CourtListener 10779183•Ernest O. Dickey, Rita S. Dickey, Matthew Owen Dickey, and Kayla Dee Dickey v. Todd Foust
Ernest O. Dickey, Rita S. Dickey, Matthew Owen Dickey, and Kayla Dee Dickey v. Todd Foust
CourtListener 10779183Txctapp13Jan 22, 2026
Full text
NUMBER 13-24-00253-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ERNEST O. DICKEY,
RITA S. DICKEY,
MATTHEW OWEN DICKEY,
AND KAYLA DEE DICKEY, Appellants,
v.
TODD FOUST, Appellee.
ON APPEAL FROM THE 90TH DISTRICT COURT
OF YOUNG COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices Peña and West
Memorandum Opinion by Chief Justice Tijerina
Appellants Ernest O. Dickey, Rita S. Dickey, Matthew Owen Dickey, and Kayla
Dee Dickey appeal the trial court’s granting of summary judgment in favor of appellee
Todd Foust. By three issues, appellants argue the trial court erred in granting summary
judgment: (1) where Foust did not move for summary judgment on the Dickeys’ active
pleadings; (2) on Foust’s cause of action for declaratory judgment because it would “not
resolve the controversy between the parties”; and (3) against the Dickeys on their cause
of action seeking declaratory judgment “since [Foust] did not move for summary judgment
on that claim as ple[a]d[ed].” We affirm.1
I. BACKGROUND
Mike and Karen Watkins owned an 80-acre tract in Young County. On July 25,
2007, the Watkins conveyed seventy-five acres to Foust. In the warranty deed, the
Watkins reserved an access easement across the seventy-five-acre tract for ingress and
egress to their five-acre tract. The access easement was made subject to the following
condition: “Neither Grantor (to include Grantor’s heirs, devisees, executors and assigns),
shall place or maintain gates across the Easement without the consent of the other.” This
deed was drafted by their attorney Stan Peavy and recorded in the official public records
of Young County.
The Watkins thereafter conveyed their five-acre dominant tract and its access
easement to other grantees. The property was subsequently conveyed, and the Watkins’
interest in the five-acre tract vested in Ashley Webb on April 7, 2017.
On August 4, 2017, Foust conveyed the seventy-five-acre tract, subject to the
access easement, and a ninety-nine-acre tract to Ernest and Rita. On December 21,
2017, Ernest and Rita subsequently conveyed the ninety-nine-acre tract to Matthew and
Kayla.
1 This appeal was transferred from the Second Court of Appeals in Fort Worth pursuant to a docket-
equalization order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001. We are
required to follow the precedent of the transferor court to the extent it differs from our own. TEX. R. APP. P.
41.3.
2
Thereafter, Webb alleged that Matthew and Kayla obstructed access to her
easement and interfered with potential buyers of her property informing them that there
was no easement to the five-acre tract. On September 16, 2018, Peavy filed a “Correction
Affidavit”—dated effective July 25, 2007. The affidavit stated that the access easement
he drafted in 2007 should have read as follows: “Neither Grantor or Grantee (to include
Grantor and Grantee’s heirs, devisees, executors and assigns), shall place or maintain
gates across the Easement without the consent of the other.” Foust and the Watkins
signed the corrected affidavit.
On December 3, 2020, Webb sued the Dickeys for breach of contract, breach of
easement covenant, interference with prospective business relations, and she sought
declaratory and injunctive relief.
On December 28, 2020, the Dickeys answered suit asserting the correction
affidavit did not apply to them because they were bona fide purchasers without notice of
the correction affidavit. They filed a counterclaim and cross-suit against Foust, including
causes of action of common law fraud, fraud by nondisclosure, breach of warranty, and
a declaration that the correction affidavit be rescinded.
On August 4, 2023, Foust filed a combined traditional and no-evidence motion for
partial summary judgment asserting there was no evidence to support the Dickeys’
claims. Specifically, Foust stated there was no evidence to support allegations that he
committed common law fraud, fraud by nondisclosure, statutory fraud, breached warranty
of title, that the Dickeys are successors in interest to the easement, and he challenged
the Dickeys’ affirmative defenses of laches, limitations, unclean hands, fraud, and failure
to satisfy conditions precedent. Foust further sought declaratory relief:
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That (1) the Warranty Deed with Vendor’s Lien recorded at Vol. 1016, page
694 . . . reserved from conveyance and reserved for the benefit of Grantor
Mike D. Watkins and Karen K. Watkins and Grantor’s heirs, devisees,
executors and assigns the road easement described on pages 2 and 3 of
that document, and that (2) the Correction Affidavit . . . did not diminish the
contractual rights or property rights of the Dickeys in regard to the said
easement.
He attached several warranty deeds, the correction affidavit, general deeds, special
warranty deeds, and an affidavit of a registered professional land surveyor.
On September 5, 2023, the Dickeys filed an amended answer removing their fraud,
fraud by nondisclosure, and statutory fraud causes of action. The Dickeys also responded
to Foust’s motion for summary judgment by asserting that Foust “did not state any
elements of the cause for which he believes no evidence exists.” According to the
Dickeys, Foust “provides no elements, detail, or support for which elements” he
challenges regarding the Dickeys’ action for declaratory judgment. They relied on Foust’s
exhibits to support their contention, and they each filed an affidavit. Foust filed a reply
asserting that the Dickeys failed to challenge his no-evidence grounds for summary
judgment and failed to produce evidence regarding their affirmative defenses.
The trial court granted Foust’s motion for partial summary judgment and severed
all claims between the Dickeys and Foust. This appeal followed.
II. SUMMARY JUDGMENT
A. The Dickeys’ Claims
By their first and third issues, the Dickeys argue that the trial court erred by granting
summary judgment and denying them declaratory relief where Foust “did not move for
summary judgment on [the Dickeys’] active pleadings.” The Dickeys assert that they
requested declaratory judgment “that the ‘correction affidavit’ is void” as to them because
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“they are bona fide purchasers of the property and were not given notice” of the affidavit
prior to purchase. They argue that summary judgment and the denial of their declaratory
relief was improper because Foust did not address this in his motion for summary
judgment.
In his motion for summary judgment, Foust stated:
Foust is before the Court today because of the Dickeys’ mistaken belief and
false premise that they are the successors in interest to the original owner
of the road easement. They are not, Webb is. Therefore, each and all of the
Dickeys’ claims against Foust are meritless and should be summarily
dismissed.
He further asserted that there was “no evidence that the Dickeys are successors in
interest to the road easement, a claim on which the Dickeys base their request for
declaratory judgment and on which they would have the burden of proof at trial.” Foust
relied on Broadway National Bank v. Yates Energy Corp. for the proposition “that original
parties can effectuate a correction instrument without the signatures of the current
property owners . . . [which] applies to bona fide purchasers who are current property
owners.” 631 S.W.3d 16, 28 (Tex. 2021). Foust argued that the Dickeys assertion that the
correction affidavit was somehow improper was therefore false and requested the trial
court’s “declaration that the correction affidavit did not diminish the Dickeys’ contractual
rights or property rights.” Foust further requested a declaration that the correction affidavit
“actually gave the Dickeys bilateral rights with Webb to place and maintain gates across
the easement.”2 Therefore, contrary to the Dickeys’ assertion, the record provides that
Foust moved for summary judgment on the Dickeys’ active causes of action. See TEX. R.
2 Additionally, Foust challenged each element of the Dickeys’ other causes of action, namely,
common law fraud; fraud by nondisclosure; statutory fraud; breached of warranty of title; and the Dickeys’
affirmative defenses of laches, limitations, unclean hands, fraud, and failure to satisfy conditions precedent.
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CIV. P. 166a.3 We overrule the Dickeys’ first and third issues.
B. Foust’s Request
By their second issue, the Dickeys argue that the trial court erred by granting
summary judgment on Foust’s request for declaratory judgment because it “is not
disputed that Watkins reserved the road easement from their conveyance of the” seventy-
five acres, and “the Dickeys are Foust’s successors in interest pursuant to that
easement.” According to the Dickeys, declaratory judgment is improper because “there is
no controversy on that issue,” and “such declaration by [the trial c]ourt would not resolve
the controversy between the parties.”
However, in the trial court, the Dickeys argued that they were owners of the
easement, they held the rights to the easement, and the correction affidavit sought to
restrict them from placing or maintaining gates across the easement. Foust disputed that
the Dickeys had that right. Foust argued that the warranty deed reserved to Watkins the
sole right to place gates across the easement, that Watkins did not grant an easement to
Foust because it was reserved by Watkins, and therefore Foust could not convey it to the
Dickeys. In their petition, the Dickeys stated that in the correction affidavit, Foust “sought
to change and diminish the effect of his grant of property to the Dickeys, after selling the
property” to them. Thus, the issue of whether the Dickeys were “Foust’s successors in
interest pursuant to that easement” and the effect the correction affidavit had on the
3 Furthermore, on appeal, the Dickeys do not challenge any elements of common law fraud;
committed fraud by nondisclosure; statutory fraud; breached of warranty of title; or address their affirmative
defenses of laches, limitations, unclean hands, fraud, and failure to satisfy conditions precedent. See
Gonzales v. Thorndale Coop. Gin & Grain Co., 578 S.W.3d 655, 657 (Tex. App.—Houston [14th Dist.] 2019,
no pet.) (“When the appellant fails to challenge each possible summary-judgment ground, we must uphold
the judgment on the unchallenged grounds.”); Blue Wave Cap., LLC v. Brownsville Reg’l Hosp., LLC, No.
13-12-00416-CV, 2013 WL 4769446, at *6 (Tex. App.—Corpus Christi‒Edinburg Sept. 5, 2013, no pet.) (“If
an appellant does not challenge each possible ground on which summary judgment could have been
granted, we must uphold the summary judgment on the unchallenged ground.”).
6
Dickeys was in dispute in the trial court. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.002
(providing that Uniform Declaratory Judgments Act “is to settle and to afford relief from
uncertainty and insecurity with respect to rights, status, and other legal relations; and it is
to be liberally construed and administered”). Accordingly, the trial court did not err in
granting Foust declaratory relief. We overrule the Dickeys’ second issue.4
III. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Chief Justice
Delivered and filed on the
22nd day of January, 2026.
4 Foust’s motion to dismiss the appeal is denied.
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