Opinion
No. 10-06-00096-CV
Opinion delivered and filed August 8, 2007.
Appeal from the 220th District Court Bosque County, Texas, Trial Court No. 04-12-30004-BCCV.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Chief Justice GRAY concurring).
MEMORANDUM OPINION
Landowners, who were the defendants in the trial court, appeal from a judgment that (1) declares that a public roadway exists along a 2.563 acre tract of land in Bosque County owned by them, (2) permanently enjoins them from blocking, obstructing, or closing the roadway in any manner, (3) awards the plaintiffs (appellees) attorney's fees for trial and in the event of an appeal, and (4) assesses costs. Louise Walker and the James Walker Family Limited Partnership are the landowner-appellants and will be referred to collectively as "Walker." Chad L. and Traci L. Lampman were the plaintiffs in the trial court and, having prevailed at trial, are the appellees, who will be referred to collectively as "Lampman." Because we find that the court did not err, we will affirm the judgment.
IN THE TRIAL COURT
Lampman sued to establish the right to use a road over property owned by Walker, claiming an easement appurtenant, adverse possession, easement by necessity, express dedication, implied dedication, and estoppel. The trial court entered a temporary restraining order, followed by an agreed temporary injunction. A jury found in Lampman's favor on all questions presented to it. Walker's motion for directed verdict was denied, as was a motion for judgment notwithstanding the verdict after trial. The judgment described above was entered after a separate hearing on attorney's fees.
ISSUES ON APPEAL
Walker presents six issues for our review:
1. The trial court should have granted Walker's challenges for cause during jury selection.
2. The trial court should have disallowed expert testimony.
3. The jury's verdict was against the great weight of the evidence.
4. The jury charge included improper questions and omitted essential definitions.
5. Either the motion for directed verdict or the motion for judgment n.o.v. should have been granted.
6. The trial court abused its discretion in awarding attorney's fees under the Declaratory Judgments Act.
Lampman presents as an alternative cross-issue an independent basis for the judgment — a private easement by estoppel.
THE ROAD
George Pilgrim agreed to sell Lampman 16.5 acres, accepting a lesser purchase price than that offered by Walker because he feared that Walker would destroy a family cemetery. Pilgrim died before the sale was closed. After the closing, Walker put chains across Lampman's access road, locking Lampman out of the property. When Lampman cut the chains, Walker installed panel gates and locked them out again. Lampman then filed suit. The road in question crosses three tracts of land before entering and crossing Walker's land, then crosses land lying between the Walker property and the Lampman property, then crosses the Lampman property, and finally makes a loop on an adjacent tract.
From the time the J.R. Arnold Survey was patented in 1863 until the sale to Lampman, all acreage in the survey passed by inheritance from parent to child — no other deeds existed transferring title to land in the survey.
CHALLENGES FOR CAUSE
Walker says that several jurors stated during voir dire that they believed that Walker should have the burden of proof. As a result, Walker challenged thirteen jurors for cause, which the trial court denied. Two of the challenged panel members served on the jury.
As Walker notes, a juror should be disqualified for bias or prejudice. Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 750-51 (Tex. 2006) (citing Compton v. Henrie, 364 S.W.2d 179, 182 (Tex. 1963)). Based upon responses by the two challenged jurors who actually served on the jury — Juror Albrecht said, "Feel like you would have to prove it if they have been using it, too." and Juror Proffitt said, "I believe you would have to disprove it, because they have access." — Walker complains of the denial of their challenges for cause. Lampman responds by saying that Walker has failed to properly preserve these challenges for appellate review because they neither notified the trial judge that their preemptory strikes would be exhausted nor requested additional preemptory strikes. We agree. Hallett v. Houston Northwest Med. Ctr., 689 S.W.2d 888, 889-90 (Tex. 1985), outlines a mandatory three-step procedure to preserve a complaint about a challenge for cause. Because Walker failed to comply with steps two and three, we overrule this issue.
DISQUALIFICATION OF EXPERT
Mary Hastings testified as an expert witness. Walker says that she was not qualified to give expert testimony and that her testimony was neither relevant nor reliable. As a result, they complain of the trial court's refusal to strike her testimony.
The admissibility of this evidence may affect our review of the sufficiency-of-the-evidence issues presented, because in civil cases, inadmissible evidence may not be considered in a sufficiency review. North Dallas Diagnostic Center v. Dewberry, 900 S.W.2d 90, 97 (Tex.App. — Dallas 1995, writ denied) (the only evidence of a specific fact not considered because it was determined to be inadmissible) (citing Marshall v. Telecommunications Specialists, 806 S.W.2d 904, 907 (Tex.App.-Houston [1st Dist.] 1991, no writ) (refusing to consider inadmissible hearsay in determining sufficiency of evidence on appeal); Cottle v. Knapper, 571 S.W.2d 59, 62 (Tex.Civ.App.-Tyler 1978, no writ) (refusing to consider admissible testimony in determining sufficiency of evidence on appeal); Texas Dep't of Pub. Safety v. Nesmith, 559 S.W.2d 443, 447 (Tex.Civ.App.-Corpus Christi 1977, no writ) (holding that incompetent evidence, although admitted at trial, should not be considered on appeal as having any probative value)). Prior to trial, Walker asked the court to prevent Hastings from testifying, and the court declined to do so but controlled the introduction of evidence through her. After questioning Hastings outside the jury's presence and hearing Walker's objections, the trial court allowed a running objection, "to the extent I can give you one."
Hastings testified that she is an officer, abstractor, and title-examiner for Bosque Cen-Tex Title Company, which closed the sale and purchase of the Lampman tract of 16.5 acres from the executor for George Pilgrim, the former owner. She is a licensed escrow officer and has examined titles in Bosque County since 1986. She estimated that she had examined 6 to 8,000 land titles during the last ten years.
Hastings said that the title insurance policy issued to Lampman contained an exception for "lack of recorded access to a public road or right-of-way" and explained that exception for the jury, without objection. She said she had done additional research about roadways in the area of Lampman's property and identified specific public roads in the area, about which recorded documents were admitted into evidence, either without objection or with Walker's counsel saying "no objection." When Lampman asked for Hastings's opinion on direct examination about whether a public road "exists or existed on or through the Lampman property, Walker objected, and the court sustained the objection.
On cross-examination, Hastings was asked extensively about specific locations of the roads in the area that she found references to in various documents. During cross, the following questions were asked and answers given that express an opinion:
Q. In fact, your testimony about the road — the public roads back there is just based on a possibility that there may have been a public road back there across the Lampman tract, right.
A. My testimony is I believe there was a road back there because J. R. Arnold owned that patent.
Q. Okay.
A. And he was one of the ones ordered to open a road, and the Arnolds had to get to town and had to get across the river, so I believe there was a road there.
Q. So it's your belief that there was a road across the Lampman tract that was a public road; is that right?
A. Yes.
Q. When you were doing your research you never found any public records or any records that showed a change in a public road across the Lampman tract, did you?
A. I believe the original road crossed the Lampman tract and there are changes made prior to 1903, but I can't say that any of them are specific to the Lampmans' sixteen acres.
Q. And that's what I'm getting at. There's no documents out that we could get our hands on that changes the road that effects [sic] the Lampman tract, is there?
A. No.
Q. You're just assuming that there may have been a change somewhere back there, possibly, right?
A. It's my opinion that the road was changed, yes.
Q. Okay. But there's no documents to support that opinion, is there?
A. There's no documents that I found.
. . .
Q. If fact, you would agree, wouldn't you, that in Texas there are some pieces of property that just don't have access to them, isn't there?
A. There are some pieces that just don't have access.
Q. But it's your position that there may have been a public road across the Lampman tract providing access to it, right?
A. It's my position that there was a public road across the Lampman tract.
Q. And that it just wasn't recorded, right?
A. That it just wasn't recorded? Until Chad Lampman bought the property in 2004 it had never been out of the same family.
Q. But it's your position that there was access through a public road to the Lampman tract somewhere back there, but it just wasn't recorded in the public records, right?
A. That's correct.
Q. That's the position you really have to take, isn't it, ma'am?
A. That's the position that I take.
A trial court has broad discretion in determining whether expert testimony is admissible. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006). Its ruling will be reversed only if that discretion is abused. Id. A ruling on a motion in limine is not a ruling on the admissibility of evidence and does not preserve a complaint for appellate review. Pojar v. Cifre, 199 S.W.3d 317, 339 (Tex.App. — Corpus Christi 2006, pet. denied). When a party affirmatively asserts during trial that he or she has "no objection" to the admission of the complained-of evidence, any error in the admission of the evidence is waived, even in the face of a pretrial ruling. Texas Dept. of Transp. v. Pate, 170 S.W.3d 840, 850 (Tex.App.-Texarkana 2005, pet. denied). A party cannot complain on appeal about action he induced. Dallas County v. Sweitzer, 881 S.W.2d 757, 770 (Tex.App.-Dallas 1994, writ denied). For these reasons, we cannot find that the trial court abused its discretion in connection with the admission of Hastings's testimony, which was admitted without objection, with an affirmative "no objection," or on cross-examination in answer to Walker's questions. We overrule this issue.
MOTIONS FOR DIRECTED VERDICT OR JUDGMENT N.O.V.
Arguing that there is no evidence to support the jury's findings, Walker says that a verdict should have been directed or a judgment notwithstanding the verdict entered after trial. We address this issue at this point because it presents a "no evidence" issue. See Cain v. Pruett, 938 S.W.2d 152, 160 (Tex.App.-Dallas 1996, no writ) (directed verdict proper when evidence reflects that no other verdict can be rendered and moving party is entitled to judgment as a matter of law); Jacobini v. Hall, 719 S.W.2d 396, 398 (Tex.App.-Fort Worth 1986, writ ref'd n.r.e.) (a contention that the court erred in failing to grant a judgment n.o.v. presents a "no evidence" issue). A trial court may disregard a jury's findings and grant a motion for judgment notwithstanding the verdict only when a directed verdict would have been proper. TEX. R. CIV. P. 301; Cain, 938 S.W.2d at 160.
In reviewing the legal sufficiency of the evidence, we view the evidence in the light favorable to the jury's finding, crediting favorable evidence if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807, 822 (Tex. 2005). There is legally insufficient evidence or "no evidence" of a vital fact when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Id. (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).
Because we find it dispositive, we will focus on Lampman's theory that the roadway in question was a public road created by express or implied dedication. If that evidence is sufficient to sustain the judgment, we will not examine the remaining theories on which the judgment might be based. See Fagan v. Crittenden, 2005 WL 428469, at *2 (Tex.App.-Waco Feb. 23, 2005, pet. denied) (mem. op.).
The Texas Supreme Court long ago set out the basic principles for determining when a road becomes a public road.
All roads which have been laid out and established by authority of the commissioners' courts are public roads. . . . A road not originally established under the statute may become public by long-continued use and adoption as such by the county commissioners with the assent of the owner or by prescription. A road may also become public, in the sense that the public have the right to use it, by dedication.
Worthington v. Wade, 17 S.W. 520, 521 (Tex. 1891). A statutory public road is one "that has been laid out and established according to law and that has not been discontinued. . . ." Stein v. Killough, 53 S.W.3d 36, 43 (Tex.App.-San Antonio 2001, no pet.); see TEX. TRANSP. CODE ANN. § 251.002 (Vernon 1999). Public roadways can be created by both express and implied dedication of the land to public use. Jezek v. City of Midland, 605 S.W.2d 544, 548-49 (Tex. 1980). A common-law dedication is one where the original property owner either expressly or implicitly devotes the land to public use and the dedication is accepted. Stein, 53 S.W.3d at 43 (citing O'Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, 882-83 (1960)). A common-law dedication of realty to the public does not have to be shown by a deed. Jezek, 605 S.W.2d at 549.
Question 1 asked: "Before September 2004, was the roadway expressly opened and dedicated to and accepted for public use by the County Commissioners Court?" Question 3 asked: "At any time, did the present or previous owners of the Walker tract, clearly and unequivocally intend for the public to use the roadway?" Question 4 asked: "Was the roadway accepted and used by the public for access to what is currently the Lampman tract?" The jury answered "yes" to each of these questions.
Walker summarily contends that there is "absolutely no evidence that a public road ever crossed Lampman's tract. Even considering all the evidence in the light most favorable to Lampman, there was no actual dedication of the road."
Lampman points to U.S. Geological Survey maps as far back as 1880, topographical and "Tobin" maps from 1953-68, and aerial photographs during the period 1958-95, all showing roads. Deeds were introduced through Hastings's testimony, as were minutes of the Bosque County Commissioners Court from as early as 1869 and a "road index" of Bosque County. As further evidence supporting public dedication, the jury heard the testimony of three witnesses: Marshall Rose, over eighty years of age, and his older sister, Doris Rose Cockrell, who as children lived in a house along the road, and James Townley, also over eighty, who said he had used the road since he was a small child to visit his aunt. All three testified about the public's long-standing use of the road. A videotape of the current road was introduced that shows many of the houses and landmarks described by these witnesses. Leon Burgess, who leased the Rose property for deer hunting, testified that he and other hunters used the road for twenty-eight years without asking anyone for permission.
A Tobin map shows ownership of land. The one used here for Bosque County is dated 1953.
The earliest minutes are of the "Police Court."
Mrs. Cockrell recalled Governor James E. (Pa) Ferguson traveling the road in search of corn to buy for cattle on a ranch he owned nearby.
A 1939 Order Designating a Public Road, the Bosque Count "Road Index," and an Order Approving Report of Commissioners of Road also support the jury's answer to Question 1 concerning an express dedication. However, as we have noted, there does not have to be an "actual" dedication of a public road — a public roadway can be created by an implied dedication of the land to public use. Jezek, 605 S.W.2d at 548-49.
Crediting all the favorable evidence that a reasonable factfinder could, we find more than a scintilla of evidence supporting findings of an express, or alternatively, an implied dedication of a public road across the Walker property. City of Keller, 168 S.W.3d at 822; Merrell Dow Pharms., 953 S.W.2d at 711; Jezek, 605 S.W.2d at 548-49. Thus, we reject the no-evidence contention and hold that the court did not err in refusing to grant either a directed verdict or a judgment n.o.v. We overrule this issue and, for the reason noted, do not address whether there is evidence to support other findings of the jury that also support the judgment. See Fagan, 2005 WL 428469, at *2
FACTUAL SUFFICIENCY OF THE EVIDENCE
Having addressed Walker's legal sufficiency points, we turn to the contention that the evidence is factually insufficient, focusing again on the findings of the jury concerning public dedication. Walker says that the jury's verdict is at odds with the overwhelming weight of the evidence presented.
When the party without the burden of proof at trial complains of the factual sufficiency of the evidence to support an adverse finding, we must consider and weigh all of the evidence, not just the evidence that supports the verdict. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex.App.-Waco 2000, pet. denied). We will set aside the finding only if it is so contrary to the overwhelming weight of the evidence that the finding is clearly wrong and unjust. Ellis, 971 S.W.2d at 407. Reversal can occur because the finding was based on weak or insufficient evidence or because the proponent's proof, although adequate if taken alone, is overwhelmed by the opponent's contrary proof. Checker Bag, 27 S.W.3d at 633.
We have detailed above evidence supporting the jury's findings. Walker points to evidence from a former county commissioner that the road was private, not public. An adjacent landowner testified about the public road in the area: "I think it really was a different road." A friend of Pilgrim's said he didn't know if any of the old roads were the same as the road in question. Hastings said there was no mention of a public road across the Lampman property and that the actual location of the road may have changed.
We have considered and weighed all of the evidence on the question of public dedication. Checker Bag, 27 S.W.3d at 633. Our review convinces us that the proof of express dedication is not so weak that the finding of the jury is clearly wrong and unjust. See id. Nor do we find proof contrary to express dedication. Alternatively, we do not find that the evidence of implied dedication is so weak as to render the jury's determination clearly wrong and unjust, nor is evidence that the actual location of the road may have changed over the years, evidence that the road was private, or evidence that a different road was being described by the documentary evidence so overwhelming as to require that we set aside the jury's answers. See id. "Proof that a road is only slightly traveled by the public does not prove the road is not public. If it is free and open to all who have occasion to use it, it is a public road." Malone v. Whitfield, 621 S.W.2d 192, 195 (Tex.Civ.App.-Waco 1981, writ ref'd n.r.e.) (legally-sufficient evidence to support the jury's findings of dedication and public acceptance). We hold that the evidence is factually sufficient to support the findings of both express and implied dedication. Jezek, 605 S.W.2d at 548-49.
Because we have determined that the jury's answers about public dedication are supported by factually sufficient evidence, we do not address the factual sufficiency of the evidence concerning the remaining findings. See Fagan, 2005 WL 428469, at *2.
JURY CHARGE
Saying that the jury charge failed to instruct the jury regarding license and trespass or alternatively that the charge should have included questions on those matters, Walker asserts that the charge was erroneous. They further say that the charge partially improperly shifted the burden of proof to Walker and other portions constituted comments on the weight of the evidence. Specifically, Walker complains that (a) the absence of a question concerning "license" affected the jury's answers to Questions 6, 7, and 8, (b) Questions 2 and 5 improperly shifted the burden of proof to Walker, (c) Question 6, which did not include the instruction on license, misstated the law, and (d) Question 7, which commented on the weight of the evidence, improperly shifted the burden of proof.
Lampman points out that Walker has made no assertion on appeal concerning Question 1 in the charge, which inquired about express dedication, or about Questions 3 and 4, the submission on implied dedication.
Because Walker does not complain about Questions 1, 3, and 4 of the charge, we will limit this inquiry to a final charge complaint in which Walker says the court should have submitted a question inquiring whether Lampman and Pilgrim were trespassers. Without it, they say, the jury was misinformed about the law and could not have considered that Lampman may have trespassed.
The trial court has broad discretion in submitting jury questions so long as the charge fairly places the disputed issues before the jury. Campbell v. State, 125 S.W.3d 1, 7 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Because we believe that the charge given fairly asked the jury to resolve the issues in the case, and given the broad discretion in submission of the jury charge, we do not perceive that a question about trespass was required. We say this in light of the questions actually submitted on the issue of public dedication, upon which Lampman was required to carry the burden of proof to prevail. In any event, in light of the jury's answers to the questions submitted, the absence of such a question could not be said to be calculated to result in an improper judgment. Main, Inc. v. TAS Automotive, Inc., 187 S.W.3d 627, 631 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (harm occurs when the error in the charge probably caused the rendition of an improper judgment, or prevented appellant from properly presenting the case to the court of appeals).
Because they could not have affected the judgment, we do not address the charge complaints about the remaining questions. We overrule this issue.
ATTORNEY'S FEES
Walker contends that the Uniform Declaratory Judgments Act applies only to cases in which a document is being construed, and because none were at issue, the trial court abused its discretion is awarding fees. The Act, they note, may not be used solely as a vehicle to recover attorney's fees not otherwise authorized by statute. See National Enterprise, Inc. v. E.N.E. Props., 167 S.W.3d 39, 44 (Tex.App.-Waco 2005, no pet.). Furthermore, they say the equity of the case does not support the award.
Lampman says that the Act is not limited to a declaration of rights under a written document and when an action is proper under the Act, it is appropriate for the court to award attorney's fees.
The UDJA is remedial, and we are to construe it liberally; "its purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." TEX. CIV. PRAC. REM. CODE ANN. § 37.002(b) (Vernon 1997). Lampman sought a declaration of their rights in the road, and they introduced maps, photographs, deeds, and other documents into evidence. Based on a liberal construction of section 37.004 and its remedial purpose, and the history of similar cases awarding attorney's fees, we find that the Lampman's request for declaratory relief falls within section 37.004. Steel v. Wheeler, 993 S.W.2d 376, 381 (Tex.App.-Tyler 1999, pet. denied) ("We hold that invoking the Declaratory Judgments Act to determine rights of ingress and egress is proper.") (citing Lindner v. Hill, 691 S.W.2d 590, 591 (Tex. 1985)); Houston Bellaire, Ltd. v. PCP LB Portfolio I, L.P., 981 S.W.2d 916, 923 (Tex.App.-Houston [1st Dist.] 1998, no pet.). The trial court did not err in awarding attorney's fees. We overrule this issue.
CONCLUSION
We have overruled all of Walker's issues that we are required to address to determine the outcome of this appeal. Having done so, we affirm the judgment.
CONCURRING OPINION
I join the Memorandum Opinion except to the extent of its discussion of an express public dedication.
TOM GRAY Chief Justice