William J. Boyce, Justice

Paul J. McConnell, III, Ben A. Baring, Jr., Houston, TX, for Appellee.

Earnest W. Wotring, William D. George, Houston, TX, for Appellant.

MAJORITY OPINION

William J. Boyce, Justice

Charles and Barbara Seber sued Union Pacific Railroad Company contending that it wrongfully removed the Sebers' private railroad crossing. The Sebers claimed a right to use the crossing pursuant to an implied easement by prior use. The trial court granted summary judgment in favor of the Sebers, declaring that the Sebers have a right to use the crossing and ordering Union Pacific to reinstall the crossing. Additionally, the trial court denied Union Pacific's no-evidence summary judgment motion. The trial court signed a final judgment incorporating the earlier interlocutory order granting summary judgment; the final judgment also awarded the Sebers attorney's fees based on a bench trial. Union Pacific appealed the trial court's summary judgment orders and final judgment.

The Texas Supreme Court clarified the law on implied easements in Hamrick v. Ward, 446 S.W.3d 377 (Tex.2014), while this appeal was pending. Relying on Hamrick, we conclude that the Sebers cannot assert an implied easement by prior use. Accordingly, we reverse the trial court's final judgment based on an order granting the Sebers' motion for summary judgment. We remand the case to the trial court for further proceedings consistent with this opinion.

Background

Union Pacific's predecessor in interest condemned a railroad right-of-way along Hufsmith–Kuykendahl Road in 1902 along with a 1.5 acre tract of land adjoining the right-of-way, which the railroad used for a section house. The railroad constructed a crossing over the right-of-way, which permitted access between the otherwise landlocked 1.5 acre tract and Hufsmith–Kuykendahl Road. The 1.5 acre tract later was severed from the right-of-way and conveyed to a number of different owners until it became part of a larger tract of land, which the Sebers now own.

The Sebers' larger tract of land is landlocked along its northern and eastern boundaries. The property's western boundary abuts Stuebner–Airline Road. Union Pacific's railroad right-of-way runs along the property's entire southern boundary. The Sebers accessed their property from both Stuebner–Airline Road and the railroad crossing to Hufsmith–Kuykendahl Road until 2008, when Union Pacific permanently removed the railroad crossing. The Sebers now access their property only from Stuebner–Airline Road.

?

The parties' dispute in this, their second appeal to this court, is whether Union Pacific violated the Sebers' rights when it removed the railroad crossing to Hufsmith–Kuykendahl Road in 2008. We recount the case's procedural history in detail to clarify the parties' contentions. We also address an intervening decision from the Supreme Court of Texas that affects our disposition of this appeal.

I. The First Appeal

The Sebers filed suit on October 30, 2008, alleging that Union Pacific's removal of the private railroad crossing was “wrongful, constituted a trespass, and was done in derogation of [their] vested rights.” The Sebers sought a declaratory judgment that they were entitled to use the crossing and a mandatory injunction requiring Union Pacific to replace the crossing. Alternatively, the Sebers sought monetary damages, including exemplary damages, for (1) inverse condemnation of their right to use the crossing; and (2) Union Pacific's interference with their “vested property rights.”

Union Pacific filed a motion for traditional summary judgment and contended that (1) the Sebers had no legal right to use the crossing; (2) Union Pacific's railroad right-of-way entitled it to exclude the Sebers; (3) the Sebers' claims were preempted by federal law; (4) the Sebers' trespass claim failed as a matter of law; and (5) the Sebers could not obtain exemplary damages.

The Sebers filed a motion for partial summary judgment contending that Union Pacific's predecessor in interest conveyed an express easement to use the crossing to the Sebers' predecessor in title.

The trial court signed an order on January 26, 2010, granting Union Pacific's motion for summary judgment. The Sebers timely appealed.

On appeal, we affirmed the trial court's (1) summary judgment in favor of Union Pacific with respect to the Sebers' trespass and exemplary damage claims; and (2) denial of the Sebers' partial summary judgment motion. SeeSeber v. Union Pac. R.R. Co., 350 S.W.3d 640, 656 (Tex.App.–Houston 14th Dist. 2011, no pet.). Additionally, we determined that the property deeds filed as summary judgment evidence did not grant the Sebers' predecessor in title an express easement to use the railroad crossing. Seeid. at 647. We determined, however, that a fact issue existed as to whether the Sebers had an implied easement to use the railroad crossing. Seeid. at 650.

We surveyed the law on implied easements in making our decision, noting at the outset that “potentially confusing terminology pertaining to implied easements [made] it more difficult to identify, apply, and analyze the correct governing framework.” Id. at 647. We discussed two types of implied easements, which we referred to then and will refer to now as “easements by necessity” and “easements by prior use.” Id. at 647–48, 648 n. 4.

“An easement by necessity has three requirements: (1) unity of ownership of both parcels prior to separation; (2) access must be a necessity and not a mere convenience; and (3) the necessity must exist at the time of severance.” Id. at 648 (citing Koonce v. Brite Estate, 663 S.W.2d 451, 452 (Tex.1984)). On the other hand, we stated: “A party claiming an easement by prior use must prove that at the time of the severance: (1) both parcels were under unified ownership; (2) the use was apparent; (3) the use was continuous; and (4) the use was necessary to the use of the dominant estate.” Id. (citing Bickler v. Bickler, 403 S.W.2d 354, 357 (Tex.1966) and Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex.1962)).

“The Sebers expressly den[ied] that they claim[ed] an easement by necessity.” Id. at 649. We determined that the dispute “center[ed] on an easement by prior use.” Id. We then focused on the fourth element for establishing an easement by prior use—that the party claiming the easement must prove that, at the time the dominant and servient estates were severed, the “use was necessary to the use of the dominant estate.” Seeid. at 648–49; see also Bickler, 403 S.W.2d at 357; Drye, 364 S.W.2d at 207.

We determined that Texas law required the Sebers to show “only reasonable necessity,” rather than “strict necessity,” to establish an implied easement because the Sebers alleged an implied grant of an easement and not an implied reservation of an easement. Id. at 649 (citing Mitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163, 168 (1952) and Howell v. Estes, 71 Tex. 690, 12 S.W. 62, 62–63 (1888)). We further determined that the “relevant timeframe for proving reasonable necessity [was] the point at which the 1.5 acre tract was severed,” and that the Sebers did not have to show that the implied easement remained a “continued necessity” at all times after severance, including “when the Sebers became owners of the larger tract of land.” Seeid. at 649–50, 650 n. 5.

Applying our interpretation of Texas implied easement law and the relevant standard of review, we held “that the grounds asserted in Union Pacific's ... summary judgment motion did not establish as a matter of law that the Sebers [were] foreclosed from invoking a right to use the crossing pursuant to an implied easement by prior use.” Id. at 650. We also held that Union Pacific's railroad right-of-way did not entitle it to exclude the Sebers from the crossing and that federal law did not preempt the Sebers' claims. Seeid. at 651–52. Accordingly, we reversed the trial court's summary judgment order with respect to the Sebers' claims, other than their claims for trespass and exemplary damages. Seeid. at 656. We remanded the case to the trial court for proceedings consistent with our opinion. Seeid.

II. The Second Appeal

The Sebers amended their petition following remand. They requested a mandatory injunction requiring Union Pacific to replace the railroad crossing and a declaratory judgment “that they [had] obtained the right to use the railroad crossing as an implied easement, based on the prior use of the land.” The Sebers, alternatively, requested “all appropriate monetary relief.”

The Sebers filed a motion for traditional summary judgment in which they contended that (1) Union Pacific's predecessor in interest severed the 1.5 acre tract from the railroad right-of-way in 1959; and (2) at the time of severance, an easement to use the railroad crossing was reasonably necessary. The Sebers argued that these circumstances established an implied easement by prior use. The Sebers attached as summary judgment evidence a 1959 deed purporting to transfer the 1.5 acre tract from Union Pacific's predecessor in interest to W.E. Simpson, whom the Sebers asserted was their predecessor in title. The Sebers also attached to their motion Barbara Seber's affidavit, in which she averred that the railroad crossing was apparent in 1959 and in continuous use since at least 1902.

Union Pacific contended the Sebers had not established that the 1959 deed conveyed an interest in the 1.5 acre tract and, therefore, the Sebers had not proved unity of ownership of the dominant and servient estates at the time of severance. According to Union Pacific, the 1902 condemnation decree did not award fee simple title to the right-of-way and the 1.5 acre tract to Union Pacific's predecessor in interest. Union Pacific argued that its predecessor in interest had a lesser interest in the condemned property that reverted back to the original owner when the property ceased to be used for railroad purposes. Union Pacific argued that this reversion occurred before execution of the 1959 deed because the deed states: “The property herein described is not used or useful for railroad purposes.” Union Pacific also argued that the Sebers had not proved through Barbara Seber's affidavit that the crossing was apparent and continuously used in 1959 and earlier because Barbara Seber's affidavit was not based on personal knowledge, was conclusory, could not be readily controverted, and was inconsistent with her deposition testimony.

Union Pacific also filed a no-evidence summary judgment motion, in which it contended that the Sebers could not establish an implied easement by prior use because the Sebers had no evidence that (1) the 1959 deed conveyed an interest in the land; and (2) the railroad crossing existed or was in use in 1959. The Sebers responded to Union Pacific's no-evidence summary judgment motion with substantially the same evidence they relied on in their summary judgment motion.

The trial court granted the Sebers' traditional motion for summary judgment on January 27, 2012, and denied Union Pacific's no-evidence summary judgment motion on February 17, 2012. The case proceeded to a bench trial on attorney's fees. The trial court signed a final judgment on September 25, 2013, in which it awarded the Sebers $126,875 in reasonable and necessary attorney's fees along with additional amounts contingent upon successful defense of the judgment on appeal. Union Pacific timely appealed.

Union Pacific argues in two issues that the trial court erred in applying the law on implied easements by prior use to the summary judgment evidence. It argues, as it did in the trial court, that its predecessor in interest “lost ownership” of the 1.5 acre tract of land before it executed the 1959 deed. Union Pacific also argues that Barbara Seber's affidavit is no evidence, or at a minimum no conclusive evidence, that the crossing was being used in 1959. In a third issue, Union Pacific contends that the trial court erred in granting attorney's fees to the Sebers because they should not have prevailed on their claims.

III. Hamrick v. Ward

The Texas Supreme Court decided Hamrick v. Ward, 446 S.W.3d 377 (Tex.2014), after the parties filed their appellate briefs. The supreme court used Hamrick “to provide clarity in an area of property law that ha[d] lacked clarity for some time: implied easements.” Id. at 379. In Hamrick the supreme court held that the easement-by-necessity doctrine—and not the easement-by-prior-use doctrine—must apply “to claims of landowners asserting implied easements for roadway access to their landlocked, previously unified parcel.” Id. at 379; seeid. at 382.

The supreme court described the facts of the case as follows. A landowner constructed a dirt road along the eastern edge of his 41.1 acre parcel of land in the 1930s. Id. at 379. The landowner later severed the parcel into a two-acre parcel and a 39.1 acre parcel. Id. The landowner sold the two-acre parcel in the 1950s to a couple who used the dirt road to access their property. Id. The 39.1 acre parcel was sold to a developer for construction of a subdivision in the 1990s. Id. The developer paved roads within the larger parcel and planned to construct a paved driveway to connect the two-acre parcel to one of the subdivision's newly paved roads. Id. The county, however, refused the developer permission to connect the two-acre parcel to one of the newly paved roads because the two-acre parcel had not been platted. Id. In response, the developer unilaterally filed a special restriction amendment to the subdivision's deed restrictions. Id. The special restriction purported to create a prescriptive easement along the dirt road for the owner of the two-acre parcel to access her property. Id. at 379–80. The developer then sold lots over which the dirt road ran to homebuyers, whom the court referred to collectively as “the Hamricks.” Id. at 380.

Tom and Betsey Ward purchased the two-acre parcel of land in the 2000s. Id. They reinforced the dirt road with gravel and made use of the road to begin construction of a new home. Id. The Hamricks sued to enjoin the Wards from using the dirt road. Id. The trial court granted a temporary injunction, which prevented the Wards from using the dirt road for construction of their home. Id. As a result, the Wards platted their property and built a driveway to provide the Wards with access to one of the subdivision's newly paved roads. Id. The Wards then completed construction of their home. Id. The Wards filed a counterclaim against the Hamricks arguing that they had an implied easement by prior use to use the dirt road; the Wards requested a declaratory judgment regarding their right to an easement. Id.

The trial court granted the Wards' motion for summary judgment after determining that the Wards had conclusively established the existence of an easement by prior use. Id. The Hamricks appealed, and the court of appeals determined that the summary judgment evidence conclusively established beneficial use of the road prior to severance and the necessity of the road. See id.; Hamrick v. Ward, 359 S.W.3d 770, 776–79 (Tex.App.–Houston 14th Dist. 2011), rev'd, 446 S.W.3d 377 (Tex.2014). The court of appeals unanimously held that the Wards were required to prove necessity only at the time of severance, rather than continuing necessity. SeeHamrick, 446 S.W.3d at 380; Hamrick, 359 S.W.3d at 777. The court of appeals remanded because it determined that a fact issue remained with respect to one of the Hamricks' asserted defenses. SeeHamrick, 446 S.W.3d at 380; Hamrick, 359 S.W.3d at 785.

The Hamricks appealed to the Texas Supreme Court. They argued that the court of appeals erred by concluding that the Wards were required to demonstrate the necessity of the easement only at the time of severance. Hamrick, 446 S.W.3d at 381. The Wards countered that the supreme court had never required continued necessity for easements by prior use. Id. The supreme court determined that the Wards could not prevail on an implied easement by prior use. Id. It held that “the applicable doctrine for roadway access to previously unified, landlocked parcels is the necessity easement.” Id. The court remanded the case to the trial court because the Wards only pleaded theories of easement by prior use and easement by prescription. Id. at 385. The court would not “foreclose the Wards from bringing a necessity easement claim in light of [the court's] clarification of the law.” Id.

In reaching its decision, the supreme court stated:

To successfully assert [an easement by necessity], the party claiming the easement must demonstrate: (1) unity of ownership of the alleged dominant and servient estates prior to severance; (2) the claimed access is a necessity and not a mere convenience; and (3) the necessity existed at the time the two estates were severed.... As this analysis makes clear, a party seeking a necessity easement must prove both a historical necessity (that the way was necessary at the time of severance) and a continuing, present necessity for the way in question.

Id. at 382. Additionally, a party seeking an easement by necessity must prove strict, rather than reasonable necessity. Id. at 379, 384.

IV. Post–Hamrick Supplemental Briefing

Union Pacific filed a supplemental brief in this court after the supreme court issued Hamrick. Union Pacific argued that the Sebers are claiming a roadway easement to a landlocked, previously unified parcel of land; therefore, Union Pacific contends, the Sebers must pursue an easement by necessity theory under Hamrick. Union Pacific further argues that the Sebers cannot prevail on an easement-by-necessity theory because the crossing over Union Pacific's railroad right-of-way ceased to be necessary when the 1.5 acre tract of land became part of the larger tract that borders Stuebner–Airline Road to the west. Union Pacific requested that judgment in favor of the Sebers be reversed and judgment rendered in favor of Union Pacific. Alternatively, it requested that we remand the case to the trial court for development of the easement-by-necessity issue.

The Sebers responded that the railroad crossing between their property and Hufsmith–Kuykendahl Road is not a roadway; therefore, they contend that Hamrick does not control. The Sebers argued that the railroad crossing is instead an “improvement” and that Hamrick did not “impact the continued ability of such improvements to qualify as [easements by prior use].” Seeid. at 384–85. The Sebers requested that we affirm the trial court's judgment because the evidence established an easement by prior use. Alternatively, the Sebers requested that we remand the case if we determine the crossing to be a roadway so that the trial court can consider the issue of easement by necessity and other easement theories the Sebers may assert in light of Hamrick.

Analysis

I. The Sebers' Traditional Motion for Summary Judgment

We consider first whether the railroad crossing between the Sebers' property and Hufsmith–Kuykendahl Road is a “roadway” or “other improvement.” Seeid. at 384–85. Our resolution of this question determines the controlling implied easement law under Hamrick, which, in turn, affects our analysis of whether the trial court erred in granting traditional summary judgment in favor of the Sebers. See id.; see also Tex. R. Civ. P. 166(a)(c) (a traditional summary judgment movant must show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005) (an appellate court reviews the trial court's summary judgment de novo ).

Hamrick determined that the dirt road at issue in that case, which later was reinforced with gravel, was a roadway. Hamrick, 446 S.W.3d at 385. The court stated:

Roadways by nature are typically substantial encumbrances on property, and we accordingly require strict, continuing necessity to maintain necessity easements. By contrast, we created and have primarily utilized the prior use easement doctrine for lesser improvements to the landlocked parcel, such as utility lines that traverse the adjoining tract. We have required, to some degree, a lesser burden of proof for prior use easements (reasonable necessity at severance rather than strict and continued necessity) because they generally impose a lesser encumbrance on the adjoining tract (e.g., a power line compared to a roadway).

Id. at 379.

The supreme court summarized the development of implied easement law. Seeid. at 381–84. The court recognized in Alley v. Carleton, 29 Tex. 74 (1867), that an implied easement by necessity “results when a grantor, in conveying or retaining a parcel of land, fails to expressly provide for a means of accessing the land.” Hamrick, 446 S.W.3d at 382 (citing Alley, 29 Tex. at 78). The implied easement by necessity facilitates “continued productive use of the landlocked parcel.” Id.

Two decades after Alley was decided, the supreme court found the framework established for easements by necessity “to be ill suited for other improvements that nonetheless are properly construed as implied easements.” Id. These “other improvements” included the use of a stairwell in an adjacent building, the right to graze cattle on an exposed lakebed, and the recreational use of adjoining property. Id. at 382–84 (citing Howell, 12 S.W. at 62, Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669, 677 (1959), and Drye, 364 S.W.2d at 208). The court established a doctrine of easement by prior use “for assessing whether to recognize implied easements for improvements across previously unified adjoining property.” Hamrick, 446 S.W.3d at 383. The doctrine of easement by prior use applied as follows: “ ‘[I]f an improvement constructed over, under, or upon one parcel of land for the convenient use and enjoyment of another contiguous parcel by the owner of both be open and usable and permanent in its character ... the use of such improvement will pass as an easement, although it may not be absolutely necessary to the enjoyment of the estate conveyed.’ ” Id. (citing Howell, 12 S.W. at 63). The court applied the easement by prior use doctrine to, among other things, “ ‘a part[ition] wall,’ ‘a drain or aqueduct,’ ‘a water [gas] or sewer line into the granted estate,’ ‘a drain from the land,’ ‘light and air,’ ‘lateral support,’ and ‘water.’ ” Id. at 384 (citing Drye, 364 S.W.2d at 207–08).

The supreme court recognized that “the express elements required for prior use easements do not restrict themselves to certain easement purposes.” Id. In at least one prior case, “a party pursued a prior use easement (rather than a necessity easement) for roadway access to a previously unified, landlocked parcel.” Id. at 385 (citing Bickler, 403 S.W.2d at 357). Nevertheless, the supreme court “developed the two types of implied easements for discrete circumstances. The less forgiving proof requirements for necessity easements (strict and continuing necessity) simply serve as acknowledgment that roadways typically are more significant intrusions on servient estates. By contrast, improvements at issue in prior use easements (e.g., water lines, sewer lines, power lines) tend to involve more modest impositions on servient estates.” Id. at 384. According to Hamrick : “Applying this distinction to the Wards' claimed easement does not entail prolonged analysis. Their claimed easement concerns a roadway to access a previously unified, landlocked parcel. This is precisely the factual scenario for which we created the necessity easement doctrine well over a century ago, and ... the Wards must pursue a necessity easement rather than a prior use easement.” Id. at 385.

Relying on Hamrick, the Sebers argue: “Here, the easement at issue is over an improvement—a crossing that the railroad constructed over its tracks. This improvement is the type that [Hamrick ] held constitutes a lesser encumbrance on property than does a roadway, and to which the [easement by prior use] doctrine still applies.” The Sebers provide a dictionary definition of “improvement” as “ ‘[a]n addition to real property, whether permanent or not; esp., one that increases its value or utility or that enhances its appearance.’ ” (quoting Black's Law Dictionary 761 (7th ed.1999)). The Sebers argue that Hamrick 's holding does not apply to “improvements” such as the crossing, but applies instead only to “roadways.”

We determine, upon a close reading of Hamrick, that the Sebers misconstrue Hamrick 's reasoning and holding. Hamrick did not create a dichotomy between “roadways” and “improvements.” Instead, Hamrick treated a roadway as an “improvement,” and it discussed easements by prior use as applicable to “other improvements” that “involve more modest impositions on servient estates.” Seeid. at 383–84.

The railroad crossing at issue in this case provided access to Hufsmith–Kuykendahl Road for the 1.5 acre tract after it became landlocked. The crossing also provided a means to travel over the railroad right-of-way. This “improvement”—as both a roadway access and a means to travel over a railroad right-of-way—is at least as significant an intrusion on the railroad right-of-way as roadway access was on the servient estates in Hamrick. Seeid. at 385; cf.City of Houston v. Goings, 795 S.W.2d 829, 832 (Tex.App.–Houston 14th Dist. 1990, writ denied) (“A public bridge forming a connecting link in a street or highway is a part of that street or highway.”). The improvement at issue here is more akin to a roadway and less akin to “more modest impositions” such as water, sewer, or power lines. SeeHamrick, 446 S.W.3d at 384. Based on the reasoning and holding of Hamrick, we conclude that the Sebers must pursue an easement by necessity for roadway access over the railroad right-of-way. SeeHamrick, 446 S.W.3d at 384–85.

It follows that the trial court erred in granting summary judgment in favor of the Sebers on their pleaded theory of easement by prior use. To prevail on a traditional motion for summary judgment, the movant must show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). We review a trial court's summary judgment de novo.Valence, 164 S.W.3d at 661. We hold that the Sebers are not entitled to summary judgment on their pleaded easement by prior use claim because the Sebers cannot prevail on this claim as a matter of law. See Tex. R. Civ. P. 166(a)(c); Hamrick, 446 S.W.3d at 385–86; Valence, 164 S.W.3d at 661. We reverse the trial court's final judgment based on the January 27, 2012 summary judgment order.

II. Remand in the Interest of Justice

The Sebers did not plead an easement by necessity theory and—until this point in the litigation—have expressly denied relying on such a theory. The Sebers nevertheless request that we remand the case to allow the Sebers an opportunity to plead and prove an easement by necessity theory or any other easement theory that is not foreclosed by Hamrick. The Sebers argue that they should be allowed the same opportunity on remand that was afforded to the Wards in Hamrick. SeeHamrick, 446 S.W.3d at 385 (“Although we refrain from opining as to whether the Wards will ultimately prevail on a necessity easement claim, our clarification of the law entitles them to the opportunity to plead and prove such a claim.”).

Union Pacific argues in its post-Hamrick supplemental brief that (1) the Sebers' only available claim is for an implied easement by necessity; and (2) any easement by necessity terminated when the 1.5 acre tract was joined with the larger tract that has access to Stuebner–Airline Road. Union Pacific requests that we render judgment in its favor and remand the case to the trial court to determine Union Pacific's attorney's fees award. Union Pacific also states: “If this Court is concerned that the implied easement by necessity argument was not fully developed in the trial court, then—like the Supreme Court did in Hamrick—it can remand for further development of that issue.”

Union Pacific argued in its no-evidence motion for summary judgment that the Sebers could not proffer evidence to support required elements of an easement by prior use. Union Pacific understandably did not move for summary judgment on an as-yet unpleaded claim for easement by necessity. Union Pacific understandably did not argue in its motion for summary judgment that access to Stuebner–Airline Road prevented the Sebers from establishing an easement by necessity after the larger tract was joined with the 1.5 acre tract; the Sebers were not pursuing a claim based on an easement by necessity at the time, and Hamrick had not yet been decided.

Under these circumstances, the trial court could not properly have granted summary judgment in favor of Union Pacific on an easement by necessity claim, which had not been pleaded, and which had not been addressed in Union Pacific's no-evidence motion for summary judgment. SeeJohnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex.2002) (“A court cannot grant summary judgment on grounds that were not presented.”); see alsoG & H Towing Co. v. Magee, 347 S.W.3d 293, 298 (Tex.2011) (“[A] trial court errs in granting a summary judgment on a cause of action not expressly presented by written motion.”); Dubose v. Worker's Med., P.A., 117 S.W.3d 916, 922 (Tex.App.–Houston 14th Dist. 2003, no pet.) (“The trial court may not grant summary judgment as a matter of law on a cause of action not addressed in the summary judgment proceeding.”). Union Pacific does not cite any authority for the proposition that we may render judgment under these circumstances. Cf.Hamrick, 446 S.W.3d at 385 (“[W]e procedurally cannot hold that the Wards prevailed on a theory they have not advanced in the trial court.”). We reject Union Pacific's request to render judgment in its favor with respect to an easement by necessity theory that was not pursued in the trial court.

Furthermore, we have broad discretion to remand a case in the interest of justice after reversing the trial court's judgment. See Tex. R. App. P. 43.3(b); Ahmed v. Ahmed, 261 S.W.3d 190, 196 (Tex.App.–Houston 14th Dist. 2008, no pet.); Chrismon v. Brown, 246 S.W.3d 102, 116 (Tex.App.–Houston 14th Dist. 2007, no pet.) (a court of appeals, unlike the Texas Supreme Court, cannot remand in the interest of justice without first reversing the trial court's judgment). We may exercise our discretion to remand as long as there is a probability that the case, for any reason, has not been fully developed. SeeAhmed, 261 S.W.3d at 196. We also may remand if a case needs further development because it was tried on an incorrect legal theory. Id.

We have determined that summary judgment in favor of the Sebers based on an easement-by-prior-use theory is erroneous because an easement by prior use is unavailable to the Sebers following Hamrick. The Sebers asserted at oral argument that access to their property from Stuebner–Airline Road is impeded during certain times of the year due to wet conditions. The parties have not adequately developed facts or arguments regarding whether this impediment or other circumstances affect the Sebers' right, if any, to an easement by necessity. SeeMitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163, 168 (1952) (“[E]ven the term ‘strict necessity’ is not hopelessly inelastic for sensible application to varying sets of facts.”). Under the circumstances, we remand the case in the interest of justice to allow the Sebers an opportunity to plead and pursue an easement-by-necessity theory or any other easement theory that has not been foreclosed by Hamrick, and to allow the parties to develop facts and arguments accordingly. See Tex. R. App. P. 43.3(b).

The dissent misses the mark by contending it is erroneous to remand in the interest of justice, and to do so “without addressing the railroad company's rendition arguments” asserting there is no evidence on two elements of a claim for easement by prior use.

The dissent does not contend that we can ignore Hamrick. The dissent stops well short of concluding that a necessity easement claim does not fit the circumstances here under Hamrick. The dissent does not explain how any useful purpose would be served by determining on appeal whether the Sebers proffered evidence on two particular elements of a prior-use easement claim that is unavailable to them as a matter of law after Hamrick. If such a claim is legally unavailable to the Sebers, then purported fact issues on particular elements of the legally unavailable claim are not “material” under Texas Rules of Civil Procedure 166a(c) and (i); further, discussing immaterial fact issues is not “necessary to final disposition of the appeal” under Texas Rule of Appellate Procedure 47.1.

The dissent's main thrust appears to be that rendition arguments must be decided before remand arguments under the general rule discussed in Bradleys' Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex.1999) (“Generally, when a party presents multiple grounds for reversal of a judgment on appeal, the appellate court should first address those points that would afford the party the greatest relief.”) (citing Tex. R. App. P. 43.3). But the general rule has exceptions. One of those exceptions allows a remand in “the interests of justice” in appropriate circumstances. See Tex. R.App. P. 43.3(b).

The appropriate circumstances for a remand in the interest of justice are present here in light of Hamrick' s clarification of many decades of muddled terminology and less-than-clear analysis accompanying efforts to distinguish between implied prior-use easements and implied necessity easements. SeeHamrick, 446 S.W.3d at 381–82, 384–85. In their supplemental briefs, Union Pacific and the Sebers both have invited this court to remand for further proceedings in light of Hamrick. We believe the appropriate course is to exercise our discretion under Texas Rule of Appellate Procedure 43.3(b); accept an invitation extended by both parties; and follow Hamrick' s lead by remanding so that we do “not foreclose the [Sebers] ... from bringing a necessity easement claim in light of [Hamrick 's] ... clarification of the law.” SeeHamrick, 446 S.W.3d at 385.

Conclusion

We reverse the trial court's September 25, 2013 final judgment, which incorporates the erroneous January 27, 2012 summary judgment order. In light of our disposition, we do not assess the propriety of the trial court's denial of Union Pacific's no-evidence summary judgment motion, which was aimed solely at the Sebers' claim for an easement by prior use. We reverse the trial court's final judgment awarding attorney's fees to the Sebers because the fee award was predicated on the trial court's erroneous summary judgment in favor of the Sebers on an easement-by-prior-use claim that is unavailable to the Sebers after Hamrick. We remand the case to the trial court for further proceedings consistent with this opinion.

DISSENTING OPINION

Kem Thompson Frost, Chief Justice, dissenting.

The trial court granted the landowners' traditional summary-judgment motion on their claim for an implied easement by prior use and denied the railroad's no-evidence summary-judgment motion aimed at several essential elements of the landowners' claim. On appeal, the railroad challenges both rulings. Because the railroad was entitled to summary judgment based on one of its no-evidence grounds, this court should reverse the trial court's judgment and render judgment in the railroad's favor. Instead, the majority reverses and remands without addressing the railroad's rendition arguments based on its no-evidence summary-judgment motion.

The Prior–Use Easement Claim

In their live pleading, appellees/plaintiffs Charles and Barbara Seber asserted a single claim against appellant/defendant Union Pacific Railroad Company—a claim for an implied easement by prior use. The essential elements of the claim are

(1) unity of ownership of the alleged dominant and servient estates before severance;

(2) open and apparent use of the claimed easement at the time of severance;

(3) continuous use, such that the parties must have intended that the easement pass by grant; and

(4) the necessity of the use to the use of the dominant estate.¹

The Supreme Court of Texas's recent decision in Hamrick v. Ward did not change the essential elements of a prior-use easement claim. The elements are the same after Hamrick as they were before Hamrick.²

The Summary–Judgment Motions on Remand from the First Appeal

On remand following the first appeal, the Sebers filed a traditional summary-judgment motion, in which they asserted their entitlement to judgment as a matter of law on their prior-use easement claim. In response, Union Pacific filed a cross-motion in which it sought judgment as a matter of law on the Sebers' claim based on two no-evidence grounds. The trial court granted the Sebers' motion and denied Union Pacific's motion.

In this second appeal, Union Pacific asserts in its initial brief that the trial court erred in granting the Sebers' motion and in denying Union Pacific's motion. Union Pacific urges this court to reverse and render judgment in Union Pacific's favor, arguing that the trial court should have granted a no-evidence summary judgment in Union Pacific's favor based on either of its two no-evidence grounds.

Additional Briefing Regarding Hamrick v. Ward

Shortly after the parties submitted their briefs in this appeal, the Supreme Court of Texas issued its opinion in Hamrick v. Ward.³ The Hamrick court held as a matter of law that a plaintiff may not assert a prior-use easement claim if the plaintiff seeks roadway access to a landlocked parcel that previously was a part of another parcel of land.⁴ In Hamrick, the high court did not abolish the claim for a prior-use easement, nor did the high court vary the elements of the claim.⁵ Before oral argument, the parties submitted additional briefing vis-à-vis Hamrick. In its additional briefing, Union Pacific argues that we should reverse and render judgment that the Sebers take nothing for an additional reason—the Sebers' prioruse easement claim, according to Union Pacific, falls within the scope of Hamrick and therefore the Sebers may not assert a prior-use easement claim as a matter of law. Conversely, in their additional briefing, the Sebers argue that their prior-use easement claim does not fall within Hamrick's holding. The Sebers note that the Hamrick court did not alter the essential elements of a prior-use easement claim and the Sebers continue to rely on their prior argument that the trial court did not err in granting their summary-judgment motion and in denying Union Pacific's motion. The Sebers urge that, in the event this court were to reverse the trial court's judgment based upon Hamrick, the court should remand in the interest of justice to allow the Sebers an opportunity to plead and pursue an easement-by-necessity claim.

At oral argument, both sides argued the Hamrick issues as well as issues from the original briefing regarding Union Pacific's no-evidence grounds. Though Union Pacific asserted it was entitled to rendition of a take-nothing judgment based on Hamrick, Union Pacific also pointed out during oral argument that this court need not address the Hamrick issues because the court can dispose of the case based on arguments in Union Pacific's original briefing. And, at oral argument, Union Pacific argued that the interests of justice do not require a remand.

The Arguments That Would Give Union Pacific the Greatest Relief on Appeal

If more than one appellate judgment is potentially appropriate based on the record, the briefs, and the law, an appellate court must render the judgment that moves the case to the greatest degree of finality.⁶ This longstanding rule furthers judicial economy.⁷ To honor this important purpose and to comply with the greatest-degree-of-finality mandate, a court of appeals first must consider and reject all arguments that would entitle the appellant to the greatest relief potentially available, before rendering an appellate judgment granting the appellant lesser relief. Thus, before we may order a remand, we are duty-bound to consider and reject all arguments which, if meritorious, would result in a rendition.

In structuring an appellate opinion, courts generally opt to address first the arguments that would provide the greatest relief and then, if necessary, to address arguments that would provide lesser relief. Logical as well as efficient, this sequencing principle stands as a well-worn appellate convention. Yet, it is distinct from the greatest-degree-of-finality rule, which is a first principle of appellate practice. Whether the court addresses the arguments that would provide the greatest relief at the beginning of its analysis or at the end, the court must consider and reject all such arguments before issuing an appellate judgment that provides lesser relief. This case presents no exception to the rule.

Though Union Pacific claims that its Hamrick arguments, if meritorious, would entitle Union Pacific to rendition of a judgment that the Sebers take nothing, this relief would not be proper. Presuming for the sake of argument that the summary-judgment evidence conclusively proved that this case falls within the scope of the Hamrick holding, the proper appellate judgment would be a remand for further proceedings based on the trial court's error in granting the Sebers' motion for a traditional summary judgment. A rendition would not be available because Union Pacific did not assert any summary-judgment ground in which it argued that the Sebers' claim fails as a matter of law because they assert a prior-use easement claim for roadway access to a landlocked parcel that previously was a part of another parcel of land. Thus, the Hamrick holding provides no basis for this court to reverse and render a judgment that the Sebers take nothing based on the trial court's denial of Union Pacific's summary-judgment motion.

Arguably, it would be premature to address whether, on remand from a reversal of the traditional summary judgment, the interests of justice require that the Sebers be permitted to amend their pleadings to add an easement-by-necessity claim. But, in any event, a remand for this additional purpose would be lesser relief than a rendition of judgment that the Sebers take nothing.

If Union Pacific's arguments under either its first issue or its second issue have merit, then the trial court erred in granting the Sebers' motion and also erred in denying Union Pacific's no-evidence motion. In this scenario, the proper appellate judgment would be to reverse and render judgment that the Sebers take nothing, unless this court determines that the interests of justice require a remand. If the Sebers' prior-use easement claim does not fall within the scope of the Hamrick decision, the interests of justice would not require a remand based on that decision. But, even if the Sebers' prior-use easement claim fell within Hamrick's scope, the interests of justice would not require a remand if the Sebers' prior-use easement claim fails as a matter of law because there is no evidence of essential elements that were unaffected by the Hamrick decision. If the Sebers have been pursuing for almost seven years a claim that fails as a matter of law under pre–Hamrick law, the issuance of the Hamrick opinion hardly mandates a remand in the interests of justice to allow the Sebers another chance to plead, seek discovery, and attempt to recover on an easement-by-necessity claim, even if the case under review happened to fall within the scope of Hamrick. Thus, Union Pacific's first and second appellate issues, if meritorious, would entitle Union Pacific to the greatest possible relief. Therefore, this court must address these issues and reject them before considering the Hamrick issues. And, if one of these arguments has merit, then this court should render judgment granting Union Pacific the greatest possible relief, without even addressing the Hamrick arguments.

The Merits of Union Pacific's Second Issue

In one of its no-evidence grounds, Union Pacific asserted there was no evidence that, at the time of the alleged severance in 1959 (“Severance Time”), any use of the claimed easement was apparent or continuous. In its second appellate issue, Union Pacific asserts that the trial court erred in denying summary judgment on this ground. The only summary-judgment evidence that potentially raises a fact issue in this regard is Barbara Seber's affidavit. In it, Barbara does not testify that she ever saw the railroad crossing in question being used at or before the Severance Time. Barbara states that, at the Severance Time, the railroad crossing in question was apparent, but Barbara does not state that any use of the crossing was apparent. Barbara makes conclusory statements that the railroad crossing was in continuous use from 1902 until the Severance Time and from the Severance Time until 2008. But, these conclusory statements do not raise a genuine fact issue that would preclude summary judgment. Under the applicable standard of review, the summary-judgment evidence did not raise a genuine issue as to whether the railroad crossing at issue was being used in an apparent and continuous manner at the Severance Time. Therefore, the trial court erred in denying Union Pacific's motion on this ground and in granting the Sebers' summary-judgment motion, and this court should reverse and render judgment that the Sebers take nothing, without any remand to allow the Sebers to plead and pursue any new claims.

No Invitation to Remand in the Interests of Justice

The majority points to Union Pacific's additional briefing and suggests that Union Pacific has invited this court to remand for further proceedings in light of Hamrick. Union Pacific issued no such invitation. Rather than urge a remand in light of Hamrick, Union Pacific argues that this court should reverse and render judgment that the Sebers take nothing for an additional reason—because, according to Union Pacific, the Sebers' prior-use easement claim falls within the scope of Hamrick and therefore the Sebers may not assert a prior-use easement claim as a matter of law. Union Pacific does not invite this court to remand the case to the trial court in the interests of justice, though Union Pacific does state at one point in its briefing that this court could reverse and remand in the interests of justice. At no point has Union Pacific waived, rescinded, or revoked the issues and arguments in its original appellate brief. At oral argument, Union Pacific not only argued that the interests of justice do not require a remand, but also reminded the panel that it need not even address the Hamrick issues because the court could dispose of the case based on arguments in Union Pacific's original briefing. And, that is what this court should do.

Conclusion

Under binding precedent, this court may not reverse and remand without addressing Union Pacific's two rendition arguments under its first and second issues. The majority concludes that the court need not address these arguments or the propriety of the trial court's denial of Union Pacific's no-evidence motion. The majority instead concludes that the trial court erred in granting the Sebers' summary-judgment motion and then addresses whether the interests of justice require a remand. For purposes of judicial economy and to comply with the supreme court's longstanding rule, this court should address Union Pacific's argument under its second issue. And, the court should sustain the second issue, conclude that the interests of justice do not require a remand, reverse the trial court's judgment, and render judgment that the Sebers take nothing. Because the court instead reverses and remands without addressing Union Pacific's rendition arguments, I respectfully dissent.