In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-24-00306-CV
JOHN P. SUITTS AND KELLY A. MARCHMAN-SUITTS, Appellants
V.
RUDY R. AMADOR AND CAROLYN S. AMADOR, Appellees
On Appeal from the 457th District Court
Montgomery County, Texas
Trial Cause No. 23-05-07672-CV
MEMORANDUM OPINION
Appellants John P. Suitts and Kelly A. Marchman-Suitts (collectively referred
to as “the Suitts”) argue that the trial court erred in submitting a jury question which
allowed the jury to find an easement by estoppel on the Suitts’ property when there
is no easement by estoppel as a matter of law. The Suitts also complain the trial court
erred in granting a directed verdict on one of the claims based on its conclusion that
limitations bars the Suitts’ continuous trespass claim when the injury to their
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property was not permanent. The Appellees Rudy R. Amador and Carolyn S.
Amador (collectively referred to as “the Amadors”) filed a cross-appeal but this
Court granted the Amadors’ motion to dismiss their cross-appeal. See Suitts v.
Amador, No. 09-24-00306-CV, 2025 WL 2473239 (Tex. App.—Beaumont Aug. 28,
2025, no pet.) (mem. op.). For the reasons explained below, we affirm the trial
court’s judgment.
BACKGROUND
The Suitts, the owners of Lot 59 in the Pebble Glen on the Lake Subdivision
(“the Suitts Property”) filed suit against the Amadors, their neighbors who own Lot
58 (“the Amadors Property”). Both properties are waterfront lots on Lake Conroe,
and the northern boundary line of the Suitts Property and the southern boundary of
the Amadors Property are on the same line (“the common boundary line”). Both
properties are subject to the Declaration of Covenants, Conditions and Restrictions
of the subdivision (hereafter referred to as “the Restrictions”), which provide that:
[A]ny Lot Owner is authorized to prosecute proceedings at law or in
equity against any person or persons violating or attempting to violate
these Covenants and Restrictions and to prevent him or them from
doing so and/or recover damages or dues for such violations.
The plat of the subdivision includes building lines. The Suitts Property has a
five-foot building setback area along the common boundary, and the Amador
Property has no building setback along the common boundary line. The Amadors’
residence is located less than five inches from the common boundary line. The plat
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does not burden the Suitts Property with an easement in favor of the Amador
Property. The Restrictions do not contain an easement allowing the Amadors to enter
the Suitts Property. The Restrictions contain what the parties call a “view easement”
provision requiring owners of lakefront lots not to obstruct another neighbor’s view
of Lake Conroe.
The Restrictions establish utility easements, including (1) a ten-foot utility
easement at the front of the Suitts Property and the Amador Property; (2) a dedicated
five-foot wide Entergy Utility Company easement extending from the surface of the
ground downward and two and one half feet on each side of the underground electric
service lines and extending along the route selected by Entergy Utility Company;
and (3) the reserved right to grant a further utility easement at a later date for the
purpose of erection, construction, maintenance, repairs, the continuous placement of
an electrical lighting system, and to clear and remove obstructions such as trees and
other landscaping.
The Suitts’ causes of action against the Amadors include: a violation of
section 11.086 of the Texas Water Code for wrongfully diverting and/or impounding
the natural flow of surface water onto the Suitts Property; trespass by water diversion
without an easement; an action to enforce deed restrictions; trespass; and a request
for a declaratory judgment. The Suitts sought a declaration that: the Amadors do not
have an easement for entry onto any portion of the Suitts Property; the Amadors do
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not have an easement for the use of the Suitts Property; the Amadors do not have an
easement for the maintenance of the Amadors Property by means of entry onto the
Suitts Property; the Amadors do not have a utility easement which burdens the Suitts
Property; the Amadors do not have any other easement burdening the Suitts
Property, except for a view easement on the lake side of the Suitts Property; the
Amadors’ gas meter is located without permission on the Suitts Property and
constitutes a trespass; the Amador’s Generac panel extends without permission onto
the Suitts Property and constitutes a trespass; and the Amadors’ electric meter
extends without permission onto the Suitts Property and constitutes a trespass.
Concerning the trespasses, the Suitts alleged that the Amadors trespassed and
continue to trespass on the Suitts Property by diverting water drainage onto the Suitts
Property and by physically entering the Suitts Property, either personally or through
their contractors, and placing equipment, including a gas meter, electric meter,
Generac panel, sprinkler and water line. The Suitts alleged that the Amadors violated
the view easement in the Restrictions by planting trees and plants along the common
boundary line and obstructing the Suitts’ view of Lake Conroe. The Suitts also
alleged that the Amadors violated the Texas Water Code and Restrictions therein by
raising their driveway and backyard, tying their drain lines into a drain line on the
Suitts Property, interfering with the established drainage pattern, and diverting the
drainage of surface water onto the Suitts Property.
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The Suitts requested a temporary and permanent injunction enjoining the
Amadors and their guests, invitees, agents, or assigns from entering any portion of
the Suitts Property to prevent further damage to their property due to the Amadors’
diversion of the natural flow of surface water. The Suitts requested that the
permanent injunction include ordering the removal of the Amadors’ gas meter,
electric meter, and Generac panel from the Suitts Property. The Suitts also requested
damages and to recover their costs and reasonable and necessary attorney’s fees.
The Amadors filed an Original Anwer generally denying the Suitts’ claims
and asserting other defenses including the doctrine of unclean hands, estoppel,
laches, waiver, prior agreement, and limitations. The Amadors explained that the
Restrictions permit the construction of homes on Lots 58 and 59, which both have a
zero-setback requirement which requires access on the neighbor’s lot along the
common boundary line to perform maintenance and repairs on the home built along
the line with the zero setback. The Amadors filed a Counterclaim, asserting that they
are entitled to use the five-foot setback area described in the plat for the purposes of
performing maintenance and repairs of their home. The Amadors maintained that
they are entitled to such limited access and use pursuant to the Restrictions, an
easement by estoppel, easement by prescription, easement by necessity, and means
of declaratory relief. The Amadors asserted that the Suitts also diverted the natural
flow of water on the Amadors Property.
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In 2013, the Amadors purchased the home on Lot 58, and their home’s electric
service and meter, gas service and meter, and cable service were installed in 2003
when the home was built. The Generac generator and interconnect were installed in
2016 with the consent and in compliance with the requirements of the Architectural
Control Committee (“ACC”) and City of Conroe. The Amadors argued that from
2003 until 2023, when the Suitts filed suit, the owners of the Amador Property had
continued uninterrupted use and access to the Suitts Property’s five-foot setback area
for the purposes of maintaining and repairing the home on the Amador Property. The
prior owners of the Amador Property, Charles and Barbara Rosok (“the Rosoks”),
installed a drain line within the Suitts’ five-foot setback area with the Suitts’ consent.
The Amadors installed an additional drain line and a French drain within the Suitts’
five-foot setback area along with fill and sod, and the Suitts contributed to the cost
and allowed the Amadors to connect their outdoor kitchen sink to the drain line. The
Amadors denied that they raised the elevation of their driveway when they replaced
it and claimed that the new driveway drains rainwater away from the Suitts Property.
Prior to trial, the trial court denied the Suitts’ No-Evidence Motion for
Summary Judgment as to the Amadors’ claims for an easement under the deed
restrictions, easement by estoppel, and easement by necessity, and granted the Suitts’
Motion as to the Amadors’ claims for easement by prescription and water diversion.
The trial court conducted a jury trial.
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John P. Suitts (“John”) testified that he is married to Kelly Marchman-Suitts
(“Kelly”). John explained that they filed suit against the Amadors because the
Amadors did not respect the Suitts’ property rights and made claims against the
Suitts Property that were not based on a written easement. In 2007, the Suitts
purchased the Suitts Property, and in December 2009, when the Suitts moved in,
their neighbors, the Rosoks, were selling their home to the Amadors. John explained
that his property and the Amador Property have a common boundary line and that
the Amadors claim to have some sort of easement that allows them to access his
property. John testified that the plat of the Subdivision does not show the Amadors
have any sort of easement to use his property.
John explained that the plat shows there is a five-foot building line but no
utility easement between his property and the Amador Property, and that the plat
does not show there is a drainage or access easement on his property. Concerning
Lake Conroe’s water level, the plat shows the San Jacinto River Authority has a
flowage and inundation easement up to 207 mean sea level, and the plat provides
that all structures must have a minimum floor elevation of 207 feet. The plat states
that all lots have a zero side and rear building line unless otherwise noted.
John testified that his complaints included the Amadors having their natural
gas meter and electric meter on his property. John explained that the Amadors’
countersuit alleges they have a three-foot-wide easement along the side of the Suitts
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Property. John testified that the plat shows the front of his property has a ten-footwide utility easement along the street. The plat also shows there is a dedicated fivefoot-wide Entergy Utility Company (“Entergy”) easement extending from the
surface of the ground downward extending two and a half feet on the side of
underground electric service lines and upon the route selected by Entergy to the
electric meter as located upon lots in the Subdivision. John testified that the
Amadors’ home is built over Entergy’s easement as the home is within two and a
half feet of that easement.
John testified that the Subdivision’s Restrictions allow residential dwellings
to be built to the side lot line, but John explained that his house was built two feet
from the lot line to allow room to paint and fix his home. John agreed that the
Restrictions state that there is a reserved right on behalf of the Subdivision’s owner
and any public utility company to “grant upon, across and over each Lot an easement
and license along the perimeter boundaries of each Lot to the width of three feet
measured from each boundary line of each Lot, protruding from each boundary line
into the interior portion of each Lot, for the purpose of erection, construction,
maintenance, repairs and continuous placement of an electrical lighting system
throughout the Property[.]” John testified that there is no electrical lighting system
along his property line. The Restrictions also reserve the express right on behalf of
each of the Subdivision’s owner and any public utility company to “enter upon any
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Lot for the purpose of construction, installation, maintenance, repair and . . . to
remove any obstruction as might exist within this designated area, and such shall not
be deemed to be a trespass in any respect to the rights of the Owner of the Lot[.]”
John explained that the Restrictions provide that no owner may enter upon an
adjacent lot for the purpose of ingress or egress to his own lot during or after
construction unless the adjacent lot owner has given written approval. John testified
that on one occasion, the Amadors asked for his permission via text message to enter
his property to paint, and John gave the Amadors permission. The Restrictions also
provide that the owner of any lot must provide the ACC a drainage plan in the event
of any construction, and with the ACC’s approval, the owner can establish an
alternate drainage plan for low areas.
John testified the north side of his property is habitually wet due to water
coming between the building and off the Amadors’ roof. John explained that the
Restrictions require excavation from swimming pools to be hauled from the site, but
when the Amadors installed a swimming pool, they blocked the flow of water by
using the excavation to build up their deck. John was seeking to enforce the
Restrictions against the Amadors for draining water onto his property and for having
their gas meter, electrical meter, and Generac panel on his property despite not
having an easement. John refuted the Amadors’ allegations that the Amadors’
predecessors in title installed the underground drains on the Suitts Property. John
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explained that the underground drains were initially installed when his home was
built and that he personally tied in an additional drain line to help the Rosoks, the
Amadors predecessors in title.
John explained that in the two years prior to filing suit in May 2023, John
gave Rudy Amador written permission once to enter the Suitts Property, but the
Amadors continued to enter the Suitts Property without permission. Since filing suit,
John had not given the Amadors permission to enter his property, but the Amadors
“just sent workmen over.” John testified that his deed to the Suitts Property does not
give the developer of the Subdivision a reserved easement across his property, and
the deed to the Amador Property does not grant the Rosoks or Amadors an easement
across the Suitts Property.
John testified that an October 2021 encroachment survey of the Suitts
Property shows there is a little more than two feet between the Suitts Property and
the Amador Property and that the Amadors’ gas meter, electric meter, Generac
panel, and gutter extend onto his property. John did not authorize the Amadors to
come onto the Suitts’ Property to service their Generac panel or to do yardwork, and
John stated that he believed the Amadors installed a fence along their driveway in
response to the criminal trespass warning. John did not authorize Rudy to enter his
property to install a fence, gate, plastic trim, or rock. John stated that he was
intimidated when Rudy entered his yard while wearing his law enforcement uniform.
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John testified that on May 21, 2022, he observed Rudy direct somebody from the
Amador Property when they entered his yard and adjusted his yard light without his
permission. John testified that a video from May 29, 2022, shows Rudy entering his
property and kicking over a security light. On August 13, 2022, Rudy received a
criminal trespass warning not to enter the Suitts Property, and John testified that the
Amadors installed the fence and continued to send technicians onto his property after
that date. John testified that a video from October 13, 2022, shows Rudy entering
his property and kicking over a survey stake. John testified that the Amadors had not
personally entered his property since October 13, 2022. John agreed that “in
general,” the Amadors would “have to walk through our property[]” to maintain or
repair the south side of their home. John stood by his testimony that it was not
physically possible to work on the Amador Property without entering his property.
Both the Suitts’ survey and the Amadors’ survey show a five-foot setback area
but no easement on the Suitts Property in favor of the Amador Property. John
explained that the concrete from the Amadors’ pool installation blocked the natural
flow of water off the Suitts Property. John stated that the Amadors built their pool
deck above the natural grade by using the spoil out of the hole instead of hauling it
off. John explained that he was asking for the Amadors to install drainage to catch
the water from their gutters as required by the Restrictions. John also explained that
the Amadors were draining the gray water from their sink into his drain line that
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exits through his bulkhead. John testified that he gave the Amadors permission to tie
into his PVC pipes to do their rear outdoor kitchen and other improvements but did
not give them permission to route other lines, including a sewer line, onto the Suitts
Property.
John stated that his property did not have a side lot utility easement, but the
plat of the Subdivision shows that other lots in the Subdivision have a ten-foot
building line with a utility and drainage easement. John testified that the Amadors
did not ask him for an easement either before or after the Amadors purchased the
Amador Property in August 2013. John agreed that prior to building his home, the
Rosoks were living in the Amadors’ home and that the electrical meter, gas meter,
telecommunications box, and gutter system were already in place. John complained
that the Amadors continued to place items on his property without permission. John
filed suit to keep the Amadors from trespassing and encroaching on his property.
John did not have evidence of any actual damages he sustained due to the Amadors’
trespasses and sought only nominal damages for the trespasses during the two-year
period prior to filing suit as well as attorney’s fees for his other causes of action.
Mark Czarnecki testified that in 2000, he purchased Lot 57 in the Subdivision,
and he explained that his lot is empty and that he has a fence between his lot and the
Amador Property. Czarnecki explained that the Amadors have paved a lot of the area
on the side of their home and put up a fence in the wrong place. Czarnecki testified
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that the Amadors’ concrete deck is about four feet from the fenceline and the
elevation of the Amadors’ pool is higher than the fence. Czarnecki explained the
Amadors have a Generac generator in the area between his lot and theirs and that the
generator is “clearly” on the Amador Property, but within the five-foot setback or
no build line. Czarnecki stated the lots, which were “very narrow[,]” are forty-five
feet wide with a five-foot offset for utilities or a sidewalk down the side of the home.
Derek Wind, a professional civil engineer who specializes in water resources,
testified that in the Fall of 2020, the Suitts hired him to evaluate the drainage at their
home. Wind inspected the Suitt Property, took photographs, reviewed photographs
and records, relied on LiDAR data from 2008 and 2018 that provided topographical
information, and prepared a report. Wind testified that the Amadors’ installation of
a swimming pool around 2016 to 2017 changed the general direction of the flow of
drainage because the Amadors significantly changed the elevation by using fill and
raising the elevation “in the range of a half a foot up to close to three feet.” Wind
explained that the raising of the Amador Property can redirect the natural flow of
water and potentially block the flow and not allow the water to drain as before. Wind
also testified that water could be potentially trapped in the lower area between the
Suitt Property and the pool side of the Amador Property because the Amadors raised
their backyard area and impeded the drainage flow.
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Wind stated that the Suitts have an underground drain, which would help
alleviate the problem caused by the Amadors’ pool. Wind did not observe any
evidence that the Amadors were collecting and disposing of the water they were
impounding by building a pool deck up to three feet above the natural grade. Wind
also found that the drainage from the Amadors’ roof was being discharged onto the
Suitts Property as it was likely coming down the Amadors’ downspouts and being
tied into the Suitts’ drainage pipe that flows to Lake Conroe. Wind explained that
the Amadors also redirected the flow of water toward the Suitts Property by cutting
a trench drain in their driveway to collect drainage and route it in a different direction
away from their garage. Wind opined that due to the drainage from the Amador
Property, the natural flow of water has either been blocked or redirected in a way
that either returns to the Suitts Property or prevents drainage that previously left the
Suitts Property from being able to drain. Wind explained that the Amadors should
have an engineer design a gutter system to drain water to Lake Conroe and a solution
to catch and dispose of the water the Amador property was impounding around their
pool.
On cross-examination, Wind testified that he was not sure whether water was
being impounded by the pool area and that it “appears it could be redirected.” Wind
had not personally observed any impounding or redirection of water from the
Amador Property or viewed photographs or video depicting such. Wind agreed that
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the contour lines on the Suitt Property from 2008 and 2018 were dramatically
different and that the LiDAR data he relied upon is known to be accurate within
approximately six inches. Wind also agreed that the data from 2008 and 2018
combined could have a total one-foot variance.
Wind testified that the data also showed that an area along the property line
was lower in 2018 after the Amadors installed the pool and that the area drains to
Lake Conroe. Wind was not sure whether there was any impounding of water, and
if there was any impounding, it would have been that way since the Amadors’ house
was built in 2004 or since the pool was installed in 2016. Wind testified that the
water redirected by the pool drains toward the Suitts Property and flows into Lake
Conroe. Wind agreed that his opinion would change regarding the Suitts’ drain line
if the parties had agreed to connect the Amadors’ gutter.
John’s wife, Kelly Marchman-Suitts (“Kelly”), testified that she met the
Amadors in 2014, after they bought the Rosoks’ home. Kelly did not have any
conversations with the Amadors prior to their purchase of the Rosok home. After the
Amadors moved in, which was in late 2014 or early 2015, there were times when
the Amadors came onto the Suitts Property without permission and the Amadors’
entries became more intrusive over time. There were also times that the Suitts gave
the Amadors permission to come onto their property. In August 2021, the Amadors
reroofed their home and left items on the Suitts Property without asking to access
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the Suitts Property. Kelly felt like the Amadors invaded her privacy when they
installed a camara that pointed directly into her window and set off an alarm when
anyone walked past it outside. Kelly explained that on one occasion after the Suitts
had their property surveyed, she heard the alarm sound and went outside and
encountered Carolyn Amador (“Carolyn”), who was carrying a tape measure and
using foul language and calling Kelly names. Kelly testified that the wrought iron
gate that Rudy gave the Suitts and installed on the Suitts Property prevented her from
working on the side of her home at times.
Kelly explained that after the Amadors installed a pool, Rudy pressured her
about better drainage after the Suitts tried to be courteous and let the Amadors tie
into their drainage. Kelly testified that the Amadors were supposed to use Amador
Property to take their own drainage. Kelly stated that in 2021, after the Suitts had
replaced their bulkhead, Rudy told her she had to take his water runoff. Kelly
observed Rudy kick over the Suitts’ survey stakes and stated the Amadors had
cussed at her when she pointed out their gas meter and Generac panel are over the
property line.
Kelly testified that Rudy told her there was a three-foot easement down the
property line that allowed his utilities to be placed on the Suitts Property, but Kelly
disagreed and stated there was no such easement. Kelly wanted the Amadors and
their workers to stay off her property. Kelly explained that in the two years prior to
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filing suit in May 2023, she did not give the Amadors permission to come onto her
property. Kelly explained that the Amadors had sued them, claiming they had an
easement, but there was no easement in favor of the Amadors in the Restrictions.
Kelly stated that she felt intimated when Rudy came onto her property while wearing
his police uniform.
Kelly explained that she viewed the video showing that during the night, Rudy
pulled his shirt over his head to disguise himself when he kicked over the light in
her yard. Kelly also viewed the video that showed Rudy breaking her survey stake,
and she explained that she called the police and had them issue Rudy a criminal
trespass warning. Kelly testified that another video showed Rudy getting one of his
guests to enter her backyard and move her light. Kelly stated they were seeking
nominal damages for the trespasses and injunctive relief to keep the Amadors off her
property. Concerning the Amadors’ claim of an easement by estoppel, Kelly
reiterated that she did not speak with the Amadors prior to their purchase of the
Amador Property and believes she did not say or do anything that made the Amadors
believe that they had an easement prior to the Amador’s purchase of the property.
Kelly explained that after Rudy gave them the gate he installed on the Suitts
Property, Kelly told Rudy the gate was getting in her way and she did not want to
use it, and part of the Suitts’ trespass claim includes Rudy removing the gate from
the Suitts Property during the night. Concerning drainage from the Amador Property,
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Kelly testified that she had videos of water running onto her property from the
Amadors’ driveaway or backyard, but she agreed none had been played during trial.
Kelly testified that she never told Rudy he needed their written permission to cross
the boundary line or to stop coming onto her property. Kelly stated that Rudy used
to check in when he did projects, but then he stopped asking.
Kelly agreed that the south side of the Amador Property was inaccessible for
repairs and maintenance except for coming onto the five-foot setback area on the
Suitts Property, and that had been the case since Charles Rosok (“Charles”) built the
Amador’s home in 2004. Kelly explained that when the Rosoks lived next door, the
Rosoks used the five-foot setback area to perform repairs and maintenance on their
home with the Suitts’ permission. The Amadors had done the same and Rudy used
to ask her permission when they chatted in the front yard, but that ended with the
trespass warning. Kelly stated that they had put up a fence and no trespassing signs
because of the Amadors’ actions. Kelly agreed that the Subdivision plat allows lots
to have zero setback building lines on the side lot, and when she bought her home,
she could see that the Rosoks had built their home close to the property line and that
“it was tight.”
After the Suitts rested their case, the Amadors moved for a directed verdict on
all the Suitts’ claims. The Amadors argued there was no evidence or insufficient
evidence of a violation of the Texas Water Code and that the complaints regarding
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water diversion are a permanent trespass which are barred by limitations because the
water diversion began in 2004 with the driveway renovation and extended into 2016,
or 2017, with the pool addition. Concerning the Suitts’ declaratory judgment, the
Amadors argued there was insufficient evidence to show the Amadors do not have
the requested easements. The Amadors also maintained the Suitts’ claim to enforce
deed restrictions has a four-year statute of limitations and is time barred because
they are permanent in nature and began more than ten years ago.
The Amadors argued that the Suitts’ trespass complaints are time-barred
under the affirmative defense of statute of limitations because the “two-year statute
for trespass has run anywhere from the years 2006 to the year 2019.” The Amadors
argued there was no evidence of any trespass damage for water diversion and that
the trespass claim concerning the gas meter, Generac panel, electric cable, gas lines,
Internet, and cable services are permanent trespasses barred by limitations. The
Amadors argued that there was no evidence or insufficient evidence to show that
Rudy physically trespassed on the Suitts Property after he received an actual trespass
notice or that any physical intrusion by a person on the Suitts Property was directed
by Rudy within the statute of limitations.
The trial court directed a verdict on the Suitts’ claims for diversion of surface
water under the Texas Water Code, trespass by water diversion, violation of deed
restrictions due to drainage, and the trespass claims regarding the “generator box,
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the gas line, any of those structures that have been installed more than four years,
because I do not find it’s a continuing tort.” The trial court found that those trespass
claims were not continuing torts because they involved continuing injuries that
stemmed from one wrongful act. The trial court found that the physical trespasses
by the Amadors or their agents that occurred within two years of the Suitts filing suit
were “fair game.” Concerning the diversion of water claims, the trial court found
that there was no evidence that one drop of water on a particular date entered the
Suitts Property or that the Amadors did anything to impede or misdirect the flow of
water, or of damages. The trial court noted that the dates of installing the roof,
gutters, and pool were beyond the two and four-year statute of limitations.
The Amadors called Mike Stoecker (“Stoecker”) as a witness. Stoecker
developed the Subdivision around 2000. Stoecker testified that the Notes on the plat
state that all the lots have a zero-foot side and rear building line unless noted
otherwise, meaning that you can build all the way up to the legal property line.
Stoecker explained that the north sides of the Suitt and Amador Properties have a
five-foot setback line, and the south side of the Amador Property has a zero-setback
line that allows you to build up to that line. Stoecker assumed that buyers could rely
on the representations in the plat when purchasing a lot in the Subdivision. Stoecker
explained that for homes built on the zero-setback line, access for maintenance and
repairs would be performed on the roof or on the five-foot setback line on the
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adjoining property. Stoecker’s intended purpose for the five-foot setback line was
for it to be used for major maintenance through the approval of the ACC or the HOA.
Stocker testified that setbacks provide a “[s]eparation of homes for the purpose of
the maintenance a lot of time.”
Stoecker testified that the Suitt Property did not have an access, utility, or
drainage easement. Stoecker had reserved easements for Entergy in the Restrictions,
but he did not reserve any easements on behalf of the owners who built on the zerosetback line to go onto the adjoining lot to maintain their home. Stoecker testified
that the Amador Property was originally sold to the Rosoks after the original sale of
the Suitt Property and that there was no easement reserved in the deed to the Suitt
Property for the maintenance of the Amador Property.
Rudy testified that he bought the Amador Property from the Rosoks and met
the Suitts a couple of months after he moved in. Rudy testified that he mowed the
Suitts’ yard at times without asking, and they never told him to stop and thanked him
for doing it. Concerning the five-foot setback area, Rudy testified that he had to
access that area to maintain his home and that he had used that area to inspect, repair,
and maintain his home from the time he bought his home in 2013 until he received
the trespass warning in 2022. Rudy pulled the weeds in the setback area without
asking the Suitts for permission, and the Suitts thanked him numerous times.
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Rudy testified that when he moved in, the front downspout for the gutters on
his home were already connected to the drain line that ran to the lake. Rudy
explained that there was one downspout that was not connected to the drain line, and
John gave him permission to connect it to the drain line. In 2015, Rudy and John
installed a French drain in the setback area because the Suitts’ yard was holding
water, but Rudy denied that water from his downspout was draining onto the Suitt
Property. They also added more gravel to the setback area. Rudy testified that John
gave him permission to connect the drain in his summer kitchen to the Suitts’ drain
line, which John and Charles had installed together. Rudy explained that the Suitts
never told him that his sprinkler head was tied into their sprinkler system, nor did
they ask him to remove it, and when Rudy discovered it and asked the Suitts’ lawn
man to cap it off, the man refused.
Rudy installed the gate he gave to the Suitts with John’s permission, and when
he came home from work wearing his police uniform, he would check the area and
close the gate about every day for five or six years. Rudy removed the gate because
the gate was always open. Rudy explained that during a get-together with neighbors,
one of their neighbors entered the Suitts Property and adjusted the Suitts’ light that
was facing the Amador Property because that neighbor stepped off the deck and fell
into the fence because of the light. Rudy agreed that the video showed he opened the
22
gate for the neighbor to enter the Suitts Property and told the neighbor the adjusted
direction of the light was okay but claimed he had nothing to do with the incident.
Concerning the video showing Rudy entering the Suitt Property at night with
his shirt covering his face, Rudy testified he was not trespassing and only went to
move the light. Rudy also admitted that he commented that the Suitts do not have
night vision cameras. Rudy agreed that he had entered the Suitts’ Property at night
while wearing his police uniform, which law enforcement uses to project a position
of authority. Rudy also agreed that a video showed him twice kicking over a survey
stake on the Suitts Property, but he claimed it was an involuntary act because he was
responding to an insect crawling up his leg. Rudy stated he first learned he was not
welcome on the Suitts Property when a police officer gave him a trespass warning
on October 12, 2022, the night he kicked over the stake. Rudy testified that he told
the police officer that he was mad because the Suitts put the stake right next to his
yard and he did not report that an insect had crawled up his leg.
In deciding to purchase the Amador Property that was built on a zero-setback
line, Rudy reviewed the plat and understood that he could use the five-foot setback
area on the Suitts Property to maintain the south side of his home. Rudy explained
that he walked in the setback area and around the Suitts’ home numerous times late
in the evening when the Suitts were away to make sure things were secure and that
the Suitts had thanked him for doing so. Rudy testified that the conversation he had
23
with the Rosoks about buying the Amador Property did not change his opinion about
buying the home, and he was not concerned about the neighbors not allowing him
to maintain the house because he did not think there was a problem. Rudy saw and
relied on the plat prior to purchasing the Amador Property, which he knew had a
zero-setback line, and he recognized that he did not have a means to maintain his
home without entering the Suitts Property. Rudy stated that he relied on the plat and
being able to use a five-foot setback area on the Suitts Property to maintain the south
side of his home, and that nobody told him anything to the contrary. Rudy agreed
there was nothing in writing or in his chain of title giving him the right to enter the
Suitts Property.
Rudy explained that he informed John about when contractors were coming
as a courtesy. After receiving the trespass warning, Rudy did not go onto the Suitts
Property, and he told his contractors not to as well. Rudy asked that the jury
recognize a form of easement that would settle his dispute with the Suitts and allow
him to use the five-foot setback area to repair and maintain his home.
Rudy claimed that the utility easement in favor of Entergy and utility
companies in the Restrictions entitles him to limited access and use of the five-foot
setback area, but he agreed that the Suitts Property does not have a side lot utility
easement and that Entergy’s easement began at the surface and ran underground two
and a half feet beside their utility lines. Rudy agreed that the Restrictions did not
24
give him an easement for purposes of maintenance and repair and that nothing in the
plat or deeds gives him the right to enter the Suitts Property. Concerning an easement
by estoppel, Rudy admitted that the first time he spoke with the Suitts was two
months after he moved onto the Amador Property. Rudy agreed that the Suitts did
nothing that changed his course of dealing while purchasing the Amador Property.
Rudy asked that the jury impose an easement on the five-foot setback area on the
Suitts Property so he can maintain the south side of his home. Rudy agreed that it
would have been prudent to have contacted the Suitts prior to purchasing the Amador
Property and to have worked out an easement agreement.
Charles testified that he built the home on the Amador Property near the zerosetback line on the side of his lot as did other homeowners in the Subdivision.
Charles testified by building a home on the zero-setback line, it was implied to
everybody in the Subdivision “that if you had to do something to your house that
you could do it.” Charles built his home about three years before a home was built
on the Suitts Property, and he explained that his builder recommended that he put a
strip of grass on the south side of his home to prevent erosion around his foundation.
Charles explained that after Hurricane Rita, his contractor repaired some faulty
stucco on the south side of his home.
After the Suitts moved in, Charles received John’s permission to install a drain
line along the south side of his home that went through the bulkhead and into the
25
lake, and they tied in the gutters on both their homes. Other than the drain line,
Charles did not recall asking the Suitts for permission to do any other work on the
south side of his home. Charles explained that he personally performed his routine
maintenance or had it done.
After the Amadors rested their case, the Suitts moved for a directed verdict on
the Amadors’ claims for easement by estoppel, easement by deed restrictions, and
easement by necessity. The Amadors withdrew their claim for an easement by deed
restrictions. The trial court submitted to the jury the Amadors’ claims for an implied
easement by estoppel, prior use, and necessity. The trial court denied the Suitts’
request to submit their trespass damage claim to the jury. The trial court found that
there had been a physical trespass within two years of suit being filed that was not
permitted by the existence of any claimed easement, the Suitts were entitled to
recover nominal damages for trespass, and that it would not submit the attorney’s
fees question to the jury because neither party would be awarded attorney’s fees
under their competing declaratory judgment claims.
During the jury charge conference, the trial court rejected the Suitts’ request
to submit their proposed instructions on trespass, trespass damages, and attorney’s
fees. The trial court overruled the Suitts’ objection to the submission of Jury
Question 1 concerning an implied easement by necessity due to insufficient proof.
The trial court overruled the Suitts’ objection to the submission of Jury Question 2
26
concerning an implied easement by estoppel based on their being no evidence or
insufficient evidence that the Suitts “did anything that was relied upon by the
Amadors in purchasing this property.” The Suitts also argued there was no implied
easement by estoppel based on any representation from the developer of the
Subdivision recording a plat that included a zero-setback line. The trial court
overruled the Suitts’ objection to the submission of Jury Question 3 concerning an
implied easement by prior use due to insufficient proof.
In Jury Question No. 1, the jury found that the Amadors did not have an
implied easement by necessity to use the five-foot building setback area on the Suitts
Property for purposes of maintenance and repair. In Jury Question No. 2, the jury
found that the Amadors did have an implied easement by estoppel to use the fivefoot building setback area on the Suitts Property for purposes of maintenance and
repair to the south side of their home. The jury was instructed that the Amadors had
an implied easement by estoppel if:
(1) [T]here was a representation communicated, either by word, action,
or failure to speak when there is a duty to speak, regarding the use of
the area known and described as the five foot building set-back area on
the north side of Lot 59 for purposes of maintenance and repair to the
south side of their home located on Lot 58;
(2) [T]he representation was believed by Rudy R. Amador and Carolyn
S. Amador;
(3) Rudy R. Amador and Carolyn S. Amador relied on the
representation; and
(4) Rudy R. Amador and Carolyn S. Amador did so to their detriment.
27
In Jury Question No. 3, the jury found that the Amadors did not have an
implied easement by prior use.
The trial judge denied the Suitts’ Motion for Judgment Notwithstanding the
Verdict, explaining that he agreed that there is an easement by estoppel and that the
jury’s verdict is supported by the law and the evidence. The trial court found there
was a trespass on two occasions for non-maintenance reasons and issued a
permanent injunction in favor of the Suitts for the Amadors not to trespass for
anything other than maintaining the south side of their home and utilities as
authorized by easement. The trial court awarded the Suitts $100 in nominal damages
for the civil trespasses and ordered the Suitts to remove their fence along the south
side of their property.
The trial court awarded the Amadors declaratory relief recognizing the
existence of an easement in favor of the Amadors and their heirs, successors, and
assigns to the five-foot setback area location on the north side of the Suitts’ Property
for the purposes of performing repairs and maintenance to the south side of the
Amador Property by any means, including temporary or permanent fixtures,
structures, obstructions, or other means or devices. The trial court’s Final Judgment
incorporates the jury’s findings and the trial court’s rulings.
28
ANALYSIS
Jury’s Finding of Easement by Estoppel
In issue one, the Suitts contend there is no easement by estoppel as a matter
of law. The Suitts complain that the trial court should not have submitted Question
2 to the jury. The Suitts did not object to the wording of Question 2, their objection
was that there was no evidence or insufficient evidence that the Suitts “did anything
that was relied upon by the Amadors in purchasing this property.” The Suitts also
objected that there was no implied easement by estoppel based on any representation
from the developer of the Subdivision recording a plat that included a zero-setback
line.
Before measuring the sufficiency of the evidence, we first identify the
standard against which the evidence is to be measured. St. Joseph Hosp. v. Wolff, 94
S.W.3d 513, 530 (Tex. 2002). “[I]t is the court’s charge, not some other unidentified
law, that measures the sufficiency of the evidence when the opposing party fails to
object to the charge.” Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (citations
omitted); see also Tex. R. Civ. P. 274 (regarding waiver for failure to object); Tex.
R. Civ. P. 278 (precluding a reversal on the basis of charge error unless the
complaining party submitted a “substantially correct” definition or instruction in
writing). The charge given placed the burden of proof on the Amadors regarding the
easement by estoppel finding. Because we review the sufficiency of the evidence
29
based on the charge given, we need not address any of the Suitts’ arguments
concerning missing elements or law that should have been included in the charge,
including there was no fraud, named communicator, legal duty, fiduciary
relationship, vendor/vendee relationship, commercial transaction, or balancing of
the equities. See Osterberg, 12 S.W.3d at 55.
When a party on appeal attacks the legal sufficiency of the evidence
supporting an adverse finding on an issue for which it did not have the burden of
proof, the complaining party must show that no evidence supports the jury’s adverse
finding. See Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex.
2011); see also Graham Cent. Station, Inc. v. Peña, 442 S.W.3d 261, 263 (Tex.
2014). We must consider all the evidence “‘in the light most favorable to the party
in whose favor the verdict has been rendered,’” and “‘every reasonable inference
deducible from the evidence is to be indulged in that party’s favor[.]’” Bustamante
v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017) (quoting Merrell Dow Pharms., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
Evidence is legally insufficient to support a jury finding when (1) the record
discloses a complete absence of evidence of a vital fact; (2) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to prove
a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere
scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact.
30
Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 613 (Tex. 2016)
(citations omitted). As the sole judges of the witnesses’ credibility and the weight to
give their testimony, the jurors may choose to believe one witness and disbelieve
another. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). In a legal
sufficiency review, we “credit favorable evidence if reasonable jurors could, and
disregard contrary evidence unless reasonable jurors could not.” Id. at 827. “The
final test for legal sufficiency must always be whether the evidence at trial would
enable reasonable and fair-minded people to reach the verdict under review.” Id.
“We will uphold the jury’s finding if more than a scintilla of competent evidence
supports it.” Herrera v. Wendell Legacy Homes, LLC, 631 S.W.3d 441, 451 (Tex.
App.—Beaumont 2021, no pet.) (citing Tanner v. Nationwide Mut. Fire Ins. Co.,
289 S.W.3d 828, 830 (Tex. 2009)). We presume jurors made all inferences for the
verdict, but only if reasonable minds could do so. Serv. Corp. Int’l v. Guerra, 348
S.W.3d 221, 228 (Tex. 2011). “Jurors may not simply speculate that a particular
inference arises from the evidence.” Id. (citing City of Keller, 168 S.W.3d at 821).
Easements are nonpossessory interests in land that authorize a holder to use
another’s property—the burdened or servient estate—only for a particular purpose.
Boerschig v. Rio Grande Elec. Coop., Inc., No. 24-0213, 2026 WL 1468464, at *3
(Tex. May 22, 2026) (citations omitted). Since easements are real property interests,
the statute of frauds and conveyances generally require a signed and recorded writing
31
to evidence the creation of an easement. Id. at *4 (citations omitted). That said, the
owner of the burdened estate may be estopped to deny the existence of an easement
despite the lack of a conforming writing. Id.; see also Storms v. Tuck, 579 S.W.2d
447, 454 (Tex. 1979). The doctrine of easement by estoppel is an exception to the
statutes requiring a writing to evidence the creation of the easement. Storms, 579
S.W.2d at 451.
To prove the existence of an easement by estoppel, a holder must show (1) the
owner of the burdened estate represented that an easement would be conveyed, (2)
the holder believed the representation, and (3) the holder relied on the representation
to his detriment. Boerschig, 2026 WL 1468464, at *4. Representation and belief are
fixed at the time of transfer, but if the reliance terminates, so does the estoppel. Id.
“Once created, an easement by estoppel is binding upon successors in title if reliance
upon the existence of the easement continues.” Goodenberger v. Ellis, 343 S.W.3d
536, 541 (Tex. App.—Dallas 2011, pet. denied). The holder bears the burden to
prove an easement by estoppel exists. See Boerschig, 2026 WL 1468464, at **4, 7.
Easements by estoppel are a specific application of the doctrine of equitable
estoppel, and as such they are a creature of equity that are aimed to prevent injustice
and protect innocent parties from fraud. Boerschig, 2026 WL 1468464, at *9
(citations omitted). It applies when injustice can be avoided only by establishing a
servitude to protect the user’s substantial change of position in reasonable reliance
32
on an owner’s representation. Id. (citation omitted). The scope of an easement by
estoppel is fixed by the use that created it. Id. “Once created, an easement by estoppel
is binding upon successors in title if reliance upon the easement continues.” Lake
Front Harbour Lights, LLC v. Solis, No. 12-22-00190-CV, 2023 WL 2766077, at *4
(Tex. App.—Tyler Mar. 31, 2023, no pet.) (mem. op.) (citations omitted).
The Suitts argue that the Amadors did not provide any evidence that the Suitts
made any representation either by words or action to the Amadors or their
predecessors in title, the Rosoks, about an easement. See Boerschig, 2026 WL
1468464, at *4. Representation and belief that an easement would be conveyed are
fixed at the time of transfer, and the scope of an easement by estoppel is narrowed
by the holder’s use of the easement in reasonable reliance on the representations. Id.
at **4, 9. When the land is sold, the easement by estoppel is further limited by the
purchaser’s notice of those representations or uses at the time of the purchase. Id. at
*9.
The tacit agreement or acquiescing behavior by the owner of a servient estate–
the Suitts–when no objection is made to the use by the owner of the dominant estate–
the Rosoks and the Amadors, may create an easement by estoppel. See Thompson v.
Houk, No. 12-04-00315-CV, 2005 WL 2035831, at *2 (Tex. App.—Tyler Aug. 24,
2005, no pet.) (mem. op.). When one party’s conduct has induced another to act in a
particular manner, that party should not be permitted to adopt an inconsistent
33
position and cause loss or injury to the other party. Wallace v. McKinzie, 869 S.W.2d
592, 596 (Tex. App.—Amarillo 1993, writ denied) (citation omitted). It is well
settled that estoppel may arise from conduct or a failure to act. Id. “Equitable
estoppel in the context of an easement arises when one is not permitted to disavow
. . . conduct that induces another to act detrimentally in reliance upon it.” Thompson,
2005 WL 2035831, at *2. The elements of easement by estoppel, including a
representation communicated by conduct, apply at the time the communication
creating the alleged easement is made. Vinson v. Brown, 80 S.W.3d 221, 229 (Tex.
App.—Austin 2002, no pet.).
The record shows that when the Rosoks built the home on the Amador
Property in 2003, they installed their gutters, electric meter, gas meter, and
telecommunications box on the five-foot setback area, and that those utilities
remained in place until 2023 when the Suitts filed suit. Charles placed a strip of grass
on the five-foot setback area before the Suitts moved in and built a home, and he
used the area to repair the stucco on the south side of his home. Charles stated that
John gave him permission to install a drain line along the south side of his home and
to tie in his gutters.
After the Amadors bought the Rosoks’ home, they installed the Generac
generator and interconnect on the five-foot setback area without any complaint from
the Suitts. Rudy testified that the Suitts allowed him to use the five-foot setback area
34
to maintain and repair the south side of his home, and Kelly stated that had been the
case since 2004 when Charles built the home. Rudy helped maintain the five-foot
setback area by mowing and weeding the area, and the Suitts did not complain but
thanked him. The Suitts also gave Rudy permission to install a gate in the area. Rudy
testified that when he moved in, one part of his gutter was already connected to the
drain line on the five-foot setback area and that John gave him permission to connect
another part of his gutter. Rudy installed a French drain on the five-foot setback area
with John’s permission.
Rudy used the five-foot setback area to inspect, maintain, and repair his home
from 2013 until 2022. Rudy testified that the Suitts never told him he could not
access the area and that he first learned that he was not allowed in the area when he
received the criminal trespass warning. Rudy and John agreed that it was necessary
to access the five-foot setback area to maintain and repair the south side of the
Amador Property. John agreed that had he given both Charles and Rudy permission
to enter the Suitts Property to do so. Charles testified that by building on the zerosetback line he believed that if he had to do something to his house that he could do
it.
The record shows permissive and acquiescing behavior by the Suitts for the
Rosoks and the Amadors to the use of the five-foot setback area for the purpose of
maintaining and repairing the south side of the Amador Property. The record shows
35
the Suitts allowed the area to be used for approximately thirteen years–from the time
they moved into the home in 2009 until 2022 when Rudy received his trespass
warning. See Thompson, 2005 WL 2035831, at **2-3. By not objecting to the
Rosoks’ and Amadors’ use during those years and by not telling the Rosoks or the
Amadors they could not use the five-foot setback area, the Suitts have engaged in
representations by their conduct. See Wallace, 869 S.W.2d at 596. This evidence
alone constitutes sufficient evidence–i.e., some evidence–to support the jury’s
finding that the Suitts made a representation to the Amadors that certain rights exist
to use the five-foot setback area. See id. Additionally, that same conduct-evidence
and the reasonable inferences therefrom also support the jury’s finding that the
Amadors relied on the Suitts’ representation. See id. The inference available from
the evidence is that the Amadors relied on the Suitts’ conduct permitting them to use
the five-foot setback area to repair and maintain their home. See id.
This evidence of the Suitts’ behavior constitutes legally sufficient evidence
that the Amadors and their predecessors, the Rosoks, used the five-foot setback area
for approximately thirteen years with approval and without conflict for the purpose
of maintaining and repairing the south side of the home. See Thompson, 2005 WL
2035831, at **2-3. The evidence is legally sufficient to support the jury’s finding of
easement by estoppel as the evidence shows the Suitts engaged in representations by
their conduct, made representations to the Rosoks and Amadors that certain rights
36
exist to use the five-foot setback area to repair and maintain the home, that the
Rosoks and Amadors relied on the Suitts’ representations and believed they had the
right to use the five-foot setback area, and that the Amadors continued to use the
five-foot setback area. See id. at **7-9; Wallace, 869 S.W.2d at 596.
We further note that in making its determination, the jury also considered the
testimony that the Suitts allowed both the Rosoks and the Amadors to make
improvements on the five-foot setback area by installing drains and that John
assisted Rudy in installing the French drain. See Drye v. Eagle Rock Ranch, Inc.,
364 S.W.2d 196, 210 (Tex. 1962) (stating doctrine of estoppel has been applied
where money is spent on servient estate for a drainage ditch); Exxon Corp. v
Schutzmaier, 537 S.W.2d 282, 285-86 (Tex. App.—Beaumont 1976, no writ)
(noting that evidence of paid improvements on the servient estate was considered in
finding easement by estoppel where only means of ingress and egress was used for
22 years without interference or complaint).
We recognize that the Suitts question whether an easement by estoppel can be
properly applied in cases such as this where there is no vendor/vendee relationship
and that Texas courts are split as to whether that relationship is required for a finding
of an easement by estoppel. See Hazzani, LLC v. Richardson Bus. Ctr., Ltd., No. 05-18-00346-CV, 2019 WL 3244175, at **4-6 (Tex. App.—Dallas July 19, 2019, no
pet.) (mem. op.) (citing court cases evidencing the split in decisions). In
37
Schutzmaier, we found the facts in that case established easement by estoppel despite
the lack of a vendor/vendee relationship between the owners of the dominant and
servient estates. 537 S.W.2d at 283, 285-87; see Mack v. Landry, 22 S.W.3d 524,
528-30 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (relying on Schutzmaier in
finding easement by estoppel). Here, we also decline to require the existence of a
vendor-vendee relationship to establish an easement by estoppel especially in light
of the facts showing John did not merely passively acquiesce to the Amadors’ and
the Rosoks’ use of the five-foot setback area but participated in making drainage
improvements to the area that benefitted both the Amadors and the Rosoks. See
Hazzani, LLC, 2019 WL 3244175, at **4-6.
We noted in Schutzmaier that ‘“an easement is limited to those uses which are
reasonably necessary and convenient and as little burdensome to the servient estate
as possible[.]”’ Id. at 287 (citations omitted). Here, after hearing evidence about how
the Amadors’ use of the five-foot setback area had burdened the Suitts, the trial court
limited the Amadors’ use of the area to that which was reasonably necessary to
maintain and repair the south side of their home. See id. at 285-87. Thus, we disagree
with the Suitts’ argument that the awarded easement is vague.
The Suitts have failed to show that “no evidence” supports the jury’s finding
of an easement by estoppel. See Peña, 442 S.W.3d at 263; Exxon Corp., 348 S.W.3d
at 215. The evidence admitted at trial, and inferences reasonably drawn from it,
38
“would enable reasonable and fair-minded people to reach the verdict under review.”
City of Keller, 168 S.W.3d at 827. Accordingly, we conclude that the evidence in
the record is legally sufficient to support the jury’s finding of an implied easement
by estoppel. See id. We overrule issue one.
Directed Verdict
In issue two, the Suitts complain the trial court erred by granting a directed
verdict based on its conclusion that limitations bars the Suitts’ continuous trespass
claims because their claimed trespasses are a permanent injury to their land. The
Suitts complain the trial court rejected their argument that a new trespass occurs
every time the Amadors use their sprinkler lines, utility lines, meters and Generac
panel.
We review a trial court’s decision on a motion for directed verdict de novo,
using the same standard of review as a legal sufficiency, or no-evidence challenge.
See JPMorgan Chase Bank, N.A. v. Orca Assets, G.P., L.L.C., 546 S.W.3d 648, 653
(Tex. 2018); City of Keller, 168 S.W.3d at 823. The legal sufficiency test is the same
in directed verdicts as in summary judgments and judgments notwithstanding the
verdict: we consider the evidence in the light most favorable to the nonmovant’s
case. See City of Keller, 168 S.W.3d at 823-24. Therefore, a directed verdict is proper
if the record reflects: (1) a complete absence of evidence of a vital fact; (2) the court
is barred by rules of law or evidence from giving weight to the only evidence offered
39
to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a
mere scintilla; or (4) the evidence conclusively establishes the opposite of the vital
fact. Id. at 810. As the trial court observed, “[t]he final test for legal sufficiency must
always be whether the evidence at trial would enable reasonable and fair-minded
people to reach the verdict under review.” Id. at 827.
The record shows the trial court directed a verdict on the Suitts’ trespass
claims regarding the “generator box, the gas line, any of those structures that have
been installed more than four years, because I do not find it’s a continuing tort.” The
trial court explained that the trespasses were not continuing torts because they
involved continuing injuries that stemmed from one wrongful act.
Trespass to real property requires a showing of an unauthorized physical entry
onto another’s property by either a person or thing. Yalamanchili v. Mousa, 316
S.W.3d 33, 40 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). A trespass
claim is governed by a two-year statute of limitations. See Tex. Civ. Prac. & Rem.
Code Ann. § 16.003(a). A trespass claim accrues upon the discovery of the first
physical invasion of the thing on a plaintiff’s property. Yalamanchili, 316 S.W.3d at
40. Here, the Suitts complain that the two-year statute of limitations does not apply
to their alleged trespasses concerning the Generac panel, gas meter, water meter,
sprinkler, and water line because they are continuing torts.
40
The Texas Supreme Court follows the rule that “‘a cause of action generally
accrues at the time when facts come into existence which authorize a claimant to
seek a judicial remedy’ and the ‘fact that damage may continue to occur for an
extended period after denial does not prevent limitations from starting to run.’”
Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017) (quoting Murray
v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990)). A continuing tort
involves wrongful conduct inflicted over a period of time that is repeated and
desisted, and thus each day creates a separate cause of action. Id. at 592 (citation
omitted). A continuing tort claim does not accrue until the wrongful conduct ceases
because the tort is rooted in the inability to know that the ongoing conduct is causing
injury. Id. (citation omitted). The Rincones Court recognized that the continuing-tort
doctrine might provide needed protection in some cases, and that the Waco Court
had determined that trespass by placing cable lines on an owner’s property is a single
act causing a continuing injury and thus is not a continuing tort). Id. at 592-93 (citing
Krohn v. Marcus Cable Assocs., L.P., 201 S.W.3d 876, 880-81 (Tex. App.—Waco
2006, pet. denied)).
The Waco Court explained that in determining whether a continuous tort
exists, one must distinguish between a repeated injury proximately caused by
repetitive wrongful acts and a continuing injury arising from one wrongful act.
Krohn, 201 S.W.3d at 880. One wrongful act that is the source of a continuing injury
41
is not a continuing tort. Id. A continuing tort does not apply in cases involving a
permanent injury to real property because a permanent injury to land generally arises
from a single tortious act that causes a continuing injury to a landowner. Id. at 881
(citing W.W. Laubach Trust v. Georgetown Corp., 80 S.W.3d 149, 159 (Tex. App.—
Austin 2002, pet. denied; Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 443-44 (Tex. App.—Fort Worth 1997, pet. denied)). Whether an injury is permanent is
determined by its continuum. Kraft v. Langford, 565 S.W.2d 223, 227 (Tex. 1978);
Cook v. Exxon Corp., 145 S.W.3d 776, 783 (Tex. App.—Texarkana 2004, no pet.).
“Permanent injuries are those which are constant and continuous, not intermittent or
recurrent[,]” while a temporary injury is not continuous but sporadic and contingent
upon some irregular force. Kraft, 565 S.W.2d at 227.
As in the Waco case, the Suitts’ trespass complaints concerning the placement
of the Generac panel, gas meter, water meter and other items on the Suitts Property
all involve single acts causing a continuing injury and thus are not continuing torts.
See Krohn, 201 S.W.3d at 880-81. The placement of the items involves a permanent
injury to real property that has been constant and continuous for years. See Kraft,
565 S.W.2d at 227. Under these circumstances, we conclude the trial court did not
err in granting a directed verdict on the Suitts’ trespass claims regarding the
generator box, the gas line, and any other structures that have been installed for more
than four years as they are not continuing torts. We overrule issue two.
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Having overruled both the Suitts’ issues, we affirm the trial court’s judgment.
AFFIRMED.
JAY WRIGHT
Justice
Submitted on March 31, 2026
Opinion Delivered October 8, 2026
Before Golemon, C.J., Wright and Chambers, JJ.
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