PER CURIAM Appellants Stanley E. Denison and Deborah Denison seek to appeal the orders denying their motion for partial summary judgment and granting the motion for partial summary judgment filed by appellees Logan Cody Brandt and Monica Brandt. The trial court made these orders in the parties’ suit over, among other things, whether the Brandts own easement rights on tracts owned by the Denisons. Because the judgment that the Denisons seek to appeal is not “definite and certain,” see Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985) (per curiam) (quoting Steed v. State, 183 S.W.2d 458, 460 (Tex. 1944)), we abate this appeal to allow the parties to obtain an appealable judgment that addresses the “definite and certain” defect identified below, concerning what easement rights the trial court awarded, see Tex. R. App. P. 27.2; see Bertucci v. Watkins, No. 03-20-00058-CV, 2022 WL 3328986, at *4–5 (Tex. App.—Austin Aug. 12, 2022, op. & order, no pet.) (en banc) (abating appeal for parties to obtain appealable order). The Denisons and Brandts[1] own adjoining tracts in the Council Creek Village neighborhood next to Lake Buchanan in Burnet County. The Denisons began this suit after the parties could not agree about what rights, if any, the Brandts enjoy to cross the Denisons’ tracts to reach their own. The Denisons’ live petition pleads claims for trespass, trespass to try title, suit to quiet title, slander of title, tortious interference with prospective business relations, and tortious interference with property rights. They seek injunctive relief and monetary relief, including actual and exemplary damages. The Brandts answered the suit and counterclaimed.[2] The Brandts pleaded counterclaims to establish easement rights over the Denisons’ tracts[3] and counterclaims for intentional nuisance, intentional infliction of emotional distress, and stalking. To establish easement rights, the Brandts pleaded three different theories: “Easement by estoppel (estoppel in pais) created by representation and acquies[ce]nce” (the First Theory), “Easement in pais created by plat” (the Second Theory), and “Dedication of parkway to the public use and creation of an express easement” (the Third Theory). (Formatting altered.) The Brandts seek declaratory relief; injunctive relief; and monetary relief, including actual and exemplary damages. The Brandts moved for a partial summary judgment, arguing that they were entitled to judgment as a matter of law on their three easement theories and that the Denisons should take nothing on their claim for slander of title. The Denisons also moved for a partial summary judgment, arguing that the Brandts should take nothing on all their easement theories and that the Denisons were entitled to judgment as a matter of law on their claims of trespass and trespass to try title. The trial court granted the Brandts’ motion and denied the Denisons’. The court’s orders did not specify their bases—the order granting the Brandts’ motion says simply that “[u]pon review of the pleadings and arguments of counsel as well as the case law regarding the matters at issue, the Court is of the opinion that the Motion should be GRANTED” and therefore the motion “is GRANTED.” The order denying the Denisons’ motion is similarly worded. The court then severed certain claims and parties from the suit into a new suit but kept in the original suit the claims that the summary-judgment orders “disposed of.” In its own words, the court ordered “that any and all claims, counterclaims, and third-party claims not disposed of by the Orders are severed from this action and made the subject of a separate action.” Because the summary-judgment orders did not specify their bases and because the Brandts’ motion for partial summary judgment sought to dispose of both (a) their claims for their three easement theories and (b) the Denisons’ claims for slander of title, those were the claims that the summary-judgment orders “disposed of” and thus remained in the suit. The order denying the Denisons’ motion for partial summary judgment did not dispose of any further claims. That motion had addressed only the three easement theories and the Denisons’ affirmative claims for trespass and trespass to try title. But the trespass and trespass-to-try-title claims remained live after the summary-judgment orders and were thus transferred by the severance order to the newly created suit along with other claims and parties.[4] The relevant Brandt tract is Lot 33, toward the western side of this graphic, and the Denisons own Lots 34, 35, 36, and 36A, among others. The Denisons over the years also have been granted land that lies between those lots and the lake shore to the south—land that is labeled in this graphic with either or both of the notations “Reserved Area” or “Parkway.” The graphic also shows a dashed line from Lot 33 across Lot 34 and ending at the southwest corner of Lot 35. The plat’s note explaining the dashed line says, “An easement for access to Lot No. 33 across the southwest corner of Lot No. 34 as shown is retained for perpetual use to said Lot No. 33.” But because of conveyances and other circumstances—many of which are subject to the Denisons’ and Brandts’ live dispute—the dashed line does not currently reach from Lot 33 to any area that the parties agree is a public roadway. The Brandts thus argue that they need some set of rights by which they could cross the southern portion of the Denisons’ land. The rights that the Brandts are pursuing in this suit are what they put forward in their three easement theories. Under the First Theory, the Brandts argue that they enjoy easement rights over a dirt road that crosses Lots 34, 35, and 36 and thus connects Lot 33 through the dashed line and through Lots 35 and 36 to reach an undisputedly public road. They say that they enjoy these easement rights because of words, acts, or omissions by the Denisons or the Denisons’ predecessors-in-interest. The easement that the First Theory would support is as wide as the dirt road across the named tracts and would benefit only the Brandts. Under their Second Theory, the Brandts argue that the plat’s inscription of “Reserved Area” for the land between Lots 34, 35, and 36 and the lake shore operates as a grant of easement rights to every landowner in the Council Creek Village neighborhood for use of all the land described as “Reserved Area.” According to summary-judgment evidence and the Brandts’ position, the land described as “Reserved Area” between those Lots and the lake shore is wider than the dirt road that supports the First Theory. What’s more, the Second Theory if correct would result in easement rights not just for the Brandts but for all Council Creek Village landowners. Thus, on both the issue of the purported easement’s width and scope and the issue of whom the purported easement benefits, the First and Second Theories are mutually exclusive. Under their Third Theory, the Brandts in their own words have pleaded and are arguing “in the alternative,” and they posit that the land between Lots 34, 35, and 36 and the lake shore is not part of any “Reserved Area” but is instead all part of what the plat describes as the “Parkway.” This inscription, the Brandts say, operates as a public dedication of that land. And the Brandts rely on authorities teaching that in the wake of such a public dedication, even when the public has not accepted the dedication by, for example, actually building an improved road on the dedicated land, individual purchasers of tracts that abut the publicly dedicated land automatically enjoy a private easement in the dedicated land by dint of the public dedication alone. See, e.g., Dykes v. City of Houston, 406 S.W.2d 176, 181 (Tex. 1966). This Third Theory would thus support an easement as wide as the land between the numbered Lots and the lake shore but would support an easement only in favor of the Brandts, who are the only landowners in the relevant area abutting the purported publicly dedicated roadway. In all, the three easement theories differ over how wide an easement they would support and over who would enjoy the easement rights awarded. To be appealable, a judgment must be “definite and certain.” See Hinde, 701 S.W.2d at 639 (quoting Steed, 183 S.W.2d at 460); Ferguson v. DRG/Colony N., Ltd., 764 S.W.2d 874, 878 (Tex. App.—Austin 1989, writ denied). To be definite and certain, a judgment “generally should not be conditional, alternative, or contingent.” Ferguson, 764 S.W.2d at 878 (generally citing Hill v. Hill, 404 S.W.2d 641 (Tex. App.—Houston 1966, no writ)). These rules exist so that judgments will “define and protect the rights of all litigants, or . . . provide a definite means of ascertaining such rights, to the end that ministerial officers can carry the judgment to execution without ascertainment of facts not therein stated.” Hinde, 701 S.W.2d at 639 (quoting Steed, 183 S.W.2d at 460); accord In re Blankenhagen, 513 S.W.3d 97, 100 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding [mand. denied]); see also Chris Dove, Crafting the Final Judgment, in State Bar of Tex. App. Section, 30 The App. Advoc. 423, 436 (Winter 2018) (“[T]he requirement that a judgment be ‘definite and certain’ arises from the fact that a judgment is not a hypothetical document that opens the door to the appellate courts. A judgment must be interpreted and understood by the clerks that issue writs of execution, and by the sheriffs that actually seize property under its authority. The lesson is clear—avoid these potential finality problems by reading your judgment like a clerk or a sheriff will.”). In the context of judgments for interests in land, like easements, such judgments (or abstracts of them) often are filed in the county records to put the public on notice of ownership of the interests awarded by the judgment and can be relied upon by purchasers and by the rest of the public. See, e.g., Allen v. Irwin, No. 03-17-00776-CV, 2019 WL 2363550, at *4 (Tex. App.—Austin June 5, 2019, pet. denied) (mem. op.); City of Edinburg v. A.P.I. Pipe & Supply, LLC, 328 S.W.3d 82, 90–92 (Tex. App.—Corpus Christi– Edinburg 2010), rev’d on other grounds, 397 S.W.3d 162 (Tex. 2013). The rules on judgment definiteness-and-certainty “have more direct application to this case than” do the rules on judgment finality that concern disposing of all parties and claims, the latter as explained in opinions like Lehmann v. Har–Con Corp., 39 S.W.3d 191 (Tex. 2001), and In re Elizondo, 544 S.W.3d 824 (Tex. 2018) (orig. proceeding) (per curiam). See Blankenhagen, 513 S.W.3d at 102 & n.1 (explaining that the “definite and certain” rules, as explained in Hinde, “have more direct application to this case than” does Lehmann); see also CryoUSA Imp. & Sales, LLC v. Revitalize360, LLC, No. 05-20-001058-CV, 2022 WL 2037968, at *1 (Tex. App.—Dallas June 7, 2022, no pet.) (mem. op.) (deploying same reasoning, in appeal post-dating Elizondo and other Supreme Court finality-by-claim-disposition opinions). Here, the judgment sought to be appealed falls into an example of an indefinite judgment that we identified in Ferguson. There, we dealt with a judgment that awarded a party rescission-related relief on a contract and relief for breach of the same contract “in the event an appellate court of final review reverse[d] the judgment of rescission.” Ferguson, 764 S.W.2d at 878. We concluded that such a judgment was not impermissibly indefinite and contrasted it with a type of judgment that likely would be impermissibly indefinite: The judgment in the present case . . . is no more indefinite than any judgment that awards additional attorney’s fees in the event of an appeal (and, by implication, on the condition of an affirmance). It is not a truly alternative judgment such as “plaintiff is awarded judgment against defendant for A or alternatively for B,” with no indication of which relief has been selected. . . . Here the relief granted is clear and definite, and there is nothing left for the trial court to decide. Nor has appellee failed to make an election; it has, by its own admission, elected rescission. Id. at 879 (emphases added). This case’s judgment is like the example of an impermissibly indefinite judgment identified in Ferguson. The easement relief awarded to the Brandts is truly alternative, with the Brandts even pleading and arguing in their summary-judgment briefing that at least one of their theories was an alternative, because an easement under the First Theory is mutually exclusive of one under the Second Theory, and each of those is mutually exclusive of one under the Third Theory. The judgment thus fails to show definitely and certainly what kind of easement the judgment awards, which (1) can confuse purchasers or the public at large about what interests burden the Lots and adjoining tracts and (2) does not definitively tell the Denisons who all may now cross their tracts and where. See Reynolds v. Reynolds, 860 S.W.2d 568, 570 (Tex. App.— Dallas 1993, writ denied) (citing Ferguson, 764 S.W.2d at 878, to support proposition that “[a]n order that definitively settles the rights controverted by the parties is final”); see also Southern Cnty. Mut. Ins. Co. v. First Bank & Tr. of Groves, 750 S.W.2d 170, 173–74 (Tex. 1988) (judgment that awarded both grounds of recovery, which were pleaded as alternatives, was impermissible); Fazekas v. University of Houston, 565 S.W.2d 299, 303 (Tex. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.) (when trial court rendered “a judgment dismissing the case and, alternatively, rendered a take nothing judgment against the plaintiff,” the alternative, take-nothing judgment was “not effective as a judgment”), superseded by statute on other grounds as recognized in Freedman v. University of Houston, 110 S.W.3d 504, 507–08(Tex. App.—Houston [1st Dist.] 2003, no pet.). The parties and trial court could correct this definite-and-certain problem and thus produce an appealable judgment. For example, but not by way of limitation, the Brandts could ask the trial court to render a modified judgment reflecting conditional elections about the one theory under which they wish to recover and condition-based alternatives if their chosen theory or theories do not survive appeal. See Ferguson, 764 S.W.2d at 878–79 (stating, “Nor has appellee failed to make an election; it has, by its own admission, elected rescission,” and identifying conditional awards of appellate attorneys’ fees as acceptable practice under definite-and-certain rules). Because the parties could thus obtain an appealable judgment, we abate this appeal and remand the case to the trial court for rendition of an appealable judgment. See Tex. R. App. P. 27.2; Bertucci, 2022 WL 3328986, at *4–5. When we are supplied with a supplemental record of the judgment so obtained, “the appeal may be reinstated for our consideration of the parties’ briefing on the merits,” which has already been completed. See Bertucci, 2022 WL 3328986, at *5. The parties are ordered to file a status report with this Court by October 30, 2023, if this appeal has not by then been reinstated from abatement. It is ordered on August 31, 2023. Before Justices Baker, Kelly, and Smith Abated and Remanded Filed: August 31, 2023
