Francis Landry and Tamarra L. Landry v. John T. Unger

Court of Appeals
Tenth Appellate District of Texas

10-24-00200-CV

Francis Landry and Tamarra L. Landry,
Appellants

v.

John T. Unger,
Appellee

On appeal from the
335th District Court of Burleson County, Texas
Judge Carson T. Campbell Jr., presiding
Trial Court Cause No. 29053

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

Francis and Tamarra Landry appeal from the trial court’s judgment in

favor of John T. Unger in relation to the interpretation of easement rights. In

eight issues, the Landrys argue that the trial court erred by awarding Unger

declaratory relief, granting Unger injunctive relief, refusing to make additional

findings of fact and conclusions of law, and awarding attorney’s fees. We

affirm.
Background

This case involves an ongoing dispute between neighbors over two

easements. The majority of the underlying facts are not disputed. Unger owns

two tracts of real property in Burleson County. Tract 1 comprises

approximately 96 acres and is contiguous to Tract 2 that comprises

approximately 63 acres. The Landrys’ 7-acre tract of real property is located

entirely within Tract 2 of Unger’s property. The Landrys hold two non-

exclusive access easements across both tracts of Unger’s property.

Easement 1 is embodied in two instruments. The first grants the “free

and uninterrupted use, liberty, and privilege of and passage in and along” the

described right-of-way: a 30-foot passage on Unger’s Tract 1. The second

instrument grants “the free and uninterrupted use, liberty, privilege and

easement of passing in and along a certain roadway” across a described tract:

a 30-foot passage directly adjacent to the 30-foot passage described in the first

instrument. In total, Easement 1 consists of a 60-foot-wide passage across

Unger’s Tract 1. Easement 2 is embodied in two instruments that grant a 30-

foot access easement across Unger’s Tract 2.

After Unger purchased Tract 1 in 2001, he constructed a perimeter fence

along and within Easement 1. He also relocated a drainage culvert and posted

a no trespassing sign within the easement. The Landrys brought suit to enjoin

Francis and Tamarra L. Landry v. John T. Unger Page 2
Unger’s interference with the easement. See Unger v. Landry, No. 01-03-

01331-CV, 2005 WL 21396 at *1 (Tex. App.—Houston [1st Dist.] Jan. 6, 2005,

pet. denied) (mem. op.). In that case, Unger maintained that Easement 1

limited the Landrys’ use of the easement to the roadway as it existed when the

easement was granted rather than the full width of the easement. Id. at *3.

The trial court found that the Landrys have free and uninterrupted use of the

entire easement and ordered Unger to remove the fence, the culvert, and the

no trespassing sign. Id. at *1. The trial court further permanently enjoined

Unger from making any improvements within the easement. Id.

When Unger appealed the prior lawsuit, he argued that the trial court

failed to properly limit the Landrys’ use of the easement to the roadway and

failed to properly allow his use of the easement. Id. at *2. The court concluded

that the express terms of the easement gave the Landrys the right to use the

entire width of the 30-foot easement. Id. at *3. The court further determined

that the fence, buried culvert pipe, and rerouted drainage ditch are permanent

in nature and encroach on the easement such that a suit for injunction would

lie. Id. at *4.

Beginning in 2015, the Landrys and other neighbors engaged in conduct

that Unger considered to interfere with his use of the easements. In 2017,

Francis and Tamarra L. Landry v. John T. Unger Page 3
Unger brought suit against the Landrys 1 based upon that conduct. Unger

sought declaratory and injunctive relief to prevent the Landrys from

interfering with his rights to use the easements.

After a bench trial, the trial court found in favor of Unger and signed a

final judgment on April 1, 2024, that ordered, adjudged, and declared that:

1. Francis Landry and Tamarra L. Landry are holders of the
Dominant Estate with regard to Easement No. 1 and Easement
No. 2;

2. Adolph Kazmir, Ruth Kazmir and Wayne Kazmir are holders of
the Dominant Estate with regard to Easement No. 1;

3. John T. Unger is the holder of the servient estate with regard to
Easements No. 1 and Easement No. 2;

4. Easement No. 1 and Easement No. 2 do not entitle the Dominant
Estate holders, including Francis Landry, Tamarra L. Landry,
Adolph Kazmir, Ruth Kazmir and Wayne Kazmir to place any
signs (“No Trespassing” or otherwise) within their boundary;

5. Easement No. 1 and Easement No. 2 do not entitle the Dominant
Estate holders, including Francis Landry, Tamarra L. Landry,
Adolph Kazmir, Ruth Kazmir and Wayne Kazmir to place a fence
within their boundary;

6. Easement No. 1 and Easement No. 2 do not entitle the Dominant
Estate holders, including Francis Landry, Tamarra L. Landry,
Adolph Kazmir, Ruth Kazmir and Wayne Kazmir to exclude any
person, including without limitation, guests and invitees of
[Unger] or other easement holders from entering into Easement
No. 1 or Easement No. 2 or passing along on the roadway

1
Unger filed an amended petition that included Adolph and Ruth Kazmir, Wayne Kazmir, and David and Krista
Lish as defendants. Each of those parties have an interest in the easements. Prior to trial, David and Krista Lish
signed an Agreed Final Judgment. They are not a party to this appeal. None of the Kazmir defendants are a party to
this appeal.

Francis and Tamarra L. Landry v. John T. Unger Page 4
constructed within Easement No. 1 or Easement No. 2 that is
known as Private Road 2010;

7. Easement No. 1 and Easement No. 2 do not entitle the Dominant
Estate holders, including Francis Landry, Tamarra L. Landry,
Adolph Kazmir, Ruth Kazmir and Wayne Kazmir the right to cut,
trim, or remove any tree or shrub within the easement boundary
unless such tree or shrub is determined to reasonably interfere
with the passage along Private Road 2010 or the use and
enjoyment or maintenance of Private Road 2010 and so long as the
cutting, trimming, or removal of such tree or shrub does not
unreasonably interfere with [Unger’s] use and enjoyment of the
servient estate property serving Easements No. 1 and No. 2.

The trial court’s judgment further ordered injunctive relief prohibiting the

Landrys from:

1. Placing of signs (“No Trespassing” or otherwise) within
Easements No. 1 or Easement No. 2;

2. Placing a fence within Easements No. 1 or Easement No. 2;

3. Excluding any person, including without limitation, guests or
invitees of [Unger] or any other easement holder from entering or
using Easement No. 1 or Easement No. 2 and from passing along
the roadway constructed within Easement No. 1 and Easement No.
2 that is known as Private Road 2010; and

4. Placing road bumps on Private Road 2010 in Burleson County,
Texas.

The trial court awarded Unger attorney’s fees against the Landrys in the

amount of $68,701.00 with additional conditional attorney’s fees in the event

of an appeal. The Landrys appeal from the trial court’s judgment.

Francis and Tamarra L. Landry v. John T. Unger Page 5
Issue One

In their first issue, the Landrys argue that the trial court erred by

awarding the declaratory relief contained in the final judgment because it

conflicts with their easement rights. Within their first issue, the Landrys bring

the following sub-issues:

Sub-Issue 1(a): The trial court’s Finding of Fact No. 7 which
implicitly limits the easement rights to an existing road rather
than the entirety of the easement’s metes and bounds was
previously explicitly rejected by a court of appeals in interpreting
an easement at issue in this case.

Sub-Issue 1(b): There was no evidence, or, in the alternative,
insufficient evidence, to support the trial court’s Finding of Fact
No. 7 because “Access Easement No. One” and “Access Easement
No. Two” are not also known as Burleson County Private Road
2010.

Sub-Issue 1(c): The trial court incorrectly interpreted the Landrys’
easement rights in Conclusion of Law #5 by concluding that they
may not place any signs in the easements.

Sub-Issue 1(d): The trial court incorrectly interpreted the Landrys’
easement rights in Conclusion of Law #6 by concluding that they
may not place any fencing on the easements.

Sub-Issue 1(e): The trial court incorrectly interpreted the Landrys’
easement rights in Conclusion of Law #7 by concluding that they
may not exclude any person from the easement areas.

Sub-Issue 1(f): The trial court incorrectly interpreted the Landrys’
easement rights in Conclusion of Law #8 by concluding that they
do not have the right to cut, trim, or remove any tree or shrub
within the easement boundary unless such trees or shrubs are [sic]
unreasonably interfere with the passage along Private Road 2010
or the use and enjoyment or maintenance of Private Road 2010 and

Francis and Tamarra L. Landry v. John T. Unger Page 6
so long as the cutting, trimming, or removal of such tree or shrub
does not unreasonably interfere with or deprive Plaintiff’s use and
enjoyment of the servient estate property serving Access
Easements No. One and Access Easement No. Two.

Sub-Issue 1(g): A. There was no evidence, or in the alternative,
insufficient evidence, to support the trial court’s Findings of Fact
No. 9. Additionally, Findings of Fact Nos. 9 incorporates incorrect
conclusions of law, as the “reasonably necessary” and
“unreasonably interfere” standards are not the proper standards
and the scope of Access Easement No. One is incorrectly narrowed
to the road.

Standard of Review

After a bench trial, we review a trial court’s conclusions of law de novo

and its findings of fact for sufficiency of the evidence. Hegar v. American Multi-

Cinema, Inc., 605 S.W.3d 35, 40 (Tex. 2020). “We will uphold conclusions of

law on appeal if the judgment can be sustained on any legal theory the evidence

supports.” Material P’ships, Inc. v. Ventura, 102 S.W.3d 252, 257 (Tex. App.—

Houston [14th Dist.] 2003, pet. denied). “Under de novo review, the reviewing

court exercises its own judgment and redetermines each legal issue.” Wells

Fargo Bank, N.A. v. Citizens Bank of Tex., N.A., 181 S.W.3d 790, 796 (Tex.

App.—Waco 2005, pet. denied). Thus, incorrect conclusions of law do not

require reversal if the controlling findings of fact support the judgment under

a correct legal theory. Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835

S.W.2d 190, 196 (Tex. App.—Austin 1992, no writ). “Moreover, conclusions of

law may not be reversed unless they are erroneous as a matter of law.” Id.

Francis and Tamarra L. Landry v. John T. Unger Page 7
A trial court’s findings of fact after a bench trial have the same weight

and are judged by the same standards as a jury verdict. Tex. Outfitters Ltd.,

LLC v. Nicholson, 572 S.W.3d 647, 653 (Tex. 2019). “The trial court’s findings

of fact are reviewable for legal (and factual) sufficiency of the evidence by the

same standards as applied in reviewing the legal (and factual) sufficiency of

the evidence supporting a jury’s finding.” Anderson v. City of Seven Points, 806

S.W.2d 791, 794 (Tex. 1991). When reviewing legal sufficiency, we consider all

the evidence in the light most favorable to the verdict and indulge every

reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d

802, 822 (Tex. 2005). When reviewing a factual sufficiency challenge, we

consider all the evidence in the record and may set aside a finding only if it is

so against the great weight and preponderance of the evidence as to be clearly

wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

When the appellate record contains a reporter’s record, findings of fact

are not conclusive and are binding only if supported by the evidence. Fulgham

v. Fischer, 349 S.W.3d 153, 157 (Tex. App.—Dallas 2011, no pet.). If there is a

conflict in the evidence, the trier of fact is the exclusive judge of the facts

proved, the credibility of the witnesses, and the weight to be given to their

testimony. Eggemeyer v. Hughes, 621 S.W.3d 883, 890 (Tex. App.—El Paso

2021, no pet.).

Francis and Tamarra L. Landry v. John T. Unger Page 8
Applicable Law

An easement is a non-possessory interest that allows its holder to use

another’s property for a stated purpose. See State v. Brownlow, 319 S.W.3d

649, 652 (Tex. 2010); Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700

(Tex. 2002). “An easement does not convey title to property.” Stephen F. Austin

State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007). An easement that

grants a right of ingress and egress, like the one at issue in this appeal, allows

the holder to traverse another’s land to access his own property. Clearpoint

Crossing Prop. Owners Ass’n & Cullen’s LLC v. Chambers, 569 S.W.3d 195, 200

(Tex. App.—Houston [1st Dist.] 2018, pet. denied) (citing Coleman v. Forister,

514 S.W.2d 899, 903 (Tex. 1974)).

“When construing the terms of an easement, courts deploy the rules of

contract interpretation and look to the easement’s express terms to determine

its scope.” Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 686 (Tex. 2020); see

also Marcus Cable Assocs., 90 S.W.3d at 700–01. We examine and consider the

entire writing “and harmonize its terms to give effect to all of the provisions.”

Sw. Elec. Power Co., 595 S.W.3d at 686. “If the easement’s terms are

ascertainable and can be given legal effect, courts will not supplant the

easement’s express terms with additional terms nor consult extrinsic evidence

to discern the easement’s meaning.” Id. at 689. When no one asserts that an

Francis and Tamarra L. Landry v. John T. Unger Page 9
express easement is ambiguous, as in this case, we review the trial court’s

interpretation as a matter of law. See DeWitt Cty. Elec. Coop., Inc. v. Parks, 1

S.W.3d 96, 100 (Tex. 1999); CenterPoint Energy Houston Elec. LLC v.

Blubonnet Drive, Ltd., 264 S.W.3d 381, 388 (Tex. App.— Houston [1st Dist.]

2008, pet. denied). The mere fact that the parties disagree about the meaning

of an express easement does not render the easement ambiguous. DeWitt Cty.,

1 S.W.3d at 100.

The law balances the rights of the parties to an easement by prohibiting

the servient estate holder from interfering with the dominant estate holder’s

“use of an easement for the purpose for which it was granted or sought.” Atmos

Energy Corp. v. Paul, 598 S.W.3d 431, 443 (Tex. App.—Fort Worth 2020, no

pet.). “If a particular purpose is not provided for in the grant, the holder of the

easement may not use the property for that purpose.” Id. at 445.

Just as the servient estate cannot interfere with the right of the

dominant estate to use an easement, the easement owner must make

reasonable use of the right and not unreasonably interfere with the property

rights of the owner of the servient estate. San Jacinto Sand Co. v. Sw. Bell

Tel. Co., 426 S.W.2d 338, 345 (Tex. App.—Houston [14th Dist.] 1968, writ ref’d

n.r.e.); see also Robles v. Mann, No. 13-14-00211-CV, 2016 WL 1613316, at *5

(Tex. App.—Corpus Christi–Edinburg Apr. 21, 2016, no pet.) (“[T]he easement

Francis and Tamarra L. Landry v. John T. Unger Page 10
owner must make reasonable use of the right and not unreasonably interfere

with property rights of the owner of the servient estate.”). “[T]he threshold

inquiry is not whether the proposed use results in a material burden, but

whether the grant’s terms authorize the proposed use.” Marcus Cable Assoc.,

90 S.W.3d at 703.

Relevant Language From Deeds

In two instruments, Easement 1 grants the “free and uninterrupted use,

liberty, and privilege of and passage in and along” the described right-of-way:

a 30-foot passage on Unger’s Tract 1 and “the free and uninterrupted use,

liberty, privilege and easement of passing in and along a certain roadway”

across a described tract: a 30-foot passage directly adjacent to the 30-foot

passage described in the first instrument. In total, Easement 1 consists of a

60-foot-wide passage across Unger’s Tract 1.

Easement 2 grants “the free and uninterrupted use, liberty, and privilege

of passage” along the following described right-of-way: a 30-foot access

easement across Unger’s Tract 2.

Relevant Findings of Fact and Conclusions of Law

Findings of Fact

7. Access Easement No. One and Access Easement No. Two
are also known as Burleson County Private Road 2010.

Francis and Tamarra L. Landry v. John T. Unger Page 11
9. One or more of the Defendants trimmed, cut and removed
trees and shrubbery on Tract No. One beyond that which was
reasonably necessary for the use and enjoyment of Access
Easement No. One and which did not unreasonably interfere with
the use and passage along Access Easement No. One.

Conclusions of Law

5. The Court finds that Access Easement No. One and Access
Easement No. Two do not entitle the Dominant Estate holders,
including Francis Landry, Tamarra L. Landry, Adolph Kazmir,
Ruth Kazmir and Wayne Kazmir, to place any signs (“No
Trespassing” or otherwise) within their boundary.

6. The Court finds that Access Easement No. One and Access
Easement No. Two do not entitle the Dominant Estate holders,
including Francis Landry, Tamarra L Landry, Adolph Kazmir,
Ruth Kazmir and Wayne Kazmir, to place a fence within their
boundary.

7. The Court finds that Access Easement No. One and Access
Easement No. Two do not entitle the Dominant Estate holders,
including Francis Landry, Tamarra L. Landry, Adolph Kazmir,
Ruth Kazmir and Wayne Kazmir, to exclude any person, including
without limitation, guests and invitees of Plaintiff or other
easement holders from entering into Access Easement No. One or
Access Easement No. Two or passing along on the roadway
constructed within Access Easement No. One or Access Easement
No. Two that is known as Private Road 2010.

8. The Court finds that Access Easement No. One and Access
Easement No. Two do not entitle the Dominant Estate holders,
including Francis Landry, Tamarra L. Landry, Adolph Kazmir,
Ruth Kazmir, and Wayne Kazmir, the right to cut, trim, or remove
any tree or shrub within the easement boundary unless such trees
or shrubs are unreasonably interfere [sic] with the passage along
Private Road 2010 or the use and enjoyment or maintenance of
Private Road 2010 and [sic] so long as the cutting, trimming, or
removal of such tree or shrub does not unreasonably interfere with
or deprive Plaintiffs use and enjoyment of the servient estate

Francis and Tamarra L. Landry v. John T. Unger Page 12
property serving Access Easements No. One and Access Easement
No. Two.

Discussion

The Landrys’ arguments are based upon their interpretation of the prior

decision of the Houston Court of Appeals. See Unger, 2005 WL 21396 at *2. In

that case, the court rejected Unger’s contention that the Landrys’ easement

rights were limited to the existing roadway and concluded that the Landrys

had the right to use the entire width of the metes and bounds description in

the easement. Id. at *3. The Landrys maintain that in the present case, the

trial court failed to properly follow the appellate court’s precedent. We

disagree.

“If a particular purpose is not provided for in the grant, the holder of the

easement may not use the property for that purpose.” Atmos Energy Corp.,

598 S.W.3d at 445. The Landrys do not dispute that Easements 1 and 2 are

non-exclusive access easements. Francis Landry testified that the purpose of

the easements is to allow him to access his property. The language in the non-

exclusive access easements does not authorize the Landrys to place signs on

the easements, erect fencing on the easements, exclude Unger’s guests and

invitees from using the easements, or cut trees and shrubs on the easement.

See Marcus Cable Assoc., 90 S.W.3d at 703.

Francis and Tamarra L. Landry v. John T. Unger Page 13
Our conclusion, as well as that of the trial court, is not in conflict with

the Houston Court of Appeals’ determination that the Landrys have the right

to use the entire width of the metes and bounds description in the easement.

Unger, 2005 WL 21396 at *2. The prior court of appeals’ decision allows the

Landrys to use the full easement, but only for the purpose provided in the

easements. None of the uses prohibited by the trial court’s judgment are

specifically authorized in the easements. The purpose stated in the easements

is for access. We disagree with the Landrys’ argument that the trial court

effectively determined, contrary to the prior holding by the Houston Court of

Appeals, that the Landrys’ rights are limited to the roadway. Nothing in the

trial court’s judgment prevents the Landrys from using the entire easement

for access to their property. There was no evidence that the prohibited uses

were for the purpose of access to the Landrys’ property.

Although the easements do not authorize the Landrys to place signs on

the easements, erect fencing on the easements, exclude Unger’s guests and

invitees from using the easements, or cut trees and shrubs on the easement,

Unger cannot interfere with the Landrys’ use of the easement for the purpose

for which it was granted—access to their property. See Atmos Energy Corp.,

598 S.W.3d at 443.

Francis and Tamarra L. Landry v. John T. Unger Page 14
The trial court found that the easements do not entitle the Landrys to

place any signs, including no trespassing signs, within the boundaries of the

easements. There was no evidence at trial that placing signs within the

easements was necessary for the Landrys to access their property. The signs

were intended to keep people from accessing the easements. Because they are

non-exclusive access easements, allowing others to access the easements does

not interfere with the Landrys’ use of the easements for its stated purpose of

access. The Landrys argue on appeal that because lights, signs, and safety

features are part of a roadway’s design, the trial court limited their enjoyment

of their easement rights. However, there was no evidence at trial that signs

were necessary for them to access their property. Nothing in the trial court’s

judgment prevents the Landrys from placing signs on their own property

outside the boundaries of the easements.

The trial court found that the easements do not entitle the Landrys to

place a fence within the boundaries of the easements. The Landrys presented

no evidence that a fence was necessary for them to access their property.

Rather the fence was to prevent others from accessing the non-exclusive access

easements. As previously stated, the easements are non-exclusive, and the

Landrys’ access to their property is not prohibited by others using the

easements.

Francis and Tamarra L. Landry v. John T. Unger Page 15
The trial court found that the easements do not entitle the Landrys to

exclude any person, including Unger’s guests and invitees, from entering the

easements and passing along Private Road 2010. Francis Landry testified at

trial that the easements do not authorize him to exclude others from the

easements. The Landrys argue on appeal that they have the right to exclude

individuals actively harming the easement. However, there was no evidence

at trial as to others actively harming the easements and preventing the

Landrys from accessing their property.

The trial court found that the easements do not entitle the Landrys to

cut, trim, or remove any tree or shrub within the easement boundary unless

such tree or shrub is determined to unreasonably interfere with the passage

along Private Road 2010 or the use and enjoyment or maintenance of Private

Road 2010 so long as the cutting, trimming, or removal of such tree or shrub

does not unreasonably interfere with Unger’s use and enjoyment of the

servient estate property serving Easements 1 and 2. Unger concedes that

some cutting and trimming is necessary to maintain the Landrys’ right of

access, but he disputes the extent of the right to cut and trim.

Unger testified that the Landrys engaged in “clear-cutting” across the

easements removing trees and shrubs that were not interfering with the

passage along the easement. Unger offered extensive testimony describing the

Francis and Tamarra L. Landry v. John T. Unger Page 16
cutting as well as photographs depicting the cutting. Francis Landry testified

at trial and agreed that he only has the right to cut trees that interfere with

his use of the easement and right of passage. Larry Blum testified that he

builds roads and that he performed work on Private Road 2010. He stated that

trees and shrubs ten to fifteen feet away from the road were not interfering

with the road and would not interfere with maintenance of the road. Adolph

Kazmir, another easement holder, testified that it was not necessary to clear-

cut the entire width of the easement to access the easement. There was

evidence that the Landrys’ cutting and trimming of trees and shrubs went

beyond that reasonably necessary for their use and enjoyment of the easements

and unreasonably interfered with the servient estate. See Lamar County Elec.

Co-op. Ass’n v. Bryant, 770 S.W.2d 921, 923 (Tex. App.—Texarkana 1989, no

writ), overruled in part on other grounds, Gilbert Wheeler, Inc. v. Enbridge

Pipelines (East Texas), L.P., 449 S.W.3d 474 (Tex. 2014). The evidence

supports the trial court’s finding of fact and declaration that the Landrys are

not entitled to cut or trim trees or shrubs except those that reasonably interfere

with the passage along Private Road 2010 so long as the cutting or trimming

does not interfere with Unger’s use and enjoyment of the servient estate. See

id.

Francis and Tamarra L. Landry v. John T. Unger Page 17
The Landrys also complain that the trial court’s Finding of Fact 7 is not

supported by the evidence. Finding of Fact 7 states that Easements 1 and 2

are also known as Private Road 2010. The record shows that Private Road

2010 is located within Easement 1. The evidence does not support the trial

court’s Finding of Fact 7. However, an erroneous finding of fact on an

immaterial finding is harmless and not grounds for reversal. Wood v. Wiggins,

650 S.W.3d 533, 562 (Tex. App.—Houston [1st Dist.] 2021, pet. denied). The

name of the road is immaterial to the trial court’s judgment. The trial court’s

judgment clearly establishes the easements it construed and clearly

establishes the rights of the parties within the boundaries of the easements.

Therefore, the finding was not on an ultimate issue and was immaterial to the

trial court’s judgment. Reading the trial court’s findings of fact and conclusions

of law in their entirety, it is apparent that the trial court did not base its

judgment on the name of the road located within the easements. We conclude

that the disputed finding is not a basis for reversal of the trial court’s judgment.

Id. at 732.

The evidence is sufficient to support the trial court’s Finding of Fact 9

and Conclusions of Law 5, 6, 7, and 9. The disputed Finding of Fact 7 is not

material to the trial court’s judgment. We conclude that the trial court did not

Francis and Tamarra L. Landry v. John T. Unger Page 18
err in awarding the declaratory relief contained in the final judgment. Having

considered all of the Landrys’ complaints, we overrule the first issue.

Issue Two

In the second issue, the Landrys argue that the trial court erred by

granting the permanent injunctions contained in the Final Judgment. Within

their second issue, the Landrys bring the following sub-issues:

Sub-Issue 2(a): The Final Judgment does not set forth the reasons
for the issuance of the permanent injunctions granted by the trial
court in violation of Texas Rule of Civil Procedure 683.

Sub-Issue 2(b): To the extent the injunctive relief was based upon
the incorrect declarations, findings of fact, and conclusions of law
described in Issue Number One, the trial court erred as there is an
inadequate basis for such injunctive relief and such injunctive
relief is overly broad.

Sub-Issue 2(c): There was no evidence, or in the alternative,
insufficient evidence to support the trial court’s Finding of Fact No.
12. Additionally, Finding of Fact No. 12 incorporates an incorrect
conclusion that the “road bump” was “improperly” installed.

Sub-Issue 2(d): There was no irreparable injury that justified the
imposition of the permanent injunctions contained in the Final
Judgment.

Standard of Review

The decision to grant or deny a permanent injunction is within the sound

discretion of the trial court and will be reversed only when a clear abuse of that

discretion is shown. Huynh v. Blanchard, 694 S.W.3d 648, 673 (Tex. 2024). A

trial court abuses its discretion by acting arbitrarily and unreasonably or

Francis and Tamarra L. Landry v. John T. Unger Page 19
misapplying the law to the established facts of the case. Id at 674. There is no

abuse of discretion if the trial court heard conflicting evidence and evidence

appears in the record that reasonably supports the trial court’s decision.

Glattly v. Air Starter, 332 S.W.3d 620, 642 (Tex. App.—Houston [1st Dist.]

2010, pet. denied). We may not substitute our judgment for that of the trial

court. Id.

Applicable Law

To be entitled to a permanent injunction, a party must prove (1) a

wrongful act, (2) imminent harm, (3) an irreparable injury, and (4) the absence

of an adequate remedy at law. Huynh, 694 S.W.3d at 674. To establish a

probable, imminent, and irreparable injury, proof of an actual threatened

injury, as opposed to a speculative or conjectural one, is required. Texas Dep’t

of Public Safety v. Salazar, 304 S.W.3d 896, 908 (Tex. App.—Austin 2009, no

pet.). The question of whether a probable, imminent, and irreparable injury

exists to warrant injunctive relief is a legal question for the court. Gilbreath

v. Horan, 682 S.W.3d 454, 543 (Tex. App.—Houston [1st Dist.] 2023, pet.

denied).

Every order granting an injunction shall set forth the reasons for its

issuance; shall be specific in terms; shall describe in reasonable detail and not

Francis and Tamarra L. Landry v. John T. Unger Page 20
by reference to the complaint or other document, the act or acts sought to be

restrained. TEX. R. CIV. P. 683.

Discussion

The trial court’s final judgment ordered the Landrys to desist and refrain

from (1) placing signs within the easements, (2) placing a fence within the

easements, (3) excluding any person, including Unger’s guest and invitees from

using the easements, and (4) placing road bumps on Private Road 2010.

The Landrys argue that the permanent injunctions are overly broad

because they prevent them from conducting lawful activities or exercising their

legal rights. The Landrys argument is premised upon their contention that

the trial court erred by granting the Unger’s declaratory relief. Having

concluded that the trial court did not err by declaring that the easements do

not entitle the Landrys to place signs on the easements, place fences on the

easements, and exclude other persons from accessing the easements, we reject

the Landrys’ argument that the injunctive relief is overly broad based upon

their contention that they have the right to engage in those activities.

The Landrys contend that there is no evidence or insufficient evidence to

support the trial court’s Finding of Fact 12 which states, “[o]ne or more of the

defendants improperly installed road bumps” on Easement 2. The trial court

heard conflicting evidence on the road bumps placed on the roadway of the

Francis and Tamarra L. Landry v. John T. Unger Page 21
easement. Unger referred to them as road bumps while the Landrys

characterized them as diversion berms. The trial court viewed images of the

disputed road bumps that went across the entire roadway.

Blum testified that diversion berms are usually placed off to the side of

the road on the shoulders to divert water away from the road. Blum explained

that a diversion berm is not like a speed bump, and a person can easily drive

over a diversion berm without realizing it. Blum testified that the best way to

divert water from the road would be by placing a “crown on the road” that is

higher in the middle so that the water runs off.

If there is a conflict in the evidence, the trier of fact is the exclusive judge

of the facts proved, the credibility of the witnesses, and the weight to be given

to their testimony. Eggemeyer, 621 S.W.3d at 890. The trial court viewed

photographs of the disputed road bumps, heard testimony concerning diversion

berms, and found that the road bumps were improperly installed. After

reviewing the entire record, we conclude that the evidence is legally and

factually sufficient to support the trial court’s Finding of Fact 12. Nothing in

the trial court’s judgment prevents the Landrys from properly diverting water

from Private Road 2010.

The Landrys also argue that the trial court’s judgment does not set forth

the reasons for the issuance of the permanent injunction as required by Rule

Francis and Tamarra L. Landry v. John T. Unger Page 22
683 of the Texas Rules of Civil Procedure. Rule 683 requires that an order

granting injunction shall (1) set forth the reasons for its issuance, (2) be in

specific terms, and (3) describe in reasonable detail the act or acts sought to be

restrained. TEX. R. CIV. P. 683. The Landrys only complain that the injunction

does not comply with Rule 683 because it does not set forth the reasons for its

issuance. Here, the injunctive relief was granted in a final judgment. The trial

court’s final judgment declared that the Landrys were not entitled to place

signs on the easements, place a fence on the easements, or exclude Unger’s

guests and invitees from using the easements. Therefore, the reasons for the

injunctive relief were contained within the final judgment. The injunction

granted in the final judgment is definite, clear, and precise, and the judgment

complies with the rules relating to judgments. See TEX. R. CIV. P. 301;

Qaddura v. Indo-Eur. Foods, Inc., 141 S.W.3d 882, 892 (Tex. App.—Dallas

2004, pet. denied).

The Landrys contend that Unger did not show an irreparable injury that

justified the imposition of the permanent injunctions. An injury is irreparable

if the injured party cannot be adequately compensated in damages or if the

damages cannot be measured by any certain pecuniary standard. Butnaru v.

Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The record shows that the

Landrys’ proposed uses did not serve the stated purpose of the non-exclusive

Francis and Tamarra L. Landry v. John T. Unger Page 23
access easements. If a use does not serve the easement’s express purpose, it

becomes an unauthorized presence on the land whether or not it results in any

noticeable burden to the servient estate. Marcus Cable Assocs., 90 S.W.3d at

703. Where a trespass invades the possession of a person’s land, or destroys

the use and enjoyment of that land, an injunction is a proper remedy. Beathard

Joint Venture v. W. Houston Airport Corp., 72 S.W.3d 426, 432 (Tex. App.—

Texarkana 2002, no pet.). In such situations, the requirements of no adequate

remedy at law and irreparable damage are satisfied. See id.

The record does not support the Landrys’ argument that the trial court

abused its discretion in granting injunctive relief. We overrule the second

issue.

Issues Three through Eight

In issues three through eight, the Landrys challenge the trial court’s

award of attorney’s fees to Unger. The Landrys present the following issues

for review:

Issue Three: The trial court erred by refusing to make
requested additional findings of fact and conclusions of law.

Issue Four: The trial court erred by failing to properly apply
Texas Rule of Civil Procedure §37.009 by awarding attorney’s fees
under that statute without making a determination that such fees
are equitable and just.

Francis and Tamarra L. Landry v. John T. Unger Page 24
Issue Five: The trial court erred by failing to properly
segregate Unger’s claims for which attorney’s fees are available
from those claims that are not available.

Issue Six: Trial court abused its discretion if the trial court
did not follow the lodestar method.

Issue Seven: The trial court erred by awarding Unger
attorney’s fees in the amount of $68,701.00.

Sub-Issue 7(a): There was no evidence, or, in the
alternative, insufficient evidence, to support the trial court’s
Finding of Fact No. 15

Sub-Issue 7(b): The trial court erred in making its
Conclusion of Law 13 as there was no evidence, or in the
alternative, insufficient evidence to support the trial court’s
Conclusion of Law Nos. 13, and Conclusion of Law No. 13 did not
correctly apply the standards for an award of such attorney’s fees.

Issue Eight: Reversal of the declaratory or injunctive relief
pursuant to this appeal necessitates a remand on the issue of
attorney’s fees.

Standard of Review

A trial court’s award of attorney’s fees will not be disturbed absent an

abuse of discretion. Brazos Valley Roadrunners, LLC v. Herrera, 708 S.W.3d

289, 293 (Tex. App.—Waco 2025, no pet.). The test for abuse of discretion is

whether the trial court acted without reference to any guiding rules and

principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–

42 (Tex. 1985). A trial court does not abuse its discretion if some evidence

Francis and Tamarra L. Landry v. John T. Unger Page 25
reasonably supports the trial court’s decision. Butnaru v. Ford Motor Co., 84

S.W.3d 198, 211 (Tex. 2002).

“When reviewing a trial court’s award of attorneys’ fees, we must ensure

the record contains sufficient evidence to support such an award.” Yowell v.

Granite Operating Co., 620 S.W.3d 335, 354 (Tex. 2020). If there is insufficient

evidence in the record to uphold the trial court’s award of those fees, we must

reverse. Id.

Applicable Law

To secure an award of attorney’s fees from an opponent, the prevailing

party must prove (1) the recovery of attorney’s fees is legally authorized by

statute or contract, and (2) the fees were reasonable and necessary for the legal

representation. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578

S.W.3d 469, 484 (Tex. 2019). “[O]nly fees reasonable and necessary for the

legal representation will be shifted to the non-prevailing party, and not

necessarily the amount contracted for between the prevailing party and its

attorney, as a client’s agreement to a certain fee arrangement ... does not

necessarily establish that fee as reasonable and necessary.” Id. at 487–88

(citing Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818

(Tex. 1997)). An amount incurred or contracted for is not conclusive evidence

Francis and Tamarra L. Landry v. John T. Unger Page 26
of reasonableness or necessity. See id. at 488. “The fee claimant still has the

burden to establish reasonableness and necessity.” Id.

The Texas Supreme Court has stated that a factfinder should consider

the following factors when determining what attorney’s fees are reasonable

and necessary:

(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill required to perform the legal
service properly;

(2) the likelihood ... that the acceptance of the particular
employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal
services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the
circumstances;

(6) the nature and length of the professional relationship with the
client;

(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and

(8) whether the fee is fixed or contingent on results obtained or
uncertainty of collection before the legal services have been
rendered.

Arthur Andersen & Co., 945 S.W.2d at 818 (citing Tex. Disciplinary R. Prof.

Conduct 1.04, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. (State

Bar Rules, art. X, § 9); Ragsdale v. Progressive Voters League, 801 S.W.2d 880,

Francis and Tamarra L. Landry v. John T. Unger Page 27
881 (Tex. 1990)). These factors have generally become known as the “Arthur

Andersen factors.”

The Texas Supreme Court also recognizes an alternative method for

determining the reasonableness and necessity of attorney’s fees—the lodestar

method. In Rohrmoos, the Texas Supreme Court clarified that “we intend[ ]

the lodestar analysis to apply to any situation in which an objective calculation

of reasonable hours worked times a reasonable rate can be employed.” 578

S.W.3d at 497–98. Therefore, under the lodestar method, “the fact finder’s

starting point for calculating an attorney’s fee award is determining the

reasonable hours worked multiplied by a reasonable hourly rate, and the fee

claimant bears the burden of providing sufficient evidence on both counts.” Id.

at 498 (citing El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012)).

Sufficient evidence includes, at a minimum, evidence of (1) particular services

performed, (2) who performed those services, (3) approximately when those

services were performed, (4) the reasonable amount of time required to perform

those services, and (5) the reasonable hourly rate for each person performing

such services. Id. (citing El Apple I, Ltd., 370 S.W.3d at 762–63). When

awarding an attorney’s fee under this method, the factfinder must first

determine the reasonable hours spent by counsel in the case and a reasonable

hourly rate for such work. Id. Next, to get the lodestar, the number of hours

Francis and Tamarra L. Landry v. John T. Unger Page 28
is multiplied by the applicable rate to produce the base lodestar figure. Id.

The base lodestar may be adjusted up or down by the factfinder if relevant

factors indicate an adjustment is necessary to reach a reasonable fee in the

case. Id. The Arthur Andersen factors may justify an adjustment, but

considerations already incorporated into the base calculation may not be

applied to rebut the presumption that the base calculation reflects reasonable

and necessary attorney’s fees. Id. (citing Arthur Andersen & Co., 945 S.W.2d

at 818).

Discussion

Counsel for Unger and the Landrys agreed to submit their respective

evidence on attorney’s fees by affidavit. Unger’s counsel introduced an exhibit

asking for $137,402 in attorney’s fees. He explained that the fees were

reasonable and necessary and that he had segregated out an amount because

it pertained to claims for which attorney’s fees are not recoverable. The

Landrys did not object to the affidavit on attorney’s fees Unger’s counsel

submitted. The trial court awarded Unger $68,701 in attorney’s fees, one half

of that requested.

The Landrys contend that the trial court failed to properly segregate

Unger’s claims for which attorney’s fees are available, from those claims in

which they are not available. In the context of segregation of fees, if the issue

Francis and Tamarra L. Landry v. John T. Unger Page 29
is not raised “at the time in which the evidence of attorney’s fees was presented

and considered by the trial court, its objection is untimely and, thus, any error

is waived.” Tex Star Motors, Inc. v. Regal Fin. Co., 401 S.W.3d 190, 203 (Tex.

App.—Houston [14th Dist.] 2012, no pet.). By failing to raise an objection when

the trial court admitted Unger’s evidence on attorney’s fees specifically

addressing segregation when the parties or the trial court could have acted to

correct any error, the Landrys waived their complaint about the segregation of

attorney’s fees. We overrule their fifth issue.

The Landrys argue that the trial court erred by refusing to make

requested additional findings of fact and conclusions of law related to the

award of attorney’s fees. The trial court found that Unger presented evidence

of segregated attorney’s fees that were reasonable and necessary in the amount

of $137,402. The trial court made further findings on attorney’s fees in the

event of an appeal. The trial court’s conclusions of law reflect an award of

$68,701 as reasonable and necessary attorney’s fees to Unger.

The Landrys complain that the trial court did not make any findings of

fact that (1) the attorney’s fees were equitable and just, (2) the claims for which

Unger was awarded attorney’s fees, (3) the basis of a lodestar calculation,

whether a lodestar calculation was used, and if so, were any adjustments made

and the amount of the adjustments, and (4) an explanation on the discrepancy

Francis and Tamarra L. Landry v. John T. Unger Page 30
between the finding of $137,402 in reasonable and necessary attorney’s fees

and the award of $68,701 as reasonable and necessary attorney’s fees. They

maintain that they were harmed by the trial court’s failure to make the

additional findings of fact because it prevented them from adequately

presenting their complaints on appeal.

The trial court has no duty to make additional or amended findings that

are unnecessary or contrary to its judgment; a trial court is only required to

make additional findings and conclusions that are appropriate. Zhang v. Cap.

Plastic & Bags, Inc., 587 S.W.3d 82, 88 (Tex. App.—Houston [14th Dist.] 2019,

pet. denied). At trial, the parties agreed to present evidence of attorney’s fees

by affidavit. The Landrys made no objections to Unger’s evidence on attorney’s

fees at the time it was admitted. In addition, at the conclusion of the trial the

trial court stated on the record its award of $68,701 in attorney’s fees noting

that it was half of that requested by Unger, and the Landrys offered no

objection at that time.

The Landrys now seek findings explaining every detail in how the trial

court reached its decision on attorney’s fees. The trial court is not required to

set out in detail every reason or theory by which it arrived at its conclusions.

Id. at 90. The Landrys have not demonstrated that the trial court’s refusal to

make additional findings of fact prevented them from being able to adequately

Francis and Tamarra L. Landry v. John T. Unger Page 31
present their complaints on appeal. See id. at 88–9. Unger’s counsel presented

detailed evidence on his attorney’s fees without objection, and the trial court

found that the fees were reasonable and necessary. We conclude that the trial

court did not err in refusing to make the requested additional findings of fact

and conclusions of law. We overrule the third issue.

The Landrys next argue that the trial court erred by failing to properly

apply Section 37.009 of the Texas Civil Practices and Remedies Code in its

award of attorney’s fees. The Declaratory Judgments Act allows a court to

award reasonable and necessary attorney’s fees as long as the award is

equitable and just. TEX. CIV. PRAC. & REM. CODE ANN. § 37.009. The Landrys

maintain that the trial court did not make any finding of fact or conclusion of

law that the award was equitable and just.

We review whether the trial court’s award is “equitable and just” for an

abuse of discretion. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). It is

an abuse of discretion for a trial court to rule arbitrarily, unreasonably, or

without regard to guiding legal principles. See Goode v. Shoukfeh, 943 S.W.2d

441, 446 (Tex. 1997). Unger’s attorney presented evidence of his attorney’s

fees without objection. The evidence included invoices specifically stating the

date of service, who provided the service, the hours spent on each item, and the

amount billed for that service. Based on the record before us, we cannot

Francis and Tamarra L. Landry v. John T. Unger Page 32
conclude that the trial court abused its discretion in its award of $68,701 in

attorney’s fees to Unger. We overrule the fourth issue.

The Landrys argue that there was no evidence or insufficient evidence

to support the trial court’s finding of fact and conclusion of law regarding

attorney’s fees. The Landrys also complain that the trial court abused its

discretion if it did not follow the lodestar method in awarding attorney’s fees.

The Landrys did not challenge the affidavit of Unger’s counsel in support

of attorney’s fees. An attorney’s affidavit is sufficient proof of attorney’s fees

when the affidavit is unchallenged. In re Friesenhahn, 185 S.W.3d 16, 21 (Tex.

App.—San Antonio 2005, pet. denied). Unger presented evidence of

(1) particular services performed, (2) who performed those services,

(3) approximately when those services were performed, (4) the reasonable

amount of time required to perform those services, and (5) the reasonable

hourly rate for each person performing such services. Therefore, we cannot

conclude that the trial court abused its discretion by failing to follow the

lodestar method. See Rohrmoos, 578 S.W.3d at 498. We overrule the sixth and

seventh issues. Because of our disposition of the first and second issues, we

need not address the Landrys’ eighth issue that reversal of the trial court’s

declaratory and injunctive relief necessitates a remand on the issue of

attorney’s fees. See TEX. R. APP. P. 47.1.

Francis and Tamarra L. Landry v. John T. Unger Page 33
Conclusion

Having considered and overruled the Landrys’ issues on appeal, we

affirm the trial court’s judgment.

MATT JOHNSON
Chief Justice

OPINION DELIVERED and FILED: June 11, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
CV06

Francis and Tamarra L. Landry v. John T. Unger Page 34