Weldon R. Johnson, Jr. v. Jenny Elliott McDaniel, Tom Johnson Elliott, II and Matthew Everett Elliott

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________

No. 07-12-00363-CV
________________________

WELDON JOHNSON, JR., APPELLANT

V.

JENNY ELLIOTT MCDANIEL, TOM JOHNSON ELLIOTT, II
AND MATTHEW EVERETT ELLIOTT, APPELLEES

On Appeal from the 46th District Court
Hardeman County, Texas
Trial Court No. 10466; Honorable Dan Mike Bird, Presiding

May 28, 2014

MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.

This is an appeal of a judgment entered following a jury trial in a trespass to try

title action concerning approximately 234.2 acres of real property located adjacent to

the Red River in Hardeman County, Texas. Appellant, Weldon Johnson, Jr., claimed

title to the disputed property by adverse possession and by virtue of common law

principles pertaining to accretion of riparian properties. Appellees, Jenny Elliott
McDaniel, Tom Johnson Elliott, II and Matthew Everett Elliott, (the Elliotts) claimed title

to the same property by virtue of a chain of title from the sovereignty of the soil to the

present. The dispute was tried by way of multiple summary judgment motions resulting

in five separate summary judgment orders and a jury trial, ultimately culminating in a

Final Judgment decreeing the Elliotts to be the rightful title holders of the disputed

property.1 The judgment further awards the Elliotts possession of the disputed property

and recovery of damages and attorney’s fees from Johnson. By this appeal, Johnson

raises seven issues. He asserts the trial court erred by granting (1) the Elliotts’ first and

(2) second motions for partial summary judgment. He also contends the trial court erred

by denying (3) his motion for summary judgment and (4) his motion for a continuance of

the hearing on the Elliotts’ second motion for partial summary judgment after striking his

experts. Johnson further contends the trial court erred by (5) not appointing a surveyor

for the purpose of conducting an apportionment survey, (6) denying his motion for

judgment notwithstanding the verdict wherein he requested that the trial court set aside

the jury findings in favor of the Elliotts on damages and attorney’s fees, and (7) denying

his motion for remittitur. We affirm.

BACKGROUND

In November 2008, the Elliotts filed this trespass to try title action concerning a

234 acre tract of land2 bordered (1) on the west by the north-south boundary line

1
The Final Judgment also decrees that, as between Johnson and the Elliotts, Johnson is entitled
to title and possession of two triangular-shaped tracts out of the disputed 234.2 acre tract. One tract
consists of approximately 5.32 acres and the other tract consists of approximately 145.4 square feet. The
Elliotts do not contest that portion of the judgment.
2
Because the acreage of any tract of land referred to in this opinion is approximate, we will round
to the nearest whole number for convenience.

2
between Section 13 and 14 of the H.E. & W.T. RR. Co. Survey, Abstract No. 1712,

Hardeman County, Texas (being the east boundary line of Section 13 and the west

boundary line of Section 14 as extended northward to the Red River); (2) on the north

and east by the south bank of the Red River; and (3) on the south by acreage

undisputedly located in Section 14. The Elliotts claim fee simple title to the disputed

property by virtue of their chain of title to Section 14, from the sovereignty of the soil to

the present. Johnson claimed the disputed property was accretion property,3 properly

included in Section 13 based on an eastward deviation of north-south boundary line

between Sections 13 and 14, which he contended was called for by the river frontage

apportionment method set out in Sharp v. Womack, 127 Tex. 357, 93 S.W.2d 712, 716

(Tex. 1936).4 In essence, Johnson contended an equitable apportionment of the river

frontage of Sections 13 and 14 required an eastward deviation of their common north-

south boundary line, starting at the

southwest most corner of the disputed tract

and extending northeastward to the Red

River, in such a way that the accreted

property was part of Section 13, not Section

14. The disputed property is represented by

the shaded portion of the accompanying

map.

3
“Accretion is ‘the process of increasing real estate by the gradual and imperceptible disposition
of water or solid material, through the operation of natural causes so as to cause that to become dry land
that was once before covered by water.’” Brainard v. State, 12 S.W.3d 6, 17 (Tex. 1999), disapproved on
other grounds by Martin v . Amerman, 133 S.W.3d 262, 267-68 (Tex. 2004).
4
In Sharp the Texas Supreme Court held that accretions to riparian lands should be equitably
apportioned to the owners of adjoining lands in proportion to the river frontage of those lands as shown by
the original field notes.

3
 By their claims, the Elliotts assert they were dispossessed by Johnson’s unlawful

entry and possession of the disputed 234 acres. In addition to seeking a declaration of

their title, the Elliotts sought possession, lost rents/profits, and attorney’s fees.5 By his

third amended answer, in addition to asserting that “all or a portion” of his claim to the

disputed property was created by accretion and was, therefore, properly included in

Section 13, Johnson further claimed title to a portion of the disputed property by virtue

of the three, five, ten and twenty-five-year adverse possession statutes set forth in

sections 16.024, 16.025, 16.026, 16.027 and 16.028 of the Texas Civil Practices and

Remedies Code.

In December 2009, Johnson filed a motion for summary judgment based solely

on the affidavit of Russell Rivers, a surveyor, and his “apportionment survey” (the Rivers

Survey) indicating the 234 acres in dispute belonged in Johnson’s Section 13. Later the

same month, the trial court granted the Elliotts’ earlier-filed first motion for partial

summary judgment, finding they had established, as a matter of law, a record chain of

title to the entirety of Section 14 from the sovereignty of the soil to the present. The trial

court’s order did not, however, determine whether the disputed property was, in fact, a

part of Section 14.6 Having established their record chain of title, the Elliotts filed a

second motion for partial summary judgment asserting the disputed property lies within

5
See TEX. CIV. PRAC. & REM. CODE ANN. § 16.034(a) (West Supp. 2013). See also Cullins v.
th
Foster, 171 S.W.3d 521, 536 (Tex. App.—Houston [14 Dist.] 2005, pet. denied).
6
The trial court’s order was issued subject to a determination whether Johnson had title to the
disputed 234 acres by virtue of the equitable apportionment of accreted property.

4
Section 14. Johnson filed a countervailing motion for summary judgment asserting the

disputed property lies within Section 13.

In July 2010, Johnson filed a motion to continue the scheduled hearing on the

Elliotts’ second motion for partial summary judgment, requesting time to allow his newly-

retained surveyors (Dennis Probst and Steve Gibson) to complete a second

apportionment survey. Johnson asserted the newly-retained experts were necessary

because his original surveyor, Rivers, had been discredited. Summary judgment

evidence established that, on deposition, Rivers “admit[ted] he had failed to comply with

reasonable survey standards” and failed to establish a critical survey point on the

ground by simply picking his point of beginning at random. The Elliotts responded that,

at a hearing in September 2009, Johnson was ordered to designate his experts within

ten days. Johnson subsequently designated Rivers but did not make him available for

deposition until spring 2010. Then, after a hearing was set in late September on the

Elliotts’ second partial motion for summary judgment, Johnson moved to continue the

hearing to allow him to designate, out-of-time, two new experts for the purpose of

obtaining a new apportionment survey. In requesting the continuance, Johnson even

agreed with the Elliotts that the survey conducted by Rivers was deficient because it

failed to conform to reasonable survey standards. On August 20, the trial court denied

Johnson’s motion for continuance and struck his untimely designation of new testifying

experts.

Despite the trial court’s ruling, Johnson filed a supplemental brief in support of his

motion for summary judgment, and in response to the Elliotts’ second motion for partial

summary judgment, attaching affidavits and a new apportionment survey by the stricken

5
experts. Johnson’s supplemental brief also contended a 1999 survey of Section 14,

made by Elliotts’ experts, shows the “[s]low movement of the Red River northwards

account[ing] for accretion acres in th[e] survey as compared with the 1910 location of

the river,” thereby creating a material issue of fact as to whether the disputed property

properly lies within Section 13 or Section 14. Johnson also attached the deposition of

Roy Woodman, a surveyor employed by Elliott to survey Section 14. In his deposition,

Woodman testified the “[a]pportionment survey performed by Russell Rivers in August

2009 . . . does not represent an apportionment of accretion, if there is such a thing in

this area,” and that Rivers had deviated from the correct method in “[j]ust about every

possible manner.” He testified that “[w]ithout knowing where the gradient boundary was

prior to [Rivers’s] survey, [it was] impossible to tell accretion occurred with the Red

River.” Woodman opined that the only thing that would change his opinion that an

apportionment survey is currently impossible would be if there was a gradient boundary

survey showing the Red River’s location at the time of the original patent in 1890. He

testified that, “[i]n the absence of the location of the gradient boundary at the time of the

patent in 1890, there can never be accretion by definition.” He opined that “I would say

that Mr. Rivers’ survey is not an apportionment survey. It purports to be an

apportionment survey, but it is not.”7

7
The parties’ designated experts agreed that an apportionment survey must comport with
gradient boundary methodology to meet professional standards. See Brainard, 12 S.W.3d at 26 (citing
Oklahoma v. Texas, 260 U.S. 606, 43 S.Ct. 221, 67 L.Ed. 428 (1923), 261 U.S. 340, 43 S.Ct. 376, 67
L.Ed. 687 (1923), 265 U.S. 500, 44 S.Ct. 573, 68 L.Ed. 1121 (1924), adopted by Motl v. Boyd, 116 Tex.
82, 286 S.W. 458 (Tex. 1926). “The gradient boundary methodology involves determining two basic
factors: the location of the ‘key bank,’ and the gradient, or rate of fall, of the water.” Brainard, 12 S.W.3d
at 16.

6
 In their Response to [Johnson’s] Motion for Summary Judgment, the Elliotts

moved to strike the Rivers Survey asserting the survey was neither relevant nor

reliable.8 In support, the Elliotts cited evidence that Rivers, as well as their own experts,

agreed that to make a valid apportionment survey one had to find the original river bank

or a “gradient boundary” as it existed in 1890 when Sections 13 and 14 were originally

established and that such a determination was impossible, or “almost impossible.” The

Elliotts’ experts further testified on deposition that Rivers did not use any methodology

to determine where the original river banks intersected the current gradient line but

instead chose a random point, i.e., where Rivers chose to unload his equipment. The

Elliotts’ experts also testified the Rivers Survey was flawed because, when he couldn’t

reach certain areas on the ground, he used GPS co-ordinates taken from an airplane

flying along the riverbank and filled in certain parts of his survey using satellite or aerial

photographs.9 The Elliotts also cited statements by Johnson’s counsel, made during

the hearing on his motion for a continuance of the hearing on Elliotts’ second motion for

partial summary judgment, that indicated Rivers was Johnson’s “currently discredited

expert,” that Rivers did not “go out on the ground and establish [the west endpoint] on

the ground as he should have done” and that “it was that particular failure on his part

that [the Elliott’s attorney] was able to get him to admit that he failed to comply with

reasonable survey standards.”

8
The Elliotts also filed a Motion to Strike Evidence from Defendant’s Expert Russell Rivers.
9
On deposition, Rivers testified that, to do an apportionment survey, you must find the original
bank and establish endpoints to establish where to begin and end the apportionment calculation. He
admitted that, to find his endpoints, he “started at the bridge—which that’s a good spot to start, because
that’s where [he] had to unload to get out—[n]ow at the time, not knowing, really, where it all tied back in,
that’s just where I started, at that time.” He confirmed his survey was based in part on GPS shots taken
while flying over the area in an airplane to “fill in what voids I might have” where he “couldn’t get to it”
despite having agreed with counsel that the survey points should be located on the ground.

7
 On February 9, 2012, the trial court sustained the Elliotts’ objections to the Rivers

Survey and Johnson’s designation of two new experts by striking their affidavits and

surveys from the summary judgment evidence. The trial court then sustained the

Elliotts’ objections to Johnson’s summary judgment evidence, denied Johnson’s motion

for summary judgment and granted the Elliotts’ second motion for partial summary

judgment, thereby determining that the disputed property did lie within Section 14.

At a subsequent pretrial hearing in January 2012 on whether the court should

appoint a surveyor for purposes of preparing a new apportionment survey, Johnson

contended the trial court should appoint a surveyor because the Elliotts’ surveyors

admitted there had been accretion along the Red River in Section 14. Because all

parties agreed locating the gradient boundary was impossible, Johnson proposed that a

court-appointed surveyor use meander calls to determine where the river bank was

located in 1890.10 The trial court determined Johnson bore the burden of proof on

whether there was accretion and that the Rivers Survey had been stricken, in part,

because he had not located the river’s gradient boundary, which was an essential

component of an apportionment survey. As a result, the trial court found that an

apportionment survey was unattainable and denied Johnson’s motion.

After a three day jury trial, a jury issued a verdict in the Johnson’s favor on his

adverse possession claim regarding two triangular-shaped tracts that were a part of the

10
At a motion hearing on October 4, 2010, Johnson’s counsel agreed with the trial court that it
was “fair” to say “that if required to put Mr. Rivers on the stand, I would require him to go out to re-
establish that point---find that point on the ground he did not establish.” Regarding the calculations made
by Rivers based on meander calls, Johnson’s counsel went on to state that “[a] meander call is not the
boundary of the river and about that there is no dispute. The only thing a meander call does is provide
calculations to compute the acreage, the required acreage . . . . [T]hey don’t have anything to do with the
boundary of the river.”

8
disputed property.11 The jury also determined the Elliotts were entitled to $8,947.93 in

damages and $125,000 “for the necessary services of [the Elliotts’] attorney in this

case” as well as an additional $15,000 per appeal to this Court and the Texas Supreme

Court. Thereafter, the trial court issued its Final Judgment confirming its prior summary

judgment rulings and the jury’s verdict, with the exception that the Elliotts’ damages

were reduced to $8,739.85. This appeal followed.

ISSUE NO. 1—THE ELLIOTTS’ FIRST MOTION FOR PARTIAL SUMMARY JUDGMENT

The trial court granted the Elliotts’ first motion for partial summary judgment

finding they had established, as a matter of law, a chain of title to the entirety of Section

14, from the sovereignty of the soil to the present. Johnson does not contest the trial

court’s finding but asserts the Elliotts’ failed to address issues related to accretion and

an apportionment survey.12 In doing so, Johnson does not contest the Elliotts’ title to

Section 14. In actuality, what Johnson contests is the location of the boundary line

between Sections 13 and 14.

We review summary judgments de novo. Ferguson v. Bldg. Materials Corp. of

America, 295 S.W.3d 642, 644 (Tex. 2009) (per curiam). Summary judgment is

appropriate if the movant establishes there is no genuine issue of material fact and

judgment should be granted as a matter of law. TEX. R. CIV. P. 166a(c); Diversicare

General Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2003). We consider the

11
See footnote 1, supra. As previously noted, the Elliotts did not appeal this verdict.
12
Johnson also asserts the Elliotts’ failed to authenticate a summary judgment exhibit. He
waived this issue on appeal by failing to urge a timely objection in the trial court. TEX. R. APP. P. 33.1(a);
St. Paul’s Surplus Lines, Co. v. Dal-Worth Tank Co., 974 S.W.2d 51, 53 (Tex. 1998). Neither does
Johnson cite to the record nor any legal authority in support thereof. See Town of Flower Mound, Tex. v.
Teague, 111 S.W.3d 742, 762 (Tex. App.—Fort Worth 2003, pet. denied).

9
summary judgment record in the light most favorable to the nonmovant while indulging

every reasonable inference and resolving any doubts against the nonmovant. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We must affirm summary

judgment if any of the movant’s theories presented to the trial court and preserved for

appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 28 S.W.3d

211, 216 (Tex. 2003).

Boundary disputes may be tried by the statutory cause of action of trespass to try

title. TEX. PROP. CODE ANN. § 22.001(a) (West 2000); Plumb v. Stuessy, 617 S.W.2d

667, 669 (Tex. 1981). Ordinarily, a plaintiff may recover by proving (1) a regular chain

of conveyances from the sovereign, (2) a superior title out of a common source; (3) title

by limitations, or (4) prior possession and that the possession has not been abandoned.

Ramsey v. Grizzle, 313 S.W.3d 498, 505 (Tex. App.—Texarkana 2010, no pet.) (citing

Rogers v. Ricane Enterprises, Inc., 884 S.W.2d 763, 768 (Tex. 1994)). Placing into

evidence a recorded deed showing a plaintiff’s interest in the disputed property has

been held sufficient to establish a present legal right to possession in a boundary case.

Brownlee v. Sexton, 703 S.W.2d 797, 800 (Tex. App.—Dallas 1986, writ ref’d n.r.e.)

(citing Plumb, 617 S.W.2d at 669).

Having established record title to Section 14 as a matter of law, the status of the

Elliotts’ property ownership continued in the absence of summary judgment evidence to

the contrary. Hutson v. Tri-county Properties, LLC, 240 S.W.3d 484, 490 (Tex. App.—

Fort Worth 2007, pet. denied). The Elliotts did not have the burden to show the

absence of accretion affecting the boundary line between Sections 13 and 14. Rather,

Johnson bore the burden of proof as to whether the Red River, the northern border of

10
both Sections 13 and 14, had moved or shifted, thereby somehow affecting the location

of the north-south boundary line between the two surveys. Brownlee, 703 S.W.2d at

801. The Elliotts had no burden to “prove that [they] had not parted with [their] title.” Id.

at 800.

Furthermore, because the trial court’s order specifically stated that it was “subject

to” Johnson’s claim that the disputed property was not a part of Section 14, the trial

court’s order granting the Elliotts’ first motion for partial summary judgment did not

determine the issue about which Johnson complains, to-wit: the location of the

boundary line between Sections 13 and 14. Accordingly, Johnson’s first issue is

overruled.

ISSUE NO. 2—THE ELLIOTTS’ SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT

The trial court also granted the Elliotts’ second motion for partial summary

judgment finding they had established, as a matter of law, title to the disputed property,

save and except two triangular-shaped tracts consisting of approximately 5.32 acres

and 145.4 square feet. In doing so, the trial court implicitly determined, as a matter of

law, the north-south boundary line between Sections 13 and 14 to be the call of the

original patent, extended northward to the south bank of the Red River. Stated

differently, the trial court found, as a matter of law, that the equitable apportionment of

river frontage contemplated by the Supreme Court’s decision in Sharp v. Womack was

not implicated by the facts of this case. We agree.

11
 JOHNSON’S POSITION FAILS AS A MATTER OF FACT

To defeat the Elliotts’ second partial summary judgment motion, Johnson was

required to come forward with evidence creating a genuine issue of material fact that

the disputed 234 acre tract became a part of Johnson’s Section 13 through the process

of accretion along the Red River. See TEX. R. CIV. P. 166a(i). Thus, Johnson needed

more than a scintilla of evidence supporting this proposition, see Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 598 (Tex. 2004), i.e., evidence transcending mere surmise

or suspicion. Id. at 601. Johnson asserts the Elliotts’ own surveyors raised a fact issue

regarding accretion by stating in their survey that “[s]low movement of the Red River

northward accounts for accretion acres in this survey as compared to the 1910 location

of the river.” In that regard, the Elliotts’s summary judgment evidence also indicates

their surveyors testified on deposition that this phrase was a stock phrase used in all

surveys along the Red River and that their surveys did not identify or demarcate any

specific, accreted property in Section 14, nor did they propose to establish the original

river bank of the Red River as it existed in 1890 when the property was patented.

Because the surveyors’ statements are conclusory and create at most a mere suspicion

that there might have been some accretion in the area of Section 14, Johnson’s

contention fails because there was no material issue of fact concerning whether there

was actual accretion. Furthermore, even assuming the existence of accreted property,

Johnson offers no evidence whatsoever of a disproportionate apportionment of river

frontage. Without the establishment of an original river bank, the existence of an

apportionable accretion was not established; without the establishment of an

apportionable accretion, there could be no equitable apportionment of river frontage;

12
and without equitable apportionment of river frontage, there could be no deviation of the

north-south boundary line between Sections 13 and 14; and without a deviation of the

north-south boundary line, the disputed property lies within Section 14.

JOHNSON’S POSITION FAILS AS A MATTER OF LAW

When patented by the State of Texas, Sections 13 and 14 were riparian tracts

with the south bank of the Red River as their northern boundary line. As such, the

north-south boundary line between the tracts was established by the call of the original

patent as extended northward to the south bank of the Red River. Therefore, unless

otherwise contradicted, the disputed tract was located in Section 14.

In dicta contained in the first Sharp v. Womack opinion, the Texas Supreme

Court stated that accretions to riparian lands should be equitably apportioned to the

owners of adjoining lands in proportion to the “entire river front as it was when the lots

were laid out.”13 Sharp, 127 Tex. at 364, 93 S.W.3d at 716. Relying on that dictum,

Johnson maintains that the application of the equitable apportionment theory dictates

that the north-south boundary line between Sections 13 and 14 deviate to the east, from

the intersection of that boundary line and the original river bank to the current bank of

the Red River, thereby placing the disputed property in Section 13. Because Johnson

sought to establish a deviation of the north-south boundary line based upon this

equitable theory, it was his burden to contradict the boundary line otherwise established

13
It should be noted that the Texas Supreme Court issued a second Sharp v. Womack opinion,
appearing at 132 Tex. 507, 125 S.W.2d 270 (Tex. 1939). Although this second appeal was technically
disposed of as a dismissal for want of jurisdiction, the Supreme Court “thought [it] appropriate to briefly
comment upon the former opinion, with a view of enabling the lower court to correctly terminate this
complicated litigation, if possible.” 132 Tex. at 508, 125 S.W.2d at 271. Although referencing the
“method set forth in the former opinion,” the second opinion did not restate the theory or methodology of
apportionment.

13
by the Elliotts. When Johnson failed to establish the location of the river bank at the

time of the original patent, he failed to establish the existence of an apportionable

accretion. More importantly, he also failed to establish the applicability of a legal theory

that would call for the deviation of the boundary line between Sections 13 and 14.

Accordingly, Johnson’s second issue is overruled.

ISSUE NO. 3—JOHNSON’S MOTION FOR SUMMARY JUDGMENT

The trial court denied Johnson’s motion for summary judgment because it was

not supported by any summary judgment evidence. The sole evidence in support of

Johnson’s motion for summary judgment was the Rivers Survey and his supporting

affidavit. Both of those pieces of evidence were stricken by the trial court as unreliable.

Johnson asserts his summary judgment evidence was reliable and, in the absence of a

method to identify the gradient boundary of the Red River in 1890, the Rivers Survey

should have been admitted as “substantially” correct or as the “best evidence.”

We review a trial court’s decision to exclude testimony under an abuse of

discretion standard. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex.

2000). The test for abuse of discretion is whether the trial court acted without reference

to any guiding rules and principles; in other words, we must decide whether the act was

arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004).

We must uphold an evidentiary ruling if there is any legitimate basis for it. Owens-

Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).

Here, the Elliotts’ evidence indicated Rivers’s affidavit and survey were unreliable

because the survey upon which his opinions were based was contrary to reasonable

14
survey standards. In addition, Johnson did not contest the Elliotts’ efforts to discredit

Rivers or even attempt to rehabilitate him. Instead, Johnson’s counsel referred to

Rivers as a “discredited expert” who “admit[ted] that he failed to comply with reasonable

survey standards.” Under these circumstances, we cannot say the trial court abused its

discretion in striking Rivers’s affidavit and survey as being unreliable.

Further, inadmissible evidence, such as Rivers’s affidavit and survey, cannot be

used in the summary judgment proceedings to prove Johnson’s proposition was

“substantially correct.” See Tex. R. Civ. P. 166a(f). See also United Blood Services v.

Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (per curiam) (“[N]o difference obtains between

the standards for evidence that would be admissible in a summary judgment proceeding

and those applicable at a regular trial.”). Because Johnson’s motion for summary

judgment was unsupported by any reliable summary judgment evidence, the trial court

did not err in denying that motion. Johnson’s third issue is overruled.

ISSUE NO. 4—MOTION FOR CONTINUANCE AND EXPERT DESIGNATION

Johnson contends the trial court abused its discretion by failing to grant his

motion to continue the submission of the Elliotts’ second motion for partial summary

judgment in order to grant the out-of-time designation of two new survey experts,

Dennis Probst and Steve Gibson. Johnson further contends the trial court erred in

failing to permit the new surveyors to complete an admissible apportionment survey.

A trial court’s order denying a continuance of a summary judgment hearing will

not be disturbed absent a clear abuse of discretion. See Joe v. Two Thirty Nine Joint

Venture, 145 S.W.3d 150, 161 (Tex. 2004). The motion must describe the evidence

15
sought, explain its materiality and show the party requesting the continuance used due

diligence to obtain the requested discovery. TEX. R. CIV. P. 166a(g). See Wal-mart

Stores Tex., L.P. v. Crosby, 295 S.W.3d 346, 356 (Tex. App.—Dallas 2009, pet.

denied). Conclusory allegations of diligence are not sufficient, Landers v. State Farm

Lloyds, 257 S.W.3d 740, 747 (Tex. App.—Houston [1st Dist.] 2008, no pet.), and, if the

motion does not allege facts showing diligence in attempting to procure the testimony,

the denial of the motion is proper. See Wal-mart, 295 S.W.3d at 356; J.C. Penny Co. v.

Duran, 479 S.W.2d 374, 380-81 (Tex. Civ. App.—San Antonio 1972, writ ref’d n.r.e.).

“A party who fails to diligently use the rules of discovery is not entitled to a continuance.”

Landers, 257 S.W.3d at 747 (citing State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865

(Tex. 1988)).

In October 2009, the trial court entered its Second Order Compelling Response

to Written Discovery requiring Johnson to disclose “any testifying expert concerning

Defendant’s claims relating to accretion, relevant surveys and locations of relevant

boundaries” within ten days. Johnson’s motion for continuance does not describe any

diligent attempt to secure expert testimony from Probst or Gibson during the nine

months following the trial court’s October 2009 order or since March 2010, when the

Elliotts deposed Rivers regarding his apportionment survey and established errors in his

calculations and methodology. Under these circumstances, we are unwilling to find the

trial court abused its discretion by refusing to grant Johnson’s motion for continuance.

16
See Landers, 257 S.W.3d at 747 (no abuse of discretion where neither motion nor

affidavit described movant’s diligence to secure additional discovery). 14

Johnson also sought to designate Probst and Gibson nine months after being

ordered to do so and only weeks before the scheduled hearing on the Elliotts’ second

motion for partial summary judgment. A trial court’s exclusion of an expert witness that

has not been properly designated must be reviewed under an abuse of discretion

standard. Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994). If the trial court erred in

excluding the witness, the error is reversible if it is both controlling on a material issue

and not cumulative. Id. Under the facts of this case, we find the trial court did not

abuse its discretion by excluding any summary judgment evidence offered by Probst

and Gibson. Accordingly, Johnson’s fourth issue is overruled.

ISSUE NO. 5—JOHNSON’S MOTION FOR A COURT-APPOINTED SURVEYOR

Johnson asserts the trial court erred by denying his motion requesting the trial

court to appoint a surveyor. Rule 796 of the Texas Rules of Civil Procedure permits a

trial court to appoint a surveyor at its discretion. Rule 797 states, however, that “[w]here

there is no dispute as to the lines or boundaries of the land in controversy, or where the

defendant admits that he is in possession of the lands or tenements included in the

plaintiff’s claim, or title, an order to survey shall be unnecessary.” Tex. R. Civ. P. 797.

Because Johnson affirmatively averred in his amended answers that he was in

14
Johnson contends on appeal that the trial court erred by not allowing him to supplement his
discovery with the two new experts under Texas Rule of Civil Procedure 193.6(a). This contention was
not made before the trial court and, as such, was waived on appeal. See TEX. R. APP. P. 33.1(a). If an
argument is presented for the first time on appeal, it is waived. Id. See Marine Transport Co. v.
st
Methodist Hosp., 221 S.W.3d 138, 147 n.3 (Tex. App.—Houston [1 Dist.] 2006, no pet.).

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possession of the disputed 234 acres, we cannot say the trial court abused its discretion

by denying his motion to appoint a surveyor. Johnson’s fifth issue is overruled.

ISSUE NO. 6—JOHNSON’S MOTION FOR JUDGMENT NON OBSTANTE VEREDICTO

Johnson next asserts the trial court erred in denying his motion for judgment non

obstante veredicto seeking to set aside the jury’s verdict as to Elliotts’ damages and

attorney’s fees, again based on the theory the Elliotts did not establish title to the

disputed 234 acres by an apportionment survey.

As stated earlier, having established record title from the sovereignty of the soil,

the Elliotts’ evidence of title was sufficient to establish a present legal right to

possession of the disputed 234 acres. Brownlee, 703 S.W.2d at 800 (citing Plumb, 617

S.W.2d at 669). See also Ramsey, 313 S.W.3d at 273. Johnson bore the burden of

proof on whether the Red River, the northern border of both properties or the common

north-south boundary line between Sections 13 and 14 had moved or shifted.

Brownlee, 703 S.W.2d at 801. Because the Elliotts were not required to establish title

by an apportionment survey, Johnson’s sixth issue is overruled.

ISSUE NO. 7—JOHNSON’S MOTION FOR REMITTITUR

Johnson finally asserts the Elliotts’ legal fees should be limited to the fees

required to prevail on their first and second partial summary judgment motions because

the remainder of their time was necessary for their handling of the jury trial in February

2012—a trial wherein Johnson prevailed on his adverse possession claim regarding the

two triangular-shaped tracts out of the disputed 234 acre tract. This contention

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overlooks the fact that the Elliotts were required to defend against many of the issues

raised in Johnson’s motion for summary judgment and his responses to the Elliotts’

motions for partial summary judgment during pretrial proceedings and the trial.

Moreover, after the Elliotts offered evidence of their attorney’s fees at trial, the jury

reduced their total fees by nearly $35,000.

That said, Johnson essentially contends the Elliotts were required to segregate

fees between those incurred on their motions for partial summary judgment and the trial.

Importantly, the relevant jury question did not require segregation of the fees. Instead,

the question inquired generally about a “reasonable” fee for “necessary services in this

case” for “preparation and trial” with no limitation on the specified “services” and no

instruction regarding segregation. Because Johnson did not object at trial to the lack of

testimony regarding segregation of services or the lack of any requirement in the jury

charge that attorney’s fees be segregated, he waived his appellate contention that the

Elliotts were required to segregate fees. See Green International, Inc. v. Solis, 951

S.W.2d 384, 389-90 (Tex. 1997). See also Fire Insurance Exchange v. Kennedy, No.

02-11-00437-CV, 2013 Tex. App. LEXIS 955, at *17 (Tex. App.—Fort Worth Jan. 31,

2013, pet. denied) (mem. op.) (collected cases cited therein).

Johnson attempts to avoid the consequence of failing to object by characterizing

his complaint as a challenge to sufficiency of the evidence supporting the amount of

attorney’s fees awarded. We measure sufficiency of the evidence, however, against the

jury question as submitted. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000).

Having examined the record in light of the jury question that did not require segregation,

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the evidence is sufficient to support the jury’s finding regarding the amount of

reasonable and necessary fees. Johnson’s seventh issue is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Patrick A. Pirtle
Justice

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