Preview
Filed: 10/13/2022 3:17 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 69202549
By: Shailja Dixit
10/13/2022 3:19 PM
No. 21-CV-0305
DAVID AND CONNIE EVANS, § IN THE DISTRICT COURT OF
§
Plaintiffs, §
§
v. § GALVESTON COUNTY, TEXAS
§
MB HARBOUR, LTD. AND HARBOUR §
MANAGEMENT, LLC §
§
Defendants. § 10th JUDICIAL DISTRICT
DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTIONS FOR
SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF THIS COURT:
Defendants MB Harbour, LTD. (“MB Harbour”) and Harbour Management, LLC’s
(“Harbour Management”) (collectively, the “Defendants”), file this Reply to Plaintiffs, David and
Connie Evans, (collectively the “Evans” or “Plaintiffs”), Response to MB Harbour’s Traditional
and No Evidence Motions for Summary Judgment (the “Response”), and show the Court the
following:
INTRODUCTION
Plaintiffs’ Response to MB Harbour’s Motion for Summary Judgment is but one more
battle against the misleading statements, half-truths and misapplications of law that have marked
the 16 year campaign that Paul Smith, a purported non-lawyer, legal expert in this case, organizer
and funder of this suit and referrer of Plaintiffs to their current legal counsel, (who is also Paul
Smith’s lawyer), has unsuccessfully waged against MB Harbour.
That long campaign has been marked by a law suit against the City of League City, an
extended lobbying effort directed to all of League City’s elected officials and most if its city
attorneys, missives directed to the Army Corps of Engineers and claims specifically rejected by
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the Texas General Land Office (GLO) and then Senator Mike Jackson’s office, that the State of
Texas and not MB Harbour owns the canal and canal bed at issue that MB Harbour purchased on
September 15, 2006 from NRG Texas LP (“NRG”) for a payment of almost three hundred
thousand dollars. Paul Smith and now Plaintiffs have also persisted in that campaign even though
they and every other Glen Cove neighbor benefited from the hundreds of thousands of dollars in
additional funds that MB Harbour expended in re-dredging that silted up old canal out into Clear
Lake.
And, having refused to contribute even a single penny to those canal refurbishment costs
and ignoring their admitted prior knowledge that the boathouse which has prompted this action
was only built out on to the canal bed and 6.016 acre canal tract that MB Harbour purchased from
NRG, pursuant to a duly executed and recorded Canal Use License Agreement that specifically
acknowledged MB Harbour’s superior ownership rights that canal and canal bottom, Paul Smith
and Plaintiffs have dredged up an unsworn, unwitnessed, un-notarized, self-described “collateral
agreement” between Douglas Pollard, Trustee and Houston Lighting & Power (HL&P) (the
“Pollard Letter”). 1
The Pollard Letter was purportedly signed over a half-century ago, and, was plainly and
unambiguously intended to give only Douglas Pollard, Trustee, and his successors and assigns the
right to use the then, to be excavated canal (contained entirely within a 6.016 acre canal tract), for
a boat basin and/or marina. Despite this, Paul Smith and Plaintiffs now assert that somehow, the
Pollard Letter gives Glen Cove homeowners an easement right to do the same – even though that
1
The Pollard Letter was never recorded in the Official Real Property Records of Galveston County
by the Grantor or the Grantee or prior to September 15, 2006. The Pollard Letter was discovered
among thousands of pages of material produced by NRG in response to a non-party subpoena in a
lawsuit between Paul Smith and League City, Texas sometime in or around December of 2007.
2
1960 letter agreement was never recorded in Galveston County’s real property records by the
Grantor or the Grantee. Further, the Pollard Letter was not recorded by anyone until two years
after MB Harbour purchased the canal tract and, only then, by Paul Smith himself and two of his
soldiers in arms, Tim Gamble and Jeff Hagens. That conduct, knowingly filing an unsworn,
unwitnessed and un-notarized half century old “collateral agreement” as a recordable instrument,
which is itself actionable as slander of title, is yet one more example of the misplaced actions,
factual half-truths, mischaracterized evidence, misconstrued law and errant legal theories with
which MB Harbour has been required to deal for years and which also infest Plaintiffs’ Response
to MB Harbour’s Traditional and No Evidence Motions for Summary Judgment.
By this Reply, MB Harbour will necessarily address those factual mischaracterizations,
factual half-truths, misconstrued law and errant legal theories serially.
A. THE NOW UNDISPUTED SUMMARY JUDGMENT FACTS.
Given, the unprecedented nature of what Plaintiffs are asking of this Court, to declare
easement rights which were never actually afforded to them based on their misinterpretation of an
unsworn, unwitnessed, un-notarized letter agreement that was not filed of record in Galveston
County for half a century, Plaintiffs’ Summary Judgment Response necessarily attempts to cloud,
avoid and slip by the summary judgment evidence which is now indisputably before the Court.
MB Harbour’s Reply will, therefore, note the following outcome determinative facts that Plaintiffs
have not properly disputed and cannot avoid.
1. The canal is indisputably a man-made artificial waterway that was excavated
from 6.016 acres of upland that was originally sold by Douglas Pollard,
Trustee, to Houston Lighting & Power Company (“HL&P”).
Plaintiffs’ Response to Defendants’ Summary Judgment Motions begins with a slyly
suggested untruth, that by virtue of small boats using it, the canal is a natural water course and that
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HL&P was originally deeded “6.016 acres of land underneath and around the Glen Cove
Waterway.” Response at ¶12. Plaintiffs have provided no summary judgment evidence to support
this false characterization, because it is untrue. There was no “Glen Cove Waterway” when HL&P
purchased the 6.016 acre tract from which the canal at issue was excavated. This is apparent from
the summary judgment evidence that MB Harbour has provided to the Court including: (1) aerial
photographs from 1958 and 1969 that show the upland that HL&P originally purchased from
Douglas Pollard in 1960 and show the canal on that same tract after it had been excavated by
HL&P, (Defendants Traditional Motion for Summary Judgment - Exhibit 8, Ariel Photographs
from EDR); (2) Teresa Scotto’s affidavit and referenced Army Corps of Engineers’ description of
the canal as a “private water canal known as the HL&P Genco Canal” which is “considered a
manmade discharge canal”, (Defendants Traditional Motion for Summary Judgment - Exhibit 1,
Affidavit of Teresa Scotto and incorporated exhibit B); (3) the memorandum from the Texas
General Land Office’s Director of Surveying, Bill O’Hara, that was provided to Paul Smith, and
reported, “it appears the waterway known as the Glen Cove Canal is not state owned submerged
property” and, “It is apparent that the current Glen Cove was dredged from the upland properties
into the bank of Clear Lake”; and (4) the email from then Senator Mike Jackson’s chief of staff,
Holly Jeffcoat to Paul Smith confirming that the canal bottom was not state-owned land.
(Defendants Motion for Traditional Summary Judgment -Exhibit 16, November 26, 2006 Texas
GLO Memorandum). For purposes of MB Harbour’s Traditional Motion for Summary Judgment
it is, therefore, indisputable that the 6.016 acre canal tract and canal bed at issue is not a state
owned natural watercourse but a privately purchased and owned property.
2. Ownership of the 6.016 acres of upland that became the canal tract and bed a
was indisputably transferred by recorded fee simple deeds from Douglas
Pollard to HL&P and then by HL&P’s successor NRG to MB Harbour.
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The Summary Judgment evidence before the Court includes the fee simple deed from
Douglas Pollard Trustee to HL&P which contains no reference to any easements rights reserved
for the benefit of Douglas Pollard or anyone else in the 6.016 acres sold to HL&P. (Plaintiffs’
Response – Exhibit 1 The Pollard to HL&P Deed). It also includes the September 15, 2006,
special warranty deed from HL&P’s successor, NRG, and its conveyance to MB Harbour of the
6.016 acres of canal bottom and area alongside it, (Defendants Traditional Motion for Summary
Judgment – Exhibit 4, September 15, 2006 NRG to MB Harbour deed), and the correction deed
from NRG to MB Harbour for the 6.016 acres of canal bottom and area alongside it. (Defendants
Traditional Motion for Summary Judgment – Exhibit 5, corrective deed). As a consequence, the
summary judgment evidence before the Court demonstrates an undisputed transfer of the 6.016
acres which, after excavation, became the canal bottom and area immediately alongside it by fee
simple from HL&P to NRG to its present ownership in MB Harbour. The plain language in the
deeds dispositively establishes chain of title in fee simple from Pollard, Trustee, to HL&P, HL&P
to NRG (via Texas Genco), and NRG to MB Harbour—where fee simple title resides today.
3. It undisputed that there is no specific easement or reservation language
contained within the fee simple deed between Douglas Pollard and HL&P and
that Plaintiffs and the Glen Cove homeowners have no witnessed, notarized or
properly recordable written easement with a description of the bounds of any
dock rights on the canal which is specific to them.
The Court has the fee simple deed through which Douglas Pollard transferred the 6.016
acres from which the canal was constructed in the summary judgment record before it, (Plaintiffs’
Response Exhibit 1, The Pollard to HL&P deed). It expressly notes that Douglas Pollard, by that
deed “GRANTED, SOLD and CONVEYED” to HL&P the 6.016 acres through which the canal
was subsequently dug “with all and singular the rights and appurtenances thereto in anywise
belonging” and he warranted to “forever defend, all and singular, the said premises unto the said
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Houston Lighting & Power Company.” There is no reference to any specific easement rights
reserved to Douglas Pollard, Trustee, in this recorded deed. There is also no contemporaneously
sworn and notarized real property record which reflects any written and definable easement
remaining in the 6.016 acres that was sold to HL&P. That absence, for purposes of the summary
judgment record, cannot be disputed. “The construction of an unambiguous deed is a question of
law for the court, and the primary duty of the court in construing a deed is to ascertain the intent
of the parties from all of the language in the deed within the four corners of the instrument.”
Gordon v. W. Houston Trees, Ltd., 352 S.W.3d 32, 43 (Tex. App.—Houston [1st Dist.] 2011, no
pet.). Despite their attempts, Plaintiffs cannot simply write words and terms into the deed that are
not there. There are absolutely no reservations or easements in the deed from Pollard, Trustee, to
HL&P.
4. The Pollard Letter is not, by its express terms, a declaration of the easement rights
of the Glen Cove homeowners, it is indisputably self-described as a “collateral
agreement” between Douglas Pollard and HL&P that gave him and his successors
and assigns a right to use the to be dredged canal for a boat basin and marina.
The summary judgment record before the Court includes the Pollard Letter. (Plaintiffs’
Response – Exhibit 1, Douglas Pollard’s letter agreement with HL&P). Contrary to Plaintiffs’
insistence that it granted to Glen Cove Homeowners a right to put whatever docks, boathouses,
slips and piers they wanted in or on the 6.016 acres that was to be excavated from the canal, it only
granted to Douglas Pollard an unrecorded contractual right to install the structures he might need
in the canal and, on any portion of the 6.016 acres that did not become the canal. This is
unambiguously plain from Pollard Letter itself.
First, the letterhead on the Pollard Letter describes Mr. Pollard as an “attorney at law.”
Had he wished to create a recordable real property easement right for himself or, collectively, the
Glen Cove homeowners, or to anyone else, he would have known how to do so and he would have
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assured that such easement was witnessed, notarized, and contained the appropriate attestation and
acknowledgment regarding consideration, for the purpose of its recording in the Galveston County
real property records. See, e.g., Tex. Prop. Code Ann. § 12.001. For example, Pollard, Trustee, did
just that, when he created and granted an express easement to the Galveston County Water Control
and Improvement District No. 21—he signed it under the witness of a notary, the document
contained the appropriate acknowledgment and attestation, and the document was recorded in the
real property records of Galveston County. See, Exhibit 1, Pollard Easement to Galveston
County Water Control and Improvement District No. 21. But, here, as the proffered letter
plainly demonstrates, neither Douglas Pollard, Trustee’s signature nor HL&P’s representative’s
signature were notarized.
Second, the Pollard Letter’s opening paragraph recites that it represents “certain collateral
agreements between myself and Company.” Again, Douglas Pollard, Trustee, was an attorney and
expressly used the term “collateral agreement,” which under Texas law a “collateral agreement”
“is one that the parties might naturally make separately” and is
not “embodied in or integrated with” the other written agreement or instrument. See, Ledig v. Duke
Energy Corp., 193 S.W.3d 167, 179 (Tex. App.—Houston [1st Dist.] 2006, no pet.) and Gail v.
Berry, 343 S.W.3d 520, 523 (Tex. App.—Eastland 2011, pet. denied), respectively. Here, he also
expressly states the “agreement” is “between myself and Company.”
Again, no reference is made to the Glen Cove homeowners or to any specific property that
such homeowners owned, or could or would own in the future. The express provisions of the
Pollard Letter confirmed how wide and deep the canal was to be. It defined the expected slope of
the canal and made the spoil available to Pollard, Trustee, and it specifically described the intended
use of the canal by HL&P and by Pollard, Trustee. In Pollard, Trustee’s case, the right was
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specifically described as “the right to use said excavation as a boat basin and/or marina’.
Accordingly, Pollard, Trustee, preserved a contractual right in section 5(a) of the Pollard Letter to
construct the “piers, boat launching sites and equipment, boat slips and other facilities and
appurtenances” he might need for “Grantor’s full use and enjoyment of said property for said
purpose”. Section 5(b) of that Letter also unambiguously gave Pollard, as Trustee, “as to that
portion of said land conveyed unto Company by Grantor abutting said excavation” (i.e.: the 6.016
acres) the “right-of-way, easement and servitude to construct boat slips, streets . . . to use same in
conjunction with the aforesaid boat basin and/or marina”. So by its express terms, the easement
rights Plaintiffs point to for the Glen Cove homeowners, only applied to that portion of the 6.016
acres conveyed unto Company that did not wind up in the canal – not to Glen Cove homeowners
who never owned any portion of the 6.016 acres and, that right reserved to Mr. Pollard, was to use
same in conjunction with the aforesaid boat basin and marina– not to give Glen Cove homeowners
a right to place structures in the canal to maximize the benefits of their entirely unreferenced lots.
In short then, unambiguously and as a matter of law the Pollard Letter does not convey the real
property easement rights Plaintiffs claim in their Response to Defendants Traditional Motion for
Summary Judgment.
In other words, there is no “dominant estate” established in the Pollard Letter. An
"easement appurtenant" is an easement across the land of another for the benefit of a separate
parcel of land owned by the easement holder. By definition, there are two parcels of land involved,
usually contiguous with each other, but not necessarily so. The land benefitted by the easement,
and to which the appurtenant easement attaches, is called the "dominant estate." The land burdened
by the easement is called the "servient estate." For an easement appurtenant to exist, there must be
both a dominant and a servient estate. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex.
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1962). The Pollard Letter does not have two parcels of land that are designated as the dominant
and servient estates. There is no mention of the rights "running with the land'. To the extent the
Pollard Letter makes any grant, it does so only with respect to one tract of property—the 6.016
acres, which it refers to as “said land.” There is unequivocally no reference to any other land.
The Pollard Letter defines the said land as that land conveyed by Pollard, Trustee, to
HL&P:
By deed of this date, I Douglas F. Pollard, Trustee . . . sold and conveyed to
Houston Lighting & Power Company . . . 6.016 acres of land . . . [see the
deed for a] a more particular and complete description of said land.
- Pollard Letter at 1 (Emphasis added).
The said land is the 6.016 acres now owned by MB Harbour. 2 Item 1 of the Pollard Letter reads:
When said canal is constructed, [HL&P] shall excavate for said canal an
area extending the full length of the property conveyed in above mentioned
deed . . . said excavation to have a bottom width of 180 feet at a depth of
six (6) feet below mean sea level with sides sloped on a ratio of two feet
horizontally to one foot vertically.
- Pollard Letter at 1.
The grant is Section 5 is only to the 180 foot “excavation”:
[HL&P] agrees that the 180 foot wide excavation described in Item 1 above
may be used by [Pollard, Trustee] . . . as follows:
-Pollard Letter at 2.
Plainly Pollard, Trustee was reserving a right to use the excavation. In 5(b), the Pollard Letter
states:
“As to that portion of said land this date conveyed unto [HL&P] by Grantor
abutting said excavation, [Pollard, Trustee], his successors and assigns
shall henceforth . . .
2
It has subsequently been increased to 6.019 acres.
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The Pollard Letter is only referring to land within the 6.016 acre tract. This is shown by this
demonstrative exhibit prepared by surveyor Robert Ellis, and attached as Exhibit 2:
You can see that there was still 3 feet on each side of the tract that was not then contemplated to
be underwater. Thus, there are no rights bestowed to any abutting landowners, as there is no
reference to any land outside of the 6.016 acre tract. The Pollard Letter was exclusively and only
personal to Douglas Pollard, Trustee.
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5. Given the unambiguous language of the Pollard Letter, it is apparent that the phrase
his “successors and assigns” could only mean Mr. Pollard’s wife, children, family
members or any marina builder and operator he might assign his valuable right to
use the canal and 6.016 acres conveyed to support a boat basin or marina.
Plaintiffs’ Summary Judgment Response makes the incongruous assertion that since
Douglas Pollard, Trustee’s contractual right to use the 6.016 acres conveyed, to support a boat
basin or marina, was also to be available to Pollard, Trustee’s “successors and assigns”, that
reference could only be to the Glen Cove homeowners. But that makes no sense at all. Pollard,
Trustee’s successors and assigns could, in the natural sense, include his wife. That reference could
be his children or other relations. It could include the trust to which he served as trustee, or to its
beneficiaries. If Pollard, Trustee, wished to monetize his reserved contractual right to use the
excavation for a boat basin or marina, his assigns might be a marina builder and operator who
might choose to purchase—and might have purchased—his reserved right by assignment and build
a marina and boat basin—and then rent that marina’s boat slips to Glen Cove’s homeowners. In
fact, it is completely inconsistent with the language of the Pollard Letter to assert that it, or its
reference to Pollard, Trustee’s “successors and assigns,” was for the benefit of Glen Cove’s
homeowners because those rights would cut against Pollard’s own reserved commercial interests
by giving everyone a right to put up whatever boat slips, piers and boathouses they might want in
competition and conflict with the right expressly reserved to Pollard, Trustee, alone to use the
6.016 acres he conveyed in support of a boat basin and marina in the to be excavated canal. But
equally fundamental, other than the bald assertion, Plaintiffs have put forward no evidence that
they are the successors and assigns of Douglas Pollard, Trustee.
6. It is indisputable that the unwitnessed, unsworn and un-notarized Pollard Letter was
not recorded in the Galveston County real property records prior to MB Harbour’s
September 15, 2006 purchase of the 6.016 acre canal tract from NRG and could not
have been found there.
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Plaintiffs’ Summary Judgment Response tries to avoid the obvious and undisputed fact that
the unsworn, unwitnessed, un-notarized Pollard Letter was not filed of record in Galveston County
at the time that NRG purchased the 6.016 acre tract at issue from NRG. But the summary judgment
record includes Plaintiffs’ response to Defendants’ request for admission no. 3, wherein Plaintiffs
specifically and unequivocally admitted that “The Pollard Letter was never recorded in the
Galveston County Official Records on or before September 15, 2006” – the date that MB Harbour
purchased the 6.016 canal tract at issue from NRG. (Defendants’ Traditional Motion for Summary
Judgment – Exhibit 17, Plaintiffs’ Responses to Defendants’ Requests for Admissions). So, for
purposes of Defendants’ traditional motion for summary judgment, that fact is established. Nor
does the Plaintiffs’ inclusion, in their summary judgment response of subsequent filings of the
Pollard Letter in the Galveston County records by Paul Smith and his cohorts, Tim Gamble and
Jeff Hagens, change anything. Those filings were made, on their face, on June 2, 2009, long after
MB Harbour purchased the canal property from NRG. (Plaintiffs’ Response, Exhibits 13, 14 and
15, Declarations and real property filings of Paul Smith, Tim Gamble and Jeff Hagens). As a
consequence, those real property filings provide no relevant evidence of any fact pertinent to
Defendants’ Summary Judgment Motions. They only constitute evidence of the actionable tort,
slander of title committed by each against MB Harbour and its ownership interest in the canal. 3
7. It is undisputed that MB Harbour did not have actual or constructive notice of the
Pollard Letter before MB Harbour’s purchase of the 6.016 acre canal tract from
NRG.
3
In deposition, both Paul Smith and Tim Gamble admitted they have no personal knowledge of the circumstances
under which, or even if, Douglas Pollard and HL&P’s representative actually signed the Pollard Letter and that they
also knew that the Pollard Letter was unwitnessed, not notarized and unsworn to but they filed it anyway, as Paul
Smith acknowledged under oath, to create a cloud on MB Harbour’s ownership rights in the 6.016 acre canal tract
property.
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Plaintiffs’ Summary Judgment Response does not contest the statement in Ms. Scotto’s
affidavit that “MB Harbour, to include its representatives, partners, agents, attorneys, members,
officers, and to include myself, Teresa Scotto, did not have any knowledge or information
regarding or relating to what has been called in this lawsuit the Pollard Letter, nor anything
indicating the existence of what has been described as the Pollard Letter prior to September 15,
2006.” (Defendants’ Traditional Motion for Summary Judgment – Exhibit 1, paragraph 15,
Affidavit of Teresa Scotto). So, for purposes of Defendants’ Traditional Summary Judgment
Motion, that lack of actual knowledge of the Pollard Letter, prior to MB Harbour’s purchase of the
6.016 canal property from NRG must be taken as true. Together with Plaintiffs’ admission that
the Pollard Letter was not recorded in Galveston County prior to MB Harbour’s September 15,
2006 purchase of the 6.016 acre canal tract from NRG, it is indisputable that MB Harbour lacked
actual knowledge of the Pollard Letter and its contents prior to its purchase of the canal tract and
MB Harbour cannot be properly charged with constructive notice of the Pollard Letter, because it
was not then on file in the real property records of Galveston County.
8. Knowledge of the existence of some piers, docks or boathouses that extended on to
or along the 6.016 acre canal tract purchased by MB Harbour is not inquiry notice
to MB Harbor that Plaintiffs or, more generally, Glen Cove homeowners had an
easement right to put piers, docks and boathouses on the canal tract under the
Pollard Letter.
Given the lack of any evidence to demonstrate that MB Harbour had actual knowledge of
the Pollard Letter’s existence prior to its September 15, 2006 purchase of the 6.016 acre canal tract
from NRG and Plaintiffs’ admission that the Pollard Letter was not then in Galveston County’s
real property records for purposes of constructive notice, Plaintiffs’ have attempted to argue that
any awareness of the presence of some docks, piers or boathouses was knowledge of easement
rights broadly held by Glen Cove homeowners in the canal. Plaintiff’s Summary Judgment
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Response asserts that if MB Harbour had inspected the canal tract prior to its purchase it would
have seen some dockhouses and piers in on or alongside it. Plaintiffs then point to certain excerpts
from Teresa Scotto’s deposition, responses to requests for admissions and a Huitt-Zollers survey
of the canal as evidence of that assertion. But review of the actual deposition excerpts provided
show, despite the best efforts of Plaintiffs’ counsel, that Teresa Scotto repeatedly testified only
that she saw some boathouses, piers and docks but she could not tell if they were actually built out
over and on to the 6.016 acre canal tract or affixed to it. (Plaintiffs’ Summary Judgment Response
– Exhibit 5, Teresa Scotto deposition excerpt, pp. 103-105, and 107). Moreover, Teresa Scotto,
under sworn declaration, changed her answer to this question in her errata sheet to clarify
Plaintiffs’ conflation of the canal generally with the submerged surface property purchased by MB
Harbour:
Just because [boat docks] were there doesn't mean they were part of the MB
Harbour canal property. First, the water in the canal, in some places, extends
beyond the boundaries of the submerged surface that MB Harbour owns. So
I could not identify from visual inspection that these were in or on MB
Harbour’s property or not, as the property line is underwater in most cases.
Second, some of these boathouses and docks are floating on the water. So
their mere presence would not necessarily be impinging on MB Harbour’s
property. Third, some of these boathouses, piers, and docks are actually in
“cuts” into homeowners property, and while on the canal, generally
speaking, are not necessarily impinging on MB Habour’s canal property.
-103:17-18.
The response to requests for admissions nos. 24 and 25, to which Plaintiffs also point, is to
the same effect. Specifically and subject to objection, MB Harbour only admitted that “to the
extent this definition includes water and property that MB Harbour does not claim to own and
using the plain meaning of the word “along,” Admit. (Plaintiffs’ Summary Judgment Response –
Exhibit 6, Defendants’ Response to Requests for Admissions. There was, therefore, no admission
by Teresa Scotto or MB Harbour at the time of the purchase of the MB Harbour canal tract there
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was knowledge that any specific pier or boat docks crossed out over and was affixed to or in the
MB Harbour canal tract bottom.
But, even more importantly, Plaintiffs Response includes the Huitt-Zollers survey of the
canal. (Plaintiffs’ Summary Judgment Response – Exhibit 17, Huitt-Zollers Survey). What that
survey shows is not just the existence of some piers or docks along the canal tract – it shows that
there were no piers or docks along the canal tract behind some of the Glen Cove homes, including
lots 29 and 30 that the Plaintiffs purchased from their predecessors the Kings. While Plaintiffs
assert that the presence of some docks or piers extending out on to or alongside the 6.016 acre
canal tract is evidence of some general easement right reserved to the Glen Cove homeowners
Plaintiff’s Response entirely ignores the inference posed by the lack of piers or docks in or along
the canal behind numerous Glen Cove platted lots. That inference is that the Glen Cove
homeowners had no general easement right to put docks, piers and boathouses on the canal tract.
And the Texas Supreme Court has specifically held that when equally plausible but opposite
inferences may be drawn from circumstantial evidence that is relied upon to prove constructive
notice, such evidence amounts to no evidence at all. See, Wal-Mart Stores, Inc. v. Gonzalez, 968
S.W.2d 934, 936 (Tex. 1998) (“Circumstantial evidence from which equally plausible but opposite
inferences may be drawn is speculative and thus legally insufficient to support a finding.”).
Inquiry notice was not even invoked here, as a matter of law. But even if it were, such presence
would have to be unambiguous and unequivocal in order to overcome the lack of actual and
constructive notice—as evidenced by the above and below, it clearly was not. Dispositive here,
the Texas Supreme Court has held that “ambiguous or equivocal possession which may appear
subservient or attributable to the possession of the holder of the legal title is not sufficiently
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indicative of ownership to impute notice as a matter of law of the unrecorded rights of such
possessor.” Madison v. Gordon, 39 S.W.3d 604, 607 (Tex. 2001).
9. It is un-contradicted that two of the piers or boathouses that extended out on to the
canal tract were placed on and maintained there pursuant, not to any general
easement rights in the Pollard Letter, but pursuant to a Lease or License Agreement
issued by MB Harbour’s successors, HL&P and Texas Genco.
Un-contradicted by Plaintiffs’ Summary Judgment Response is that a pier and boathouse that
did extend out on to and were affixed to the 6.016 canal tract were specifically authorized to be
there by HL&P and its immediate successor to the property, Texas Genco. As part of their
summary judgment evidence, Defendants have provided the Court with a July 30, 1976 lease
between HL&P and Glen Cove homeowner Dr. Walter Moore Jr., by which HL&P authorized Dr,
Moore to use a portion of the canal tract depicted on an incorporated exhibit for an extended boat
pier. (Defendants’ Traditional Motion for Summary Judgment – Exhibit 25, HL&P’s canal use
lease agreement with Dr. Moore). Also before the Court is the June 2004 Canal Use License
Agreement that Glen Cove homeowner, Tim Gamble executed with HL&P’s successor and NRG’s
immediate predecessor, Texas Genco in order to maintain his boathouse out over and on the 6.016
acre canal tract, (Defendants’ Traditional Motion for Summary Judgment – Exhibit 23, Texas
Genco’s 2004 Canal Use License Agreement), and Texas Genco’s Webster canal use license form.
(Defendants’ Traditional Summary Judgment Motion – Exhibit 24, Texas Genco canal use license
form). All three of those documents, whose existence Plaintiffs’ Summary Judgment Response
has not and cannot refute; (1) contain express acknowledgements of the superior possessory
interest in the canal tract and bottom possessed by MB Harbour’s predecessor’s in interest (2)
explain how those piers and boathouses came to be out on the canal tract and (3) indisputably
demonstrate that they were not there because of any reliance on the misplaced easement right
Plaintiffs now claim was provided to them by the old unsworn, uncertified and un-notarized 1960
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letter from Douglas Pollard, Trustee appeared to have entered into with HL&P. Factually then, it
is indisputable that the Plaintiff’s cannot demonstrate the occupancy of those structures in the
6.016 acre canal tract was unequivocally attributable to any general easement rights afforded Glen
Cove homeowners through the misread Pollard Letter.
10. Finally, it is indisputable that the plain language of the Canal Use License Agreement
that Plaintiffs’ predecessors, the Kings, entered into with MB Harbour expressly
recognized MB Harbour’s superior possessory interest in the 6.016 acre canal tract
onto which the boathouse at issue extended, was intended to be and was actually
recorded in the Galveston County real property records and, as to which Plaintiffs
had actual notice.
Finally, uncontradicted by Plaintiffs’ Summary Judgment Response is the plain language
of the Canal Use License Agreement that Plaintiffs’ predecessors in interest, the Kings,
indisputably entered into with MB Harbour as of September 20, 2017. (Defendants’ Traditional
Summary Judgment Motion – Exhibit 14, Canal Use License Agreement). That Agreement
constituted the negotiated arrangement by which the Kings were allowed by MB Harbour to
maintain the boathouse at issue out over the 6.016 acre canal tract and place its supporting piers in
the canal bed. In doing so, the King’s specifically “agreed” in Section 2(a) of the Canal Use
License Agreement that MB Harbour, “is the owner of the Canal and that Licensee has no right,
title or interest therein, whatsoever, except as provided in the Canal Use License Agreement”.
Section 15 of that executed Agreement provided that the right extended to the Kings for the
maintenance of their boathouse out over the canal tract and not its bed was only transferrable to
the purchasers of their “Glen Cove Property”, which was defined as Glen Cove lots 29 and 30 that
the Evans purchased from the Kings, and Section 15 of the Kings’ Canal Use License Agreement
expressly stated that, “the license granted herein shall become a covenant running with the land
and shall attach to the Glen Cove Property”. That Agreement contained as Exhibit “A” a real
property description of the area allowed for the Kings’ boathouse with a surveyed drawing of it
17
and Glen Cove lots 29 and 30 with which it was to run. The signatures of the Kings and MB
Harbour’s Signatories were notarized in the expectation that the King’s Canal Use License
Agreement with the specifically noted provisions would become part of the real property records
of Galveston County. That Agreement was clearly filed and recorded in Galveston County, as
noted, on December 4, 2017 at 2:42PM. (Defendants’ Traditional Motion For Summary Judgment
– Exhibit 14, Canal Use Agreement filing page). So that filing is not only necessarily admitted
for purposes of the Summary Judgment record, Plaintiffs have additionally admitted that before
they purchased Glen Cove lots 29 and 30 from the Kings they were actually aware of the Canal
Use License Agreement under which the boathouse had been maintained on the canal tract
pursuant to MB Harbour’s recorded authorization. (Defendants Traditional Motion for Summary
Judgment – Exhibit 15, David Evans deposition transcript).
CONCLUSION & PRAYER
For the above reasons, as well as the many reasons asserted in Defendants’ Motion for
Traditional Summary Judgment and their No Evidence Motion for Summary Judgment that
Plaintiffs failed to even address, Defendants motions should be granted as well as any and all other
relief whether at law or in equity that the Court deems Defendants to be justly entitled.
Respectfully submitted,
GREER, HERZ & ADAMS, L.L.P.
By: /s/ Robert A. Davee __
Joseph A.C. Fulcher
State Bar No. 07509320
jfulcher@greerherz.com
Robert A. Davee
State Bar No. 05411000
bdavee@greerherz.com
2525 South Shore Blvd., Suite 203
League City, Texas 77573
(409) 797-3200
18
(281) 538-3791 (Fax)
Stephen G. Schulz
State Bar No. 17848300
sschulz@greerherz.com
Marc D. Young
State Bar No. 24098650
myoung@greerherz.com
One Moody Plaza, 18th Floor
Galveston, Texas 77550
(409) 797-3200 (Telephone)
(866) 422-4352 (Facsimile)
ATTORNEYS FOR DEFENDANTS
MB HARBOUR, LTD AND HARBOUR
MANAGEMENT, LLC
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document has been
served, in accordance with Rules 21 and 21a of the Texas Rules of Civil Procedure, upon the
following counsel on this 13th day of October, 2022 via the method indicated below:
Via E-Service
Michael P. Nassif
P.O. Box 18136
Sugar Land, Texas 77496
mikenassif@comcast.net
/s/ Marc D. Young
Marc D. Young
19
EXHIBIT 1
EXHIBIT 2
210'
3' 3'
180'
12' 180' 12'
204'
0 50 100
1" = 50'
PROFILE OF PROPOSED BOAT BASIN
AS DESCRIBED IN POLLARD/HL&P
LETTER
CITY OF LEAGUE CITY,
GALVESTON COUNTY, TEXAS
Ellis Surveying Services, LLC.
2805 25th Avenue North
Texas City, TX 77590 PAGE 1 OF 1
Tel: (409) 938-8700 Fax (866) 678-7685 DATE: OCT. 11, 2022
Texas Firm Reg. No. 100340-00 PROJECT NO. P2954
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Wendy Coleman on behalf of Markus Young
Bar No. 24098650
wcoleman@greerherz.com
Envelope ID: 69202549
Status as of 10/13/2022 3:20 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Stephen G.Schulz sschulz@greerherz.com 10/13/2022 3:17:19 PM SENT
Joe A.C.Fulcher jfulcher@greerherz.com 10/13/2022 3:17:19 PM SENT
Michael Paul Nassif 14814350 mikenassif@comcast.net 10/13/2022 3:17:19 PM SENT
Marc DYoung myoung@greerherz.com 10/13/2022 3:17:19 PM SENT
Robert AllanDavee bdavee@greerherz.com 10/13/2022 3:17:19 PM SENT
Preview
Filed: 10/13/2022 3:17 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 69202549 By: Shailja Dixit 10/13/2022 3:19 PM No. 21-CV-0305 DAVID AND CONNIE EVANS, § IN THE DISTRICT COURT OF § Plaintiffs, § § v. § GALVESTON COUNTY, TEXAS § MB HARBOUR, LTD. AND HARBOUR § MANAGEMENT, LLC § § Defendants. § 10th JUDICIAL DISTRICT DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTIONS FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF THIS COURT: Defendants MB Harbour, LTD. (“MB Harbour”) and Harbour Management, LLC’s (“Harbour Management”) (collectively, the “Defendants”), file this Reply to Plaintiffs, David and Connie Evans, (collectively the “Evans” or “Plaintiffs”), Response to MB Harbour’s Traditional and No Evidence Motions for Summary Judgment (the “Response”), and show the Court the following: INTRODUCTION Plaintiffs’ Response to MB Harbour’s Motion for Summary Judgment is but one more battle against the misleading statements, half-truths and misapplications of law that have marked the 16 year campaign that Paul Smith, a purported non-lawyer, legal expert in this case, organizer and funder of this suit and referrer of Plaintiffs to their current legal counsel, (who is also Paul Smith’s lawyer), has unsuccessfully waged against MB Harbour. That long campaign has been marked by a law suit against the City of League City, an extended lobbying effort directed to all of League City’s elected officials and most if its city attorneys, missives directed to the Army Corps of Engineers and claims specifically rejected by 1 the Texas General Land Office (GLO) and then Senator Mike Jackson’s office, that the State of Texas and not MB Harbour owns the canal and canal bed at issue that MB Harbour purchased on September 15, 2006 from NRG Texas LP (“NRG”) for a payment of almost three hundred thousand dollars. Paul Smith and now Plaintiffs have also persisted in that campaign even though they and every other Glen Cove neighbor benefited from the hundreds of thousands of dollars in additional funds that MB Harbour expended in re-dredging that silted up old canal out into Clear Lake. And, having refused to contribute even a single penny to those canal refurbishment costs and ignoring their admitted prior knowledge that the boathouse which has prompted this action was only built out on to the canal bed and 6.016 acre canal tract that MB Harbour purchased from NRG, pursuant to a duly executed and recorded Canal Use License Agreement that specifically acknowledged MB Harbour’s superior ownership rights that canal and canal bottom, Paul Smith and Plaintiffs have dredged up an unsworn, unwitnessed, un-notarized, self-described “collateral agreement” between Douglas Pollard, Trustee and Houston Lighting & Power (HL&P) (the “Pollard Letter”). 1 The Pollard Letter was purportedly signed over a half-century ago, and, was plainly and unambiguously intended to give only Douglas Pollard, Trustee, and his successors and assigns the right to use the then, to be excavated canal (contained entirely within a 6.016 acre canal tract), for a boat basin and/or marina. Despite this, Paul Smith and Plaintiffs now assert that somehow, the Pollard Letter gives Glen Cove homeowners an easement right to do the same – even though that 1 The Pollard Letter was never recorded in the Official Real Property Records of Galveston County by the Grantor or the Grantee or prior to September 15, 2006. The Pollard Letter was discovered among thousands of pages of material produced by NRG in response to a non-party subpoena in a lawsuit between Paul Smith and League City, Texas sometime in or around December of 2007. 2 1960 letter agreement was never recorded in Galveston County’s real property records by the Grantor or the Grantee. Further, the Pollard Letter was not recorded by anyone until two years after MB Harbour purchased the canal tract and, only then, by Paul Smith himself and two of his soldiers in arms, Tim Gamble and Jeff Hagens. That conduct, knowingly filing an unsworn, unwitnessed and un-notarized half century old “collateral agreement” as a recordable instrument, which is itself actionable as slander of title, is yet one more example of the misplaced actions, factual half-truths, mischaracterized evidence, misconstrued law and errant legal theories with which MB Harbour has been required to deal for years and which also infest Plaintiffs’ Response to MB Harbour’s Traditional and No Evidence Motions for Summary Judgment. By this Reply, MB Harbour will necessarily address those factual mischaracterizations, factual half-truths, misconstrued law and errant legal theories serially. A. THE NOW UNDISPUTED SUMMARY JUDGMENT FACTS. Given, the unprecedented nature of what Plaintiffs are asking of this Court, to declare easement rights which were never actually afforded to them based on their misinterpretation of an unsworn, unwitnessed, un-notarized letter agreement that was not filed of record in Galveston County for half a century, Plaintiffs’ Summary Judgment Response necessarily attempts to cloud, avoid and slip by the summary judgment evidence which is now indisputably before the Court. MB Harbour’s Reply will, therefore, note the following outcome determinative facts that Plaintiffs have not properly disputed and cannot avoid. 1. The canal is indisputably a man-made artificial waterway that was excavated from 6.016 acres of upland that was originally sold by Douglas Pollard, Trustee, to Houston Lighting & Power Company (“HL&P”). Plaintiffs’ Response to Defendants’ Summary Judgment Motions begins with a slyly suggested untruth, that by virtue of small boats using it, the canal is a natural water course and that 3 HL&P was originally deeded “6.016 acres of land underneath and around the Glen Cove Waterway.” Response at ¶12. Plaintiffs have provided no summary judgment evidence to support this false characterization, because it is untrue. There was no “Glen Cove Waterway” when HL&P purchased the 6.016 acre tract from which the canal at issue was excavated. This is apparent from the summary judgment evidence that MB Harbour has provided to the Court including: (1) aerial photographs from 1958 and 1969 that show the upland that HL&P originally purchased from Douglas Pollard in 1960 and show the canal on that same tract after it had been excavated by HL&P, (Defendants Traditional Motion for Summary Judgment - Exhibit 8, Ariel Photographs from EDR); (2) Teresa Scotto’s affidavit and referenced Army Corps of Engineers’ description of the canal as a “private water canal known as the HL&P Genco Canal” which is “considered a manmade discharge canal”, (Defendants Traditional Motion for Summary Judgment - Exhibit 1, Affidavit of Teresa Scotto and incorporated exhibit B); (3) the memorandum from the Texas General Land Office’s Director of Surveying, Bill O’Hara, that was provided to Paul Smith, and reported, “it appears the waterway known as the Glen Cove Canal is not state owned submerged property” and, “It is apparent that the current Glen Cove was dredged from the upland properties into the bank of Clear Lake”; and (4) the email from then Senator Mike Jackson’s chief of staff, Holly Jeffcoat to Paul Smith confirming that the canal bottom was not state-owned land. (Defendants Motion for Traditional Summary Judgment -Exhibit 16, November 26, 2006 Texas GLO Memorandum). For purposes of MB Harbour’s Traditional Motion for Summary Judgment it is, therefore, indisputable that the 6.016 acre canal tract and canal bed at issue is not a state owned natural watercourse but a privately purchased and owned property. 2. Ownership of the 6.016 acres of upland that became the canal tract and bed a was indisputably transferred by recorded fee simple deeds from Douglas Pollard to HL&P and then by HL&P’s successor NRG to MB Harbour. 4 The Summary Judgment evidence before the Court includes the fee simple deed from Douglas Pollard Trustee to HL&P which contains no reference to any easements rights reserved for the benefit of Douglas Pollard or anyone else in the 6.016 acres sold to HL&P. (Plaintiffs’ Response – Exhibit 1 The Pollard to HL&P Deed). It also includes the September 15, 2006, special warranty deed from HL&P’s successor, NRG, and its conveyance to MB Harbour of the 6.016 acres of canal bottom and area alongside it, (Defendants Traditional Motion for Summary Judgment – Exhibit 4, September 15, 2006 NRG to MB Harbour deed), and the correction deed from NRG to MB Harbour for the 6.016 acres of canal bottom and area alongside it. (Defendants Traditional Motion for Summary Judgment – Exhibit 5, corrective deed). As a consequence, the summary judgment evidence before the Court demonstrates an undisputed transfer of the 6.016 acres which, after excavation, became the canal bottom and area immediately alongside it by fee simple from HL&P to NRG to its present ownership in MB Harbour. The plain language in the deeds dispositively establishes chain of title in fee simple from Pollard, Trustee, to HL&P, HL&P to NRG (via Texas Genco), and NRG to MB Harbour—where fee simple title resides today. 3. It undisputed that there is no specific easement or reservation language contained within the fee simple deed between Douglas Pollard and HL&P and that Plaintiffs and the Glen Cove homeowners have no witnessed, notarized or properly recordable written easement with a description of the bounds of any dock rights on the canal which is specific to them. The Court has the fee simple deed through which Douglas Pollard transferred the 6.016 acres from which the canal was constructed in the summary judgment record before it, (Plaintiffs’ Response Exhibit 1, The Pollard to HL&P deed). It expressly notes that Douglas Pollard, by that deed “GRANTED, SOLD and CONVEYED” to HL&P the 6.016 acres through which the canal was subsequently dug “with all and singular the rights and appurtenances thereto in anywise belonging” and he warranted to “forever defend, all and singular, the said premises unto the said 5 Houston Lighting & Power Company.” There is no reference to any specific easement rights reserved to Douglas Pollard, Trustee, in this recorded deed. There is also no contemporaneously sworn and notarized real property record which reflects any written and definable easement remaining in the 6.016 acres that was sold to HL&P. That absence, for purposes of the summary judgment record, cannot be disputed. “The construction of an unambiguous deed is a question of law for the court, and the primary duty of the court in construing a deed is to ascertain the intent of the parties from all of the language in the deed within the four corners of the instrument.” Gordon v. W. Houston Trees, Ltd., 352 S.W.3d 32, 43 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Despite their attempts, Plaintiffs cannot simply write words and terms into the deed that are not there. There are absolutely no reservations or easements in the deed from Pollard, Trustee, to HL&P. 4. The Pollard Letter is not, by its express terms, a declaration of the easement rights of the Glen Cove homeowners, it is indisputably self-described as a “collateral agreement” between Douglas Pollard and HL&P that gave him and his successors and assigns a right to use the to be dredged canal for a boat basin and marina. The summary judgment record before the Court includes the Pollard Letter. (Plaintiffs’ Response – Exhibit 1, Douglas Pollard’s letter agreement with HL&P). Contrary to Plaintiffs’ insistence that it granted to Glen Cove Homeowners a right to put whatever docks, boathouses, slips and piers they wanted in or on the 6.016 acres that was to be excavated from the canal, it only granted to Douglas Pollard an unrecorded contractual right to install the structures he might need in the canal and, on any portion of the 6.016 acres that did not become the canal. This is unambiguously plain from Pollard Letter itself. First, the letterhead on the Pollard Letter describes Mr. Pollard as an “attorney at law.” Had he wished to create a recordable real property easement right for himself or, collectively, the Glen Cove homeowners, or to anyone else, he would have known how to do so and he would have 6 assured that such easement was witnessed, notarized, and contained the appropriate attestation and acknowledgment regarding consideration, for the purpose of its recording in the Galveston County real property records. See, e.g., Tex. Prop. Code Ann. § 12.001. For example, Pollard, Trustee, did just that, when he created and granted an express easement to the Galveston County Water Control and Improvement District No. 21—he signed it under the witness of a notary, the document contained the appropriate acknowledgment and attestation, and the document was recorded in the real property records of Galveston County. See, Exhibit 1, Pollard Easement to Galveston County Water Control and Improvement District No. 21. But, here, as the proffered letter plainly demonstrates, neither Douglas Pollard, Trustee’s signature nor HL&P’s representative’s signature were notarized. Second, the Pollard Letter’s opening paragraph recites that it represents “certain collateral agreements between myself and Company.” Again, Douglas Pollard, Trustee, was an attorney and expressly used the term “collateral agreement,” which under Texas law a “collateral agreement” “is one that the parties might naturally make separately” and is not “embodied in or integrated with” the other written agreement or instrument. See, Ledig v. Duke Energy Corp., 193 S.W.3d 167, 179 (Tex. App.—Houston [1st Dist.] 2006, no pet.) and Gail v. Berry, 343 S.W.3d 520, 523 (Tex. App.—Eastland 2011, pet. denied), respectively. Here, he also expressly states the “agreement” is “between myself and Company.” Again, no reference is made to the Glen Cove homeowners or to any specific property that such homeowners owned, or could or would own in the future. The express provisions of the Pollard Letter confirmed how wide and deep the canal was to be. It defined the expected slope of the canal and made the spoil available to Pollard, Trustee, and it specifically described the intended use of the canal by HL&P and by Pollard, Trustee. In Pollard, Trustee’s case, the right was 7 specifically described as “the right to use said excavation as a boat basin and/or marina’. Accordingly, Pollard, Trustee, preserved a contractual right in section 5(a) of the Pollard Letter to construct the “piers, boat launching sites and equipment, boat slips and other facilities and appurtenances” he might need for “Grantor’s full use and enjoyment of said property for said purpose”. Section 5(b) of that Letter also unambiguously gave Pollard, as Trustee, “as to that portion of said land conveyed unto Company by Grantor abutting said excavation” (i.e.: the 6.016 acres) the “right-of-way, easement and servitude to construct boat slips, streets . . . to use same in conjunction with the aforesaid boat basin and/or marina”. So by its express terms, the easement rights Plaintiffs point to for the Glen Cove homeowners, only applied to that portion of the 6.016 acres conveyed unto Company that did not wind up in the canal – not to Glen Cove homeowners who never owned any portion of the 6.016 acres and, that right reserved to Mr. Pollard, was to use same in conjunction with the aforesaid boat basin and marina– not to give Glen Cove homeowners a right to place structures in the canal to maximize the benefits of their entirely unreferenced lots. In short then, unambiguously and as a matter of law the Pollard Letter does not convey the real property easement rights Plaintiffs claim in their Response to Defendants Traditional Motion for Summary Judgment. In other words, there is no “dominant estate” established in the Pollard Letter. An "easement appurtenant" is an easement across the land of another for the benefit of a separate parcel of land owned by the easement holder. By definition, there are two parcels of land involved, usually contiguous with each other, but not necessarily so. The land benefitted by the easement, and to which the appurtenant easement attaches, is called the "dominant estate." The land burdened by the easement is called the "servient estate." For an easement appurtenant to exist, there must be both a dominant and a servient estate. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex. 8 1962). The Pollard Letter does not have two parcels of land that are designated as the dominant and servient estates. There is no mention of the rights "running with the land'. To the extent the Pollard Letter makes any grant, it does so only with respect to one tract of property—the 6.016 acres, which it refers to as “said land.” There is unequivocally no reference to any other land. The Pollard Letter defines the said land as that land conveyed by Pollard, Trustee, to HL&P: By deed of this date, I Douglas F. Pollard, Trustee . . . sold and conveyed to Houston Lighting & Power Company . . . 6.016 acres of land . . . [see the deed for a] a more particular and complete description of said land. - Pollard Letter at 1 (Emphasis added). The said land is the 6.016 acres now owned by MB Harbour. 2 Item 1 of the Pollard Letter reads: When said canal is constructed, [HL&P] shall excavate for said canal an area extending the full length of the property conveyed in above mentioned deed . . . said excavation to have a bottom width of 180 feet at a depth of six (6) feet below mean sea level with sides sloped on a ratio of two feet horizontally to one foot vertically. - Pollard Letter at 1. The grant is Section 5 is only to the 180 foot “excavation”: [HL&P] agrees that the 180 foot wide excavation described in Item 1 above may be used by [Pollard, Trustee] . . . as follows: -Pollard Letter at 2. Plainly Pollard, Trustee was reserving a right to use the excavation. In 5(b), the Pollard Letter states: “As to that portion of said land this date conveyed unto [HL&P] by Grantor abutting said excavation, [Pollard, Trustee], his successors and assigns shall henceforth . . . 2 It has subsequently been increased to 6.019 acres. 9 The Pollard Letter is only referring to land within the 6.016 acre tract. This is shown by this demonstrative exhibit prepared by surveyor Robert Ellis, and attached as Exhibit 2: You can see that there was still 3 feet on each side of the tract that was not then contemplated to be underwater. Thus, there are no rights bestowed to any abutting landowners, as there is no reference to any land outside of the 6.016 acre tract. The Pollard Letter was exclusively and only personal to Douglas Pollard, Trustee. 10 5. Given the unambiguous language of the Pollard Letter, it is apparent that the phrase his “successors and assigns” could only mean Mr. Pollard’s wife, children, family members or any marina builder and operator he might assign his valuable right to use the canal and 6.016 acres conveyed to support a boat basin or marina. Plaintiffs’ Summary Judgment Response makes the incongruous assertion that since Douglas Pollard, Trustee’s contractual right to use the 6.016 acres conveyed, to support a boat basin or marina, was also to be available to Pollard, Trustee’s “successors and assigns”, that reference could only be to the Glen Cove homeowners. But that makes no sense at all. Pollard, Trustee’s successors and assigns could, in the natural sense, include his wife. That reference could be his children or other relations. It could include the trust to which he served as trustee, or to its beneficiaries. If Pollard, Trustee, wished to monetize his reserved contractual right to use the excavation for a boat basin or marina, his assigns might be a marina builder and operator who might choose to purchase—and might have purchased—his reserved right by assignment and build a marina and boat basin—and then rent that marina’s boat slips to Glen Cove’s homeowners. In fact, it is completely inconsistent with the language of the Pollard Letter to assert that it, or its reference to Pollard, Trustee’s “successors and assigns,” was for the benefit of Glen Cove’s homeowners because those rights would cut against Pollard’s own reserved commercial interests by giving everyone a right to put up whatever boat slips, piers and boathouses they might want in competition and conflict with the right expressly reserved to Pollard, Trustee, alone to use the 6.016 acres he conveyed in support of a boat basin and marina in the to be excavated canal. But equally fundamental, other than the bald assertion, Plaintiffs have put forward no evidence that they are the successors and assigns of Douglas Pollard, Trustee. 6. It is indisputable that the unwitnessed, unsworn and un-notarized Pollard Letter was not recorded in the Galveston County real property records prior to MB Harbour’s September 15, 2006 purchase of the 6.016 acre canal tract from NRG and could not have been found there. 11 Plaintiffs’ Summary Judgment Response tries to avoid the obvious and undisputed fact that the unsworn, unwitnessed, un-notarized Pollard Letter was not filed of record in Galveston County at the time that NRG purchased the 6.016 acre tract at issue from NRG. But the summary judgment record includes Plaintiffs’ response to Defendants’ request for admission no. 3, wherein Plaintiffs specifically and unequivocally admitted that “The Pollard Letter was never recorded in the Galveston County Official Records on or before September 15, 2006” – the date that MB Harbour purchased the 6.016 canal tract at issue from NRG. (Defendants’ Traditional Motion for Summary Judgment – Exhibit 17, Plaintiffs’ Responses to Defendants’ Requests for Admissions). So, for purposes of Defendants’ traditional motion for summary judgment, that fact is established. Nor does the Plaintiffs’ inclusion, in their summary judgment response of subsequent filings of the Pollard Letter in the Galveston County records by Paul Smith and his cohorts, Tim Gamble and Jeff Hagens, change anything. Those filings were made, on their face, on June 2, 2009, long after MB Harbour purchased the canal property from NRG. (Plaintiffs’ Response, Exhibits 13, 14 and 15, Declarations and real property filings of Paul Smith, Tim Gamble and Jeff Hagens). As a consequence, those real property filings provide no relevant evidence of any fact pertinent to Defendants’ Summary Judgment Motions. They only constitute evidence of the actionable tort, slander of title committed by each against MB Harbour and its ownership interest in the canal. 3 7. It is undisputed that MB Harbour did not have actual or constructive notice of the Pollard Letter before MB Harbour’s purchase of the 6.016 acre canal tract from NRG. 3 In deposition, both Paul Smith and Tim Gamble admitted they have no personal knowledge of the circumstances under which, or even if, Douglas Pollard and HL&P’s representative actually signed the Pollard Letter and that they also knew that the Pollard Letter was unwitnessed, not notarized and unsworn to but they filed it anyway, as Paul Smith acknowledged under oath, to create a cloud on MB Harbour’s ownership rights in the 6.016 acre canal tract property. 12 Plaintiffs’ Summary Judgment Response does not contest the statement in Ms. Scotto’s affidavit that “MB Harbour, to include its representatives, partners, agents, attorneys, members, officers, and to include myself, Teresa Scotto, did not have any knowledge or information regarding or relating to what has been called in this lawsuit the Pollard Letter, nor anything indicating the existence of what has been described as the Pollard Letter prior to September 15, 2006.” (Defendants’ Traditional Motion for Summary Judgment – Exhibit 1, paragraph 15, Affidavit of Teresa Scotto). So, for purposes of Defendants’ Traditional Summary Judgment Motion, that lack of actual knowledge of the Pollard Letter, prior to MB Harbour’s purchase of the 6.016 canal property from NRG must be taken as true. Together with Plaintiffs’ admission that the Pollard Letter was not recorded in Galveston County prior to MB Harbour’s September 15, 2006 purchase of the 6.016 acre canal tract from NRG, it is indisputable that MB Harbour lacked actual knowledge of the Pollard Letter and its contents prior to its purchase of the canal tract and MB Harbour cannot be properly charged with constructive notice of the Pollard Letter, because it was not then on file in the real property records of Galveston County. 8. Knowledge of the existence of some piers, docks or boathouses that extended on to or along the 6.016 acre canal tract purchased by MB Harbour is not inquiry notice to MB Harbor that Plaintiffs or, more generally, Glen Cove homeowners had an easement right to put piers, docks and boathouses on the canal tract under the Pollard Letter. Given the lack of any evidence to demonstrate that MB Harbour had actual knowledge of the Pollard Letter’s existence prior to its September 15, 2006 purchase of the 6.016 acre canal tract from NRG and Plaintiffs’ admission that the Pollard Letter was not then in Galveston County’s real property records for purposes of constructive notice, Plaintiffs’ have attempted to argue that any awareness of the presence of some docks, piers or boathouses was knowledge of easement rights broadly held by Glen Cove homeowners in the canal. Plaintiff’s Summary Judgment 13 Response asserts that if MB Harbour had inspected the canal tract prior to its purchase it would have seen some dockhouses and piers in on or alongside it. Plaintiffs then point to certain excerpts from Teresa Scotto’s deposition, responses to requests for admissions and a Huitt-Zollers survey of the canal as evidence of that assertion. But review of the actual deposition excerpts provided show, despite the best efforts of Plaintiffs’ counsel, that Teresa Scotto repeatedly testified only that she saw some boathouses, piers and docks but she could not tell if they were actually built out over and on to the 6.016 acre canal tract or affixed to it. (Plaintiffs’ Summary Judgment Response – Exhibit 5, Teresa Scotto deposition excerpt, pp. 103-105, and 107). Moreover, Teresa Scotto, under sworn declaration, changed her answer to this question in her errata sheet to clarify Plaintiffs’ conflation of the canal generally with the submerged surface property purchased by MB Harbour: Just because [boat docks] were there doesn't mean they were part of the MB Harbour canal property. First, the water in the canal, in some places, extends beyond the boundaries of the submerged surface that MB Harbour owns. So I could not identify from visual inspection that these were in or on MB Harbour’s property or not, as the property line is underwater in most cases. Second, some of these boathouses and docks are floating on the water. So their mere presence would not necessarily be impinging on MB Harbour’s property. Third, some of these boathouses, piers, and docks are actually in “cuts” into homeowners property, and while on the canal, generally speaking, are not necessarily impinging on MB Habour’s canal property. -103:17-18. The response to requests for admissions nos. 24 and 25, to which Plaintiffs also point, is to the same effect. Specifically and subject to objection, MB Harbour only admitted that “to the extent this definition includes water and property that MB Harbour does not claim to own and using the plain meaning of the word “along,” Admit. (Plaintiffs’ Summary Judgment Response – Exhibit 6, Defendants’ Response to Requests for Admissions. There was, therefore, no admission by Teresa Scotto or MB Harbour at the time of the purchase of the MB Harbour canal tract there 14 was knowledge that any specific pier or boat docks crossed out over and was affixed to or in the MB Harbour canal tract bottom. But, even more importantly, Plaintiffs Response includes the Huitt-Zollers survey of the canal. (Plaintiffs’ Summary Judgment Response – Exhibit 17, Huitt-Zollers Survey). What that survey shows is not just the existence of some piers or docks along the canal tract – it shows that there were no piers or docks along the canal tract behind some of the Glen Cove homes, including lots 29 and 30 that the Plaintiffs purchased from their predecessors the Kings. While Plaintiffs assert that the presence of some docks or piers extending out on to or alongside the 6.016 acre canal tract is evidence of some general easement right reserved to the Glen Cove homeowners Plaintiff’s Response entirely ignores the inference posed by the lack of piers or docks in or along the canal behind numerous Glen Cove platted lots. That inference is that the Glen Cove homeowners had no general easement right to put docks, piers and boathouses on the canal tract. And the Texas Supreme Court has specifically held that when equally plausible but opposite inferences may be drawn from circumstantial evidence that is relied upon to prove constructive notice, such evidence amounts to no evidence at all. See, Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998) (“Circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and thus legally insufficient to support a finding.”). Inquiry notice was not even invoked here, as a matter of law. But even if it were, such presence would have to be unambiguous and unequivocal in order to overcome the lack of actual and constructive notice—as evidenced by the above and below, it clearly was not. Dispositive here, the Texas Supreme Court has held that “ambiguous or equivocal possession which may appear subservient or attributable to the possession of the holder of the legal title is not sufficiently 15 indicative of ownership to impute notice as a matter of law of the unrecorded rights of such possessor.” Madison v. Gordon, 39 S.W.3d 604, 607 (Tex. 2001). 9. It is un-contradicted that two of the piers or boathouses that extended out on to the canal tract were placed on and maintained there pursuant, not to any general easement rights in the Pollard Letter, but pursuant to a Lease or License Agreement issued by MB Harbour’s successors, HL&P and Texas Genco. Un-contradicted by Plaintiffs’ Summary Judgment Response is that a pier and boathouse that did extend out on to and were affixed to the 6.016 canal tract were specifically authorized to be there by HL&P and its immediate successor to the property, Texas Genco. As part of their summary judgment evidence, Defendants have provided the Court with a July 30, 1976 lease between HL&P and Glen Cove homeowner Dr. Walter Moore Jr., by which HL&P authorized Dr, Moore to use a portion of the canal tract depicted on an incorporated exhibit for an extended boat pier. (Defendants’ Traditional Motion for Summary Judgment – Exhibit 25, HL&P’s canal use lease agreement with Dr. Moore). Also before the Court is the June 2004 Canal Use License Agreement that Glen Cove homeowner, Tim Gamble executed with HL&P’s successor and NRG’s immediate predecessor, Texas Genco in order to maintain his boathouse out over and on the 6.016 acre canal tract, (Defendants’ Traditional Motion for Summary Judgment – Exhibit 23, Texas Genco’s 2004 Canal Use License Agreement), and Texas Genco’s Webster canal use license form. (Defendants’ Traditional Summary Judgment Motion – Exhibit 24, Texas Genco canal use license form). All three of those documents, whose existence Plaintiffs’ Summary Judgment Response has not and cannot refute; (1) contain express acknowledgements of the superior possessory interest in the canal tract and bottom possessed by MB Harbour’s predecessor’s in interest (2) explain how those piers and boathouses came to be out on the canal tract and (3) indisputably demonstrate that they were not there because of any reliance on the misplaced easement right Plaintiffs now claim was provided to them by the old unsworn, uncertified and un-notarized 1960 16 letter from Douglas Pollard, Trustee appeared to have entered into with HL&P. Factually then, it is indisputable that the Plaintiff’s cannot demonstrate the occupancy of those structures in the 6.016 acre canal tract was unequivocally attributable to any general easement rights afforded Glen Cove homeowners through the misread Pollard Letter. 10. Finally, it is indisputable that the plain language of the Canal Use License Agreement that Plaintiffs’ predecessors, the Kings, entered into with MB Harbour expressly recognized MB Harbour’s superior possessory interest in the 6.016 acre canal tract onto which the boathouse at issue extended, was intended to be and was actually recorded in the Galveston County real property records and, as to which Plaintiffs had actual notice. Finally, uncontradicted by Plaintiffs’ Summary Judgment Response is the plain language of the Canal Use License Agreement that Plaintiffs’ predecessors in interest, the Kings, indisputably entered into with MB Harbour as of September 20, 2017. (Defendants’ Traditional Summary Judgment Motion – Exhibit 14, Canal Use License Agreement). That Agreement constituted the negotiated arrangement by which the Kings were allowed by MB Harbour to maintain the boathouse at issue out over the 6.016 acre canal tract and place its supporting piers in the canal bed. In doing so, the King’s specifically “agreed” in Section 2(a) of the Canal Use License Agreement that MB Harbour, “is the owner of the Canal and that Licensee has no right, title or interest therein, whatsoever, except as provided in the Canal Use License Agreement”. Section 15 of that executed Agreement provided that the right extended to the Kings for the maintenance of their boathouse out over the canal tract and not its bed was only transferrable to the purchasers of their “Glen Cove Property”, which was defined as Glen Cove lots 29 and 30 that the Evans purchased from the Kings, and Section 15 of the Kings’ Canal Use License Agreement expressly stated that, “the license granted herein shall become a covenant running with the land and shall attach to the Glen Cove Property”. That Agreement contained as Exhibit “A” a real property description of the area allowed for the Kings’ boathouse with a surveyed drawing of it 17 and Glen Cove lots 29 and 30 with which it was to run. The signatures of the Kings and MB Harbour’s Signatories were notarized in the expectation that the King’s Canal Use License Agreement with the specifically noted provisions would become part of the real property records of Galveston County. That Agreement was clearly filed and recorded in Galveston County, as noted, on December 4, 2017 at 2:42PM. (Defendants’ Traditional Motion For Summary Judgment – Exhibit 14, Canal Use Agreement filing page). So that filing is not only necessarily admitted for purposes of the Summary Judgment record, Plaintiffs have additionally admitted that before they purchased Glen Cove lots 29 and 30 from the Kings they were actually aware of the Canal Use License Agreement under which the boathouse had been maintained on the canal tract pursuant to MB Harbour’s recorded authorization. (Defendants Traditional Motion for Summary Judgment – Exhibit 15, David Evans deposition transcript). CONCLUSION & PRAYER For the above reasons, as well as the many reasons asserted in Defendants’ Motion for Traditional Summary Judgment and their No Evidence Motion for Summary Judgment that Plaintiffs failed to even address, Defendants motions should be granted as well as any and all other relief whether at law or in equity that the Court deems Defendants to be justly entitled. Respectfully submitted, GREER, HERZ & ADAMS, L.L.P. By: /s/ Robert A. Davee __ Joseph A.C. Fulcher State Bar No. 07509320 jfulcher@greerherz.com Robert A. Davee State Bar No. 05411000 bdavee@greerherz.com 2525 South Shore Blvd., Suite 203 League City, Texas 77573 (409) 797-3200 18 (281) 538-3791 (Fax) Stephen G. Schulz State Bar No. 17848300 sschulz@greerherz.com Marc D. Young State Bar No. 24098650 myoung@greerherz.com One Moody Plaza, 18th Floor Galveston, Texas 77550 (409) 797-3200 (Telephone) (866) 422-4352 (Facsimile) ATTORNEYS FOR DEFENDANTS MB HARBOUR, LTD AND HARBOUR MANAGEMENT, LLC CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document has been served, in accordance with Rules 21 and 21a of the Texas Rules of Civil Procedure, upon the following counsel on this 13th day of October, 2022 via the method indicated below: Via E-Service Michael P. Nassif P.O. Box 18136 Sugar Land, Texas 77496 mikenassif@comcast.net /s/ Marc D. Young Marc D. Young 19 EXHIBIT 1 EXHIBIT 2 210' 3' 3' 180' 12' 180' 12' 204' 0 50 100 1" = 50' PROFILE OF PROPOSED BOAT BASIN AS DESCRIBED IN POLLARD/HL&P LETTER CITY OF LEAGUE CITY, GALVESTON COUNTY, TEXAS Ellis Surveying Services, LLC. 2805 25th Avenue North Texas City, TX 77590 PAGE 1 OF 1 Tel: (409) 938-8700 Fax (866) 678-7685 DATE: OCT. 11, 2022 Texas Firm Reg. No. 100340-00 PROJECT NO. P2954 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Wendy Coleman on behalf of Markus Young Bar No. 24098650 wcoleman@greerherz.com Envelope ID: 69202549 Status as of 10/13/2022 3:20 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Stephen G.Schulz sschulz@greerherz.com 10/13/2022 3:17:19 PM SENT Joe A.C.Fulcher jfulcher@greerherz.com 10/13/2022 3:17:19 PM SENT Michael Paul Nassif 14814350 mikenassif@comcast.net 10/13/2022 3:17:19 PM SENT Marc DYoung myoung@greerherz.com 10/13/2022 3:17:19 PM SENT Robert AllanDavee bdavee@greerherz.com 10/13/2022 3:17:19 PM SENT