author: Justice MYERS.

text:
    Sandra SHUTTER, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 05-09-00639-CV.
    Court of Appeals of Texas, Dallas.
    July 21, 2010.

      Michael Brinkley, Brinkley Law PLLC, Ft. Worth, TX, for Appellant.
    Robert F. Maris, Michael J. McKleroy, Jr., Maris & Lanier, P.C., Robert S. Al-corn, Dallas, TX, for Appellee.
    Before Justices RICHTER, LANG-MIERS, and MYERS.
   OPINION

Opinion By

Justice MYERS.

This Court’s opinion of June 28, 2010 is withdrawn on our own motion and this Court’s judgment of that date is vacated. The following is now the opinion of this Court. Appellant Sandra Shutter appeals from the trial court’s judgment awarding possession of a property located at 500 Bowie Street, Forney, Texas 75126, to ap-pellee Wells Fargo Bank, N.A. In two issues, appellant argues the trial court erred in hearing the case and rendering judgment because (1) appellee’s pleading is invalid and (2) the deed tendered to the court by appellee was insufficient to support a prima facie claim of title. We affirm the trial court’s judgment.

Background and Procedural History

On May 29, 2001, appellant executed a deed of trust granting North American Mortgage Company a first lien security interest in a property located at 500 Bowie Street, Forney, Texas 75126 (the property). Paragraph eighteen of the deed of trust provided in part:

If the property is sold pursuant to [a non-judicial foreclosure sale], Borrower or any person holding possession of the Property through Borrower shall immediately surrender possession of the Property to the purchaser at that sale. If possession is not surrendered, Borrower or such person shall be a tenant at sufferance and may be removed by writ of possession.

On November 25, 2003, appellant entered into a loan modification agreement that modified the provisions of the deed of trust. The loan modification modified the payment terms, interest rate, and terms of deed of trust. Paragraph eighteen of the deed of trust, however, was not altered.

On October 7, 2008, the property was sold at a non-judicial foreclosure sale. On that date, a substitute trustee’s deed was executed conveying the property to appel-lee. On October 14, 2008, appellee provided appellant, along with the other occupants of the property, with written notice to vacate the property. That appellant did not vacate the property is not disputed.

On October 28, 2008, appellee filed suit in a Kaufman County justice of the peace court seeking forcible entry and detainer. Appellant answered and filed a plea in abatement arguing, among other things, that the petition was not properly sworn by appellee’s trial counsel because the verification attached to the petition did not attest that counsel had “actual personal knowledge of the factual allegations contained within the Petition for Forcible De-tainer.”

On appeal to the county court at law, appellee presented evidence supporting its petition. Before hearing that evidence, the court overruled the plea in abatement. Judgment granting appellee possession of the property was signed on April 8, 2009. Appellant filed a notice of appeal on April 29, 2009. Other than appellant, none of the other occupants of the property appealed the trial court’s decision.

Discussion

First Issue

In her first issue, appellant argues that appellee’s petition on file with the court at the time of trial “was not a valid pleading which even required [appellant’s] answer” because the petition was not properly sworn by appellee’s trial counsel. In the challenged verification, appellee’s counsel stated: “I have read the foregoing Original Petition for Forcible Detainer and to the best of my personal knowledge, the facts stated therein are true and correct.” Appellant also argues that this defect, which was raised in the court prior to trial, is “jurisdictional and may be raised at any time.”

In a recent case, the Texarkana Court of Appeals concluded that an affidavit attached to an amended sworn complaint for a forcible entry and detainer action was not sufficiently based on “personal knowledge” as required to support its verification, because the affiant averred he had read the complaint and that, “to the best of my personal knowledge,” the facts stated therein were true and correct. The court noted, however, that the defective verification did not deprive the county court of jurisdiction to hear the forcible detainer action. See Reagan v. NPOT Partners I, L.P., No. 06-08-00071-CV, 2009 WL 763565, at *2-3 (Tex.App.-Texarkana 2009, pet. denied) (mem. op.). Therefore, to the extent appellant is raising a jurisdictional challenge, the argument is overruled. See id.

The Reagan court also considered a plea in abatement similar to the one filed in this case. We review the county’s court’s decision on the plea in abatement under an abuse of discretion standard. Id. at *5 (citing Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988)); Brown v. Bowers, No. 05-07-00136-CV, 2008 WL 2152889, at *2 (Tex.App.-Dallas May 22, 2008, no pet.) (mem. op.). A plea in abatement challenges a plaintiffs pleading by asserting facts outside of the record that prevent the suit from going forward until the problem can be cured. Id. (citing Brown, 2008 WL 2152889, at *2); see also Morgan v. City of Alvin, 175 S.W.3d 408, 421 (Tex.App.-Houston [1st Dist.] 2004, no pet.); KSNG Architects, Inc. v. Beasley, 109 S.W.3d 894, 898 (Tex.App.-Dallas 2003, no pet.). In the plea in abatement, the defendant must identify any impediment to the continuation of the suit, identify an effective cure, and ask the court to abate the suit until the defect is corrected. See Morgan, 175 S.W.3d at 421; Reagan, 2009 WL 763565, at *5. The plea in abatement cannot be used to determine the merits of an action. See KSNG Architects, 109 S.W.3d at 898; Reagan, 2009 WL 763565, at *5. The Reagan court determined that, even if the county court erred in overruling the plea in abatement, the appellant failed to brief or otherwise demonstrate harm. See Reagan, 2009 WL 763565, at *6 n. 3.

Applying these principles, we note that, in the present case, as in Reagan, appellant did not allege or explain how a defective verification was an impediment to the court’s determination of immediate possession, and she did not demonstrate harm. As a result, the trial court did not err in denying appellant’s motion to abate. We overrule appellant’s first issue.

Second Issue

In her second issue, appellant argues that the deed entered into evidence by appellee was not sufficient to support a prima facie claim of title. Specifically, appellant argues that the affidavit accompanying the substitute trustee’s deed was invalid because paragraphs four and five of the affidavit were not based on personal knowledge in that the affiant averred the statements in those paragraphs were true “[t]o the best of my knowledge and belief.” Appellant therefore contends that appellee did not demonstrate compliance with section 51.002(e) of the Texas Property Code, which states that, in establishing that the debtor was served with notice of foreclosure, “the affidavit of a person knowledgeable of the facts to the effect that service was completed is prima facie evidence of service.” See Tex. PROp.Code Ann. § 51.002(e) (Vernon Supp. 2009).

A forcible detainer action is a procedure to determine the right to immediate possession of real property where there was no unlawful entry. Glen Williams v. Bank of New York Mellon, 315 S.W.3d 925, 926 (Tex.App.-Dallas 2010, no pet. h.) (mem. op.) (citing Rice v. Pinney, 51 S.W.3d 705, 709 (Tex.App.-Dallas 2001, no pet.)). It is intended to be a speedy, simple, and inexpensive means to obtain possession without resort to an action on the title. Id. (citing Scott v. Hewitt, 127 Tex. 31, 35, 90 S.W.2d 816, 818-19 (1936)). To maintain simplicity, the applicable rule of procedure provides that “the only issue shall be as to the right to actual possession; and the merits of the title shall not be adjudicated.” Tex.R. Civ. P. 746; Glen Williams, 315 S.W.3d at 927. The only issue in a forcible detainer action is which party has the right to immediate possession of the property. Glen Williams, 315 S.W.3d at 926 (citing Rice, 51 S.W.3d at 709). Whether the sale of property under a deed of trust is invalid may not be determined in a forcible de-tainer and must be brought in a separate suit. Id. (citing Scott, 127 Tex. at 35, 90 S.W.2d at 818-19; Rice, 51 S.W.3d at 710).

In this case, appellee proved its right to possession of the property by presenting in evidence the substitute trustee’s deed, the deed of trust, and notices to appellant land the other residents of the property to Ivaeate. The substitute trustee’s deed showed appellee purchased the property in public auction following appellant’s default on the deed of trust. The deed of trust showed appellant was a tenant at lufferance when she did not vacate the property after appellee purchased it. The [otice to vacate informed appellant of her enant-at-sufferance position and appel-pe’s requirement that she vacate the roperty. This evidence was sufficient to fctablish appellee’s right to immediate pssession of the property. See Glen Williams, 315 S.W.3d at 926 (citing Mitchell v. Citifinancial Mortg. Co., 192 S.W.3d 32, 883 (Tex.App.-Dallas 2006, no pet.); Powelson v. U.S. Bank Nat'l Ass’n, 125 S.W.3d 810, 812 (Tex.App.-Dallas 2004, no pet.)). Any defects in the foreclosure props or with appellee’s title to the property y not be considered in a forcible detain-laetion. Id. Those defects may be pur-td in suits for wrongful foreclosure or to 1 aside the substitute trustee’s deed, but they are not relevant in this forcible detainer action. Id. (citing Scott, 127 Tex. at 35, 90 S.W.2d at 818-19; Rice, 51 S.W.3d at 710-11). Accordingly, we conclude that the trial court did not err in granting judgment for appellee. We overrule appellant’s second issue.

We affirm the trial court’s judgment.

      . Appellee filed an amended petition for forcible detainer that used the same wording in the verification.

      . The challenged portions of the affidavit read as follows:
      4. To the best of my knowledge and belief, proper notice of default was served prior to acceleration of the indebtedness. All obligations and duties of the Mortgage Servicer were performed in the manner required by law and all notices were served on each debtor at the last known address of each debtor.
      5. To the best of my knowledge and belief, the mortgagors holding an interest in the above described property were not on active duty with any branch of the Armed Forces of the United States or were not protected by the Servicemembers Civil Relief Act on the date of the Trustee’s Sale and were alive on the date of such sale.

      . We also note that appellant’s trial counsel lated on the record that ”[t]here are no ob-Ictions" to the admission of the substitute trustee’s deed, which was admitted as plaintiff’s exhibit one.


source: Caselaw Access Project

author: BRIAN QUINN, Chief Justice.

license: Public Domain

text:
    Donald Earl COLLINS, Appellant, v. The STATE of Texas, Appellee.
    No. 07-10-0135-CR.
    Court of Appeals of Texas, Amarillo, Panel B.
    July 22, 2010.
    Discretionary Review Refused November 3, 2010.

      R. Scott Walker, Walker & Walker, Burleson, TX, for Appellant.
    David W. Vernon, Assistant District Attorney, Cleburne, TX, for Appellee.
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
   Opinion

BRIAN QUINN, Chief Justice.

We have before us a rather novel question posed by Donald Earl Collins. After the State succeeded in having his community supervision or probation revoked, he asked the trial court to grant him credit on his ten-year prison sentence equal to the time he sat in prison while serving a different sentence. The trial court granted him some relief but not all that he sought. We affirm the judgment.

Background

The circumstances before us involve two distinct driving while intoxicated offenses for which appellant was prosecuted simultaneously. One resulted in his conviction and imprisonment (Conviction A). The other resulted in his conviction and probation (Conviction B). The two sentences were then ordered to run concurrently. As a condition of appellant’s probation, he was required to participate in a substance abuse program. While serving his prison sentence for Conviction A, the State sent appellant to the program in question. He refused to participate in it. Instead, he, as opposed to the State, moved to have his I probation revoked. Nothing transpired with regard to his motion, though. Several months later, the State filed its ownl motion, which was heard by the trial court! That resulted in the revocation of appel-l lant’s probation and sentence to prison foil Conviction B. Before sentencing, thoughl appellant asked the court to credit hiril with time spent serving Conviction Jm The trial court refused that as well as hil request for credit for the period beginning from the time he moved to revoke his owl probation. The trial court did grant hill credit, though, from the time the Stall filed its motion. I

Jail Time Credit

Simply put, appellant wants his Conviction B sentence to be credited for time spent serving his Conviction A sentence. At most, the period contemplated should begin either at the time he began serving his Conviction A sentence or at the time he moved to revoke his probation. Because both issues before us are premised on that contention, we consider them together.

It is true that a defendant normally is entitled to credit for the time he spends confined while awaiting the adjudication of a motion to revoke. Ex parte Bates, 978 S.W.2d 575, 577-78 (Tex.Crim.App.1998). Yet, seldom, if ever, is it the defendant that seeks to have his probation terminated. The desire to end probation usually is that of the State. But, whether it is the State or the defendant that moves for revocation is unimportant to our resolution of this appeal. This is so because a condition precedent to the validity of either argument is non-existent, that condition being compliance with art. 42.03 § 2(a) of the Texas Code of Criminal Procedure.

Through art. 42.03 § 2(a), the legislature directed that in all criminal cases, “the judge of the court in which the defendant is convicted shall give the defendant credit on the defendant’s sentence for the time that the defendant has spent ... in jail for the case, other than confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court....” Tex.Code Crim. Proc. Ann. art. 42.03 § 2(a)(1) (Vernon Supp. 2009) (emphasis added). As can be seen, the plain wording of the provision mandates that the defendant receive credit for the time spent jailed before his conviction. But, of import is the phrase “for the case” appearing in the statute. From its location in the edict, the credit at issue relates not just to any time the defendant spent incarcerated before conviction. Rather, it is the time one is incarcerated for the case in which he is ultimately tried and convicted. See Martinez v. State, No. 13-04-0085-CR, 2005 WL 1805500, at *2-3, 2005 Tex.App. Lexis 6000 at *8 (Tex.App.-Corpus Christi July 28, 2005, no pet.) (not designated for publication) (stating that the trial court must award credit for time served in the same offense and not time spent serving a sentence in an independent cause).

According to the record before us, appellant was not jailed for the crime underlying Conviction B prior to the time the trial court revoked his probation. Indeed, his plea bargain excluded that since he was granted probation; that is, he was not supposed to go to jail for having committed that offense. Instead, his imprisonment arose from the sentence levied in response to Conviction A. Consequently, the circumstances at issue do not fit those contemplated by art. 42.03 § 2(a)(1). And, because of that, it matters not who filed the motion to revoke.

Appellant’s issues are overruled, and the judgment of the trial court is affirmed.

      . As for those complaints founded upon due process, they were not preserved since they were not made below. See Gonzalez v. State, 301 S.W.3d 393, 400-01 (Tex.App.-El Paso 2009, no pet.) (requiring an appellant to preserve his due process complaints for appeal by asserting them at trial).


author: Justice MOSELEY.

text:
    AHRENS & DeANGELI, P.L.L.C.; FWP Technologies, Inc.; Edward R. Ahrens; and Daren DeAngeli, Appellants, v. Lawrence FLINN, Jr., Appellee.
    No. 05-09-00415-CV.
    Court of Appeals of Texas, Dallas.
    July 27, 2010.
    Rehearing Overruled Aug. 30, 2010.

      Paul M. Koning, Hughes & Luce, L.L.P., Dallas, TX, for Appellants.
    David W. Evans, The Law Offices of Stephen F. Malouf, P.C., Dallas, TX, for Appellee.
    Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion By

Justice MOSELEY.

Appellants the law firm of Ahrens & DeAngeli, p.l.l.c. (“Ahrens & DeAngeli” or “the law firm”); FWP Technologies, Inc.; Edward R. Ahrens; and Daren DeAngeli appeal the trial court’s order denying their special appearance. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(7) (Vernon 2008); Tex.R.App. P. 28.1. Because we conclude the trial court erred by denying appellants’ special appearance, we reverse the trial court’s order and render judgment dismissing appellants from this case for lack of personal jurisdiction.

I. APPLICABLE LAW AND STANDARD OF REVIEW

A. Substantive Law

Texas courts may assert personal jurisdiction over a nonresident if it is authorized by the Texas long-arm statute and is consistent with federal and state constitutional due-process guarantees. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex.2002); see Tex. Civ. Prac. & Rem.Code Ann. §§ 17.041-.045 (Vernon 2008). The long-arm statute allows Texas courts to “ ‘reach as far as the federal constitutional requirements of due process will allow.’” Am. Type Culture Collection, Inc., 83 S.W.3d at 806 (quoting Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991)); see also Tex. Civ. Prac. & Rem.Code Ann. § 17.042 (acts constituting “doing business” within state for purposes of long-arm statute). Thus, a Texas court may exercise personal jurisdiction over a nonresident if doing so complies with federal due-process requirements. See Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex.2007). Those requirements are satisfied if: (1) the nonresident defendant has established minimum contacts with the forum state; and (2) the exercise of jurisdiction comports with “ ‘traditional notions of fair play and substantial justice.’ ” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)).

1. Nature of Contacts with Texas

The contacts relevant to a jurisdictional analysis are those through which the nonresident defendant “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) (citing Int'l Shoe Co., 326 U.S. at 319, 66 S.Ct. 154); see Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex.2005). Only the defendant’s contacts with the forum are relevant, not the unilateral activity of another party or third person. Michiana, 168 S.W.3d at 785. Such contacts must be purposeful rather than random, fortuitous, or attenuated. Id.; see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 n. 18, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Further, the “defendant must seek some benefit, advantage or profit by ‘availing’ itself of the jurisdiction.” Michiana, 168 S.W.3d at 785. What is important is the quality and nature of the defendant’s contacts with the forum state, rather than their number. Am. Type Culture Collection, Inc., 83 S.W.3d at 806.

2. Extent of Contacts — Specific Jurisdiction

A nonresident defendant’s contacts with the forum state meet the federal due-process minimum contacts standard if the contacts establish either “specific jurisdiction” or “general jurisdiction.” See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795-96 (Tex.2002). In his brief on appeal and oral argument, Flinn abandoned his general jurisdiction grounds for personal jurisdiction over appellants. Accordingly, we limit our discussion to the trial court’s implied findings concerning specific jurisdiction.

Specific jurisdiction exists if the defendant’s alleged liability arises out of or is related to the defendant’s activities conducted within the forum. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); see also CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.1996). In other words, there must be “a substantial connection between [the nonresident’s contacts with the forum] and the operative facts of the litigation.” Moki Mac, 221 S.W.3d at 585. Specific jurisdiction is not established merely by allegations or evidence that a nonresident committed a tort in the forum state or “directed a tort” at the forum state. Michiana, 168 S.W.3d at 790-92.

3. Additional Due-Process Requirements

Federal due-process also requires the exercise of personal jurisdiction to comport with traditional notions of fair play and substantial justice. BMC Software Belg., N.V., 83 S.W.3d at 795 (citing Int'l Shoe, 326 U.S. at 316, 66 S.Ct. 154).

B. Burden of Pleading/Proof

1. In General

The plaintiff bears the initial burden of pleading sufficient allegations to invoke the provisions of the Texas long-arm statute. Am. Type Culture Collection, Inc., 83 S.W.3d at 807; Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985) (citing Siskind v. Villa Found, for Educ., Inc., 642 S.W.2d 434, 438 (Tex.1982)). To determine whether the plaintiff satisfied its pleading burden, and to determine the basis for jurisdiction alleged by the plaintiff, a court considers the allegations in the plaintiffs petition as well as its response to the defendant’s special appearance. Flanagan v. Royal Body Care, Inc., 232 S.W.3d 369, 374 (Tex.App.-Dallas 2007, pet. denied); see Tex.R. Civ. P. 120a(3). Except as noted below, upon filing a special appearance the nonresident defendant assumes the burden of negating all bases of personal jurisdiction alleged by the plaintiff. Am. Type Culture Collection, Inc., 83 S.W.3d at 807; Siskind, 642 S.W.2d at 438 (citing E. Wayne Thode, In Personam Jurisdiction; Article 2031b, The Texas “Long Arm” Jurisdiction Statute; And the Special Appearance to Challenge Jurisdiction in Texas and Elsewhere, 42 Tex. L.Rev. 279, 322 (1964)). In other words, the defendant must disprove the existence of minimum contacts sufficient to establish personal jurisdiction over it — general, specific, or both — as alleged by the plaintiff. See Am. Type Culture Collection, Inc., 83 S.W.3d at 807; Thode, supra at 322. However, absent allegations of any specific, purposeful act through which the defendant can be said to have sought a benefit by “availing itself of the jurisdiction,” Michiana, 168 S.W.3d at 785, evidence that a defendant is a nonresident is sufficient to meets its burden. See Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 633 (Tex.App.-Dallas 1993, writ denied) (citing Siskind, 642 S.W.2d at 438).

2. Alter-Ego or Single Business Enterprise Theories

If the plaintiff seeks to assert jurisdiction over a nonresident defendant under an alter-ego theory, the plaintiff has the burden of proving its alter-ego allegation. PHC-Minden, L.P. v. Kimberly-Clark Corp., 235 S.W.3d 163, 173 (Tex.2007). In the context of a parent and subsidiary corporation, the supreme court outlined the factors relevant to jurisdictional veil-piercing as follows:

To “fuse” the parent company and its subsidiary for jurisdictional purposes, the plaintiff must prove the parent controls the internal business operations and affairs of the subsidiary. But the degree of control the parent exercises must be greater than that normally associated with common ownership and directorship; the evidence must show that the two entities cease to be separate so that the corporate fiction should be disregarded to prevent fraud or injustice.

Id. at 175 (quoting BMC Software Belg., N.V., 83 S.W.3d at 799).

Additionally, the Texas Supreme Court has rejected the single business enterprise theory of liability. SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d 444, 456 (Tex.2008). However, veil-piercing for purposes of liability is distinct from imputing one entity’s contacts with a forum to another entity for jurisdictional purposes. PHC-Minden, L.P., 235 S.W.3d at 174. When addressing a claim that a corporate entity was subject to jurisdiction in Texas based on the actions of another entity that, along with the first entity, was asserted to constitute a single business enterprise, the supreme court relied on the jurisdictional veil-piercing factors set out in BMC Software Belgium, N.V. Id. at 175.

C. Standard of Review

Whether personal jurisdiction exists is a question of law, and we review the trial court’s ruling on a special appearance de novo. BMC Software Belg., N.V., 83 S.W.3d at 794. However, the trial court must frequently resolve fact questions before deciding the jurisdictional question. Id. If — as here — the trial court does not issue findings of fact, we imply all such findings necessary to support the judgment that are supported by the evidence. See id. at 795. However, when a reporter’s record is included in the appellate record, the trial court’s findings of fact— express or implied — are not conclusive, and are subject to challenge on evidentiary sufficiency grounds. See id. A legal sufficiency challenge to a finding of fact fails if there is more than a scintilla of evidence to support the finding. See id. In conducting a factual sufficiency review, we may set aside the trial court’s finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. See Hoffmann v. Dandurand, 180 S.W.3d 340, 345 (Tex.App.-Dallas 2005, no pet.).

II. FACTUAL AND PROCEDURAL BACKGROUND

Lawrence Flinn, Jr. is a Florida resident. Ahrens is a resident of Seattle with his principal place of business in Seattle. DeAngeli is a resident of Boise, Idaho, ■with his principal place of business in Boise. Their law firm, Ahrens & DeAnge-li, was organized under the laws of the State of Washington, with its principal place of business in Seattle. FWP Technologies, Inc. was organized under the laws of the State of Nevada with its principal place of business in Eagle, Idaho. We take the following information from Flinn’s Sixth Amended Petition, other pleadings, and undisputed evidence.

According to Flinn, this case arose from the creation, promotion, and sale to Flinn of illegal and fraudulent tax shelters by Gary Morton Kornman, a Texas resident, and Heritage Organization L.L.C., which has an office in Dallas. Flinn alleged that Ahrens and DeAngeli initially conceived a tax shelter strategy — known as the “752 strategy” — to avoid capital gains tax liability. Ahrens and DeAngeli formed FWP Technologies, Inc. to receive payments from Kornman for sales of the strategy to high income “targets.” Flinn alleged he received information packets and, in the summer of 2000, attended several meetings with Kornman. In August 2000, the Internal Revenue Service issued a notice cautioning tax professionals that 752 strategies were abusive and would be disallowed, and users would face civil and criminal penalties. Although Flinn negotiated with Kornman and Heritage about purchasing the strategy, and ultimately purchased it in October 2000, he alleged that Kornman did not tell him about the IRS notice.

Subsequently, Flinn was audited by the IRS, which determined that he had participated in the noticed strategy. Flinn settled with the IRS, paying back taxes, penalties, and interest. He brought suit against Kornman and appellants, alleging they fraudulently induced him to enter into the tax shelter transaction. He alleged he would not have used these tax shelters but for Kornmaris and appellants’ concealment that the tax shelters were abusive and subject to the IRS notice. Specifically, Flinn alleged appellants conspired with Kornman to defraud him and “assisted in and benefitted from the false and fraudulent representations” that induced him to enter into the tax shelter transactions. Flinn alleged that appellants “knew that Kornmaris representations to [Flinn] regarding the legality of the shelters were false” and knew Flinn “was soliciting clients for them and developing fees for them.” He asserted the following causes of action: breach of fiduciary duty, fraud, negligence, negligence per se, negligent misrepresentation, negligent failure to warn, gross negligence, and money had and received.

Appellants filed a verified special appearance and attached evidence to their amended brief in support of their special appearance. Flinn filed a response supported by evidence. Subsequently, the trial court denied appellants’ special appearance, without issuing findings of fact. This appeal followed.

III. ANALYSIS

In four issues, appellants contend the trial court erred in denying their special appearance because the evidence is legally and factually insufficient to support implied findings of facts giving rise to general and specific jurisdiction over appellants that meets the standards of fair play and substantial justice. (As noted earlier, Flinn no longer argues Texas courts have general jurisdiction over appellants.)

We review the allegations and evidence as to each appellant’s contacts and determine whether the evidence supports an implied finding in favor of a particular jurisdictional fact. See BMC Software Belg., N.V., 83 S.W.3d at 794. We then review de novo the trial court’s decision that the exercise of personal jurisdiction over that appellee complies with federal due-process requirements. See Moki Mac, 221 S.W.3d at 575; BMC Software Belg., N.V., 83 S.W.3d at 794.

A. Jurisdictional Allegations

Flinn alleged that appellants are nonresidents engaging in business in Texas, but not maintaining a regular place of business in Texas or a designated agent for service of process. Flinn alleged that the trial court had jurisdiction over appellants because, pursuant to section 17.042 of the civil practice and remedies code, they contracted to perform services in whole or in part in Texas and committed torts in whole or in part in Texas. Flinn also alleged that appellants “constituted a single business enterprise or were the alter-ego of one another or were a joint venture or a joint enterprise so as to make each liable for the actionable conduct of the other.” In addition, he alleged that FWP was the agent of the other appellants. Flinn also alleged in his petition that appellants and Kornman “constituted a single business enterprise or were the alter-ego of one another or were a joint venture or a joint enterprise so as to make each liable for the actionable conduct of the other.”

In his response to appellants’ special appearance, Flinn argued that Ahrens and DeAngeli acted as counsel for Heritage from 1997 to 2002 and that Heritage made payments to the law firm. He also asserted that appellants, beginning in 1998, “assist[ed], collud[ed] with and conspir[ed] with” Kornman in the design and marketing of an abusive tax shelter that defrauded him into paying fees to implement the tax shelter. Specifically, Flinn asserted that appellants and Heritage engaged in a “scheme” in which Ahrens designed the 752 strategy. Ahrens and DeAngeli formed FWP and transferred tax strategies, including the 752 strategy, to it. FWP sold the strategies to Heritage, sent invoices to Heritage, and received payments. According to Flinn, Ahrens and another law firm attorney prepared 752 strategy materials such as slides and Power Point presentations to promote the tax shelters. These materials were discussed in telephone conversations and teleconferences with Kornman and other Heritage personnel, and they were sent to Heritage by fax and mail. In addition, as part of the scheme, Flinn alleged that Ahrens, DeAngeli and the law firm would refer clients to Heritage; Heritage would buy an abusive tax strategy from FWP and sell it to the client; Heritage would refer the client to the law firm for a tax opinion, for a fee to the law firm; and when the client implemented the tax strategy, Heritage would send a “secret kickback” to FWP for having used an FWP strategy. According to Flinn, these acts were documented in the law firm’s billing records showing communications between its attorneys and Heritage personnel, faxes, an opinion letter to another Texas client, and FWP’s invoices.

Flinn also relies on an October 1999 trip Ahrens made to Heritage’s Dallas office, a letter and invoice from DeAngeli to Heritage in advance of the trip, and a cell phone with a Dallas area code from Korn-man to Ahrens for his use for Heritage business.

B. Basic Jurisdictional Facts as to Each Appellant

Ahrens’s affidavit established that no appellant: (1) entered into any contract with Flinn; (2) had contact of any kind with Flinn, inside or outside Texas, before Flinn sued appellants; (3) received, directly or indirectly, a payment from Flinn; (4) recruited Texas residents, directly or through an intermediary located in Texas, for employment inside or outside Texas; (5) maintained an office or place of business in Texas, or had any employees, servants, or agents within Texas; (6) was required to maintain or maintained a registered agent for service of process in Texas; (7) owned, leased, rented, or controlled any real or personal property within Texas, or maintained any bank accounts in Texas; (8) paid any state, county, or city taxes, fees, or assessments; (9) had a telephone listing, post office, or any other mailing address in Texas; (10) had been sued in Texas or previously availed itself of the jurisdiction of Texas courts; (11) advertised in Texas; or (12) entered into any transaction with a person in Texas from 1995 to October 2008 (the date of the affidavit), except as described elsewhere in Ahrens’s affidavit.

C. DeAngeli’s Special Appearance and Evidence

DeAngeli’s affidavit established that he was a resident of Idaho since 1991 and was a founding member of the law firm. Since forming the law firm, he had represented “only a small number of clients” who resided in or had an office in Texas. Without exception, each of those clients, directly or through an intermediary, first contacted him or others at the law firm in Idaho or Washington and sought the law firm’s representation. With one exception, DeAnge-li never visited any of the clients in Texas, and communications with the Texas client were carried out by personal meetings in Idaho or Washington, telephone calls or faxes to or from Idaho or Washington, mail or delivery of documents to or from Idaho or Washington, and electronic communications between DeAngeli and other attorneys in the law firm’s Idaho or Washington offices. The single exception was a 1999 vacation in which DeAngeli had dinner with a Heritage employee and met for one hour with other Heritage employees at Heritage. During these meetings, no business was conducted and only social matters were discussed.

D. Ahrens’s Special Appearance and Evidence

Ahrens’s affidavit established that he was licensed to practice law in Idaho and Washington and, until he moved to Idaho in 2002, he was a resident of Washington State. Ahrens had never resided in Texas. Since forming Ahrens & DeAngeli, Ahrens had represented “only a small number of clients” residing or with offices in Texas. Without exception, each of these clients, directly or through an intermediary, first contacted Ahrens or others at the law firm in Idaho or Washington and sought the law firm’s representation. With the exceptions noted below, communications with the Texas client were carried out by personal meetings in Idaho or Washington, telephone calls or faxes to or from Idaho or Washington, mail or delivery of documents to or from Idaho or Washington, and electronic communications with him or other attorneys in the Idaho or Washington offices of the law firm.

Ahrens took three trips to the law firm client’s Heritage’s Texas office as follows. The first trip occurred in October 1999, to provide legal advice to Heritage representatives regarding a prospective Heritage client in California. Ahrens traveled to Texas at Heritage’s request and spent three days in Texas. According to Ah-rens, the 752 strategy was a topic of the meeting. During this meeting, Heritage loaned Ahrens a cell telephone with a Dallas area code. Ahrens used the telephone until 2001 for confidential communications to Heritage. Another law firm attorney overlapped Ahrens’s visit regarding the prospective California client. The second trip occurred in September 2001. After meeting an attorney about a non-Heritage matter, Ahrens met at Heritage’s offices for a day and a half to review new estate planning and tax strategies marketed by other companies. The third trip occurred in May 2002, to advise Heritage about new estate planning and tax strategies. According to Ahrens, none of his visits to Texas had anything to do with Flinn, and at no time during any of his visits to Texas did he discuss with Heritage anything about Flinn or his tax planning strategies.

E.The Law Firm’s Special Appearance and Evidence

Ahrens’s affidavit established that he was a founding member of Ahrens & DeAngeli, a law firm with offices in Boise and Seattle. The law firm was organized in 1997 under the laws of Washington State. Since its founding, the law firm represented approximately thirteen clients residing in or located in Texas. In each case, the client or its intermediary sought out the law firm in Idaho or Washington. All legal services for the Texas-based clients were performed outside Texas, and all communications with the Texas-based clients were conducted by long-distance telephone call, fax, mail delivery, or electronic communications from outside Texas. With the exception of Ahrens’s trips to Texas described above, the only trips to Texas by a law firm attorney or representative were: (1) a 2006 visit by an attorney to Austin lasting “only a few hours” on behalf of a non-Heritage client that was not a Texas resident; and (2) during a May 1999 vacation trip, an attorney had dinner with a Heritage employee and met for one hour with Heritage employees at Heritage offices, and meetings and discussions with were “entirely social” and had nothing to do with Flinn.

F. FWP Technologies, Inc.

Ahrens’s affidavit established FWP was incorporated in 1998 in Nevada and has never been incorporated in Texas. Ahrens has been its president since its incorporation. Ahrens formed FWP to sell intellectual property relating to tax and estate planning techniques, separate and apart from the practice of law, and no FWP employee, officer, director, or representative had ever traveled to or attended any meetings in Texas on behalf of 'FWP. FWP sold “a number of different estate and tax planning techniques to Heritage,” including, in 1998, the 752 strategy. All conveyances to Heritage were accomplished by mail delivery, electronic communication, or long distance telephone calls between Washington or Idaho and Texas. Heritage paid FWP a percentage of the fees Heritage generated from its sales of planning techniques, including the 752 strategy, similar to a licensing fee or royalty. After the law firm stopped writing opinion letters regarding the 752 strategy in February 2000, the only payments FWP received from Heritage were from Heritage clients who implemented the 752 strategy in 1998 and 1999 and paid their Heritage fees later.

DeAngeli’s affidavit established that he was an original shareholder and secretary of FWP, but sold his stock in December 1999. After the sale, he did not receive any distributions or compensation of any kind from FWP.

G. Discussion

It is undisputed that the relationship between appellants and Heritage included both the legal representation of Heritage and the development and marketing to Heritage of the 752 strategy. We consider the contacts Flinn relies on in light of these two relationships, legal and business, and as to each appellant. We begin by addressing appellants’ first issue, that their contacts with Texas do not support the purposeful availment element of personal jurisdiction.

1. Legal Representation

To establish that Ahrens, DeAngeli, and the law firm purposefully availed themselves of the privilege of conducting activities in Texas, Flinn relies on the following evidence of their legal representation of Heritage: the law firm’s billing records showing telephone calls, teleconferences, faxes, and invoices from the law firm’s individuals, including Ahrens and DeAnge-li, to Heritage employees; payments from Heritage to the law firm totaling over $2 million; Ahrens’s, DeAngeli’s, and other law firm attorneys’ visits to Texas; and Ahrens’s and DeAngeli’s discussion of a draft opinion letter regarding the 752 strategy with a Heritage employee. In the case of nonresident-defendant lawyers, the “mere existence of an attorney-client relationship, unaccompanied by other sufficient contacts with the forum, does not confer personal jurisdiction over the nonresident in the forum state; more is required.” Klenk v. Bustamante, 993 S.W.2d 677, 682 (Tex.App.-San Antonio 1998, no pet.) (quoting Sawtelle v. Farrell, 70 F.3d 1381, 1392 (1st Cir.1995)), overruled on other grounds by BMC Software Belg., N.V., 83 S.W.3d at 794; see Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 778 (5th Cir.1986) (“merely contracting with a resident of the forum state is insufficient to subject the nonresident to the forum’s jurisdiction”). For example, the nonresident attorney must take affirmative action to promote business within the forum state. Klenk, 993 S.W.2d at 682 (citing Sher v. Johnson, 911 F.2d 1357, 1363 (9th Cir.1990); Sinatra v. Nat’l Enquirer, Inc., 854 F.2d 1191, 1195 (9th Cir.1988)). Telephone calls and correspondence as activities directed at the forum state are generally insufficient. Id. (citing Sawtelle, 70 F.3d at 1391; Sher, 911 F.2d at 1362-63); see Holt Oil & Gas Corp., 801 F.2d at 778. Not even isolated trips to the forum state during the representation, when coupled with the long-distance communication, amount to activities directed at the forum state. Klenk, 993 S.W.2d at 682 (citing Sher, 911 F.2d at 1363).

The mere existence of an attorney-client relationship between the out-of-state attorneys here and Heritage does not confer personal jurisdiction, and there is no evidence that Ahrens, DeAngeli, or any member of the law firm promoted or solicited business in Texas. See id.; see also Holt Oil & Gas Corp., 801 F.2d at 778. The record shows that their legal work on behalf of Heritage and another Texas client was performed in Washington or Idaho, not Texas, and the communications were made from there to Texas. See Klenk, 993 S.W.2d at 682; see also Holt Oil & Gas Corp., 801 F.2d at 778; Proskauer Rose LLP v. Pelican Trading, Inc., No. 14-08-00283-CV, 2009 WL 242993, at *3-4 (Tex.App.-Houston [14th Dist.] Feb. 3, 2009, no pet.) (mem.op.) (review of transactions and providing opinion letter and other documents by out-of-state attorneys to Texas client insufficient for specific jurisdiction). There is no evidence that appellants received any payments in Texas for any legal representation in Texas. Ahrens’s October 1999 trip to Texas on the matter of legal counsel for Heritage is an “isolated trip” which does not amount to an activity directed at Texas. None of DeAngeli’s or other law firm attorneys’ visits to Texas involved Heritage’s legal matters. See Klenk, 993 S.W.2d at 682; see also Star Tech., Inc. v. Tultex Corp., 844 F.Supp. 295, 298-99 (N.D.Tex.1993) (mailing pleadings to Texas and two trips to Texas in relation to out-of-state attorney’s legal representation of Texas client insufficient for specific jurisdiction). The evidence is that the contacts related to appellants’ legal representation of Heritage are not the type of contacts that show any appellant purposefully availed itself of the benefits and protections of Texas law.

2. Sale and Marketing of 752 Strategy

To establish that Ahrens, DeAngeli, and FWP purposefully availed themselves of the privilege of conducting activities in Texas, Flinn relies on the following evidence of the development and marketing of the 752 strategy: purchase agreements between Ahrens and DeAngeli and, subsequently, FWP and Heritage for use of the 752 strategy; invoices from FWP to Heritage for its use of the 752 strategy by Heritage clients and payments from Heritage to FWP; preparation of Power Point illustrations of the 752 strategy for Heritage’s presentation to its clients, including Flinn; faxing these illustrations to Heritage personnel, including Kornman; explanations of the 752 strategy to Heritage personnel in telephones calls and faxes; and a legal opinion on tax planning for and payment from another client in Texas.

It is undisputed that Ahrens and DeAngeli had an agreement to communicate the 752 strategy to Heritage, prepared or directed others to prepare materials explaining the strategy to Heritage’s clients, and created FWP through which to receive payments for Heritage’s clients’ use of the 752 strategy. However, as discussed below, the contacts related to the development and promotion of the 752 strategy to Heritage are not the type of contacts that 'show any appellant purposefully availed itself of the benefits and protections of Texas law.

As noted above, merely contracting with a Texas entity is insufficient to show purposeful availment. See Holt Oil & Gas Corp., 801 F.2d at 778. Also as noted above, the record shows that the work of developing the 752 strategy was performed in Washington or Idaho, not Texas, and the communications about it were made from there to Texas. See Klenk, 993 S.W.2d at 682; see also Holt Oil & Gas Corp., 801 F.2d at 778. There is no evidence that appellants received any payments for the 752 strategy in Texas.

Flinn also relies on a provision in the FWP/Heritage purchase agreements that Texas law governs the relationship. However, the record contains only such agreements signed by Ahrens or DeAngeli, but none signed by a Heritage representative. Thus, reliance on a draft agreement, or one executed by one party, that does not show an agreement that Texas law governs, especially where performance of the agreement occurred in Washington or Idaho, is misplaced. Cf. Holt Oil & Gas Corp., 801 F.2d at 778.

In advance of Ahrens’s October 1999 trip to Texas, DeAngeli sent a letter on behalf of FWP to Heritage referring to an FWP invoice to Heritage for $1 million for “[pjroprietary estate planning techniques” and a proposed purchase agreement between FWP and Heritage and stating that Ahrens would present the invoice and the purchase agreement to Heritage in Dallas. Flinn contended that Ahrens discussed a 752 strategy transaction with Kornman and others at Heritage. However, as noted above, telephone calls and correspondence as activities directed at the forum state are generally insufficient, and Ah-rens’s October 1999 trip to Texas on the matter of legal counsel for Heritage is an “isolated trip” that does not amount to an activity directed at Texas. See Klenk, 993 S.W.2d at 682. At the meeting, Kornman gave Ahrens a cell telephone with a Dallas area code for his use on Heritage business. But the record shows merely that Ahrens performed contract obligations outside the forum state. See id.; see also Holt Oil & Gas Corp., 801 F.2d at 778.

Additionally, to the extent Flinn seeks to assert personal jurisdiction over Ahrens, DeAngeli, or FWP on agency principles or because they were a single business enterprise, alter ego, or joint en-terprisé one with another, such personal jurisdiction bases fail because no appellant’s contacts rise to the level of purposeful availment. Also, to the extent Flinn seeks to assert personal jurisdiction under an alter-ego or other jurisdictional veil-piercing theory between any appellant and Kornman, Flinn failed to produce proof of this allegation, thus failing to carry his burden to prove such allegations. See PHC-Minden, L.P., 235 S.W.3d at 173.

Lastly, to the extent Flinn relies on any appellant’s participation in Heritage/Kornman’s alleged scheme using the 752 strategy to defraud Flinn to establish personal jurisdiction over that appellant, we reject his argument. In National Industrial Sand Association v. Gibson, 897 S.W.2d 769, 773 (Tex.1995) (orig.proceeding), the Texas Supreme Court declined to recognize the assertion of personal jurisdiction over á nonresident defendant based solely on the effects or consequences of an alleged conspiracy with a resident of the forum state. See Siskind, 642 S.W.2d at 434, 437-38; Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 10 (Tex.App.-San Antonio 2004, pet. denied). Rather than a “conceptual device,” jurisdiction must be based on whether a defendant itself purposefully established minimum contacts that satisfy due process. See Gibson, 897 S.W.2d at 773; Carone, 138 S.W.3d at 10. Accordingly, personal jurisdiction premised on the alleged 752 strategy scheme to defraud Flinn cannot be established by attributing Heritage’s acts as an alleged co-conspirator to appellants. See Carone, 138 S.W.3d at 10 (stating “the. Texas Supreme Court has foreclosed the use of a conspiracy allegation to support jurisdiction”). Only a nonresident’s own contacts with the forum are relevant. See Michiana, 168 S.W.3d at 785.

We have reviewed the record and conclude that the evidence relates to a contact that is not the type of contact that shows any appellant purposefully availed itself of the benefits and protections of Texas law. See Michiana, 168 S.W.3d at 785. Thus, there is no evidence supporting an implied finding of purposeful availment by any appellant. We resolve appellants’ first issue in their favor.

Because the nature of the contacts does not show purposeful availment, we need not discuss the extent of the contacts, that is, whether there is a substantial connection between any appellant’s contacts with the forum and the operative facts of the litigation, or whether the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. See Int’l Shoe Co., 326 U.S. at 316, 66 S.Ct. 154; Moki Mac, 221 S.W.3d at 585; BMC Software Belg., N.V., 83 S.W.3d at 795. Therefore, we need not address appellants’ remaining three issues.

IV. CONCLUSION

We have reviewed the evidence as to each appellant’s contacts and have determined the evidence does not support an implied finding in favor of each particular jurisdictional fact. See BMC Software Belg., N.V., 83 S.W.3d at 794. We conclude appellants negated the existence of contacts between each of them and the State of Texas sufficient tó support the exercise of personal jurisdiction. Therefore, the trial court improperly concluded that the exercise of personal jurisdiction over appellants complies 'with federal due-process requirements. See Moki Mac, 221 S.W.3d at 575; BMC Software Belg., N.V., 83 S.W.3d at 794. We reverse the trial court’s order denying appellants’ personal appearance and render judgment dismissing appellants from this case for lack of personal jurisdiction.

      . In making this determination we evaluate the defendant's contacts in light of the following factors: (1) the burden on the nonresident defendant; (2) the forum state’s interest in adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering substantive social policies. See Burger King Corp., 471 U.S. at 477, 105 S.Ct. 2174; World-Wide Volkswagen Corp., 444 U.S. at 292, 100 S.Ct. 559; Guardian Royal Exch. Assurance, Ltd., 815 S.W.2d at 231. "Only in rare cases, however, will the exercise of jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state.” Guardian Royal Exch. Assurance, Ltd., 815 S.W.2d at 231.

      . Appellants and Flinn objected to some of the evidence. At the special appearance hearing, the trial court sustained some objections and overruled others, and some evidence was admitted only for purposes of the special appearance. There are no issues on appeal related to the trial court’s evidentiary rulings.


author: Justice CARTER. BAILEY C. MOSELEY, Justice,

text:
    Joseph FERRARA, Appellant, v. Michael L. MOORE and Deborah J. Moore, Appellees.
    No. 06-10-00006-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted July 6, 2010.
    Decided July 28, 2010.
    Rehearing Overruled Aug. 24, 2010.

      John R. Mercy, Mercy ⅝ Carter * Tid-well, LLP, Texarkana, for appellant.

      Lisa McPherson, Kyle B. Davis, Lang-don * Davis, New Boston, for appellees.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice CARTER.

Finding that Michael L. Moore and Deborah J. Moore owned an express easement for ingress and egress to their property, the trial court enjoined Joseph Ferrara from restricting use of the easement and granted attorney’s fees. Ferrara’s appeal complains that the evidence does not support the trial court’s findings of fact, injunction, and attorney’s fee award. We find no reversible error and affirm the judgment of the trial court.

I. Facts and Procedural Background

Brian Hays owned an eleven-acre tract of land abutting a county road, which he subdivided into five lots. Each deed contained an easement for a “non-exclusive right-of-way for purposes of ingress and egress between a public road and the tract conveyed.” Each of the deeds referenced an attachment in which the particular easement was specifically described by metes and bounds. In 2005, Ferrara purchased tract #2 by warranty deed in which he also was granted such an easement and the tract was subject to all valid easements which allowed northern property owners, including owners of otherwise landlocked tract # 5, access to their property from a county road. Ferrara installed a fence and a gate around the easement in February 2006 and began to block the road. He justified this action by claiming he “researched it and that piece of property north of me did not have legal access to use that [easement]. It was a privilege.”

Hays was notified by Roy Gay, another owner of property north of tract # 2, that he was “allowed to enter the gate for a couple of times and then Mr. Ferrara would not let them enter any longer.” To no avail, Hays spoke with Ferrara “several times about the easement” and clarified that Ferrara was not allowed to block it. Thereafter, “Ferrara came out and ... cut trees [and laid them] all across the easement where it wasn’t passable,” despite being directed to open the gate. Finally, to avoid conflict, Hays used a bulldozer to create a road on someone else’s property to allow the other tracts to access the county road.

In May 2009, the Moores purchased tract # 5 and discovered that Ferrara was blocking access and use of their easement. The Moores asked Ferrara “once again could we settle this amicably ... and [Fer-rara] said no, that [he’d] have to be taken to court.” So, the Moores filed suit. In their petition, they asked the court to order Ferrara to remove the gates to the easement, issue an injunction enjoining him from “erecting any other impediment to the free and unrestricted use of the easement,” and sought damages and attorney’s fees. Ferrara’s pro se answer alleged that the “[f]ence and gate” had been in place for three and one-half years and the easement had not been used for that time and was therefore abandoned.

After a bench trial, which Ferrara attended pro se and called no witnesses other than himself, the trial court issued judgment declaring that the Moores had an express easement for means of ingress and egress onto their property. It permanently enjoined Ferrara from “erecting or placing gates, fences, posts, barriers, wires, chains, locks, logs, rocks, or any other impediment or obstacle” that would “inter-fer[e] in any manner with [the Moores’] free and unrestricted use and enjoyment of the Easement.” The existing gates were to be removed, and Ferrara was ordered to pay damages and $4,500.00 in attorney’s fees. After judgment was entered, Fer-rara retained counsel, who promptly requested findings of fact and conclusions of law from the court. A motion for new trial apprised the court of Ferrara’s complaints that insufficient evidence supported: (1) the court’s permanent injunction; (2) the finding that Ferrara erected or placed impediments or obstacles on the easement; (3) the conclusion that the Moores were entitled to free and unrestricted use and enjoyment of the easement; and (4) the damage award. In addition, the motion complained that the trial court was without authority to order removal of the gates and that insufficient evidence supported the allegedly excessive award of $4,500.00 in attorney’s fees. The trial court denied the motion and issued findings of fact and conclusions of law.

On appeal, Ferrara argues that the trial court erred: (1) as a matter of law “in extending the terms of the nonexclusive easement beyond the written terms of the easement”; (2) in granting the Moores free and uninterrupted access over the easement; (3) in granting a permanent injunction forbidding Ferrara from placing gates on the easement to prevent unauthorized access and vandalism; (4) in entering judgment based on findings of fact and conclusions of law which are challenged for sufficiency of the evidence; (5) in awarding nonsegregated attorney’s fees; and (6) in limiting Ferrara’s cross-examination.

II. The Trial Court Had Authority to Order Ferrara to Remove Obstructions From the Easement

An easement is a nonpossessory interest that authorizes its holder to use the property for a particular purpose. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex.2002). Ferrara argues that the court misinterpreted the easement terms and erred in ordering him to remove gates and other obstacles on the easement. Interpretation of contracts granting easements are reviewed de novo. Barrow v. Pickett, No. 01-06-00664-CV, 2007 WL 3293712 (Tex.App.-Houston [1st Dist.] Nov. 8, 2007, no pet.) (mem.op.).

A servient estate cannot interfere with the right of the dominant estate to use an easement for the purpose for which it was granted or sought. McDaniel v. Calvert, 875 S.W.2d 482, 485 (Tex.App.-Fort Worth 1994, no writ) (citing Bicker v. Bickler, 403 S.W.2d 354, 359 (Tex.1966)). Likewise, the easement owner must make reasonable use of the right and not unreasonably interfere with property rights of the owner of the servient estate. San Jacinto Sand Co. v. Sw. Bell Tel. Co., 426 S.W.2d 338, 345 (Tex.Civ.App.-Houston [14th Dist.] 1968, writ ref'd n.r.e.). Any use by others that interferes with the exercise of superior easement rights must yield. Taylor Foundry Co. v. Wichita Falls Grain Co., 51 S.W.3d 766, 770 (Tex.App.-Fort Worth 2001, no pet.); McDaniel, 875 S.W.2d at 485 (citing Pittman v. City of Amarillo, 598 S.W.2d 941, 944 (Tex.App.-Amarillo 1980, writ ref'd n.r.e.)). The Moores’ easement originated from an express grant with a specific description. Their rights are paramount to the extent of the grant. Williams v. Thompson, 152 Tex. 270, 256 S.W.2d 399, 403 (1953).

The basic principles of contract construction and interpretation are applied when considering an express easement’s terms. Marcus Cable, 90 S.W.3d at 700. The contracting parties’ intentions, as expressed in the grant, determine the scope of the easement. Id. at 701 (quoting Restatement (ThiRd) of Property (Servi-tudes) § 4.1 (2000)) (providing that an 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”). The question of whether an access easement must remain “free from gates and bars depends upon the terms of the grant, its purpose, the nature and situation of the property, and the manner in which it is used” unless the easement’s language provides direction otherwise. Gerstner v. Wilhelm, 584 S.W.2d 955, 958 (Tex.App.-Austin 1979, writ dism’d) (trial court did not abuse its discretion in requiring servient estate to remove gates from easement providing access to otherwise landlocked property) (citing Arden v. Boone, 221 S.W. 265 (Tex. Comm’n App. 1920, judgm’t approved)); see Calvert, 875 S.W.2d at 485.

We first look to the grant and its purpose. In this case, all five tracts were borne from a single acquisition of 111 acres. Because all tracts north of tract # 2 did not have access to a public roadway, they were granted “a non-exclusive right-of-way for purposes of ingress and egress between a public road and the tract conveyed and described herein.” Additionally, the easement provided that the grantor and his assigns “shall have the non-exclusive right to use any portion of this easement that lies within the tract conveyed herein.” (Emphasis added.) Because the gates and fences were built on specifically described easement property, grantees were improperly barred from using these portions of the easement. Fer-rara’s actions in building a barbed wire fence on one end of the easement, a gate on another end of the easement which remained locked, in felling logs across the easement to make it impassable, and in denying access to grantees of the easement for a period of three years, could certainly be considered as contrary to the purpose of the easement as expressed within the grant. At trial, Ferrara appeared to believe the Moores had no right to an easement and only “IP [International Paper Company] had legal access on deed for that easement.” Ferrara did not attempt to show that the Moores’ use of the easement would impair or interfere with his use of the property.

We will also consider the nature and situation of the property as it sheds light on the intention of the parties as expressed in the deed. When the easement was granted, no gates, fences, or other obstacles were placed across the roadway. It was openly used for ingress and egress from 1985 until Ferrara’s obstacles were built in 2006. There is nothing in the record to suggest that there are uses for the easement property other than to provide access to landlocked property owners. Where, as here, an easement is granted to provide abutting landowners access to a roadway, and no gates existed prior to the grant of the easement, “it is evident access to the roadway was to be unobstructed.” Calvert, 875 S.W.2d at 485 (finding made in absence of deed language specifying dominant estate had free and unrestricted access); Hilburn v. Providian Holdings, Inc., No. 01-06-00961-CV, 2008 WL 4836840, at **1, 4 (Tex.App.-Houston [1st Dist.] Nov. 6, 2008, no pet.) (mem.op.) (holding servient estate had no right to close or lock gate which existed prior to creation of nonexclusive access easement because it interfered with purpose of easement); Burns v. McDaniel, 158 S.W.2d 826, 827 (Tex.Civ.App.-Eastland 1942, no writ).

Michael Moore testified that he cannot travel down the easement to his property without running over Ferrara’s gate, jumping over stumps, and finally breaking through a six-foot barbed wire fence wired to a post. We find that the trial court did not err as a matter of law in its interpretation of the deed and the parties’ intent. Contrary to the motion for new trial alleging the court was “without legal authority” to do so, the trial court could enjoin Fer-rara from “erecting or placing gates, fences, posts, barriers, wires, chains, locks, logs, or any other impediments or obstacles ... on the Easement.” Ferrara’s first two points of error are overruled.

III. Challenge to the Court’s Findings of Fact and Conclusions of Law

A. Standard of Review

Findings of fact entered in a case tried to the bench “are of the same force and dignity as a jury’s answers to jury questions.” .39 Acres v. State, 247 S.W.3d 384, 387 (Tex.App.-Texarkana 2008, pet. denied) (citing Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991)). We review the findings of fact by the same standards that are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury’s answer to a jury question. Id. (citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994)).

The test for legal sufficiency is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). We will credit evidence favorable to the Moores if a reasonable judge acting as a fact-finder could, and will disregard contrary evidence unless a reasonable judge could not when making this determination. Id.; Ramsay v. Tex. Trading Co., 254 S.W.3d 620, 625 (Tex.App.-Texarkana 2008, pet. denied). As long as the evidence falls within the zone of reasonable disagreement, we will not substitute our judgment for the judgment of the trial judge. Ramsay, 254 S.W.3d at 625 (citing Wilson, 168 S.W.3d at 822). In this case, the court is the sole judge of the credibility of the witnesses and weight given to their testimony. Id. (citing Wilson, 168 S.W.3d at 819). Although we consider the evidence in a light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id. (citing Wilson, 168 S.W.3d at 822).

When considering a factual sufficiency challenge to a jury’s verdict, we must consider and weigh all of the evidence, not just that evidence which supports the trial court’s judgment. Id. (citing Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998)). We will set aside the judgment only if it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Id. (citing Ellis, 971 S.W.2d at 407; Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986)). Because we are not a fact-finder, we will not pass on the witnesses’ credibility or substitute our judgment for the judge’s, even if the evidence would clearly support a different result. Id. (citing Ellis, 971 S.W.2d at 407).

B. Assessment of the Findings of Fact

Ferrara first challenges the finding that he locked the gate and failed to provide others "with a key or means of access to the property. He cites to his own testimony that the lock belonged to IP, who owned adjoining property. The trial court heard testimony from Hays, Michael Moore, and neighbor Ray Little-john that Ferrara was the person denying access to the property. Hays also contacted Mary Kay Jones at IP who said Fer-rara allowed her to put a lock on the gate, but that the lock was not on the gate when she next visited the property. At the time of trial, there was still a lock on the gate to which the Moores did not have a key. The trial court, as trier of fact and sole judge of Ferrara’s credibility, could have determined either that the lock currently on the gate belonged to Ferrara, or that Ferrara had the key to the lock placed by IP and had failed to provide a copy to the Moores, thereby blocking their access to the easement.

The next challenged finding is that Fer-rara “felled large pine trees and pine logs across the access road, as shown in Plaintiff’s Exhibit 10, making it impossible to travel across the easement.” Hays testified that Ferrara cut trees on his property and left them strewn across the easement. Moore stated, “The easement still has all this fallen lumber on it.” A picture included as evidence demonstrates that the easement could not be traversed by car after the act. Ferrara confirmed the trial court’s finding during his following cross-examination of Hays:

Q. [By Ferrara] ... Was those trees on my property?
A. They were on — probably were, probably on the easement. They were on the easement property. Now whether they were property line trees between the [neighbor] and your easement road, I really can’t say one way or the other....
Q. Well, it would be discourteous to clear my property fence line and throw it on someone else’s property. Would you agree to that?
A. I would agree to that.
Q. Okay. So it would be proper to clear my fence line with my debris and put it on my property instead of someone else’s property. Would you agree to that?

Ferrara’s questioning insinuated that he cut down the trees and placed them across the easement, and was attempting to seek Hays’ approval that it was the right thing to do, as opposed to placing his trees on his neighbor’s property. We find the trial court’s finding was supported by legally and factually sufficient evidence.

Another challenged finding is that Fer-rara “erected a barbed wire fence (not a gate) across the northern end of the access road as shown in Exhibit 9. This fence also made the easement impassable, even if a key had been provided to the gate on the south end.” Exhibit 9 depicts five wooden posts placed across the easement connected with barbed wire. Hays testified this “gate” could not be opened, and Moore stated “it’s a six foot tall barbed wire fence wired to the post. So that is a barrier” and clarified the wire was “stapled to the fence post.” Ferrara did not contradict these statements.

Taking the above findings into consideration, the judge entered the following complained-of findings: “Ferrara by his actions completely closed off access to the easement by adjoining landowners,” and “Hollowing its construction, Defendant Ferrara locked the gate and kept it locked at all times.” As explained above, the trial court’s finding that Ferrara restricted access to adjoining neighbors by locking the gate was based on sufficient evidence. Because Ferrara built the gate in 2006, and argued that no one else had accessed the easement since that time when claiming the easement had been abandoned, the trial court was free to find that the gate was locked “at all times.”

Next, the trial record contains a letter written to Ferrara asking him to remove barriers to the easement. Ferrara challenges the court’s finding that he refused to remove the obstructions following receipt of the May 2009 letter. The trial court’s findings were supported by testimony from Hays and Michael Moore that the easement was still being blocked by gates, fences, and felled trees.

Ferrara also challenges the finding that the Moores expended $4,500.00 in attorney’s fees, and that the fees were reasonable and necessary. The Moores’ counsel testified he charged “a fair and reasonable rate” of $300.00 per hour and spent twenty hours on the case, yielding a $6,000.00 fee. It appears that the trial court reduced the attorney’s fees to $4,500.00 after discounting for time spent in “pursuit of tortuous [sic] damages.” We find that the trial court’s fee award was supported by legally and factually sufficient evidence.

The finding that it would cost $800.00 to clear the easement of felled trees and other obstructions is also challenged. This finding was based on Hays’ testimony that he would have to perform work with a bulldozer at the rate of $100.00 per hour for eight hours in order to clear the easement. This finding remains uncontrovert-ed.

While there is no error contained in the above findings because they are supported by legally and factually sufficient evidence, a few of the court’s findings are technically incorrect. First, the court found that the Moores met with Ferrara on numerous occasions, orally requested that he remove obstructions from the road and allow them access to their properties, and that Fer-rara refused on each occasion. Michael Moore testified he pleaded with Ferrara twice to allow him access to the easement. Ferrara’s contention on appeal is that “[t]wo times is twice, not ‘numerous times.’ ” Although the evidence shows Hays talked to Ferrara “five or six times” to tell him he could not deny access, the finding that Michael Moore talked to Fer-rara on numerous occasions is not supported by the evidence.

Also, Ferrara challenged the finding that the Moores sent a demand letter to' Ferrara threatening suit unless the obstructions were removed. Exhibit IB in the trial court’s record contains a letter from Jeff W. Mays written on May 22, 2009, that was sent to Ferrara. The letter informs Ferrara of the nature of the easement and obstructions, and threatens suit unless access to the easement is allowed. However, the letter clarifies that Hays, rather than the Moores, hired the attorney that sent the demand letter. Thus, the trial court’s finding is in error.

Ferrara failed to brief the issue of harm. It is axiomatic that we may not reverse the trial court’s judgment based on these two technically incorrect findings of fact unless we can determine the errors “probably caused the rendition of an improper judgment.” Tex.R.App. P. 44.1(a). Because we find these errors had no effect upon the judgment, as the conclusions of law and resulting judgment could be made in the absence of such findings, Ferrara suffered no harm. Thus, we will not reverse the trial court’s judgment based on these points of error.

IV. The Issue of Attorney Fee Segregation Was Not Preserved

Ferrara complains in his appellate brief that Moore’s counsel “did not segregate the time that he spent on unspecified tort claims, time spent on injunction issues or time spent on unpled declaratory damage issues.” We find that he has failed to preserve this point of error.

Judicial economy requires that a trial court have the opportunity to correct an error before an appeal proceeds. In re C.O.S., 988 S.W.2d 760, 765 (Tex.1999). “As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion.” Tex.R.App. P. B3.1. A motion for new trial or exception to the judgment provides the trial court with an opportunity to hear and rule on the mov-ant’s claims. Robertson v. Gregg County, No. 06-09-00062-CV, 2009 WL 2971763, at *1 (Tex.App.-Texarkana Sept. 18, 2009, no pet.) (mem.op.) (citing Gerdes v. Kennamer, 155 S.W.3d 523, 532 (Tex.App.-Corpus Christi 2004, pet. denied)). We must first address whether an objection below was necessary because the pleadings in this case did not necessarily invoke the Declaratory Judgments Act (Act) upon which the Moores rely to sustain the judgment awarding fees.

Attorney’s fees are recoverable in an action only if they are explicitly allowed by a statute, or if they are provided for in a contract between the parties. New Amsterdam Cas. Co. v. Tex. Indus., Inc., 414 S.W.2d 914, 915 (Tex.1967); Canales v. Zapatero, 773 S.W.2d 659, 660 (Tex.App.-San Antonio 1989, writ denied). The Act provides “[a] person interested under a deed ... may have determined any question of construction or validity arising under the [deed] ... and obtain a declaration of rights, status, or other legal relations thereunder.” Tex. Civ. Prac. & Rem.Code Ann. § 37.004 (Vernon 2008). A claimant successful under this Act is entitled to “reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 2008). Citation to or denomination of the suit as one brought under the Act is not a prerequisite to entitlement to attorney’s fees under the Act. Canales, 773 S.W.2d 659; GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541 (Tex.Crim.App.1998). From the briefs, it appears that Ferrara concedes that the Moores’ claims fell within the Act and that they are entitled to some attorney’s fees. The question is how much?

In Canales, our sister court ruled that it was not necessary to object to the issue of segregation to the trial court in order to preserve the issue on appeal where the pleadings did not clearly refer to the Act and counsel was not aware that entitlement under the Act was being sought. 773 S.W.2d at 662.

In our case, the following exchange occurred at trial:

THE COURT: All right. Mr. Davis, you have made a request for attorney’s fees. Can you quote me to a statutory or common law basis for the award of attorney’s fees in a case of this nature?
MR. DAVIS: Yes, sir. Judge, I believe that would fall under the Declaratory Judgment [sic] Act, Civil Practice and Remedies Code 37.009. A case that is pretty well on point would be Canolas [Canalas] vs. Zapatero, 773 S.W.2d 659.

No objection to attorney’s fees was made during trial by Ferrara.

A motion for new trial was filed after the award was issued. In the motion, Ferrara complained that the attorney’s fees were not reasonable or necessary, but made no complaint that the pleadings contained causes of action that did not support attorney’s fees, raising notice for a need to segregate attorney’s fees. Ferrara had an opportunity to complain of failure to segregate attorney’s fees, but did not take advantage of such opportunity. We find he failed to preserve this error for our review.

Ferrara’s objection by the motion for new trial that the attorney’s fees awarded were not reasonable or necessary is not the same as that urged on appeal and therefore presents nothing for review. Holland v. Hayden, 901 S.W.2d 763, 765 (Tex.App.-Houston [14th Dist.] 1995, writ denied); Haryanto v. Saeed, 860 S.W.2d 913, 921 (Tex.App.-Houston [14th Dist.] 1993, writ denied) (en banc). Complaints and arguments on appeal must correspond with the complaint made at the trial court level. Century 21 Real Estate Corp. v. Hometown Real Estate Co., 890 S.W.2d 118, 124 (Tex.App.-Texarkana 1994, writ denied). Ferrara’s point of error on appeal does not comport with the complaint presented to the trial court in the motion for new trial, supporting our conclusion that it was not preserved.

Finally, even if the issue was properly preserved, it appears the trial judge attempted to segregate the attorney’s fee for the declaratory judgment by requesting further information from counsel. Based on counsel’s statements that he spent fifteen hours preparing for the declaratory judgment, including the injunction, whereas the other five hours were spent on the damage claim, the trial court awarded a fee of $4,500.00, calculated at fifteen hours at an hourly rate of $300.00. We overrule this point of error.

V. Issue of Limiting Ferrara’s ReCross Examination

During the second re-cross examination of Michael Moore, the following exchange occurred:

Q. (By Ferrara) You went to your property sometime before and after that to look at your property, correct?
MR. DAVIS: Objection.
THE COURT: I’ll sustain the objection.
MR. FERRARA: Okay.
THE COURT: The scope of redirect means the only thing he asked him was about this instrument. So actually the only thing you can cross examine is about this instrument. You’ve already had an opportunity to cross examine so this is called recross examination.
Q. [by Mr. Ferrara] That instrument states a well-maintained road, and are you saying that that road that you went on to look at your land was well maintained?
MR. DAVIS: Objection. Exceeds the scope.
THE COURT: Sustained.

For the first time on appeal, Ferrara argues that the trial court improperly limited Ferrara’s cross-examination because Rule 611(b) of the Texas Rules of Evidence states that a witness may be cross-examined on any relevant matter. Tex.R. Evid. 611(b). The record shows that Moore had been fully cross-examined by Ferrara for what appears to be seventeen pages of about 100 pages of actual testimony; Fer-rara had passed the witness, and this further interrogation was re-cross-examination. The trial court had previously noted that Ferrara’s interrogation was needlessly consuming time, taking from thirty seconds to a minute between each question he asked. It is the responsibility of the trial court to exercise reasonable control over the mode and order of interrogation of witnesses and to avoid needless consumption of time. Tex.R. Evid. 611(a). The conduct and extent of cross-examination is entrusted to the sound discretion of the trial court, and its ruling will not be disturbed unless it is arbitrarily and unreasonably made. Mendoza v. Varon, 563 S.W.2d 646, 650 (Tex.Civ.App.-Dallas 1978, writ ref'd n.r.e). Further, this argument was not presented to the trial court in Ferrara’s motion for new trial, or otherwise; Ferrara has failed to preserve this issue for our review. Tex.R.App. P. 33.1. We overrule his last point of error.

VI. Conclusion

We affirm the trial court’s judgment.

Concurring and Partial Dissenting Opinion by Justice MOSELEY.

BAILEY C. MOSELEY, Justice,

concurring and partial dissenting.

I concur in part and dissent in part with the majority opinion. My dissent is restricted to the finding that Ferrara does not possess the right to erect a gate or gates across the easement itself.

Both the dominant tract owned by the Moores and the subservient tract owned by Joseph Ferrara were originally parts of a called 111.29-acre tract which belonged to Brian Hayes and wife, Donna Hayes, and James Watson and wife, Rebecca Watson (“Hayes, et al”). Hayes, et al. made four conveyances on August 1, 1984, out of the 111.29-acre tract to the Texas Veterans Land Board. Among these conveyances was the tract which eventually came to be owned by Ferrara. The portion of the tract which remained after those four conveyances is the one sold twenty-five years later to the Moores.

Each of these conveyances followed the same format. Each makes reference to an “Exhibit A” for the description of the property to be conveyed. These deeds each also recite,

[T]here is also conveyed to Grantee, its successors and assigns, a non-exclusive right-of-way for purposes of ingress and egress between a public road and the tract conveyed and described herein. This access easement is more particularly described in Exhibit “B” which is attached hereto and made a part hereof for all purposes.

Within each of those exhibit Bs, after the description of the easement being conveyed, they continue by stating — seemingly almost as an afterthought — that the tract being conveyed is “subject to the following described easement” followed by a metes and bounds description of the portion of the conveyed tract which is subject to an easement. No purpose for the easement is recited and no further description of the rights granted or retained is contained in the documents.

An easement is an interest in real estate that authorizes the holder of the dominant estate to use property for a particular purpose. Koelsch v. Indus. Gas Supply Corp., 132 S.W.3d 494, 497 (Tex.App.-Houston [1st Dist.] 2004, pet. denied) (citing Marcus Cable, 90 S.W.3d at 700). The meanings of easements are interpreted in the same fashion and under the same basic principles that are applied to the construction of a contract. Marcus Cable, 90 S.W.3d at 700; DeWitt County Elec. Coop. v. Parks, 1 S.W.3d 96, 100 (Tex.1999); Koelsch, 132 S.W.3d at 497. “When a contract is not ambiguous, the construction of the written instrument is a question of law for the court.” MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650 (Tex.1999). “The primary concern of a court in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument. If a written contract is so worded that it can be given a definite or certain legal meaning, then it is not ambiguous.” Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). Accordingly, the intent of the parties, as expressed in the grant, determines the scope of the interest conveyed. Marcus Cable, 90 S.W.3d at 700-01; Koelsch, 132 S.W.3d at 497-98. To interpret the parties’ intentions adequately and to discern the scope of the rights conveyed to the easement holder, one must focus on the terms of the granting language. See Marcus Cable, 90 S.W.3d at 701 (citing Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 664-65 (Tex.1964)). An easement “should be interpreted to give effect to the intention of the parties ascertaining 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.” Id. We rely solely on the written terms of the easement unless the language is ambiguous. Koelsch, 132 S.W.3d at 498. When the terms of the grant of an easement are not defined, we are to apply their “plain, ordinary, and generally accepted meaning.” Marcus Cable, 90 S.W.3d at 701. The rules regarding construction of deeds generally apply in the construction of easements. Tex. Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145, 149 n. 3 (Tex.App.-Austin 1998, no pet.).

Any grant of an easement necessarily carries with it the right to do such things as are reasonably necessary for the full enjoyment of the easement granted. Harris v. Phillips Pipe Line Co., 517 S.W.2d 361 (Tex.Civ.App.-Austin 1974, writ ref'd n.r.e.). We must take into account that

[ejvery easement carries with it the right of doing whatever is reasonably necessary for the full enjoyment of the easement itself. Extent of such incidental rights depends upon the purpose and extent of the grant itself. Such right is limited and must be exercised in such a reasonable manner as not injuriously to increase the burden upon the owner of the fee. Nothing passes by implication as incidental to a grant except what is reasonably necessary to its fair enjoyment. What is reasonably necessary for the full enjoyment of the easement will be determined by a construction of the language of the express grant, considered in the light of the surrounding circumstances.

Bland Lake Fishing & Hunting Club v. Fisher, 311 S.W.2d 710, 715-16 (Tex.Civ.App.-Beaumont 1958, no writ) (emphasis added).

How could the prohibition against gates being installed at the entrance and exit of the roadway across Ferrara’s land increase the burden on the subservient estate? The tract imposed with the easement (i.e., the subservient estate) here is not a small residential building lot but is, rather, rural acreage. One would expect that one of the uses to which people could be commonly expected to place such acreage tracts is the pasturage of livestock. Should Fer-rara (or some subsequent owner of the tract) desire to raise livestock but is prohibited from erecting gates where the easement enters and exits his property, he may well be required to either fence off the entire easement property from the balance of the tract (which would effectively deny the owner of the subservient estate from the reasonable use of the portion of the tract subject to the easement) or go to the expense of installing and maintaining cattle guards on the roadway easement. Given the paucity of direction in the wording of the easement itself, such a requirement would unreasonably burden the owner of the subservient estate. Granted, there is no evidence that such pasturage use is now intended or that a future owner has such use in mind, but that lack of evidence is irrelevant; this example is employed solely to demonstrate that the prohibition against gates does increase the burden on the subservient estate. If the lack of evidence of that potential intended use is important, it would likewise be important that there is no evidence of the existence or nonexistence of gates on the roadway at the time the easement was created. Such evidence of either situation is not relevant to a determination of the rights granted under the easement. What is important is what the easement says.

The Moores rely on (and the majority cites) Gerstner v. Wilhelm, 584 S.W.2d 955, 957 (Tex.Civ.App.-Austin 1979, writ dism’d), for the proposition that the trial court had the authority to enjoin Ferrara from putting gates across the easement as it enters and exits his property. However, in contrast to the easement the Moores claim here, the easement in Gerstner called for “the free and uninterrupted use, liberty and easement of passing in and along a certain passageway or road across the said premises ... and being 40 feet in width and to use such passageway or road at all times in common with the Grantee .... ” Id. This case is distinguishable from Gerstner in two respects: (1) in this case, there was no such expansive or delineated grant of rights in the easement as in Gerstner, and (2) unlike this case, Gerstner dealt with an ambiguous grant of easement. In Gerstner, the trial judge provided an instruction to the jury (not quoted in the opinion) as to the meaning of “free and uninterrupted.” The opinion in Gerstner does recite that, “Because of the language of the easement and the factual circumstances surrounding the grant, the court properly entered judgment that Gerstner remove the fences and gates.” Id. at 959 (emphasis added). Since the issue of the easement was submitted to the jury in the Gerstner case to make factual determinations, it must have been deemed to have been an ambiguous grant because juries have no role in ruling on issues of law. In the circumstance in which there is an ambiguity, any such ambiguity is to be resolved against the grantor. Dwyer, 374 S.W.2d at 665. Further, where an instrument is capable of two reasonable constructions, it will be strictly construed against the author. Harris, 517 S.W.2d at 364. Here, the Moores stand in the shoes of Hayes, et al., the drafter of the easement.

One should point out that in the case at bar here, neither side alleges that any ambiguity exists in the grant of the easement. Under contract law (which, as pointed out above, applies as to easements), if ambiguity of the instrument is not pled, then its construction is solely a question of law and not of fact; questions of law are reviewed de novo. Eastman Software, Inc. v. Tex. Commerce Bank, Nat’l Ass’n, 28 S.W.3d 79, 84 (Tex.App.-Texarkana 2000, pet. denied).

Because the grant is in general terms, the grantees’ dominant estate is entitled only to rights sufficient to effect the purpose of the easement. See Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974). As to implication of easement rights not specifically granted by the instrument creating the easement, a court can “imply only those rights reasonably necessary to the fair enjoyment of the easement with as little burden as possible to the servient owner.” Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 871 (Tex.App.-Austin 1988, writ denied) (citing Coleman, 514 S.W.2d at 903). “Nothing passes by implication as incidental to a grant of an easement except what is reasonably necessary to its fair enjoyment.” Kearney & Son v. Fancher, 401 S.W.2d 897, 903 (Tex.Civ.App.-Fort Worth 1966, writ ref'd n.r.e.).

The Moores brought this suit and it was their burden to provide evidence to support each portion of their claim. Although they fully established their right to an easement, they failed to provide evidence that fully-aceessible gates could not be erected across it. To imply that the easement which the Moores own dictates that there be a prohibition against gates (to which the Moores would have full access) erected across it is to violate the constraint against imposing a greater burden than is reasonably necessary to effect the ingress and egress purposes of the easement.

The easement here does not specifically grant the dominant estate the right to an easement “free and uninterrupted” by gates. The grant provides only for ingress and egress to the dominant estate. To find a grant of unrestricted passage, therefore, it would be necessary to read terms into the four corners of the document which do not exist (i.e., the right to drive a car the length of the easement without having to get out and open a gate); this cannot be done under the circumstances of this case. See id.; Marcus Cable Assocs., 90 S.W.3d at 700; Koelsch, 132 S.W.3d at 498.

Accordingly, I believe the trial court erred in enjoining Ferrara from erecting gates on the easement so long as the owner of the Moores’ tract were given access rights through those gates.

      . Ferrara testified about an alleged instance of vandalism to the gate. There was no testimony that the gate was built in response to vandalism or unauthorized access.

      . We do not agree with Ferrara's contention that the term "nonexclusive” means that the Moores cannot have free and unrestricted access to the easement. See Calvert, 875 S.W.2d at 485.

      . Ferrara points to the memorandum opinion of Barrow in support of his position. Barrow, 2007 WL 3293712. Barrow's land was subject to a nonexclusive roadway easement providing Pickett a second means of entry onto his undeveloped land. Id. at *1. The easement was for "ingress, egress, and access on, over, and across the Easement Tract.” Id. In order to utilize his property as a hay field and pasture for horses and cattle, Bárrow erected a gate across an access easement allowing Pickett access to his property. Id. at **1-2. Our sister court held that the trial court erred in enjoining Barrow from placing gates along the access road. Id. at *2. Because the gate was not secured to prohibit Pickett’s access, the court found the interference was not unreasonable. Id. at **2, 4. Pickett had only to stop, open and shut the gate. Next, our sister court looked to the language of the grant, which only allowed for access to the dominant estate and nothing more. Id. at *3. In this case, in addition to language similar to the language in Barrow, the easement provided that the grantor and his assigns were to "have the non-exclusive right to use any portion of this easement." Further, gates had been erected on the easement in the past. Id. at *4 n. 3. As to the use of the property, the court discussed the fact that Barrow would be unable to properly utilize his land for horse and cattle operations unless he could maintain the gate. Id. at *4. Interestingly, while our sister court attempts to shy away from the analysis applied in Arden, its reasoning and accompanying footnotes indicate that it conducted the Arden analysis. Id.; see generally Arden, 221 S.W. 265.

      . The dissenting opinion to this portion of the opinion would rule that the trial court erred in enjoining the erection of gates at the easement because it would unreasonably burden the use of the servient estate. Because there is no evidence in this record of any likely burden on the servient estate, any conclusion that there is such a burden would require speculation. There is also no evidence that gates would be the only way to allow use of the servient estate for cattle without fully fencing the easement. Cattle guards might be an option, but that, too, is speculation.

      . Ferrara also cites Stout v. Christian, 593 S.W.2d 146 (Tex.Civ.App.-Austin 1980, no writ), as authorizing the placement of gates by the servient estate owner. A major difference with the facts of this case is that there the easement authorized gates of "livestock proof construction.” The owner of the ser-vient estate erected gates and provided keys to the dominant estate holder. The opinion found that the trial court did not abuse discretion by allowing the gates in that instance and distinguished their earlier case of Carleton v. Dierks, 195 S.W.2d 834 (Tex.Civ.App.-Austin 1946, no writ), in which the same appellate court had found the facts in Carleton authorized a finding that erecting such locked gates interfered with the dominant estate holder’s lawful use of the easement.

      . Without citation to any supporting authority, the brief merely argues that the Moores have not yet expended the money to clear the property, and thus have not been damaged. It is apparent that the road will have to be cleared of the trees and three years' worth of debris that has accumulated on the easement.

      . In fact, counsel in Canales objected at trial that no relief under the Act was made. The court found these objections sufficient to preserve error. 773 S.W.2d at 662 n. 2.

      . When looking at the final judgment granted by the trial court, it is necessary for the purpose of this dissent to presume certain things. The judgment states that it finds that an easement exists over and across the real estate described on Exhibit "A" as an easement appurtenant to the realty described in Exhibit “B.” Neither such exhibit was attached to the judgment. It is assumed that Exhibit "A” was supposed to be a description of the portion of a roadway which traveled across the tract of land belonging to Ferrara and that Exhibit “B” was supposed to contain a description of the land acquired by the Moores.

      . The fifth and final tract remained owned by Hayes, et al. until it was sold by them to the Moores in 2009. During the intervening period, Hayes, et al. sold rocks and gravel from the remaining tract.

      . In challenging the right of the Moores to cross his land, Ferrara puts himself in much the same position of the man who cuts off the limb upon which he is standing. In order for Ferrara to gain access to a public road, Fer-rara must rely on easements across two other tracts of land created by deeds almost identical to the one upon which the Moores rely in attempting to establish their right of way over Ferrara's lands. Had Ferrara been successful in combating the Moores' attempt to enforce the easement, he would have been hard pressed to insist that the easement granting him access over his neighbors' property was effective to grant him access to his own tract. “What is sauce for the goose is sauce for the gander.” Comm'n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 451 (Tex.1998).

      . In this day of the automobile, when one need not leave their car to purchase food to eat or obtain money from our banks (and by some news accounts, even to be married), we tend to think that it is necessary for us to do everything from our automobiles. I maintain, however, that it is not unreasonable to exit from an automobile and open a gate. Doing everything from the confines of our cars falls among the luxuries of our society.