Michael R. Keenan and Ramona L. Keenan v. Thomas Samuel Robin, Mary Margot Connor, Dustin Wayne Lubbock, Meredith C. Lubbock, and Lazy Lr Cattle Company LLC

Supreme Court of Texas
══════════
No. 23-0833
══════════

Michael R. Keenan and Ramona L. Keenan,
Petitioners,

v.

Thomas Samuel Robin, Mary Margot Connor,
Dustin Wayne Lubbock, Meredith C. Lubbock, and Lazy LR
Cattle Company LLC,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Seventh District of Texas
═══════════════════════════════════════

PER CURIAM

This case arises from a dispute between neighboring property
owners in an unusual subdivision, most of which is now used as a cattle
ranch. The Keenans allege, among other things, that respondents’ cattle
trespassed on their lot and that respondents had no right to erect fences
and gates blocking the platted streets that the Keenans use to access
their lot.
We disagree with the court of appeals’ conclusion that the
Keenans offered no evidence of trespass: they saw both cattle and
manure on their lot and testified that a respondent admitted ownership
of the cattle. We also disagree with the court of appeals’ holding that
fact issues preclude summary judgment on the Keenans’ requests for
declaratory and injunctive relief regarding the fences and gates. Our
precedent establishes that the disputed questions are legal and resolves
those questions in the Keenans’ favor. Accordingly, without hearing oral
argument, we reverse the court of appeals’ judgment in part and remand
to the trial court for further proceedings.

I

A plat for The Parks at Falcon Club, Unit No. 2 (the Subdivision),
a thirty-four acre tract, was approved by Randall County and filed in
2006. The plat shows forty-five lots separated by several named streets.
An Owners’ Acknowledgment declares “that all of the streets, alleys,
lanes, and easements shown upon such map are dedicated to the public
forever to be used as such.”
Michael and Ramona Keenan bought Lot No. 2 in 2009. They
must cross most of the Subdivision to access their lot. The Subdivision
was never fully developed. In particular, the platted streets were not
constructed using asphalt or concrete, but there is evidence that at least
portions of them are covered in gravel. Respondents (collectively “the
Ranch”)1 eventually purchased all other lots at a bankruptcy auction.
The Ranch’s warranty deed provides that it is subject to validly existing
easements, rights-of-way, and prescriptive rights.

1 Respondents are Thomas Samuel Robin, Mary Margot Connor, Dustin

Wayne Lubbock, Meredith C. Lubbock, and the Lazy LR Cattle Company, LLC.

2
The Ranch planned to run cattle on its land and offered to
purchase the Keenans’ lot, but they declined. The Ranch then
constructed a fence along three sides of the Subdivision, blocking the
“Gillette Avenue” and “Herring Park Drive” streets depicted on the plat.
The Ranch also constructed a locked gate at the Subdivision’s entrance
from the main road as well as an unlocked gate2 that blocks Herring
Park Drive close to the Keenans’ lot. Michael Keenan stated in his
declaration that he is physically unable to open the latter gate without
pain or injury.
Michael Keenan “often observed cattle on [his] lot and manure on
[his] slab.” Keenan stated that “[f]rom what I was told by Dustin
Lubbock,” one of the respondents, “I understand these cattle to belong
to the [Ranch].”3 The Keenans never noticed cattle or manure on their
lot prior to the Ranch’s purchase, and they did not consent to cattle being
run on their lot. The Keenans contend that the cattle damaged some of
the rough-in plumbing in the slab on their lot. And they sought damages
for lost rental value, with Michael Keenan stating his opinion that the
reasonable rental value of his land was $2,000 per month.
On two occasions, Michael Keenan hired another person to break
or remove the Ranch’s gate and portions of its fence within the
boundaries of Herring Park Drive shown on the plat. The Ranch called

2 The record suggests that the gate blocking Herring Park Drive is not

a metal gate that swings on hinges but a “gap” where part of the fence may be
pulled back to allow vehicle access.
3 Dustin Lubbock owns part of the LLC that owns the cattle and leases

the real property, and he acted as the Ranch’s agent in its dealings with the
Keenans.

3
the sheriff, asserting that it owned the area and Keenan had no
authority to break open the gate. After receiving the sheriff’s report, the
Randall County District Attorney presented the case to a grand jury,
which indicted Keenan on two counts of criminal mischief of a livestock
fence, a state jail felony. Keenan was arrested and jailed for three days
but received a directed verdict of acquittal on the second day of his trial.
The Keenans eventually sued the Ranch, alleging claims
including (as relevant here) trespass and malicious prosecution and
requesting declaratory and injunctive relief as well as damages. The
Keenans filed a motion for partial summary judgment, contending that
the dedicated public streets created by the plat are public rights of way
in which they have an easement. The Keenans requested declaratory
and injunctive relief preventing the Ranch from erecting fences, gates,
or other obstructions across the streets and declaring the Keenans’ right
to have the streets thrown open at any time. The trial court denied the
Keenans’ motion.
Meanwhile, the Ranch filed a hybrid no-evidence and traditional
motion for summary judgment. As to the trespass claim, the Ranch
asserted that the Keenans failed to present any evidence of unlawful
entry or damages. The Ranch also challenged Michael Keenan’s
malicious prosecution claim on both traditional and no-evidence
grounds, as well as the merits of the Keenans’ requests for declaratory
and injunctive relief. After denying the Keenans’ motion to strike
certain evidence submitted by the Ranch, the trial court granted the
Ranch’s motion for summary judgment and signed a take-nothing
judgment on all the Keenans’ claims. The Keenans appealed.

4
The court of appeals affirmed in part and reversed in part.
___ S.W.3d ___, 2023 WL 5423619, at *7 (Tex. App.—Amarillo Aug. 22,
2023). As to the Keenans’ requests for declaratory and injunctive relief,
the court of appeals reversed, holding that the trial court had
jurisdiction to address the existence of an easement or dedicated public
street and the Ranch’s right to erect fences or other obstructions. Id. at
*6. But the court declined to decide these issues as a matter of law,
remanding for the trial court to resolve factual disputes “including[,] but
not limited to, whether an unlocked gate in close proximity to a single
0.83 (or 0.81) acre lot in an undeveloped subdivision amounts to
interference with an alleged easement.” Id. at *6 & n.4. The court also
affirmed the trial court’s grant of summary judgment on the Keenans’
trespass, malicious prosecution, and Section 1983 claims on no-evidence
grounds only, id. at *2-4, and therefore declined to reach the Keenans’
objections to the Ranch’s evidence, id. at *7. This petition followed.

II

We review a grant of summary judgment de novo, “tak[ing] as
true all evidence favorable to the nonmovant” and “indulg[ing] every
reasonable inference and resolv[ing] any doubts in the nonmovant’s
favor.” Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 624 (Tex.
2018) (internal quotation marks omitted). Where a party has moved for
summary judgment on both traditional and no-evidence grounds, we
first address the movant’s no-evidence grounds and “[i]f the non-movant
fails to overcome its no-evidence burden on any claim, we need not
address the traditional motion to the extent it addresses the same
claim.” Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d

5
39, 45 (Tex. 2017). The trial court properly grants a defendant’s no-
evidence motion for summary judgment when the nonmovant fails to
produce at least a scintilla of evidence raising a genuine issue of
material fact as to each essential element of the cause of action. See id.
We conclude the court of appeals erred by holding that the
Keenans failed to present more than a scintilla of evidence in support of
each element of their trespass claim and by remanding the Keenans’
claim for declaratory judgment for the resolution of immaterial factual
disputes. But we agree with the court of appeals’ rejection of Michael
Keenan’s challenge to the take-nothing judgment on his claim for
malicious prosecution.

III

We begin with the Keenans’ challenge to the trial court’s no-
evidence summary judgment against their trespass claim. Trespass has
three elements: “(1) entry (2) onto the property of another (3) without
the property owner’s consent or authorization.” Env’t Processing Sys.,
L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 419 (Tex. 2015). The
Keenans challenge the court of appeals’ holding that there is insufficient
evidence the Ranch’s cattle entered onto the Keenans’ property. See
Gregg v. Delhi-Taylor Oil Corp., 344 S.W.2d 411, 416 (Tex. 1961)
(explaining entry occurs if the defendant caused or permitted “a thing to
cross the boundary of the premises”).
Michael Keenan stated in his declaration that he often saw cattle
on his lot and manure on his slab, and the summary judgment record
shows that the Ranch ran cattle on its portion of the fenced-in
Subdivision, which surrounded the Keenans’ lot. The Ranch disputes

6
none of this. Instead, it questions whether the cattle on the Keenans’
lot belonged to the Ranch. But it does not do so with evidence: there is
nothing in the record to suggest that anyone else in the area owned
cattle that could have accessed the Keenans’ lot. Moreover, Keenan
stated that he “underst[ood]” “[f]rom what [he] was told by [respondent]
Dustin Lubbock” that “these cattle to belong to the [Ranch].”
The Ranch correctly observes that affidavits must be based on
personal knowledge, but Keenan has personal knowledge of his own
conversations with Lubbock. And an admission by the Ranch’s agent
that the Ranch owned the cattle on the Keenans’ lot is hardly no
evidence. Although it is possible Keenan misheard or misunderstood
Lubbock, a court’s speculation regarding that possibility is not an
appropriate basis for disregarding Keenan’s testimony—much less the
other evidence of trespass. We therefore disagree with the court of
appeals’ view that “Michael Keenan’s understanding of who owned the
cattle he observed on his lot, based upon what he was told by Dustin
Lubbock, is a conclusion of fact constituting no evidence.” ___ S.W.3d
___, 2023 WL 5423619, at *5. Because the Keenans offered evidence on
each element of their trespass claim, the court of appeals erred in
affirming the entry of a no-evidence summary judgment on that claim.
Given its disposition, the court of appeals did not reach the
Ranch’s other ground for summary judgment that the Keenans failed to
offer evidence of trespass damages. We will address that ground in the
interest of judicial economy.4 Although an unauthorized entry is a

4 See TEX. R. APP. P. 53.4; Reid Road Mun. Util. Dist. No. 2 v. Speedy

Stop Food Stores, Ltd., 337 S.W.3d 846, 855 (Tex. 2011).

7
trespass “even if no damage is done,” Env’t Processing Sys., 457 S.W.3d
at 421, evidence to support an award of more than nominal damages for
trespass is required when that remedy is sought. Here, the Keenans
seek two separate remedies for trespass: past monetary damages and an
injunction against future trespasses. See, e.g., Huynh v. Blanchard, 694
S.W.3d 648, 682 (Tex. 2024) (discussing interplay of these remedies in
the nuisance context).
As to damages, Keenan stated that the Ranch’s cattle damaged
the roughed-in plumbing on his slab and that in his opinion the
reasonable rental value of his lot was $2,000 per month. But in response
to the Ranch’s no-evidence motion, he did not attempt to quantify the
damage to the plumbing and offered no support for his opinion of lost
rental value. See Nat. Gas Pipeline Co. v. Justiss, 397 S.W.3d 150, 159
(Tex. 2012) (holding that property owner’s valuation testimony must
provide a factual basis). The Ranch was therefore entitled to summary
judgment against the Keenans’ request for past monetary damages for
trespass.
For these reasons, we reverse that portion of the court of appeals’
judgment affirming the entry of a take-nothing judgment on the
Keenans’ trespass claim, render a take-nothing judgment as to the
Keenans’ request for past monetary damages for trespass, and remand
to the trial court for further proceedings regarding the Keenans’
trespass claim and their request for injunctive relief on that claim.

IV

In their motion for partial summary judgment, the Keenans
asserted that they are entitled to (1) a declaratory judgment that there

8
is a public right-of-way or easement in the four streets shown in the
subdivision plat, (2) a declaratory judgment that the Ranch has no right
to block those streets, and (3) a temporary injunction against the Ranch
blocking the streets. The trial court denied the motion and granted the
Ranch’s motion as to these matters.
The court of appeals reversed in part, concluding that the
Keenans “are entitled to the requested declaratory relief related to those
easements and interference” but observing that “fact issues exist
precluding summary judgment,” such as whether the “unlocked gate . . .
amounts to interference with [the] alleged easement.” See ___ S.W.3d
___, 2023 WL 5423619, at *6 & n.4. We agree with the Keenans that the
court of appeals erred in remanding to the trial court for the resolution
of factual disputes rather than deciding the existence of and interference
with the easements as a matter of law.
“[T]he sale and conveyance of lots . . . according to [a] plan . . .
impl[ies] a grant or covenant to the purchasers” that streets indicated
on the plan “shall be forever open to the use of the public, free from all
claim or interference of the proprietor, inconsistent with such use.”
Adams v. Rowles, 228 S.W.2d 849, 851 (Tex. 1950) (internal quotation
marks omitted). The individual purchasers thereby “acquire an
easement in the land designated as an alley or street,” which “attaches
immediately upon [their] purchase of the property.” Dykes v. City of
Houston, 406 S.W.2d 176, 181 (Tex. 1966). The irrevocable nature of
this easement rests on the principle that “the resumption of the street,
or way, by the proprietor, would be . . . a fraud upon any interests
acquired upon the faith of its being left open.” Oswald v. Grenet, 22 Tex.

9
94, 101 (Tex. 1858); see also McCraw v. City of Dallas, 420 S.W.2d 793,
797 (Tex. Civ. App.—Dallas 1967, writ ref’d n.r.e.) (“[I]t has been held
many times that such sales constitute a valid acceptance of the offer,
making the dedication effective and irrevocable.”). Such purchasers
“immediately acquire[] private rights of easement over the streets
shown on such plat as abutting their land whether or not such streets
were ever accepted or opened by the [relevant governmental unit] as a
representative of the public.” Dykes, 406 S.W.2d at 181.
The Keenans conclusively established that they purchased a lot
with designated streets abutting their land, so they acquired at least a
private easement to use those streets. The Ranch argues that because
this easement is silent regarding the use of gates, the finder of fact
should undertake a balancing inquiry to determine whether gates would
interfere with the easement.5 As discussed above, the court of appeals
agreed.
This argument ignores, however, that streets dedicated to the
public receive more protection than private easements. “Once dedicated,
the owner of the land reserves no rights that are incompatible with the
full enjoyment of the public.” Haven Chapel United Methodist Church
v. Leebron, 496 S.W.3d 893, 906 (Tex. App.—Houston [14th Dist.] 2016,
no pet.) (internal quotation marks omitted). The easement “operates as
an estoppel in pais of the owner, from exclusive use of the property, or
indeed any use, which is inconsistent with the public use, to which it has
been dedicated” and “precludes the party from re-asserting any right

5 We have no occasion to address the propriety or nature of any such

inquiry here.

10
over the land, so long as it remains in public use.” Oswald, 22 Tex. at
101. In addition, “the public’s future use of a street easement is not
dependent on the usage prevailing when the street opened . . . and
includes portions not previously used or used for other street purposes.”
State v. NICO-WF1, L.L.C., 384 S.W.3d 818, 824 (Tex. 2012); see also
Steinberger v. Archer County, 621 S.W.2d 838, 842 (Tex. App.—Fort
Worth 1981, no writ) (“[W]here a width of land is dedicated to roadway
easement, the amount dedicated is not reduced by actual use of a lesser
width.”).
Dedication of private land for a public purpose generally requires
proof of offer and acceptance. See Shelton v. Kalbow, 489 S.W.3d 32, 44
(Tex. App.—Houston [14th Dist.] 2016, pet. denied); Ford v. Moren, 592
S.W.2d 385, 390 (Tex. Civ. App.—Texarkana 1979, writ ref’d n.r.e.).
Here, the plat filed of record includes an Owner’s Acknowledgment
declaring “that all of the streets, alleys, lanes, and easements shown
upon such map are dedicated to the public forever to be used as such.”
The plat also reflects that it was approved by the Randall County
Commissioners’ Court. Thus, the Keenans conclusively established that
the streets were dedicated as public rights-of-way.
Despite the Ranch’s argument that one of the gates was unlocked
and only a minor inconvenience, it is “settled . . . that anything placed
in a street or highway of a permanent nature, like a fence, building, or
wall, is an obstruction and a nuisance per se, if such obstruction renders
the street less commodious for public uses.” Joseph v. City of Austin,
101 S.W.2d 381, 385 (Tex. Civ. App.—Austin 1936, writ ref’d). “[A]ny
permanent structure or purpresture which materially encroaches upon

11
a public street and impedes travel is a nuisance per se, and may be
abated, notwithstanding space is left for the passage of the public.” Id.
at 384. The burden the fence imposed on the Keenans relative to the
cost of its destruction for the Ranch is therefore immaterial. See NICO-
WF1, 384 S.W.3d at 824 (“[A]ny structure that interferes with the
public’s present or future use of a dedicated street is a nuisance per se
and subject to removal.”); Dozier v. City of Austin, 253 S.W. 554, 556
(Tex. Civ. App.—San Antonio 1923, writ dism’d w.o.j.) (“The costliness
of improvement forming encroachments on a street can offer no defense
to an action to remove the obstruction . . . .”).
As a matter of law, the Ranch does not own the dedicated public
streets within the Subdivision and thus has no right to erect fences or
gates across them. Accordingly, the Keenans showed their entitlement
to partial summary judgment, and the court of appeals erred by
remanding the Keenans’ claim for declaratory relief to resolve factual
disputes. We reverse that portion of the court of appeals’ judgment and
render judgment declaring that (1) the recording of the Subdivision’s
plat approved by the county resulted in the creation and existence of
dedicated public streets, and (2) the Ranch does not have the right to
erect fences and gates obstructing those streets. We remand for the trial
court to exercise its discretion in the first instance regarding the
Keenans’ request for an injunction based on these declarations. See
Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 428-29 & nn.53-54
(Tex. 2008) (holding questions regarding “the expediency, necessity, or
propriety of equitable relief” are for the trial court).

12
V

Finally, Michael Keenan challenges the court of appeals’
affirmance of the take-nothing judgment on his claim for malicious
prosecution. Malicious prosecution requires proof that “(1) a criminal
prosecution was commenced against [Keenan]; (2) [the Ranch] initiated
or procured that prosecution; (3) the prosecution terminated in
[Keenan’s] favor; (4) [he] was innocent of the charges; (5) [the Ranch]
lacked probable cause to initiate the prosecution; (6) [the Ranch] acted
with malice; and (7) [Keenan] suffered damages.” Kroger Tex. Ltd.
P’ship v. Subaru, 216 S.W.3d 788, 792 n.3 (Tex. 2006).
Generally, “a person cannot procure a criminal prosecution when
the decision whether to prosecute is left to the discretion of another
person, a law enforcement official or the grand jury.” Browning-Ferris
Indus., Inc. v. Lieck, 881 S.W.2d 288, 292 (Tex. 1994). An exception
applies when the defendant provides material information “he knows is
false to another to cause a criminal prosecution,” id., in which case the
defendant “has procured the resulting prosecution, regardless of the
actions of the prosecutor, and the causation element for malicious
prosecution is satisfied,” id. at 294.
The court of appeals concluded that “[e]ven assuming . . . Lubbock
[and the Ranch] provided false information to a law enforcement official,
the summary judgment record does not contain more than a scintilla of
evidence that the statements were of information material to” Keenan’s
prosecution or that the statements were made “with actual awareness
of their falsity; and but for those statements Michael Keenan would not
have been prosecuted.” ___ S.W.3d ___, 2023 WL 5423619, at *4.

13
Keenan responds that Lubbock (and the Ranch) were charged with
knowledge that, under the law, they lacked exclusive ownership of the
areas shown as streets on the subdivision plat; thus, Lubbock’s
statements to the arresting officer that the Ranch owned the property
should be treated as knowingly false. We disagree.
The exception for providing false information does not apply if the
defendant “believes [the information] to be true,” even though “his belief
was one that a reasonable man would not entertain.” Lieck, 881 S.W.2d
at 293 (quoting RESTATEMENT (SECOND) OF TORTS § 653 cmt. g (AM. LAW
INST. 1977)). Thus, the exception requires actual knowledge that the
information provided is false; constructive knowledge or proof that the
defendant should have known the information to be false are
insufficient.
Here, Keenan offered no evidence that Lubbock or the Ranch
actually knew they did not own the area where Keenan tore down the
fence and gate.6 The court of appeals therefore did not err in relying on
this lack of evidence to conclude “it was the prosecutor and not [the
Ranch] who procured Michael Keenan’s prosecution.” ___ S.W.3d ___,
2023 WL 5423619, at *4. We affirm the portion of its judgment
upholding the trial court’s take-nothing judgment on Keenan’s malicious
prosecution claim.

6 Even if constructive knowledge of the plat and relevant law were
sufficient, it would be imputed to the prosecutor as well. In that situation, it
could not be said that “an intelligent exercise of the [prosecutor’s] discretion
bec[ame] impossible” due to Lubbock’s false statement because the prosecutor
would have known it to be false. Lieck, 881 S.W.2d at 293-94 (quoting
RESTATEMENT (SECOND) OF TORTS § 653 cmt. g (AM. LAW INST. 1977)).

14
VI

We hold the Keenans provided more than a scintilla of evidence
supporting each element of their trespass claim but not an award of past
monetary damages, and they established their entitlement to
declaratory relief as a matter of law. But the court of appeals correctly
affirmed the entry of a take-nothing judgment on Keenan’s claim for
malicious prosecution.
Accordingly, without hearing oral argument, see TEX. R. APP. P.
59.1, we grant the petition for review, reverse the portions of the court
of appeals’ judgment addressing the Keenans’ trespass claim and
requests for declaratory relief, render a take-nothing judgment on their
request for past trespass damages, and render judgment declaring the
existence of dedicated public streets that the Ranch has no right to
obstruct. We affirm the portion of the court of appeals’ judgment
regarding Michael Keenan’s claim for malicious prosecution. The case
is remanded to the trial court for further proceedings on the Keenans’
trespass claim and on their requests for injunctive relief based on
trespass and on these declarations.

OPINION DELIVERED: December 31, 2024

15