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    John P. BOERSCHIG, Appellant, v. SOUTHWESTERN HOLDINGS, INC., Appellee.
    No. 08-09-00071-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 11, 2010.
    Rehearing Overruled Sept. 29, 2010.

      Renea Hicks, Austin, TX, for Appellant.
    Roy B. Ferguson, The Ferguson Law Firm, Marfa, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

GUADALUPE RIVERA, Justice.

John Boerschig appeals the trial court’s judgment in favor of Southwestern Holdings, Inc. (SHI), stemming from his suit for trespass, injunctive, and declaratory relief. We affirm in part and reverse in part.

BACKGROUND

In the early 1900s, John A. Poole owned a sizeable ranch named La Cienega. The northern portion of that ranch, now known as the McCracken Ranch, was later sold to the McCrackens in 1930. In 1950, Poole’s son, Hart Greenwood, purchased La Morita, a western property adjacent to La Cienega.

Forty years later, SHI bought the Cibo-lo Creek Ranch, which abutted the northwest area of the McCracken Ranch, and developed the property into a resort. And in 1992, SHI bought La Morita and La Cienega, and renovated those properties into resorts, as well. Frances Harper, Greenwood’s daughter, retained a portion of the original Poole ranch located to the east of La Cienega, and SHI later purchased a portion of that property as well in 2000, known as the Harper Ranch.

Meanwhile, ownership of the McCracken Ranch vested to McClurg and Kelly, and in 1999, they sold the ranch to Wolverine Ventures, who transferred the ranch to John Boerschig the following year. Boer-schig now operates the ranch for cattle ranching and hunting. He later sued SHI over the use of two roads, namely, the Tinaja-China Road and the Morita Road, which as explained below, cross the parties’s respective ranches.

The Tinajar-China Road

From Highway 67, access to the McCracken Ranch and Cienega Ranch is had by the Tinaja-China Road, which first crosses the eastern part of the Cíbolo Creek Ranch and then a portion of the McCracken Ranch. Prior to Ventures’ purchase of the McCracken Ranch, SHI attempted to have the Presidio County Commissioners Court declare the Tinaja-China Road a public road, but the Commissioners Court declined, recommending that the private parties, that is, SHI and the owners of the McCracken Ranch, McClurg and Kelly, resolve the issue among themselves. Accordingly, in October 1993, the parties executed the following reciprocal easement:

For adequate consideration, the receipt and sufficiency of which is acknowledged and confessed, Southwestern hereby Grants and Conveys to McCracken, their heirs, successors and assigns, and McCracken hereby Grants and Conveys to Southwestern, its successors and assigns, an easement 30 feet in width for the purpose of ingress and egress to and from McCracken Tinaja China Ranch and Cíbolo Creek-Cienega Ranch, respectively, over, across and upon the New Road described in this Agreement for its full length as described herein. Such easement shall be appurtenant to the McCracken Tinaja China Ranch and to the Cíbolo Creek-Cienega Ranch, each such ranch being more particularly described on the attached Exhibit “A”.

Following the agreement, McClurg and Kelly never objected to SHI’s or its guests’ use of the road to access its resort at Cienega.

The Monta Road and Fence

The Morita Road runs from an old fort located on La Cienega Ranch to another fort on La Morita Ranch. As the road passes through the Morita Canyon, the road crosses onto the McCracken Ranch for 2,200 feet. Prior to a survey completed in 2001, Boerschig simply assumed the entire road belonged to SHI as did all prior property owners in the area. Indeed, from 1950 to 1992, the road was not open to the public but used on a regular basis and exclusively by the Greenwoods, who also exclusively improved and maintained the road. Similarly, SHI used and maintained the road exclusively since it purchased the Cienega and Morita ranches, and Boerschig, prior to obtaining the survey, only used the road with SHI’s permission.

The survey also concluded that a small portion of a fence that SHI erected in 1992 near- the renovated buildings on La Morita was actually on the McCracken property.

The Suit

Boerschig sued SHI, alleging, among other things, that: (1) SHI trespassed by using a portion of the Morita Road that was on his property; (2) SHI violated the express easement by using it for its invitees to access a resort rather than a ranch, and to access nonappurtenant properties; and (3) SHI trespassed by erecting a fence on the Morita Road. Boerschig moved for injunctive and declaratory relief, asking the court to declare that portion of the Morita Road his, to enjoin SHI’s trespasses, and to determine the scope of the express easement. Boerschig further moved for damages based on permanent and temporary injuries, and exemplary damages. SHI generally denied the allegations, claimed it had an easement by estoppel, implication, or prescription on the Morita Road, alleged that Boerschig’s fence claims were barred by standing and limitations, and also moved for declaratory relief concerning the language in the express easement.

Boerschig’s Summary Judgment

SHI later counterclaimed that it had an implied easement by existing use or necessity across the Tinaja-China Road and that the express easement had been impliedly dedicated to the public. Boerschig moved for summary judgment on SHI’s most recent counterclaims, contending that SHI failed to show any evidence that met the elements for an implied easement by existing use or necessity, that any implied easement terminated when the express easement was entered into, and that there was no evidence that the easement was impliedly dedicated to the public. Boer-schig also filed a motion to dismiss SHI’s counterclaim for implied public dedication, arguing that SHI lacked standing to bring such an action. In response, SHI asserted that there were genuine issues of material fact concerning whether: (1) there was an implied easement before the express easement issued; (2) the implied easement ended when the express easement was signed; and (3) there was an implied public dedication of the easement in question. The trial court granted Boerschig’s motion for summary judgment.

SHI’s Summary Judgment on Declaratory Action for Express Easement

SHI moved for summary judgment as to the declarations of the rights of the parties concerning the express easement. SHI’s motion asserted that the express easement was: (1) an easement appurtenant; (2) a general easement for ingress and egress; (3) an easement not limited as to the purposes of such ingress and egress; and (4) an easement that included the right of the parties’ guests, invitees, and licensees to use the easement. Boerschig stipulated that the easement was an easement appurtenant from the McCracken Ranch to the Cíbolo Creek Ranch and Cienega Ranch, but contested whether the easement was appurtenant to access any of SHI’s other properties. He also asserted that the easement was not a general easement that could be enlarged by changes in the use or character of SHI’s property; rather, Boer-schig alleged that the easement was limited by the intentions of the parties at the time the easement was entered into and that what is expressly not included in the easement is prohibited. The trial court granted SHI’s motion for summary judgment and declared the express easement an easement appurtenant that is reciprocal in nature and grants each party a general right of ingress and egress, which extends to the parties’ guests, invitees, and licensees. The trial court reserved all other rulings on the express easement, including Boerschig’s requests for injunctive relief, for trial.

SHFs Traditional Motion for Summary Judgment on Morita Road

SHI also partially moved for traditional summary judgement, asserting that it had an easement by prescription on the Morita Road and that any fence trespass was barred by limitations. Boerschig responded that SHI’s possession lacked any intention to appropriate and therefore, SHI was not entitled to an easement by prescription. Further, Boerschig retorted that his action is not barred by limitations as the discovery rule applied. The trial court denied SHI’s motion for summary judgment.

SHFs No-Evidence Motion for Summary Judgment on Morita Road

SHI also partially moved for a no-evidence summary judgment on grounds that Boerschig lacked standing to address the Morita Road and that he failed to show any damages. Boerschig objected to the limitations and standing arguments, and withdrew his claims for lost rental values, mental anguish damages, and actual damages resulting from walking. However, Boerschig claimed he was entitled to actual damages for driving on his land, nominal damages for walking trespasses, and exemplary damages for malicious trespasses. The trial court granted the summary judgment in part with regards to claims for lost rental values, mental anguish damages, and actual damages for any alleged walking or driving on Boerschig’s property. The remaining claims went to trial.

Bench Trial

At the conclusion of trial, the court found that SHI had a prescriptive easement on the Morita Road, ruled that Boer-schig bought the fence when he bought the property, and determined that Boerschig was not entitled to injunctive relief on the express easement. However, the trial court ordered SHI to pay $1 in nominal damages for trespass by foot and $100 in nominal damages for trespass by equipment on Boerschig’s property. The trial court further ordered that judgment be entered for SHI, that all relief requested and not expressly granted is denied, and that SHI recover its attorney’s fees. The trial court’s findings of fact and eonclu-sions of law declared that Boerschig lacked standing to sue for a trespass caused by the Morita fence and that his claim was barred by limitations, that Boerschig only presented a theoretical injury as to whether SHI used the express easement to access nonappurtenant properties, that SHI had an easement by prescription across the Morita Road, and that SHI could recover attorney’s fees in the amount of $49,320.

SCOPE OF EXPRESS EASEMENT

We begin with a discussion of Boer-schig’s second issue, which attacks SHI’s use of the express easement to access its commercial resort at Cienega Ranch, a use that Boerschig asserts was not contemplated at the time the easement was entered into. In this regard, Boerschig claims that the trial court erred by failing to grant a declaratory judgment in his favor. Because the trial court granted SHI’s motion for summary judgment and declared that the easement provided for a general right of ingress and egress that extended to SHI’s invitees, we interpret Boerschig’s argument as a challenge to the trial court’s summary judgment.

Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). Summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). In reviewing a summary judgment, we indulge every reasonable inference in favor of the nonmov-ant, take all evidence favorable to the non-movant as true, and resolve any doubts in favor of the nonmovant. Valence Operating Co., 164 S.W.3d at 661.

Applicable Law

An easement is a nonpossessory interest in another’s property that authorizes its holder to use that property for a particular purpose. Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 700 (Tex.2002). “A grant or reservation of an easement in general terms implies a grant of unlimited reasonable use such as is reasonably necessary and convenient and as little burdensome as possible to the servient owner.” Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974).

When considering the terms of an express easement, we apply basic principles of contract construction and interpretation. Marcus Cable, 90 S.W.3d at 700. The contracting parties’ intentions, as expressed in the grant, determine the scope of the interest conveyed. Id. at 700-01. We read the terms of an easement as a whole to reach an adequate interpretation of the parties intentions and to carry out the purpose for which the easement was created. DeWitt County Elec. Coop. v. Parks, 1 S.W.3d 96, 101 (Tex.1999). Any doubts about the parties’ intent are resolved against the grantor, or servient, estate, and we adopt the interpretation that is the least onerous to the grantee, or dominant, estate in order to confer on the grantee the greatest estate permissible under the instrument. See Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 665 (Tex.1964); CenterPoint Energy Houston Elec. LLC v. Bluebonnet Drive, Ltd., 264 S.W.3d 381, 388-89 (Tex.App.-Houston [1st Dist.] 2008, pet. denied).

Application

Citing Marcus Cable, Boerschig asserts that the easement may only be used as contemplated by the parties at the time the easement was entered into, that is, to access a ranch, not a commercial resort. In Marcus Cable, the Supreme Court construed an easement that granted an electrical utility permission to construct and maintain “an electric transmission or distribution line or system” over private real property. Marcus Cable, 90 S.W.3d at 699. Later, Marcus Cable obtained permission from the electrical utility to attach cable lines and wiring to the utility’s poles. Id. The private property owners sued, claiming that the cable company did not have a valid easement and that they had not consented to the placement of the cable lines across their property. Id. After determining that settled law had interpreted the terms “electric transmission” and “electric distribution” as referring exclusively to conveyances of electricity, the Supreme Court, relying on the specific language in the grant, held that the grant expressed in the easement encompassed only an “electric transmission or distribution line or system,” not a use for cable television transmission. Id. at 703-04, 706. Thus, the Court concluded that the utility easement was limited to the purpose of conveying electricity and declined to permit a use by Marcus Cable that went beyond conveying electricity. Id. at 704.

Boerschig asserts that since the easement refers to the “McCracken Tinaja China Ranch,” the “Cíbolo Creek-Cienega Ranch,” and the road as a “ranch road,” the easement may only be used to access ranches, that is, a farm or establishment for rearing cattle and other stock, not to access commercial resorts. We disagree. The easement provides for a general right of ingress and egress. It does not provide that either party may only use the easement to access property that may only be used for those ranching purposes as claimed by Boerschig. Indeed, simply because the word “ranch” is contained in the title of a property does not mean that property is limited to such a use. Thus, the holding in Marcus Cable, which concluded that language in the easement limiting its use solely to “electric transmission” is inapplicable.

Further, although the properties may be labeled ranches or the road a “ranch road,” those names are not sufficient by themselves to limit the easement’s use to access only ranch properties, that is, to limit what the owners of the respective estates can do with their property. Indeed, an easement granted for general purposes of ingress and egress includes not only the use required at the time of the grant, but also the right to use the easement for any purpose connected to the use of the property. See Shipp v. Stoker, 923 S.W.2d 100, 103 (Tex.App.-Texarkana 1996, writ denied) (finding dominant estate could be used for both residential and business purposes when general easement contained no restrictions on its use). Absent any expressed language limiting or negating what the owners may do on their properties, we decline to hold that simply labeling the properties ranches or the road a ranch road is sufficient by itself to limit the properties to ranching operations only. See Bradshaw v. Lower Colorado River Auth., 573 S.W.2d 880, 883-84 (Tex.Civ.App.-Beaumont 1978, no writ) (easement that granted “right of ingress and egress across said land ... [to] reach the water’s edge” was not limited solely to cattle grazing but also included the right to use the water for recreational purposes); San Antonio Indep. Sch. Dist. v. City of San Antonio ex rel. San Antonio Water System, 2004 WL 2450919, at *5 (Tex.App.San Antonio Nov. 3, 2004, pet. denied) (mem. op., not designated for publication) (easement that provided “right of ingress and egress shall also be for the purpose of using said land to access adjoining property currently owned by San Antonio Water System” was not limited only to the construction, maintenance, and other activities related to the water systems and facilities).

Finally, the evidence presented at trial demonstrated that the McCrackens were aware of SHI’s intentions to use the properties as resorts prior to entering into the reciprocal easement. The easement was executed on October 15, 1993. In 1990, SHI renovated the Favor fort ruins at Del Cíbolo, and in 1992, it began similar renovations at Ciénega and Morita. By the fall of 1993, the Cíbolo resort was substantially complete, and SHI was “late in the process” at Ciénega and Morita. Meanwhile, McClurg and Kelly disagreed with SHI over the use of the Tinaja-China Road, and that dispute went to the Presi-dio County Commissioner’s Court in August 1993. With the owners of the McCraeken Ranch present, SHI explained its need for access to the Cienega Ranch, which it had developed into a “guest facility.” The parties later entered into an easement agreement in October. Thus, the easement was entered into with knowledge that SHI would use its properties as commercial resorts. Marcus Cable, 90 S.W.3d at 701 (“[A]n easement 'should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding the creation of the servitude, and to carry out the purpose for which it was created.’ ”) (quoting Restatement (Third) of Property (Servitudes) § 4.1).

Based on our discussion, we find no reversible error in the trial court’s order granting summary judgment in favor of SHI. Accordingly, Issue Two is overruled.

ACCESS TO OTHER PROPERTIES

Boerschig’s first issue complains of the trial court’s determination that SHI did not use or allow others to use the express easement to access nonappurtenant properties. The trial court determined that there was not a real and concrete dispute about use of the express easement to access other properties and ruled that Boer-schig was not entitled to a declaratory judgment on this ground, having only presented a theoretical injury.

Standard of Review

A declaratory judgment is available only if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.1995). “To constitute a justicia-ble controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute.” Id. (quoting Bexar-Medina-Atascosa Counties Water Control & Improvement Dist. No. 1 v. Medina Lake Protection Ass’n, 640 S.W.2d 778, 779-80 (Tex.App.-San Antonio 1982, writ ref'd n.r.e.)). Although a justiciable controversy need not be a fully ripened cause of action, the fact situation must manifest the ripening seeds of a controversy to confer jurisdiction. Tex. Dep’t of Pub. Safety v. Moore, 985 S.W.2d 149, 153-54 (Tex.App.-Austin 1998, no pet.) (citing Ainsworth v. Oil City Brass Works, 271 S.W.2d 754, 761 (Tex.Civ.App.-Beaumont 1954, no writ)). Ripening seeds of a controversy “appear where the claims of several parties are present and indicative of threatened litigation in the immediate future which seems unavoidable, even though the differences between such parties as to their legal rights have not reached the state of an actual controversy.” Ainsworth, 271 S.W.2d at 761. However, a declaratory judgment action does not vest a court with the power to pass upon hypothetical or contingent situations, or to determine questions not then essential to the decision of an actual controversy, although such questions may in the future require adjudication. Empire Life Ins. Co. v. Moody, 584 S.W.2d 855, 858 (Tex.1979); Tex. Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846 (Tex.App.-Austin 2002, pet. denied). Otherwise, the judgment amounts to no more than an advisory opinion, which the district court does not have power to render. Tex. Health Care, 94 S.W.3d at 846.

Application

Boerschig first alleges that SHI attempted to allow others to use the easement to access nonappurtenant properties. In this regard, Boerschig claims that SHI allowed the Harpers to use the road to access Rancho Quemado, but nothing in the record shows that the Harpers used the easement, and in fact, when the Har-pers sold a portion of their ranch to SHI, the deed did not include any use of the easement, and the trial court found that SHI did not grant or give permission to the Harpers to use the easement. Boer-schig also contends that SHI engaged the Texas Department of Parks and Wildlife (TDPW) for access to properties it owned south of Cienega Ranch by way of the easement if SHI succeeded in purchasing a portion of those properties; however, those talks fell through, and the trial court, after considering that evidence, determined that SHI did not provide or attempt to provide TDPW with employee or public access across the McCracken Ranch. In short, Boerschig appears to base his arguments on the possibility that, sometime in the future, SHI may allow others to use the easement to access nonappurtenant properties. These, however, are hypothetical situations that are not ripe for consideration in a declaratory-judgment action. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex.2001) (because the plaintiffs were released from jail, they could not seek a declaratory judgment for a religious-education program at the Tarrant County Jail); City of Anson v. Harper, 216 S.W.3d 384, 394-95 (Tex.App.-Eastland 2006, no pet.) (because City had not received a requisite permit, plaintiffs declaratory judgment action was not ripe to the extent it sought an adjudication of the parties’ rights if a permit was granted and the City proceeded with its landfill plans); Hill v. Sportsman’s World Recreational Ass’n, Inc., No. 11-08-00189-CV, 2010 WL 428555, at *2 (Tex.App.-Eastland Feb. 4, 2010, no pet.) (mem. op., not designated for publication) (whether, sometime in the future, a multi-family development may be constructed in the plaintiffs’ subdivision and that the owners of such living units will not be charged any assessment, thereby placing a disproportionate burden on the owners of the other lots, addresses a hypothetical situation and, thus, is not ripe for consideration in a declaratory judgment action of levying assessments against each residential lot).

Nevertheless, Boerschig also claims that SHI used the easement to access the Harper Ranch, a nonappurtenant property. Indeed, Poindexter expressly testified that he uses the express easement to travel from Cíbolo Creek Ranch to the Harper Ranch. But a grantee may not use an easement to access nonappurtenant properties that he owns, that is, to access properties adjacent to the dominant estate but not adjacent to the servient estate. Storms v. Tuck, 579 S.W.2d 447, 451 (Tex.1979); see also Bickler v. Bickler, 403 S.W.2d 354, 359 (Tex.1966) (“Where, in connection with a transfer of property, an easement is granted for the benefit of that property over lands of the grantor, the easement is presumed to be appurtenant to the granted premises, and in the absence of words creating a more extended right the grantee or his successor in interest is not entitled to use the easement for the benefit of other premises owned by himself or another.”). Thus, SHI may not use the easement to access nonappurten-ant properties. And logically, if SHI cannot use the easement in this way, neither can its invitees. The trial court should have entered a declaratory judgment in favor of Boerschig on this ground. Accordingly, Issue One is sustained.

PRESCRIPTIVE EASEMENT

In his third issue, Boerschig challenges the sufficiency of the evidence to support the trial court’s determination that SHI obtained a prescriptive easement over the disputed section of the Morita Road located on his property. After reviewing the evidence, we find sufficient evidence to support the trial court’s ruling.

Standard of Review

A trial court’s findings of fact in a bench trial “have the same force and dignity as a jury’s verdict upon questions.” Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991); Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex.App.-Dallas 1997, writ denied) (en banc). Because legal and factual sufficiency of the evidence standards of review govern appeals of non-jury trials on the merits, it is incumbent upon the appealing party to attack the findings by appropriate legal and factual sufficiency points of error. Canvasco v. Stewart, 224 S.W.3d 363, 366-67 (Tex.App.-El Paso 2006, no pet.). “When a party appeals from a non-jury trial, it must complain of specific findings and conclusions of the trial court, because a general complaint against the trial court’s judgment does not present a justiciable question.” Id. at 367.

In conducting a legal-sufficiency review, we consider evidence in the light most favorable to the trial court’s findings and indulge every reasonable inference that would support them. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). We credit favorable evidence if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not. Id. at 827. However, in a factual-sufficiency review, we consider and weigh all of the evidence and will “set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In conducting our reviews, we are mindful that the trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony, and that it is within his exclusive province to resolve any conflicts in the evidence. City of Keller, 168 S.W.3d at 819; Precision Homes, Inc. v. Cooper, 671 S.W.2d 924, 929 (Tex.App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.).

Applicable Law

An easement by prescription rests on the claimant’s adverse actions under color of right. Allen v. Allen, 280 S.W.3d 366, 377 (Tex.App.-Amarillo 2008, pet. denied); Scott v. Cannon, 959 S.W.2d 712, 721 (Tex.App.-Austin 1998, pet. denied). A person acquires a prescriptive easement by the open, notorious, continuous, exclusive, and adverse use of someone else’s land for ten years or more. See Brooks v. Jones, 578 S.W.2d 669, 673 (Tex.1979). The party claiming the existence of a prescriptive easement has the burden of proof to establish each element by a preponderance of the evidence. Tiller v. Lake Alexander Properties, Ltd., 96 S.W.3d 617, 624 (Tex.App.-Texarkana 2002, no pet.) (citing Brooks, 578 S.W.2d at 674). Here, Boerschig only contests the open, exclusive, adverse, and ten-year period elements, and thus, we restrict our review to those elements only.

Openness

In challenging the openness element, Boerschig attacks the trial court’s finding that the Greenwoods used the road from the 1950s until March of 1992. According to Boerschig, the use could not have been open because the land was wild, unenclosed, unimproved, and vacant. But whether the area was desolate does not equate to a finding that the use of the road itself was not open. Indeed, our focus is on whether the “evidence established a long-standing, open, unmolested, and continuous use of the roadway” in excess of the ten years necessary to acquire a prescriptive easement. Johnson v. Dale, 835 S.W.2d 216, 219 (Tex.App.-Waco 1992, no pet.) (emphasis added).

In Johnson, the court found open and continuous use when the evidence showed that the dominant estate’s owners, nesters in the area, and the public used the road without permission to reach a public highway from the 1930s until 1989. Id. at 218-19. We find similar open use here. The Greenwoods openly and continuously used the road from the 1950s until their property was sold to SHI in 1992, using the road to haul salt and feed by iron wheel wagon and later by pickup truck. After selling the property to SHI, SHI’s employees daily used the road until 2002. Moreover, during this period of use, the Greenwoods and SHI maintained and improved the road. We believe that is sufficient evidence to support the trial court’s finding that the use of the Morita Road was open.

Exclusive

Boerschig next challenges the exclusivity element, contending that the claimants’ mere subjective beliefs that they owned the road was insufficient to establish exclusive use. However, an adverse possessor’s claim cannot be defeated by lack of knowledge of the deficiency in record title or a realization that there may be other claimants to the land when his possession and use is actual, visible, and exclusive. Calfee v. Duke, 544 S.W.2d 640, 642 (Tex.1976); Julien v. Baker, 758 S.W.2d 873, 877 (Tex.App.-Houston [14th Dist.] 1988, writ denied) (appellee’s claim of right is not defeated by her lack of knowledge of the error in the survey when her possession and use was actual and visible); Boyle v. Burk, 749 S.W.2d 264, 267 (Tex.App.-Fort Worth 1988, writ denied) (by entering the lot with the intent to claim it as his own and by maintaining the lot openly, possessor’s claim of right not defeated even though the disputed strip of land was not part of his property). Thus, whether the Greenwoods or SHI actually owned the disputed area is inapplicable where, as more fully discussed below, they used and maintained the road to the exclusion of others.

Boerschig argues that the use was not exclusive, noting that Ted Harper, Frances’ husband, testified that others used the Morita Road, that anybody who needed to use the road would have been able to use it, and that the road was too remote to notice whether anyone else was using the road. However, other testimony established that only the Greenwood family used the road from 1950 to 1992, and that SHI used the road exclusively from 1992 until 2002. Prior to SHI’s purchase, if anyone else used the road without their permission, the Greenwoods would “halt them and question them and ask them why and put them off of it.... ” And after SHI purchased the property, Boerschig asked for permission to use the road. The trial court, in considering all the evidence, was free to resolve any conflicts and choose which witnesses to believe. City of Keller, 168 S.W.3d at 819-20. By choosing to disbelieve that portion of Harper’s testimony and to believe other evidence presented in the record, we defer to the trial court’s determination of credibility and the resolution of conflicting evidence, and therefore, we cannot say, based on the evidence presented, that insufficient evidence supports the trial court’s finding of exclusive use.

Adverse

In challenging the adversity element, Boerschig argues that there was no evidence that the claimant’s usage put the true owner on notice that a hostile claim was asserted, nor was there any evidence of adverse usage. “The hostile and adverse character of the use necessary to establish an easement by prescription is the same as that which is necessary to establish title by adverse possession.” Mack v. Landry, 22 S.W.3d 524, 531 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (citing Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626 (1950)). In determining whether a claim is hostile, we consider “whether the adverse possessor’s use, occupancy, and possession of the land is of such nature and character as to notify the true owner that the claimant is asserting a hostile claim to the land.” Mack, 22 S.W.3d at 531. Hostile use, however, “does not require an intention to dispossess the rightful owner, or even know that there is one.” Tran v. Macha, 213 S.W.3d 913, 915 (Tex.2006).

The testimony established that parts of the Morita Road were visible from several vantage points from the McCracken Ranch. After the Greenwoods bought the ranch in the 1950s, only the Greenwood family used the Morita Road because “no one else dared to come in there” unless they first received the Greenwood’s permission. Further, the road was not only maintained exclusively by the Greenwoods, but they also enclosed the road with a fence on one side and a gate on one end. If anyone appeared on the road without permission, the Greenwoods would stop and remove them from the road. After SHI bought the ranch, SHI exclusively improved and maintained the road. This was sufficient evidence for the trial court to conclude that the use was adverse. See Cherokee Water Co. v. Freeman, 145 S.W.3d 809, 818 (Tex.App.-Texarkana 2004, pet. denied); Nickels v. Casburg, No. 03-05-00027-CV, 2009 WL 1708830, at *15-16 (Tex.App.-Austin June 18, 2009, pet. denied) (mem. op., not designated for publication) (cases finding sufficient evidence to support prescriptive easement when claimants consistently used and maintained disputed area such that owner’s predecessor should have noticed that a hostile claim was being asserted).

Ten Years

Finally, Boerschig contests the requisite limitations period. According to Boerschig, because he filed the suit three days prior to SHI’s ownership of the property for ten years, SHI failed to meet the requisite ten-year limitations requirement. However, adverse possession does not have to continue in the same person to satisfy the requisite limitations period. Masonic Bldg. Assn. of Houston, Inc. v. McWhorter, 177 S.W.3d 465, 472 (Tex.App.-Houston [1st Dist.] 2005, no pet.); Parker v. McGinnes, 842 S.W.2d 357, 360 (Tex.App.-Houston [1st Dist.] 1992, writ denied). Rather, the ten-year requirement may be established by tacking successive interests if there is “privity of estate between each holder and his successor.” Tex. Civ. Prac. & Rem.Code Ann. § 16.023 (Vernon 2002); First Nat. Bank of Marshall v. Beavers, 602 S.W.2d 327, 329 (Tex.Civ.App.-Texarkana 1980, no writ) (permitting tacking for establishing a prescriptive easement). As noted previously, the Greenwoods adversely used the road from the 1950s until SHI purchased the ranch in 1992. Thus, SHI was entitled to tack the Greenwoods’ claim onto its usage to satisfy the requisite limitations period. Beavers, 602 S.W.2d at 329. The trial court’s findings that SHI met the ten-year period is sufficiently satisfied by the record.

Having concluded that there was legally and factually sufficient evidence presented to establish the open, exclusive, and adverse use of the Morita Road for more than ten years, SHI obtained a prescriptive easement across the disputed area of the road. Accordingly, Issue Three is overruled.

FENCE TRESPASS

Boerschig’s fourth issue contends that the trial court erred by failing to enjoin the fence from trespassing onto his land. The trial court found that: (1) the fence was already on the McCracken Ranch when Boerschig purchased the ranch and had been on the ranch for well more than four years; (2) the fence had not caused any new injury to Boerschig since his purchase; (8) Boerschig did not have standing to assert a trespass claim; and (4) any trespass claim is barred by limitations. We address standing first.

Texas courts have held that “[w]here injury to land results ... the right of action for all the damages resulting from the injury accrues to the owner of the land at the time the thing that causes the injury commences to affect the land.” Vann v. Bowie Sewerage Co., 127 Tex. 97, 90 S.W.2d 561, 562 (1936); Senn v. Texaco, Inc., 55 S.W.3d 222, 225 (Tex.App.-Eastland 2001, pet. denied). “The right to sue for the injury is a personal right that belongs to the person who owns the property at the time of the injury.” Exxon Corp. v. Pluff, 94 S.W.3d 22, 27 (Tex.App.Tyler 2002, pet. denied); Senn, 55 S.W.3d at 225-26; Lay v. Aetna Ins. Co., 599 S.W.2d 684, 686 (Tex.Civ.App.-Austin 1980, writ ref'd n.r.e.); City of Dallas v. Winans, 262 S.W.2d 256, 259 (Tex.Civ.App-Dallas 1953, no writ); Williams v. State, 177 S.W.2d 106, 109 (Tex.Civ.App.-Waco 1943, writ ref'd).

Here, Boerschig was not the owner of the property when the fence was installed; however, he relies on the discovery rule to confer standing. The discovery rule is a narrow exception applicable only to defeat the requisite statute of limitations, that is, the rule operates to toll the limitations period when an injury is both inherently undiscoverable and objectively verifiable. Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 270 (Tex.2004). The discovery rule is not applicable in cases where the subsequent property owner lacks standing to sue for an injury to land that occurred prior to passage of title. Senn, 55 S.W.3d at 225. Absent any evidence showing Boerschig bargained for an assignment of the prior owner’s possible causes of action for injuries to the land that occurred before his purchase, he cannot rely on the discovery rule to defeat his lack of standing. Id.; Vann, 90 S.W.2d at 562. Because Boerschig did not own the property when the injury occurred, he lacks standing, and the trial court did not err by failing to enjoin the fence from encroaching on Boerschig’s land. Issue Four is overruled.

ATTORNEY’S FEES

Boerschig’s final issue contests the award of attorney’s fees in the amount of $49,320. According to Boerschig, counsel only testified to $37,403.71 in fees, and therefore, Boerschig concludes that the trial court’s award is not supported by sufficient evidence. Boerschig also contends that should he prevail on any issues before this Court, we should reverse the award for reconsideration in light of our opinion.

Standard of Review

The Texas Uniform Declaratory Judgments Act allows the trial court discretion to award reasonable and necessary attorney’s fees that are equitable and just. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 2008); Elijah Ragira/VIP Lodging Group, Inc. v. VIP Lodging Group, Inc./Elijah Ragira, 301 S.W.3d 747, 757 (Tex.App.-El Paso 2009, pet. denied); Murphy v. Long, 170 S.W.3d 621, 622-23 (Tex.App.-El Paso 2005, pet. denied). Whether the fees are reasonable and necessary are questions of fact, whereas whether the fees are equitable and just are questions of law. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998). Further, the award is not dependent on a finding that a party prevailed in the action. Id. at 20; Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618, 638 (Tex.1996).

We review a trial court’s decision to grant or deny attorney’s fees for an abuse of discretion. See Bocquet, 972 S.W.2d at 21; EMC Mortgage Corp. v. Davis, 167 S.W.3d 406, 418 (Tex.App.-Austin 2005, pet. denied). In so doing, we view the evidence in the light most favorable to the trial court’s ruling and indulge every presumption in its favor. Aquaduct, L.L.C. v. McElhenie, 116 S.W.3d 438, 444 (Tex.App.Houston [14th Dist.] 2003, no pet.); Phillips & Akers, P.C. v. Cornwell, 927 S.W.2d 276, 279 (Tex.App.-Houston [1st Dist.] 1996, no writ). We will only find an abuse of discretion when the trial court’s decision is arbitrary, unreasonable, and without reference to guiding principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997).

Application

Here, counsel testified that his total fees incurred in the case was $65,084.27. Of that amount, 40 percent, or $26,033.71, was incurred in pursuing and defending the express easement for declaratory judgment. Approximately $37,900 was incurred for trial expenses after summary judgments were granted and denied. And of that amount, 40 percent, or $15,160, was spent prosecuting the prescriptive easement, and thirty percent, or $11,370, was spent prosecuting access to other properties across the express easement for declaratory judgment. On cross-examination, counsel, somewhat confused, stated that he was asking the court for $26,033 and $11,370 for trial expenses but then indicated that a total of $37,012.21 was incorrect. The court recognized counsel’s fallacy and allowed counsel the opportunity to examine his records. Counsel then disclosed that there was an additional $28,000 that was billed but had not been disclosed.

Recognizing that the trial court may resolve conflicting testimony on fees, we discern no abuse of discretion in awarding $49,320, which was less than the total of what the evidence allowed as $37,403.71 related to prosecuting and defending the declaratory judgment actions on the express easement, and $15,160 was spent prosecuting the prescriptive easement. See Estate of Degley v. Vega, 797 S.W.2d 299, 304 (Tex.App.-Corpus Christi 1990, no writ); Texas Mut. Ins. Co. v. Durst, No. 04-07-00862-CV, 2009 WL 490056, at *6 (Tex.App.-San Antonio Feb. 25, 2009, no pet.) (mem. op., not designated for publication) (when presented with conflicting evidence, trial judge, as the fact finder, was within his discretion in awarding the attorneys’ fees in the manner and amount in which he did). Therefore, we conclude sufficient evidence supports the trial court’s award of attorney’s fees.

Nevertheless, Boerschig contends we should remand the case for reconsideration of attorney’s fees in light of our disposition under Issue One. Although a party need not prevail to recover attorney’s fees under the Act, see Bocquet, 972 S.W.2d at 20, after a declaratory judgment is reversed on appeal, an award of attorney’s fees may no longer be equitable and just. See SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Sci., Inc., 128 S.W.3d 304, 323 (Tex.App.-Dallas 2004, no pet.); Fitzgerald v. Antoine Nat’l Bank, 980 S.W.2d 228, 232 (Tex.App.-Houston [14th Dist.] 1998, no pet.). Given our disposition of Issue One, we remand the award of attorney’s fees to the trial court for its reconsideration in light of our opinion.

CONCLUSION

Having sustained Boerschig’s first issue, we reverse the trial court’s order refusing a declaratory judgment on Boerschig’s claim concerning SHI’s use of the easement to access nonappurtenant properties and render a declaratory judgment proscribing such use. In addition, we remand the case to the trial court to reconsider the award of attorney’s fees in light of our decision. We affirm the trial court’s judgment in all other respects.

      . As a map may be helpful to understanding the properties and roads involved, we have attached one for convenience.

      . The Harpers retained ownership of Rancho Quemado, an adjacent ranch located to the east of Harper Ranch.

      . The trial court found that on two occasions, SHI's equipment traveled on the McCracken Ranch outside the boundary of the express easement, and that on another occasion, John Poindexter, the owner of SHI, walked across a portion of the McCracken Ranch to view the Lake Ranch. Neither party appeals these rulings.

      . As SHI notes in its brief, several properties include the term "ranch” in their title when, in fact, no ranching operations take place on the property:
      "Fish Creek Ranch” is a commercial resort. Seidler v. Morgan, 277 S.W.3d 549 (Tex.App.-Texarkana 2009). "Ghost Mountain Ranch” and "R-Ranch” are commercial resorts. Neeley v. Martin, 2007 WL 853969 (Cal.App. 3 Dist. March 22, 2007); McCall v. Couture, [293 Ga.App. 305] 666 S.E.2d 637 (2008). "Fantasy Ranch” is a sexually oriented business with nude dancers. Fantasy Ranch Inc. v. City of Arlington, 459 F.3d 546, 556 (5th Cir.2006). "Rio Ranch” is a restaurant. Sieker v. State, 1994 WL 599451 (Tex.App.-Houston [1st Dist.] November 03, 1994). "Texas Boys Ranch” was "a home for boys who had been having problems with the law.” Richardson v. State, 879 S.W.2d 874 (Tex.Cr.App.1993). And, "Laurel Canyon Ranch,” "River Mountain Ranch” and "Riata Ranch” are just a few examples of the numerous residential subdivisions called “ranches” throughout Texas. See Edberg v. Laurel Canyon Ranch Architectural Review Committee, 2009 WL 1089432 (Tex.App.-San Antonio, April 22, 2009); In re Fallis, 2009 WL 262119 (Tex.App.-San Antonio, February 04, 2009); Cypress Northwest Associates, Ltd. v. Wayne Duddlesten, Ltd., 2008 WL 457847 (Tex.App.-Houston [1 Dist.], February 21, 2008).

      . Although we recognize that such evidence was not on file at the time the trial court entered its summary judgment, see Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 374 (Tex.App.-San Antonio 1999, pet. denied); Hussong v. Schwan's Sales Enters., Inc., 896 S.W.2d 320, 323 (Tex.App.-Houston [1st Dist.] 1995, no writ) (trial court may only consider the evidence on file at the time of tire summary judgment hearing or filed thereafter and before judgment with permission of the court), we may consider the evidence adduced at trial if a trial court reconsiders its previous ruling or prematurely grants summary judgment, which can be rendered harmless by subsequent events. See Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 921 (Tex.2005) (concluding that any error committed by granting summary judgment on insurance bad-faith and extra-contractual claims was harmless because jury's finding in subsequent proceeding negated coverage, which was prerequisite for asserting bad-faith and extra-contractual claims); Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.1998) (holding that trial court rendered any error arising from its failure to give notice of submission date for motion for summary judgment harmless when it considered nonmovant's response and reconfirmed its prior ruling on the motion); McAlester Fuel Co. v. Smith Intern., Inc., 257 S.W.3d 732, 736-37 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (holding that any error in trial court’s grant of partial summary judgment on claims of breach of contract, negligence, negligent misrepresentation, and DTPA claims was harmless when the issue of whether defendant was shielded from liability under the terms and conditions contained on the backside of the job tickets was fully litigated at trial).
      Here, the trial court reserved any issues enjoining SHI’s use of the easement for trial. After hearing the trial evidence, the court denied the injunction and seemingly reaffirmed its prior summary-judgment order:
      With respect to the other road, to the Tina-ja-China Road, the Court finds that way back before Mr. Boerschig came along, Mr. Poindexter and his company got in there. They began their operations. The same objection that was made by Mr. Boerschig was made at that time by the McCracken Ranch people about the use of the road. They got into some kind [of] dispute. They went through whatever procedure they went through, and I am not going to get into the details of that. But as a result of that, they eventually worked out an expressed agreement to be able to use that road where I am assuming those — that the Court finds, for the increased usage that, in fact, that he wanted to use it for. And so it's a bargained-for thing. And I am not going to grant any injunction against him using the Tinaja-China Road.
      Therefore, we may consider the evidence adduced at trial in determining whether the trial court's premature grant of summary judgment was harmless.

      . Trespass is an injury to land caused by one not rightfully in possession. See R.C. Bowen Estate v. Continental Trailways, Inc., 152 Tex. 260, 256 S.W.2d 71, 72 (1953); Hexamer v. Topographic Land Surveyors, No. 05-97-00108-CV, 1999 WL 114390, at *2 (Tex.App.Dallas Mar. 4, 1999, no pet.) (op., not designated for publication).

      . Given the wide discretion afforded to the trial court in awarding attorney’s fees under the Act, there would certainly be no abuse of discretion if the trial court, on remand, refused any award of attorney's fees to Boer-schig and instead, decided to award SHI the same amount in attorney’s fees even though SHI did not prevail on the declaratory judgment action as set out in this opinion. See Bocquet, 972 S.W.2d at 20.


source: Caselaw Access Project

author: GUADALUPE RIVERA, Justice. DAVID WELLINGTON CHEW, Chief Justice,

license: Public Domain

text:
    In the Matter of the Expunction of D.R.R.
    No. 08-08-00064-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 11, 2010.

      Janet I. Monteros, Assistant County Attorney, El Paso, TX, for Appellant.
    John Gates, El Paso, TX, for Appellee.
    Before CHEW, C.J, RIVERA, J„ and GARCIA, Judge.
   OPINION ON REHEARING

GUADALUPE RIVERA, Justice.

Appellant, County of El Paso, Texas (County), appeals the trial court’s order granting an expunction of Appellee’s arrest for possession of marijuana under two ounces. On February 10, 2010, we issued an opinion reversing that order and rendering that Appellee’s petition for expunction be denied. Subsequently, Appellee filed a motion for rehearing. We deny his motion for rehearing but withdraw our previous opinion and substitute this opinion in its stead. Our previous judgment remains unchanged.

BACKGROUND

This appeal centers on the filing of a petition to expunge the records of Appel-lee’s arrest on November 29, 2002, for possession of marijuana. On November 28, 2007, a hearing was held regarding the expungement petition. The evidence adduced at the hearing revealed that Appel-lee, represented by counsel, and the State of Texas entered into an agreement whereby Appellee would enroll in a pre-trial diversion program, and upon completion of that program, the charge for possession of marijuana under two ounces would be dismissed. Appellant was seventeen years old at the time, and he was charged as an adult.

In order to enroll in the program, Ap-pellee went to the offices of the Adult Probation Department to sign the requisite forms. He was not accompanied by counsel. There, he signed a document agreeing to participate in the pre-trial diversion program and to abide by certain conditions. The document also contained a provision indicating that if he successfully completed the pre-trial diversion program, he voluntarily waived any light to an ex-punction. Appellee signed his name, voluntarily agreeing to waive his right to expunction, beneath the provision. The last line of the document also recited that Appellee read and understood the document fully, and Appellee, indicating his understanding of the document, signed below that provision, as well.

Upon his successful completion of his participation in the pre-trial diversion program, the charge of possession of marijuana under two ounces was dismissed by the court. Appellee testified at the expunction hearing that he was unfamiliar with the word “expunction” when he signed the forms, and the rights that he waived were not explained to him. He stated that the purpose in seeking the expunction was to enlist in the United States Navy.

Noting that Appellee was only seventeen years old at the time he waived his right to expunction, the court believed that he did not have the capacity to contract for himself regarding that right. Thus, the court granted the petition for expunction.

DISCUSSION

In its sole issue on appeal, the County asserts the court abused its discretion in granting Appellee’s petition for ex-punction by ruling that Appellee lacked the capacity to contract; thereby invalidating his waiver of his right to expunge his criminal records. We review a trial court’s ruling on a petition for expunction under an abuse of discretion standard. Ex parte Jackson, 132 S.W.3d 713, 715 (Tex.App.Dallas 2004, no pet.); see also Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.App.-Houston [14th Dist.] 2008, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex.2004); Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52 (Tex.2002).

Appellee was charged as an adult for committing the offense of possession of marijuana under two ounces. He was seventeen years old at the time of the offense. Section 8.07(b) of the Penal Code provides in relevant part:

Unless the juvenile court waives jurisdiction under Section 54.02, Family Code, and certifies the individual for criminal prosecution or the juvenile court has previously waived jurisdiction under that section and certified the individual for criminal prosecution, a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age....

Tex. Penal Code Ann. § 8.07(b) (Vernon Supp. 2009).

Pre-trial diversion agreements, in our view, are akin to negotiated plea agreements, which have been equated to a contract. See Ex parte Williams, 637 S.W.2d 943, 948 (Tex.Crim.App.1982). Whereas plea bargaining consists of the prosecutor’s concessions regarding punishment, lesser charges or reduction in counts in exchange for a defendant’s plea of guilty or nolo contendere, see id. at 947, pre-trial diversion agreements generally consists of the prosecutor’s agreement to drop the charges in exchange for the defendant’s agreement to fulfill certain conditions within a specific period of time. Fisher v. State, 832 S.W.2d 641, 643 (Tex.App.-Corpus Christi 1992, no pet.). Under either action, each party simply agrees to give up some consequence in exchange for a benefit. See, e.g., Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978) (explaining plea bargains “flow [ ] from ‘the mutuality of advantage’ to defendants and prosecutors, each with his own reasons for wanting to avoid trial”). Here, as part of this contract, Appellee agreed to waive his right'to expunge his misdemeanor conviction in exchange for the prosecutor’s dismissal of the case upon successful completion of the program. Thus, we believe that when a prosecutor and defendant enter into such agreements, they become parties to a contract that are operative. If either party fails to keep their side of the agreement, the proper relief is either specific enforcement or withdrawal of the agreement. See, e.g., Williams, 637 S.W.2d at 947.

Appellee contends that as a minor, one younger than eighteen, he could not make a contract or waive a legal right; accordingly, as his minority disability has not been removed, the waiver is voidable, and he has the option to disallow it. Appellee maintains that in invoking his right to set aside the contract, he has not can-celled out the entire agreement. He cites Ex parte White, 50 Tex.Crim. 473, 474, 98 S.W. 850, 851 (1906), for the proposition that his minority status allows him to plead guilty, but that same disability prevents him from entering into a contract, waiving his rights or forming a contract that may be in contravention of the law or public policy. However, the cited case stands for no more than the proposition that a minor may plead guilty to an offense. Id. Logically, if Appellee can disallow one portion of the contractual agreement, he can disavow any portion of the agreement. This cannot be the intent of the legislature in providing that one has adult status with regard to criminal liability at the age of seventeen. When one who becomes involved with the criminal justice system is considered in his or her majority at age seventeen, that majority status carries over into the attendant contractual agreements. We find that when Appellee entered into a bargain-for pre-trial diversion agreement, that is, a contract, legally at the age of seventeen, he was bound by that contract arid its attendant provisions. He cannot absolve himself from those portions of the contract that he, at some later time, finds unsuitable.

We predicate this finding on the concept of estoppel by contract. A party who accepts benefits under a contract is estopped from questioning the contract’s existence, validity, or effect. See Rhodes v. State, 240 S.W.3d 882, 891 (Tex.Crim. App.2007) (discussing such principle in a plea-bargain agreement). As is true with most contracts, it is typical that both parties to an agreement will benefit from the result. A defendant cannot enter an agreement, benefit therefrom, and then attack the agreement later when it is suddenly in his interests to do so. Issue One is sustained.

CONCLUSION

We reverse and render judgment denying Appellee’s petition for expunction.

GARCIA, Judge, sitting by assignment.

CHEW, C.J., dissenting.

DAVID WELLINGTON CHEW, Chief Justice,

dissenting.

I respectfully disagree with the majority’s holding.

An individual arrested for either a felony or misdemeanor is entitled to have all records expunged if he (1) has been released, (2) the charge did not result in a final conviction, (3) there was no court-ordered community supervision for any offense other than a Class C misdemeanor, (4) the person has not been convicted of a felony in the five years preceding the date of arrest, and (5) the limitations period has expired. Tex.Code Crim. Proc. Ann. art. 55.01(a) (Vernon 2006); In re J.H., 224 S.W.3d 260, 262 (Tex.App.-El Paso 2005, no pet.). Once an applicant who has been acquitted of criminal charges shows that he is eligible under the expunction statute, the trial court has no discretion to refuse the expunction. Tex.Code Crim. Proc. Ann. art. 55.01(a); Matter of Wilson, 932 S.W.2d 263, 266 (Tex.App.-El Paso 1996, no writ); Bargas v. State, 164 S.W.3d 763, 770 (Tex.App.-Corpus Christi 2005, no pet.).

Texas law has long established that even though a defendant is a minor, he may still legally enter a plea of guilty to a criminal charge. Ex parte White, 50 Tex.Crim. 473, 474, 98 S.W. 850, 851 (1906). However, a contract made in violation of a statute is illegal. City of Denton v. Municipal Administrative Services, Inc., 59 S.W.3d 764, 769 (Tex.App.-Fort Worth 2001, no pet.). Further, a court can refuse to enforce a contract or a contractual provision if it is against public policy and unconscionable. Hoover Slovacek, LLP v. Walton, 206 S.W.3d 557, 562 (Tex.2006). A contractual provision goes against public policy if it is illegal or inconsistent with the public’s best interest. Montgomery v. Browder, 930 S.W.2d 772, 778 (Tex.App.Amarillo 1996, writ denied).

Here, Appellee has satisfied all the requirements in his petition for and to receive an expunction of his arrest. See Tex.Code Crim. Proc. Ann. art. 55.01(a); In re J.H., 224 S.W.3d at 262. However, the District Attorney for the 34th Judicial District has a policy requiring defendants, including Appellee, to waive their right to an expunction if they want to enroll in the Pre-Trial Diversion Program. I believe such a policy is inconsistent with the public’s best interest because it affects the statutory right to an expunction of not only adults, but also minors. See Montgomery, 930 S.W.2d at 778. As such, the trial court correctly refused to enforce the waiver of Appellee’s expunction right that constituted part of his pre-trial diversion agreement. See generally Walton, 206 S.W.3d at 562. This does not render Appellee’s entire pre-trial diversion agreement void, however, because a minor may properly enter a guilty plea. See generally Ex parte White, 50 Tex.Crim. at 474, 98 S.W. at 851.

Texas courts have held that contracts entered into by a minor who has not been emancipated are not binding on the minor if he chooses to disallow those contracts. See Swain v. Wiley College, 74 S.W.3d 143, 146-47 (Tex.App.-Texarkana 2002, no pet.). The contract of a minor whose disability has not been judicially removed is not void but only voidable at the minor’s choice. Pioneer Casualty Company v. Bush, 457 S.W.2d 165, 168 (Tex.Civ.App.-Tyler 1970, writ ref'd n.r.e.).

In the instant case, Appellee entered into the pre-trial diversion agreement with the State when he was seventeen years old, and so his minority disability was still intact at that time. As such, the waiver of his statutory right to an expunction is voidable, and he has the option to disallow it. See Swain, 74 S.W.3d at 146-47; Bush, 457 S.W.2d at 168. By filing his Original Petition for Expunction, Appellee has exercised his option to disallow the waiver and rightfully seek his right to an expunction.

Finally, the local District Attorney policy requirement that a minor defendant waive his right to an expunction in order to enroll in the Pre-Trial Diversion program seems to contradict the legislative intent behind the expunction statutes. The right to an expunction is statutory in nature, and the legislature could not have intended for an individual to give up such a right by agreeing to enter into a deferred adjudication program when the individual is a minor. See Tex.Code Crim. Proc. Ann. art. 55.01(a).

For the foregoing reasons, I respectfully dissent.

      . We do not address the implications of counsel's absence at the time Appellee signed the pre-trial diversion agreement as those contentions were not raised in the trial court, nor were they argued in Appellee's brief on appeal. And to the extent Appellee seeks to make those argument in his motion for rehearing, it is too late. Morrison v. Chan, 699 S.W.2d 205, 206-07 (Tex.1985).

      . The dissent suggests that civil law should apply to allow a minor, being disabled by virtue of his age, to void a portion of his plea agreement, i.e., the waiver of his right to an expunction, at his option. However, the dissent's argument fails as the juvenile was certified as an adult, and as an adult, the juvenile could freely bargain for certain benefits in exchange for waiving other rights in the criminal justice system. See generally Woods v. State, 68 S.W.3d 667, 668, 670 (Tex.Crim.App.2002) (approving of defendant's plea-bargain agreement, who was a juvenile certified as an adult, that waived right of appeal).


author: ANNE GARDNER, Justice.

text:
    Debra HARTSOCK, Appellant, v. The STATE of Texas, State.
    No. 2-09-305-CR.
    Court of Appeals of Texas, Fort Worth.
    Aug. 19, 2010.

      J. Stanley Goodwin, Denton, TX, for Appellant.
    Paul Johnson, Criminal District Attorney, Charles E. Orbison, Chief Appellate Section, Rebecca L. Lively, Forrest Beadle and Kim Laseter, Assistant District Attorneys, Denton, TX, for Appellee.
    PANEL: GARDNER, McCOY, and MEIER, JJ.
   OPINION

ANNE GARDNER, Justice.

I. Introduction

Appellant Debra Hartsock appeals from her conviction for driving while intoxicated. In her sole point, Appellant contends that the admission of a DVD — showing a person’s eyes with and without nystag-mus — as demonstrative evidence was reversible error because the State failed to establish the scientific reliability of the Horizontal Gaze Nystagmus (HGN) test performed on the DVD. We will affirm.

II. Background

Shortly before 2 p.m. on November 19, 2008, while driving northbound on Locust Street in Denton, Texas, Lawrence Gregg observed a Jeep approximately 100 yards in front of him lose control, roll a couple of times, and come to rest on the driver’s side with the undercarriage facing northeast. Gregg testified that the road was dry and that he did not observe any cars or obstacles that would have forced the Jeep off the road. Gregg’s passenger called 9-1-1 while Gregg checked on the Jeep driver. As Gregg approached, he smelled alcohol coming from the Jeep and saw Hartsock crawl out of the passenger window.

Gregg testified that Hartsock appeared to be in shock, that she profusely cursed about wrecking her Jeep, but that she did not appear to be injured except for a cut on her face. Gregg also testified that Hartsock slurred her speech and appeared drunk.

Responding to a dispatch call, Denton Police Officers Kevin Vice and Alfonso O’Rozco arrived at the accident scene and observed Hartsock standing near her vehicle, crying hysterically, squatting up and down, and alternately screaming and cursing. Officer Vice noticed a couple of small cuts on Hartsock’s fingers but did not observe any signs of a head injury or bruising. Hartsock denied being injured. When Officer Vice inquired as to the cause of the accident, Hartsock replied that she was talking on her cell phone and “the next thing she knows, she wrecks.” Officer Vice testified he detected the smell of alcohol on Hartsock’s breath.

The paramedics found no other injuries, and Hartsock refused transport to the hospital. Officer Vice observed Appellant had red and glassy eyes, slurred speech, and staggered as she walked toward his patrol car. Hartsock denied drinking alcohol, but told Officer Vice she had taken some nonprescription medication three days earlier. Officer Vice administered the HGN test to Hartsock. He testified that Hartsock exhibited all six clues of intoxication, could not correctly follow his instructions, and swayed while he administered the test.

While Officer O’Rozco investigated the accident, during which he removed two rum bottles — one empty and one half-empty — from Hartsock’s vehicle, Officer Vice asked Hartsock to perform additional field sobriety tests. Hartsock could not correctly recite the alphabet. Hartsock also failed the walk-and-turn test in that she was neither able to follow Officer Vice’s instructions nor maintain her balance during the test, eventually refusing to complete the test. Officer Vice testified that based on his observations and the totality of circumstances, he concluded that Hart-sock had lost the normal use of her mental and physical faculties, and he arrested her for the offense of driving while intoxicated. He also testified that Hartsock refused to provide a blood sample to be tested for her blood alcohol concentration.

On February 12, 2009, the grand jury indicted Hartsock for the third-degree felony offense of driving while intoxicated with two prior convictions. The indictment contained an enhancement paragraph raising the punishment range to that of a second-degree felony. At the jury trial on August 19, 2009, Hartsock pleaded not guilty to the primary charge of driving while intoxicated and pleaded true to the enhancement paragraphs regarding two prior driving while intoxicated convictions.

During the trial, the State offered — for demonstrative purposes only — a DVD featuring videos of an individual’s eyes with and without nystagmus. Upon Hartsock’s objection, the trial court held a hearing outside the presence of the jury to determine the admissibility of the DVD. Officer Vice testified that the DVD is a training tool used by the district attorney’s office to show police officers how a person’s eyes look with and without horizontal gaze nystagmus, that he had viewed the videos at the district attorney’s office during a training session, and that the videos would assist him with his testimony. He further testified that he did not know who created the videos. Hartsock objected because Officer Vice could not vouch for the authorship, authenticity, or scientific principles applied in the videos. The trial court overruled Hartsock’s objection.

Officer Vice testified that Hartsoek’s eyes are not on the DVD, but that the videos would help the jury understand “what someone’s eyes looked like when they have HGN and when they don’t.” The trial court instructed the jury that the videos did not show Hartsock’s eyes, and did not indicate the level of alcohol consumption the individual in the video consumed in order to demonstrate HGN, but was being shown “just to aid you in the officer’s testimony what he observed, or at least to show you what he believed he observed.” After the DVD was played for the jury, Officer Vice testified that he saw all six clues of intoxication in the DVD’s second video and that they were the same six he observed in Hartsock’s eyes.

The jury found Hartsock guilty and assessed her punishment at fourteen years’ confinement. The trial court sentenced her accordingly.

III. Analysis

In her sole point on appeal, Hartsock contends that the trial court erred by admitting the DVD as demonstrative evidence. Specifically, Hartsock argues that the DVD was inadmissible because the State failed to establish the scientific reliability of the test it portrayed.

A. Standard of Review

A trial court’s ruling on the admissibility of evidence is reviewed under an abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App.2003). If the trial court’s ruling was within the zone of reasonable disagreement, there is no abuse of discretion. Id.

B. Trial Court’s Admission of DVD Not An Abuse of Discretion

1. Demonstrative Evidence Is Admissible To Explain Testimony

Demonstrative evidence is evidence admitted to serve as a visual aid or illustration that meets the tests of relevancy and materiality, as well as the limitations imposed by Texas Rule of Evidence 403. Baker v. State, 177 S.W.3d 113, 123 (Tex.App.-Houston [1st Dist.] 2005, no pet.). The trial court’s discretion to permit the use of visual aids, charts, and video recordings during trial is well established. Marras v. State, 741 S.W.2d 395, 404-05 (Tex.Crim.App.1987), overruled on other grounds, Garrett v. State, 851 S.W.2d 853, 860 (Tex.Crim.App.1993) (holding that a videotaped re-enactment of the defendant’s flight from the crime scene was admissible); Baker, 177 S.W.3d at 123.

Demonstrative evidence has no independent relevance to the case but is offered to help explain or summarize the witness’s testimony or to put events and conditions into a better perspective. Torres v. State, 116 S.W.3d 208, 213 (Tex.App.-El Paso 2003, no pet.). To establish the relevancy of demonstrative evidence, the proponent must first authenticate it. Id. The proponent is then required to establish that the evidence is fair and accurate and that it helps the witness to demonstrate or illustrate his testimony. Id.; see Simmons v. State, 622 S.W.2d 111, 113 (Tex.Crim.App. [Panel Op.] 1981) (holding that demonstrative evidence is admissible if it tends to solve some issue in the case and is relevant, that is, if it sheds light on the subject at hand). Demonstrative evidence must be properly identified by showing that the item in question is what its proponent claims as opposed to any idea of speculation, conjecture, or presumption of what the exhibit represents. Torres, 116 S.W.3d at 213 (citing Vollbaum v. State, 833 S.W.2d 652, 657 (Tex.App.-Waco 1992, pet. ref'd)). Demonstrative evidence has no probative force beyond that which is lent to it by the credibility of the witness whose testimony it is used to explain. Id.

2. As Demonstrative Evidence, State Did Not Need to Prove Scientific Reliability of HGN Test on DVD

Hartsock argues that because Officer Vice neither knew who made the videos nor the qualifications of the HGN test administrator on the DVD, the State submitted no proof that the scientific technique judicially noticed to be reliable in Emerson v. State was properly followed in making the 'videos. See 880 S.W.2d 759, 768-69 (Tex.Crim.App.1994).

To establish the reliability of scientific evidence, the proponent must show: (1) the underlying scientific evidence is valid; (2) the technique applying the principle must be valid; and (3) the technique must have been properly applied on the occasion in question. Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992). In Emerson, the court took judicial notice that the HGN test, as designed and promoted by the National Highway Traffic Safety Administration (NHTSA), meets the first two of the three Kelly requirements for determining the admissibility of scientific evidence. Emerson, 880 S.W.2d at 768. However, evidence must show that the third requirement was met — that the HGN technique was applied properly — on the occasion in question. Id. at 768-69.

Here, a review of the record indicates that the DVD was not used as a scientific method of proof that Hartsock was intoxicated, but to aid the jury in understanding HGN. Officer Vice authenticated and identified the DVD as one he viewed in the district attorney’s office and that it is used to help officers identify an individual with horizontal gaze nystagmus. Officer Vice explained to the jury that Hartsock’s eyes were not on the videos and that the DVD would help him with his testimony because the DVD would help the jury understand the signs he looks for when conducting the HGN test. In addition, the trial court instructed the jury that the DVD did not show Hartsock’s eyes and that it was admitted only to aid the jury in understanding what Officer Vice believed he observed as he conducted the HGN test on Hart-sock. Finally, the record does not indicate that the DVD was used as direct or substantive evidence to support Hartsock’s intoxication. The DVD was admissible as demonstrative evidence. See Thrasher v. State, No. 12-09-00334-CR, 2010 WL 2638070, at *2 (Tex.App.-Tyler June 30, 2010, no pet.) (mem. op., not designated for publication).

Having determined that the trial court did not abuse its discretion in admitting the DVD as demonstrative evidence, we overrule Hartsock’s sole point.

IV. Conclusion

Having overruled Hartsock’s sole point, we affirm the trial court’s judgment.

      . The record does not reveal that the State mentioned the videos on the DVD during clos-tag argument or at any other point in the trial.


author: LEE ANN DAUPHINOT, Justice.

text:
    William COBB, Appellant, v. CAYE PUBLISHING GROUP, INC., Appellee.
    No. 2-09-426-CV.
    Court of Appeals of Texas, Fort Worth.
    Aug. 19, 2010.

      Joshua W. Carden, Eggleston Flowers & King, LLP, Weatherford, TX, for Appellant.
    Gregory G. Jones, Gregory G. Jones, P.C., Southlake, TX, for Appellee.
    PANEL: LIVINGSTON, C.J.; DAUPHINOT and McCOY, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

INTRODUCTION

In this accelerated interlocutory appeal, Appellant William Cobb challenges the trial court’s temporary injunction order enforcing a covenant not to compete in an employment agreement between Cobb and Appellee Caye Publishing Group, Inc. Because we conclude that the geographical area of the trial court’s injunction order is unnecessarily broad, we modify the injunction in terms of geographical scope and affirm the injunction as modified.

FACTUAL AND PROCEDURAL BACKGROUND

Caye Publishing publishes and distributes a “coupon based” magazine in Johnson County called Local Life. On May 1, 2008, Caye Publishing hired Cobb to sell advertising for Local Life as an independent contractor. The parties signed a “Contractor Agreement” containing a non-compete clause in which Cobb promised that, upon termination of his contractual engagement with Caye Publishing, he would not work for a competing third party or start a publication outside of Caye Publishing for a term of one year.

Cobb sold advertising space in Local Life until September 23, 2009, when he resigned. In early November 2009, he published and distributed a magazine titled Who What Where in the cities of Aledo and Weatherford, which are located in nearby Parker County. Caye Publishing then sued Cobb for breach of contract, misappropriation of trade secrets, and tortious interference with contract. On November 24, 2009, the trial court signed a temporary injunction order preventing Cobb from starting a new publication or publishing his existing magazine in Johnson County and in the cities of Aledo and Weatherford in Parker County. Cobb now appeals.

LAW AND APPLICATION TO FACTS

A. Standard of Review

A temporary injunction’s purpose is to preserve the status quo of the litigation’s subject matter pending a trial on the merits. A temporary injunction is an extraordinary remedy and does not issue as a matter of right. To be entitled to a temporary injunction, the applicant must plead a cause of action and further show both a probable right to recover on that cause of action and a probable, imminent, and irreparable injury in the interim.

Whether to grant or deny a request for a temporary injunction is within the trial court’s discretion, and we will not reverse its decision absent an abuse of discretion. To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. A trial court abuses its discretion if it misapplies the law to established facts.

In an appeal from an order granting or denying a temporary injunction, the scope of review is restricted to the validity of the order granting or denying relief. The legal issues involved in a temporary injunction hearing are whether the applicant showed a probability of success and irreparable injury; the ultimate merits of the controversy are not before the trial court. Thus, we address the enforceability of the covenant not to compete only to the extent that it affects the analysis of whether the elements required for issuance of a temporary injunction have been satisfied. Our review of the trial court’s order is limited to determining whether the trial court abused its discretion by granting temporary relief.

B. Probable Right to Recover

1. Evaluating the geographical limitation of a covenant not to compete

Caye Publishing pleaded a breach of contract cause of action in which it alleged that Cobb had breached the Contractor Agreement by, among other things, starting a publication outside of Caye Publishing in a geographical area targeted by Caye Publishing for expansion. Generally, every contract in restraint of trade or commerce is unlawful. A covenant not to compete, however, is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee. A restraint is unreasonable if it is broader than necessary to protect the legitimate interests of the employer. Whether a covenant imposes a reasonable restraint on trade is a question of law for the court.

In his first issue, Cobb challenges the reasonableness of the geographical limitation in the trial court’s injunction, asserting that the trial court abused its discretion by enforcing an overbroad covenant not to compete and by prohibiting him from publishing in Aledo and Weatherford. The noncompete covenant in the Contractor Agreement contains no geographical limitation at all; it simply states that Cobb “will not work for a competing third party for the term of one year” and that he “will not start a publication outside of [Caye Publishing] for a term of one year,” without inclusion of or reference to any geographical area. A covenant not to compete with a broad geographical scope is unenforceable, particularly when no evidence establishes that the employee actually worked in all areas covered by the covenant. Accordingly, we agree that the noncompete covenant in this case, which prohibits Cobb from working for a competitor or publishing any other magazine without any limitation as to geographical area, is overbroad and unenforceable.

2. Reforming the geographical limitation of a covenant not to compete

If the trial court in a suit to enforce a covenant not to compete determines that the limitations as to time, geographical area, or scope of activity in the covenant are unreasonable, the court shall reform the covenant to the extent necessary to cause the limitations to be reasonable and to impose a restraint that is not greater than necessary to protect the goodwill or other business interest of the promisee and enforce the covenant as reformed. In its temporary injunction order, the trial court found that Caye Publishing had demonstrated a probable right of recovery against Cobb and granted in-junctive relief, but it restricted the geographical area of the covenant to Johnson County and the cities of Aledo and Weath-erford in Parker County. To grant this injunctive relief, the trial court judge was required to conclude that Caye Publishing had shown that it would probably succeed on the merits of its claim of breach of the covenant not to compete as reformed to this geographical area. It is this conclusion that we review for an abuse of discretion.

Generally, a reasonable area for purposes of a covenant not to compete is considered to be the territory in which the employee worked while in the employment of his employer. Although Cobb worked only in Johnson County during his employment with Caye Publishing, Caye Publishing asserts that including Aledo and Weatherford in the geographical scope of the covenant not to compete is reasonable because Caye Publishing had already targeted Parker County for expansion by the time that Cobb resigned. Thus, the issue in this case is whether a reasonable geographical limitation of the parties’ covenant not to compete includes areas where Cobb never worked for Caye Publishing, and where Caye Publishing never actually distributed any publications, but where Caye Publishing intended to distribute publications at some point in the future.

Caye Publishing also contends that extending the covenant’s geographical limitation to Aledo and Weatherford is reasonable because the evidence showed that Caye Publishing had made “more than a cursory inquiry” into publishing in Parker County. Stephen Lee Ellis, publisher of Caye Publishing, testified at the temporary injunction hearing that at the same time he had started publishing Local Life in Johnson County, approximately two years earlier, he had also started researching the feasibility of starting a publication in Parker County. He testified that he already had finished his research and had decided to begin publishing in Parker County before Cobb left Caye Publishing. In February or March 2009, Ellis approached the publisher of Parker County Today, a publication already being distributed in Parker County, about buying that publication. The publisher declined, but three months later, he contacted Ellis about a sale. This time, Ellis declined because he had just started a children’s publication and his “plate was full.” Ellis later contacted the Parker County Today publisher again about a sale, but the “deal fell through.” Ellis testified that his “discussions” with the publisher were ongoing and that he had met with the publisher and the publisher’s business partner the previous week “[t]rying to come to some agreement.”

Ellis also testified that he had told Cobb while Cobb was still working for Caye Publishing that Ellis was researching expansion opportunities in Weatherford and Aledo. Ellis told Cobb that he intended to let Cobb “run” the Parker County publication once it got started. According to Ellis, Cobb was aware that the startup of the Parker County publication was dependent on “getting the revenues [that Caye Publishing] needed to a certain point in Johnson County” and that Caye Publishing would not expand into Parker County unless it “got Johnson County up to a certain level.” Furthermore, Ellis testified that Caye Publishing had looked into starting publications in other cities such as Cle-burne, Mansfield, Flower Mound, and Highland Village but that it had not actually expanded its operation to those areas.

The parties have not cited, and we have not found, a case in which a geographical limitation including areas where an employer does not currently operate but has targeted for future potential expansion, standing alone, is reasonable. Texas law does, however, mandate that a geographical limitation cannot impose a greater restraint than is necessary to protect the goodwill or other business interest of the employer. The trial court stated in its temporary injunction order that without an injunction, Cobb would damage Caye Publishing’s interests by displacing its exclusive right to use its research and be the first to enter markets “targeted by” Caye Publishing, thus usurping Caye Publishing’s opportunity to fill the limited market void, and by capturing customer goodwill that would otherwise be winnable by Caye Publishing as the first and sole entrant into the targeted markets.

None of these reasons, however, displays any connection to Cobb’s activities when he was an employee of Caye Publishing or to the geographical area in which Cobb actually worked when he was an employee of Caye Publishing. During Cobb’s employment with Caye Publishing, he sold advertising for a publication distributed in Johnson County only; he never sold advertising for any publication distributed in Aledo or Weatherford, and Caye Publishing never distributed any publications in Aledo or Weatherford. Ellis even testified that Cobb did not participate in conducting any of the company’s research into the Parker County market, and Cobb was not part of the discussions with the publisher of Parker County Today.

Furthermore, the evidence at the temporary injunction hearing established that ■Caye Publishing had nothing more than a potential business interest in Parker County. There was no testimony that Caye Publishing had sold any advertising, cultivated any customer goodwill, or taken any action to start a publication in Aledo or Weatherford other than researching the area and having back-and-forth “discussions” with an existing publication in Parker County. Caye Publishing complains on appeal of Cobb’s contacting some of its Johnson County advertisers to buy ad space in Cobb’s new Parker County publication as well. But Ellis admitted at the temporary injunction hearing that Cobb was not competing with Caye Publishing for advertisers because Cobb did not have a Johnson County publication, and Caye Publishing was not in the Parker County market at that time.

Caye Publishing contends that it was Cobb’s fault that Caye Publishing could not enter the Parker County market because Cobb did not sell enough ads and generate enough revenue for its Johnson County publication. Additionally, the trial court judge stated on the record that he found Cobb’s actions unconscionable because Cobb had begun preparations to launch his own publication while he was still employed by Caye Publishing. But the focus of the legal analysis in this case is on Caye Publishing — the geographical location and reach of its business interests, the extent of Cobb’s involvement in those business interests while he was working for Caye Publishing, and the amount of restraint reasonably necessary to protect Caye Publishing’s business interests. Any preresignation planning or drop in ad sales on Cobb’s part is not relevant to the evaluation of the geographical extent of in-junctive relief needed to safeguard Caye Publishing’s legitimate business interests. We hold that, under the facts of this case, the trial court abused its discretion by determining for purposes of the temporary injunction that Caye Publishing had a probable right to recover for breach of a covenant not to compete in a geographical area that included Aledo and Weatherford. We sustain Cobb’s first issue.

Cobb argues in his second issue that the trial court abused its discretion by enjoining him from publishing in Aledo and Weatherford because Caye Publishing showed no evidence of irreparable injury and had unclean hands. Because Cobb does not challenge the inclusion of Johnson County in the geographical scope of the temporary injunction order, and because we have already held that the trial court abused its discretion by entering a temporary injunction order that enjoined Cobb from starting a publication in Aledo and Weatherford, we do not reach Cobb’s remaining issue.

CONCLUSION

Having sustained Cobb’s first issue, we dissolve those portions of the trial court’s temporary injunction order restraining Cobb from (1) starting, launching, operating, or participating in the start or launch of any publication outside of Caye Publishing and within the cities of Aledo and Weatherford and (2) publishing or selling any magazine or other publication that Cobb may currently be publishing or selling outside of Caye Publishing and within the cities of Aledo and Weatherford. We modify the geographical area of the trial court’s temporary injunction order to Johnson County only, and we affirm the trial court’s order as modified.

      . Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex.1993).

      . Id.

      . Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002).

      . Id.

      . Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex.2004).

      . State v. Sw. Bell Tel. Co., 526 S.W.2d 526, 528 (Tex.1975); In re Talco-Bogata Consol. Indep. Sch. Dist. Bond Election, 994 S.W.2d 343, 347 (Tex.App.-Texarkana 1999, no pet.).

      . Walling, 863 S.W.2d at 58.

      . Id.; see also Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 882 (Tex.App.-Dallas 2003, no pet.).

      . See Tom James, 109 S.W.3d at 882.

      . Id. at 885.

      . Tex. Bus. & Com.Code Ann. § 15.05(a) (Vernon 2002).

      . Id. § 15.50(a) (Vernon 2002 & Supp.2009).

      . DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 682 (Tex.1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 755, 112 L.Ed.2d 775 (1991).

      . Light v. Centel Cellular Co. of Tex., 883 S.W.2d 642, 644 (Tex.1994); Peat Marwick Main & Co. v. Haass, 818 S.W.2d 381, 388 (Tex.1991).

      . Butler v. Arrow Mirror & Glass, Inc., 51 S.W.3d 787, 793-94 (Tex.App.-Houston [1st Dist.] 2001, no pet.).

      . See Goodin v. Jolliff, 257 S.W.3d 341, 352 (Tex.App.-Fort Worth 2008, no pet.) (holding that an agreement restricting a party from starting, directly or indirectly, a competing business “without any limitation as to geographic scope whatsoever" was unenforceable).

      . Tex. Bus. & Com.Code Ann. § 15.51(c) (Vernon 2002).

      . See id.; Butnaru, 84 S.W.3d at 204 (requiring applicant to show a probable right to recover).

      . See Butnaru, 84 S.W.3d at 211; Tom James, 109 S.W.3d at 882-83.

      . Butler, 51 S.W.3d at 793.

      . See Tex. Bus. & Com. Code Ann. § 15.50(a); see also, e.g., Evan's World Travel, Inc. v. Adams, 978 S.W.2d 225, 233-34 (Tex.App.-Texarkana 1998, no pet.) (holding that a noncompete agreement was enforceable only in the one county in which an employee had worked for her former employer because she had not had clients from any other locations); Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 660-61 (Tex.App.-Dallas 1992, no writ) (holding that a noncompete covenant that prohibited an employee from working anywhere, regardless of whether he had serviced the area during his employment, was unenforceable); Gomez v. Zamora, 814 S.W.2d 114, 118 (Tex.App.-Corpus Christi 1991, no writ) (holding that a covenant defining "future marketing area” as nearly every major city in Texas was unenforceable because no evidence established that the employee actually had worked in all areas covered by the covenant); Webb v. Hartman Newspapers, Inc., 793 S.W.2d 302, 303 (Tex.App.-Houston [14th Dist.] 1990, no writ) (restricting geographical area of a non-compete covenant between a newspaper publisher and its former employee to the distribution area of the newspaper for which the employee had worked).

      . See Butler, 51 S.W.3d at 793-94.

      . See Tex.R.App. P. 47.1.

      . See Tex.R.App. P. 43.2(b).