Sampson Thompson, Jr. and Earline Thompson, Gordon Ray Johnson v. Sam A. Winkelmann, Jr.

Opinion issued April 3, 2008 In The Court of Appeals For The First District of Texas NO. 01-06-00457-CV SAMPSON THOMPSON, JR., EARLINE THOMPSON, and GORDON RAY JOHNSON, Appellants V. SAM A. WINKELMANN, JR., INDIVIDUALLY AND AS TRUSTEE OF THE FANNIE GAYLE WINKELMANN TRUST, JOHN WINKELMANN, GINGER WINKELMANN, and MANUEL VARGAS, JR., Appellees On Appeal from the County Court of Law No. 3 and Probate Court Brazoria County, Texas Trial Court Cause No. 17918A MEMORANDUM OPINION Appellants Sampson Thompson, Jr., Earline Thompson, and Gordon Ray Johnson (collectively “the Thompsons”), appeal from the trial court’s judgment declaring that a right of ingress and egress to Island Cemetery exists over real property that the Thompsons do not own, but in which they have an interest. The Thompsons filed suit against appellees, Sam A. Winkelmann, Jr., inividually and as Trustee of the Fannie Gayle Winkelmann Trust, John Winkelmann, Ginger Winkelmann, and Manuel Vargas, Jr. (collectively “the Winkelmanns”), (1) seeking a declaration of the right of ingress and egress over the property owned by the Winkelmann Tust and the right for their family to make future burials in the cemetery and (2) asserting claims for damages for intentional infliction of emotional distress, invasion of privacy, trespass, assault, tortious interference with an existing contract, breach of fiduciary duty, and negligent misrepresentation. In three issues, the Thompsons assert that the trial court erred (1) by granting partial summary judgment prior to trial in favor of the Winkelmanns because the trial court granted relief on grounds not mentioned in the Winkelmanns’ motion for summary judgment; (2) by admitting evidence that had not been produced during discovery or supplemented prior to the trial; and (3) by granting relief to the Winkelmanns that was not authorized by law. We conclude that the trial court did not have authority to enter the judgment encumbering the Thompsons’ land with the right of ingress and egress to Island Cemetery. We reverse and remand to the trial court. BackgroundThis dispute concerns access to Island Cemetery. Island Cemetery is approximately one acre in size and is located on land that was purchased by Ned Thompson in 1879. Relatives and descendants of Ned Thompson are buried in Island Cemetery. In 1951, a portion of the Ned Thompson land, including Island Cemetery, was sold to Fannie Gayle Winkelmann and is currently owned by the Fannie Gayle Winkelmann Trust, of which appellee, Sam Winkelmann, Jr., is trustee. The remaining Ned Thompson land is owned by the Ned Thompson Estate, in which the Thompsons and other relatives have an interest. There is no public ingress or egress available for the cemetery. In the past, visitors to the Island Cemetery used a route through the Winkelmanns’ property. The past route to the cemetery began at the Winkelmanns’ gate on County Road 450 in Brazoria county, went past the houses of Sam Winkelmann and his brother, past some barns, and through a pasture that led to the cemetery. Prior to appellee, Sam Winkelmann, Jr., acting as trustee for the Winkelmann Trust, his father, Sam Winkelmann, Sr., held that position. Sam Winkelmann, Sr., allowed reasonable access to Island Cemetery until the father of appellant, Sampson Thompson, filed suit against him in 1988. Access to the cemetery was later restricted. In 2003, the Thompsons and others attempted to visit Island Cemetery by setting out across the Winkelmann’s property. However, Sam Winkelmann, Jr., blocked access to the cemetery by driving a large grader into the path appellants were attempting to take. One of the people attempting to visit the cemetery called the sheriff’s office, which resulted in permission for the Thompsons and the other visitors to make a brief visit to the cemetery. This suit was filed in December 2004 by the Thompsons and other plaintiffs, seeking a declaration under the Uniform Declaratory Judgments Act and section 711.041 of the Texas Health and Safety Code. Specifically, the Thompsons sought the right of ingress and egress to the cemetery through the historic route that traversed over the Winkelmann property and the right to conduct future burials at the cemetery. The Thompsons also sought damages for intentional infliction of emotional distress, invasion of privacy, trespass, assault, tortious interference with an existing contract, breach of fiduciary duty, and negligent misrepresentation. The Winkelmanns counterclaimed for a declaratory judgment, common law fraud, an action to quiet title, intentional infliction of emotional distress, and abuse of process. In their counterclaim for declaratory judgment, the Winkelmanns asserted that the Thompsons’ request for ingress and egress to and use of the cemetery “vastly exceeds Texas law,” and requested a declaration that (1) set out “reasonable ingress and egress for the purpose of visiting the private burial grounds”; (2) limited the “right of access extends only to visitation during reasonable hours and only for purposes usually associated with cemetery visits”; and (3) allowed the Winkelmanns to designate “the route for reasonable ingress and egress to the burial grounds . . . [as] the owner of the land surrounding the burial site.” In their prayer for relief, the Winkelmanns asked the court to deny the Thompsons’ “request for an easement on the Winkelmann property” and “[d]eclare that the Winkelmanns have the right to determine the location for ingress and egress to the burial sites.” The Winkelmanns filed a motion for summary judgment on the issue of the right to future burials, which the trial court granted. However, the trial court’s summary judgment order also stated, “IT IS FURTHER ORDERED that Defendants/Counter-Plaintiffs, Sam A. Winkelmann, Jr., in his individual capacity, Ginger Winkelmann and Manuel Vargas, Jr. are dismissed and are no longer parties to this lawsuit.” After the partial summary judgment, but before trial on the remaining claims, appellants nonsuited all claims except for the request for declaratory judgment and the claim for intentional infliction of emotional distress. At trial on March 22, 2006, the Thompsons requested a declaratory judgment for the court to declare a route, either route A or route B, to allow them access to Island Cemetery. The Thompsons presented evidence that the traditional access to Island Cemetery was across the historic route taken over the Winkelmann property, as described above. The historic route was designated at trial as route A. The Thompsons also presented an alternate route, designated route B, which reached Island Cemetery through a route along the Winkelmann property, but without passing close to the residences or barns on the Winkelmann property. Although the trial began with only routes A and B as the possible routes, the Winkelmanns offered, mid-trial, a third option that was identified as route C. During the Thompsons’ case-in-chief, Sampson Thompson, Jr., was the first witness. During the cross-examination of Sampson Thompson, Jr., the Winkelmanns’ trial counsel asked Thompson if visitors to Island Cemetery could access the cemetery by coming down the land owned by the Ned Thompson Estate and then turning onto the Winkelmann land. Counsel also asked Thompson why he did not want to use the land owned by the Ned Thompson Estate to access the cemetery. This was the first time the issue of a right of ingress or egress over the land owned by the Ned Thompson Estate was raised. After the Thompsons rested, the Winkelmanns presented Sam Winkelmann, Jr., as a witness. Winkelmann described a route for ingress and egress to the cemetery, later identified as route C, that began at County Road 450, went through the land owned by the Ned Thompson Estate in a straight line to the back of the tract, and then cut across the tract toward the cemetery in the Winkelmann tract. The Thompsons did not object to this testimony. After Sam Winkelmann, Jr.’s testimony, the trial was continued for three weeks, until April 12, 2006, when the Winkelmanns presented evidence from a licensed surveyor, Randy Stroud. Stroud testified that he had examined and surveyed the cemetery and the Winkelmann tract. He made plats showing the cemetery and its dimensions. Stroud’s plats showed route A, which was the route used in the past; route B, the alternate route along the Winkelmann property; and route C, described by Winkelmann as the route that traversed over the land owned by the Thompson trust. Stroud also determined the length of each of the proposed routes. The Thompsons objected on the basis that the Winkelmanns had not disclosed the maps, plats, or mental impressions of Stroud, a testifying expert, prior to trial. The trial court overruled the objection by explaining that the Thompsons were not surprised because the issue of the location of the cemetery access was the key issue in the trial. The trial court did, however, allow the Thompsons two hours to review Stroud’s plats. The Thompsons presented the testimony of Sampson Thompson, Jr. during their rebuttal. Thompson testified that he and the other plaintiffs were not the owners of the Ned Thompson tract, which he said was owned by the Ned Thompson Estate. He further stated that not all of those with an interest in the property were parties before the court. After the trial, but before entering a final written judgment, the trial court found that the Thompsons were entitled to reasonable rights of ingress and egress to Island Cemetery. The court also found that the Winkelmanns’ proposal, route C, was the reasonable alternative and that the issue had been tried by consent. The trial court also acknowledged that while the Thompsons were not “the owner[s] in fee” of the property through which route C traversed, the court had the authority to designate route C over the Thompson tract as the means of reasonable access to Island Cemetery. The trial court rendered a final written judgment declaring that the reasonable route of ingress and egress was route C. The Health and Safety Code In their third issue, the Thompsons contend that “[t]he trial court’s decision to order a route to the cemetery across Appellants Thompsons’ property does not comport with Texas law and results in an unconstitutional taking of said land.” The trial court applied section 711.041 of the Texas Health and Safety Code,. Section 711.041, entitled “Access to Cemetery,” provides, (a)Any person who wishes to visit a cemetery or private burial grounds for which no public ingress or egress is available shall have the right to reasonable ingress and egress for the purpose of visiting the cemetery or private burial grounds. This right of access extends only to visitation during reasonable hours and only for purposes usually associated with cemetery visits. (b)The owner or owners of the lands surrounding the cemetery or private burial grounds may designate the routes of reasonable ingress and egress. Tex. Health & Safety Code Ann. § 711.041 (Vernon 2003). Section 711.041 is applicable to property that surrounds, is adjacent to, or is contiguous with the actual cemetery grounds. Compare Davis v. May, 135 S.W.3d 747, 749 (Tex. App.—San Antonio 2003, pet. denied) (holding imposition of easement was not unconstitutional taking because Davis’s property surrounded cemetery) and Meek v. Smith, 7 S.W.3d 297, 301 (Tex. App.—Beaumont 1999, no pet.) (holding imposition of easement did result in improper taking because “actual cemetery grounds involved are not surrounded by, adjacent to, nor contiguous with the Meeks’ property”). Section 711.041 is applicable to older cemeteries previously controlled by common law. According to an attorney general opinion responding to an inquiry regarding the application of chapter 711 of the Health and Safety Code to older cemeteries dedicated under the common law, the attorney general stated that “Section 711.041 requires the owner of a cemetery or private burial ground to provide reasonable public access for visiting purposes.” Op. Tex. Att’y Gen. No. JC-0355 (2001) (emphasis added). The underlying authority for the decision in Davis and the attorney general opinion is Houston Oil Co. v. Williams. 57 S.W.2d 380, 384–85 (Tex. Civ. App.—Texarkana 1933, writ ref’d). In Williams, the court described the common law rights associated with cemeteries: It appears to be the rule that, where property has been actually appropriated either as a private family burying ground or as a public cemetery, it cannot in either instance be inherited or conveyed as other property is done so as to interfere with the use and purposes to which it has been devoted. . . . “When once dedicated to burial purposes, and internments have there been made, the then owner holds the title to some extent in trust for the benefit of those entitled to burial in it, and the heir at law, devisee, or vendee takes the property subject to this trust.” Id. (quoting Hines v. Tennessee, 149 S.W. 1058, 1059 (Tenn. 1911)). In pertinent part, the trial court’s findings of fact determined, 1.A cemetery exists on land owned by the Fannie Gayle Winkelmann Marital Trust . . . 3.The land on which the Cemetery is located was historically part of a tract of land that was acquired by Ned Thompson in 1879. That tract of land is . . . referred to herein as the “Ned Thompson Tract.” The Ned Thompson Tract has historically been used for cemetery purposes, including ingress and egress. 4.The portion of the Ned Thompson Tract not presently owned by the Fannie Gayle Winkelmann Marital Trust is owned by the heirs of Ned Thompson, including The Reverend Sampson Thompson, Jr., a plaintiff in this case. Further, the trial court stated in a conclusion of law, as follows, 4.The Ned Thompson Tract, by its historic use and devotion for cemetery purposes including ingress and egress, became burdened with the easements, licenses, and similar rights and restrictions applicable to lands used for cemetery purposes. One of the trial court’s other conclusions of law was that section 711.041 of the Health and Safety Code controls the disposition of the issues related to access to Island Cemetery. The trial court ordered a right of access to Island Cemetery over land owned by the Winkelmann Trust, which was land that was adjacent to and contiguous with the cemetery and therefore subject to the access rights guaranteed by the Health and Safety Code. See Davis, 135 S.W.3d at 749; Meek, 7 S.W.3d at 301. However, the trial court also ordered access to that route over the Thompsons’s land, which does not surround and is not adjacent to or contiguous with the cemetery. See Davis, 135 S.W.3d at 749; Meek, 7 S.W.3d at 301; Op. Tex. Att’y Gen. No. JC-0355. It is undisputed that neither the appellees nor the Thompson Trust own the cemetery. Cf. Op. Tex. Att’y Gen. No. JC-0355 (stating that owner of cemetery must provide access). Because the Thompson tract does not surround, is not adjacent to, and is not contiguous with the actual cemetery grounds, and the Thompsons do not own the cemetery, we conclude that the trial court had no authority to order a right of ingress or egress over the Thompson tract. See Davis, 135 S.W.3d at 749; Meek, 7 S.W.3d at 301; Op. Tex. Att’y Gen. No. JC-0355. We sustain that portion of the Thompsons’ third issue concerning the trial court’s authority to enter the judgment declaring a right of ingress and egress over the land of the Ned Thompson Estate. Summary Judgment In their first issue, the Thompsons contend that the trial court erred by granting summary judgment on the Thompsons’ personal injury claims and “dismissing appellees Ginger Winkelmann, Manuel Vargas, Jr., and Sam Winkelmann, in his individual capacity, as parties to the lawsuit when said issues/claims were not expressly presented in the Appellees’ Motion for Summary Judgment.” Generally, a summary judgment motion “must stand or fall on the grounds expressly presented in the motion.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). Although “[g]rounds may be stated concisely, without detail and argument[,] . . . they must at least be listed in the motion.” Id. at 340–41. Prior to trial, the Winkelmanns moved for summary judgment on the Thompsons’ claim for the right to conduct future burials at the Island Cemetery and on the claim for access to Island Cemetery, which the trial court granted. Thus, the Thompsons are correct that the Winkelmanns did not move for summary judgment on the Thompsons’ various tort claims against the individual appellees, on which the trial court nevertheless ruled in granting partial summary judgment to the Winkelmanns. However, after the summary judgment was entered and prior to trial, the Thompsons nonsuited all of their tort claims except the intentional infliction of emotional distress claim based on Sam Winkelmann, Jr.’s having blocked their access to the cemetery with the grader. The Texas Supreme Court has addressed the rights of plaintiffs to take a nonsuit after entry of partial summary judgment against them, stating: In Texas, our general rule is that plaintiffs have the right to take a nonsuit at any time until they introduce all evidence other than rebuttal evidence. Such a nonsuit may have the effect of vitiating earlier interlocutory orders. A decision on the merits, such as a summary judgment, however, is not vitiated. This includes partial summary judgments. . . . . To give any force to the partial summary judgment provisions, those judgments must withstand a nonsuit. A partial summary judgment is a decision on the merits unless set aside by the trial court. It becomes final upon the disposition of the other issues of the case. Once a judge announces a decision that adjudicates a claim, that claim is no longer subject to the plaintiff’s right to nonsuit. A nonsuit sought after such a judicial pronouncement results in a dismissal with prejudice as to the issues pronounced in favor of the defendant. Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854–55 (Tex. 1995) (citations omitted). Because the Thompsons nonsuited their personal injury claims after the trial court had adjudicated the claims, those issues decided for the Winkelmanns were dismissed with prejudice. See id. We overrule the Thompsons’ first issue. Because of our disposition of the first and third issues, we do not reach the second issue that concerns a challenge to the admission of evidence. Conclusion We reverse that portion of the judgment declaring that the Thompsons must use land owned by the Ned Thompson Estate to access the cemetery. We remand this cause to the trial court for further proceedings not inconsistent with this opinion. All pending motions are dismissed as moot. Elsa Alcala Justice Panel consists of Justices Taft, Keyes, and Alcala.