’ specific
objections.
21
nevertheless discern what the general objections covered and address their merits
broadly. Substantive defects, on the other hand, can be first raised on appeal, and so
we can consider whether the Francises’ objections based on conclusions and legal
opinion have merit.
a. Lack of personal knowledge (objections under TRE
602)
A summary-judgment affidavit must affirmatively show how the affiant became
familiar with the purported facts. See Tex. R. Civ. P. 166a(f) (summary-judgment
affidavits must be “made on personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein”); Radio Station KSCS v. Jennings, 750 S.W.2d 760,
761–62 (Tex. 1988). Texas rule of evidence 602 provides that “[a] witness may testify
to a matter only if evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter. Evidence to prove personal knowledge
may consist of the witness’s own testimony.” See Tex. R. Evid. 602.
As a general matter, Hobson’s affidavit did not lay the groundwork for basic
but critical personal knowledge. First, he averred only that he was “over the age of
eighteen” when executing the affidavit in December 2017, and so nothing in the
affidavit establishes that he could have had personal knowledge of events occurring in
(or before) 1978 or for some undefined period afterward. Hobson also did not aver
that he has ever lived on Tract 1 or, if so, when that was; he stated only that he
22
“own[s] a 40 acre tract of real property in Parker County . . . depicted on the attached
map as the ‘Hobson Tract’ or ‘Tract 1’” and that he “inherited Tract 1 from [his]
father Jonathan Hobson when he passed away in September 2016.” Those amorphous
statements simply do not suffice to demonstrate when and how Hobson acquired the
personal knowledge he purported to have. Because we may thus discount many of
Hobson’s affidavit statements, so too could the trial court, without even having to
look to the Francises’ specific objections.
For example, paragraph 5 of Hobson’s affidavit states that “[b]efore the sale in
1978 to my father, the Francis[es] were able to access Hardy Road from Tract
1 (which they then owned) by passing through Tract 2 (which they also then owned
and still own today).” Hobson’s affidavit does not reveal in any way how this
statement could be based on his personal knowledge.
Paragraphs 6 and 7 describe how Hobson’s father received permission from
Jack Patton in and after 1978, and later from Roy Thomas in the 1990s, to access
Highway 281 from Tract 1 by crossing Tract 3. Paragraph 7 recites that Thomas
“changed his mind and fenced off the road. He also pulled out the culverts which
caused the road to flood.” Again, Hobson’s affidavit fails to show how Hobson
acquired or could have acquired personal knowledge of these facts.
Paragraph 12 describes Hobson’s parents’ 2003 divorce proceedings and an
associated agreement about an “easement across Tract 4 to connect with the
23
road/easement across Tract 5,”12 but his affidavit does not reveal how he had
personal knowledge of the statement that Yvonne’s “attorney was supposed to record
the easement across Tract 4, but never did.”
Statements such as the above differ from those in the three cases Hobson cites
for the proposition that his affidavit sufficiently demonstrated personal knowledge of
its contents. See Stucki v. Noble, 963 S.W.2d 776, 780 (Tex. App.—San Antonio 1998,
pet. denied) (concluding, in suit on promissory note, that noteholder’s affidavit
demonstrated personal knowledge because he “identified himself as a party to the suit,
the owner and landlord of the property subject to the lease at issue, a party to the
settlement agreement at issue, and the holder of the promissory note at issue. Noble’s
recital clearly resolves any questions regarding how he obtained knowledge of the
matters contained in his affidavit.”); Equisource Realty Corp. v. Crown Life Ins.,
854 S.W.2d 691, 695 (Tex. App.—Dallas 1993, no pet.) (concluding, in suit to recover
earnest money following failed real-estate transaction, that seller’s representative
demonstrated personal knowledge of facts surrounding attempted real-estate venture
by averring that he was “Director of Property Dispositions”); Jackson T. Fulgham Co. v.
12
Although Hobson did not include that agreement as part of his summary-
judgment evidence, the Francises attached the divorce decree and MSA as part of
their own summary-judgment evidence, to show that Hobson’s father had acquired an
“absolute unequivocal right to a defined easement over and across Tract Four to a
public roadway, which right abrogated any claim of necessity, if any ever existed, as
against Tract Two owned by the Francis Defendants.”
24
Stewart Title Guar. Co., 649 S.W.2d 128, 130 (Tex. App.—Dallas 1993, writ ref’d n.r.e.)
(concluding, in suit on note, that unchallenged fact that affiant was entity–
noteholder’s “vice-president and agent” was enough to show how affiant learned or
knew of facts surrounding status of note). In each of these cases, the affiant’s personal
knowledge was inferable from the particular position that each occupied in relation to
the subject matter of the suit. In contrast, we cannot infer from Hobson’s affidavit
that he has personal knowledge of everything in it, most especially the particular
statements noted.
b. Hearsay (objections under TRE 802)
The Francises also objected to Hobson’s affidavit as incorporating
impermissible hearsay. See Tex. R. Evid. 801(d), 802. As with their general objections
to a lack of personal knowledge, we can discern, as could the trial court, where such
problems cropped up.
Paragraph 6 begins, “After my father bought Tract 1 in 1978, he was [g]iven
permission to use a private road through a tract of land to the west of Tract 1 owned
at that time by Jack Patton.” Because we have agreed with the Francises that Hobson
failed to demonstrate his personal knowledge of this statement, which to us is its
more serious flaw, its hearsay aspects are immaterial.
Portions of paragraph 16 recite, “When that happened [Southerland’s blocking
access to the road across Tract 4], I contacted the Francis Defendants about an
easement by necessity a[]cross their property (Tract 2) to have access to Hardy Road.
25
When we talked about this, I suggested a road th[r]ough [the] west side of Tract 2 and
Tract 2A because that would be much more convenient than a road only through
Tract 2, which would have to pass by the Francis’ house.” Even assuming that the
trial court would have erred by sustaining a hearsay objection to this passage, we
conclude that this part of Hobson’s affidavit is essentially irrelevant and does not raise
a genuine issue of material fact on an essential element of an easement-by-necessity
claim, and so any error in sustaining a hearsay objection would have been harmless.
See, e.g., Woods v. Soules, No. 02-17-00336-CV, 2018 WL 2248488, at *4 (Tex. App.—
Fort Worth May 17, 2018, pet. denied) (mem. op.) (holding that excluded evidence
was not controlling on a dispositive material issue and thus any error in excluding
summary-judgment evidence was harmless); Rodriguez v. Haddock, No. 02-01-00386-
CV, 2003 WL 1784923, at *3 (Tex. App.—Fort Worth Apr. 3, 2003, no pet.) (mem.
op.) (holding that even if trial court improperly excluded summary-judgment evidence
about what defendant knew, that evidence would have been insufficient to show
knowledge of his dog’s vicious propensity and thus any error in excluding evidence
was harmless).
c. Conclusory statements (Rule 166a(f)) and lay-witness
opinion (objections under TRE 701)
Hobson’s motion for the trial court to reconsider and set aside its ruling on the
Francises’ objections discussed only the no-personal-knowledge and hearsay aspects,
which are formal defects. He did not argue to the trial court that his affidavit
26
contained no substantive defects despite the Francises’ contention, and thus did not
give the trial court a chance to reconsider that aspect of the Francises’ general
objections, as he must have under rules 33.1(a) and (b). 13
And even though Hobson neither cites nor analyzes any authorities in this
section of his brief, we conclude that the Francises’ objections were valid and, in
addition, that the particular statements Hobson discusses would have been immaterial
to his attempt to create a fact issue on whether he has an easement by necessity. Put
differently, had the trial court explicitly sustained the specific objections, it would not
have abused its discretion.
For example, in paragraph 5 of his affidavit Hobson states that “[b]efore the
sale in 1978 to my father, the Francis’ [sic] were able to access Hardy Road from Tract
1 (which they then owned) by passing through Tract 2 (which they also then owned
and still own today).” Without more, that statement is merely conclusory inasmuch as
it “does not provide the underlying facts to support the conclusion.” Residential
Dynamics, 186 S.W.3d at 198. This is especially so when contrasted with the Francises’
own summary-judgment affidavits, which each averred that from the time they
13
While it is true that substantive defects in summary-judgment affidavits may
be complained about for the first time on appeal, that principle does not logically
apply when it is the losing nonmovant complaining that the movant succeeded in
challenging the nonmovant’s affidavit on substantive-defect grounds. In this situation,
to preserve error Hobson must have first complained to the trial court. See Tex. R.
App. P. 33.1(a), (b). Despite apparent waiver of claimed error on this point, we will
consider the affidavit statements that Hobson’s brief addresses.
27
bought Tract 1 in 1973 until selling it in 1978, they used a lane across Tract 3 (not
across Tract 2) to get to and from Highway 281 to the west; and that during the time
they owned Tract 1, it was “contained within a fence perimeter.” Moreover, the
Francises stated that “[n]o portion of the original lands acquired by us [Tract 2] was
ever used as ingress and egress to a public roadway.”14
More important to Hobson’s claim of a necessity easement, the final statement
in paragraph 6 of his affidavit—“My father never had an easement a[]cross any part of
Tract 3”—strikes us as both conclusory and as a legal opinion offered by a lay
witness, and thus inadmissible on either basis. Cf. Mercer v. Daoran Corp., 676 S.W.2d
580, 583 (Tex. 1984) (holding that affiant bank president’s statement that “entire
principal indebtedness . . . was renewed and extended” constituted legal opinion
insufficient to create fact issue in response to summary-judgment motion).
Overall, Hobson’s affidavit also suffers from much the same deficiency as in
Mavex Mgmt. Corp. v. Hines Dallas Hotel Ltd. P’ship, 379 S.W.3d 456 (Tex. App.—Dallas
2012, no pet.). There, the nonmovant submitted an affidavit the “vast majority” of
which was “nothing more than sworn repetitions of the conclusory allegations of
appellants’ pleadings together with string citations to fifty documents attached to the
affidavit.” Id. at 460. Other than the affidavit’s conclusory statements, the Mavex
14
From the context, this statement implies “from Tract 1 to Hardy Road to the
north.”
28
appellants “did not identify with any specificity when” certain statements “were
actually made to appellants and provide[d] little, if any, context as to when or in what
circumstances these statements were made,” and thus the affidavit did “not raise fact
issues.” Id. at 461 (citing Ryland, 924 S.W.2d at 122); see also Brookshire Katy Drainage
Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 308 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied) (noting that “an affidavit that is nothing more than a sworn repetition of
allegations in the pleadings has no probative force, as the statements are no more than
conclusions or a mere surmise or suspicion”). Similarly, Hobson’s affidavit simply
rehashed his petition’s allegations in large part, also without providing specific details
surrounding its conclusory assertions.
3. Should Hobson have been given leave to amend his affidavit
even though the trial court had already entered summary
judgment?
Hobson also argues that the trial court erred by not allowing him to amend his
affidavits to correct formal defects. But by failing either to (1) file a written motion to
amend his affidavits or to continue the summary-judgment hearing for that purpose
or (2) present us with an appellate record establishing that he orally made such a
request to the trial court before summary judgment was entered, Hobson did not
trigger rule 166a(f)’s protections. See Tex. R. Civ. P. 166a(f) (“Defects in the form of
affidavits . . . will not be grounds for reversal unless specifically pointed out by
objection by an opposing party with opportunity, but refusal, to amend.”).
29
Although Hobson cites cases purporting to back up his argument that the trial
court erred by not allowing him to amend his affidavit, those cases are distinguishable.
Each of them 15 involved a situation in which the losing party came forward with a
record showing that it had unsuccessfully asked the trial court for a continuance or for
leave to amend (or both) before summary judgment was entered. See Threlkeld,
329 S.W.3d at 89 (noting that nonmovant failed to seek leave to amend affidavit in
trial court, but holding in any event that affidavit defect was one of substance, not
form, and so trial court would not have been required to allow amendment); Tri-Steel
Structures, Inc. v. Baptist Found. of Tex., 166 S.W.3d 443, 447–48 (Tex. App.—Fort
Worth 2005, pet. denied) (quoting reporter’s record showing appellant’s request, at
summary-judgment hearing, for a continuance in order to take depositions to cure
opponent’s hearsay objections—which were lodged two days before hearing—to
appellant’s evidence; summary judgment not entered until two weeks later); EOG Res.
Inc. v. Wall, 160 S.W.3d 130, 134 (Tex. App.—Tyler 2005, no pet.) (holding that trial
15
There is one possible exception among Hobson’s cases, Wyatt v. McGregor,
855 S.W.2d 5, 18 (Tex. App.—Corpus Christi 1993, writ denied) (reversing partial
summary judgment because nonmovant had no opportunity to amend defective
affidavits, to which movants first objected at summary-judgment hearing (transcript
of which was in appellate record), but opinion does not reflect whether nonmovant
requested leave to amend at hearing or waited until after judgment entered to file a
formal motion for leave). Because Wyatt’s procedural history in this regard is vague,
we will not infer that the court blessed a situation in which a nonmovant waited until
after judgment was entered to move for leave to amend an affidavit, which is what
Hobson did here. Cf. Tex. R. Civ. P. 166a(c).
30
court erred in not allowing appellant to supplement evidence to cure formal defects in
earlier-submitted affidavits, but procedural facts as recited in opinion imply that
appellant moved for leave before summary judgment was entered).
Here, the first place in the record where we find that Hobson asked for leave to
amend his affidavit to correct formal defects was in his post-judgment motion for
reconsideration.16 Caselaw most closely matching this sequence of events establishes
that Hobson waived any complaint that he should have been given leave to amend his
affidavit. See Lewis, 2017 WL 4172063, at *3 (holding that trial court did not err by not
giving nonmovant an opportunity to cure defect in summary-judgment affidavit when
nonmovant did not seek to do so before trial court entered summary judgment;
nonmovant “did not avail himself of the opportunity that he had to cure the defect.
The trial court did not err by failing to grant relief that Lewis did not request.”); Barnes
v. Athens, No. 02-12-00173-CV, 2012 WL 4936624, at *2 (Tex. App.—Fort Worth
Oct. 18, 2012, no pet.) (mem. op.) (holding no abuse of discretion when trial court
considered and sustained movant’s objections to nonmovant’s summary-judgment
evidence, which objections were filed one day before hearing; record did not show
that nonmovant either requested or filed motion for continuance for time to respond
16
Although his motion for reconsideration stated that, at the hearing, Hobson
had “orally requested leave to submit an amended affidavit to cure the alleged lack of
personal knowledge deficiency,” Hobson does not repeat that claim in his appellate
briefing. In any event, we do not have a reporter’s record from the summary-
judgment hearing to support such an assertion even if Hobson had advanced it here.
31
to objections); Coleman v. Woolf, 129 S.W.3d 744, 749–50 (Tex. App.—Fort Worth
2004, no pet.) (holding that in absence of timely request, objection, or motion seeking
opportunity to cure defects, trial court did not err by failing to grant unrequested relief
of providing opportunity to cure defect in controverting affidavit; movant–defendant
filed objections to nonmovant–plaintiff’s evidence four days before summary-
judgment hearing, but nonmovant “did not file a response to the objections or move
for a continuance of the hearing”).
In sum, because Hobson did not preserve his argument that the Francises’
general objections to his summary-judgment affidavits were not specific enough for
the trial court to rule on them, because in any event Hobson has failed to show that
the trial court abused its discretion by sustaining those objections, and because
Hobson did not timely ask to amend his affidavit to correct formal defects, we
overrule his first issue, as reframed from his Issues Presented 4 and 5. And because
the only remaining evidence the trial court could have considered—the unsigned
supplemental affidavit and the map—do not raise a fact issue sufficient to defeat the
Francises’ no-evidence motion, we hold that Hobson did not come forward with
more than a scintilla of evidence sufficient to defeat the no-evidence portion of the
Francises’ summary-judgment motion. We thus overrule his second issue, as reframed
from Issues Presented 1 through 3.
Conclusion
Having overruled Hobson’s issues, we affirm the trial court’s judgment.
32
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: June 27, 2019
33