Rdg P'ship v. Long

350 S.W.3d 262

RDG PARTNERSHIP, Gene Jupe, and Shirley Jupe, Appellants/Cross–Appellees,

v.George LONG, Appellee/Cross–Appellant.

No. 04–10–00366–CV.

Court of Appeals of Texas, San Antonio.

June 22, 2011.Rehearing Overruled Sept. 7, 2011.

From the 218th Judicial District Court, Atascosa County, Texas, Trial Court No. 05–10–0720–CVA; David Peeples, Judge Presiding. ¹Adam Poncio, Poncio Law Office, P.C., Ronald J. Shaw, Ronald J. Shaw, P.C., San Antonio, TX, David S. Morris, Winstead PC, Craig T. Enoch, Enoch Kever PLLC, Austin, TX, for Appellant.Bennett L. Stahl, Curl & Stahl, P.C., San Antonio, TX, James N. Johnson, Johnson, Rial & Parker, P.C., Austin, TX, for Appellee.Sitting: CATHERINE STONE, Chief Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.

OPINION

Opinion by: CATHERINE STONE, Chief Justice.

This appeal arises from a real property dispute between adjoining landowners RDG Partnership, Gene and Shirley Jupe, and George Long. Long filed suit, and the Jupes filed counterclaims. All parties appeal raising numerous issues. Finding no reversible error or abuse of discretion, we affirm the trial court's judgment.

Factual Background

Since 1997, Long and the Jupes have been adjoining property owners in Atascosa County. In 2005, Long filed the underlying lawsuit against the Jupes and RDG because he believed they had repositioned their fences to encroach into the right-of-way of County Road 343, thereby narrowing the road and impeding Long's use of the road. Although Long initially included the County as a defendant in his lawsuit, the trial court dismissed Long's claim against the County. After Long filed the lawsuit, the Jupes took actions to obstruct Long's use of property the Jupes believed they owned.

During the course of the litigation, a surveyor was appointed by the trial court to determine the boundary between the parties' properties. Based on the survey and other developments during the litigation, Long and the Jupes each filed additional claims. As a result, claims were alleged pertaining to four roads or tracts of real property: (1) the West Road Strip; (2) the Simmons Subdivision Road; (3) the South Road; and (4) County Road 343. The trial court granted summary judgment with regard to certain claims and submitted other claims to a jury. Both Long and the Jupes filed appeals raising various issues pertaining to the West Road Strip, the South Road, and County Road 343. The following plat depicts the location of the various roads and tracts pertinent to this appeal:

Image 1 (5.03" X 3.25") Available for Offline Print The jury found that no Simmons Subdivision Road right-of-way existed, and there are no issues on appeal pertaining to that finding.

West Road Strip

A. Legal Sufficiency

In their first issue, the Jupes assert that the evidence is insufficient to support the jury's finding that Long owned record title to the West Road Strip, an 11.21 acre tract of land. The Jupes note that the primary evidence relied on by Long to establish record title is the analysis of David Gregory Smyth, the court-appointed independent surveyor.

The property in dispute is part of an approximate 95,000 acre subdivision known as the Simmons Subdivision. The original plat was divided into 20 and 40 acre tracts with individual field note descriptions for each tract. When the Jupes disagreed with a survey prepared by a surveyor hired by Long, the trial court appointed Smyth to survey the premises in controversy.

Smyth prepared a seventeen-page report with numerous attachments. In his report, Smyth stated that his construction of the boundaries and subdivision was based on his “studied opinion of the appropriate application of long standing surveying procedures that were developed to conform with long standing landmark Texas Supreme Court rulings.” Smyth referred to the source information he had reviewed in conducting his work. Based on the information Smyth reviewed, Smyth concluded that no locating surveyor representing the developer actually laid out the individual tracts on the ground at the time the subdivision was created. Instead, the general conclusion was that the individual tracts of the Simmons Subdivision were created from “office protraction” based on the perimeter boundary of the parent tract. Smyth further explained that the record description of the parent tract was from a composite of original patents that were laid out “mostly with a magnetic compass and vara chain and consequently contained many errors and discrepancies.” Smyth then detailed his general approach to the survey and identified eleven significant corners, monuments, markers, or lines that he located. Finally, Smyth explained his analysis of each of the disputed areas of land.

At trial, Smyth testified that he worked from the outer boundaries of the Simmons Subdivision plat which was marked by old fences that conformed to the general plat configuration. Smyth testified that the fences were the strongest available evidence of the outer boundary and that the field note descriptions of the tracts “fit” from east to west. Smyth testified regarding the various landmarks that he used in locating the outer boundaries. Smyth stated that two deeds in the Jupes' chain of title created a conflict in the location of the boundary in dispute because they used a metes and bounds description that was based on a fence-line survey in which the surveyor did not attempt to retrace the original outer boundary. However, those deeds also contained tract numbers referencing the original plat that did not create any conflicts. Smyth explained that the acreage of the tracts had to be prorated to account for discrepancies between the actual acreage and the original plat description. Smyth further explained that the discrepancy was likely a result of the original plat being prepared in an office and not based on an actual measured survey. Smyth also explained his research and attempts to locate the original monuments which he was unable to find.

In their opening brief, the Jupes argue that Smyth's analysis is unreliable. The Jupes assert Smyth's analysis “is not reliable either factually or as a matter of law” and that Smyth “admitted that his analysis was inherently unreliable.” Specifically, the Jupes contend Smyth: (1) did not locate any original monuments; (2) relied on a casual fence and disregarded the fence between the Jupes' and Long's properties; (3) ignored a corner described in the Simmons Subdivision dedication; (4) failed to follow the footsteps of the original surveyor; and (5) disregarded a thirty-foot road shown on the original plat. In response, Long argues that the Jupes did not preserve their complaint with regard to the reliability of Smyth's analysis because they did not object to the admission of his report into evidence or to his testimony at trial. In their reply brief, the Jupes assert their complaint is preserved because their contention is that Smyth's testimony is conclusory or speculative on the face of the record because Smyth failed to find any original monuments, ignored a thirty-foot road, and ignored a marker described on a prior survey.

When a reliability challenge requires the appellate court to evaluate the underlying methodology, technique, or foundational data used by an expert, an objection must be timely made in order to preserve a sufficiency complaint with regard to the expert's testimony. Coastal Transport Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex.2004). However, when the challenge is restricted to the face of the record, for example when expert testimony is speculative or conclusory on its face, a party may challenge the legal sufficiency of the evidence even in the absence of any objection to the admissibility of the expert's opinion. Id. In this case, the Jupes' complaints regarding the reliability of Smyth's testimony would require this court to evaluate the technique used by Smyth in determining the boundaries in dispute. On its face, Smyth's testimony is not speculative. Smyth provides support for the decisions he made in determining the boundaries and explains his methodology as within the parameters of longstanding surveying procedures. Accordingly, we hold that the Jupes failed to preserve their complaint regarding Smyth's testimony by failing to object at trial.

The Jupes' first issue is overruled.

B. Boundary by Acquiescence

In their second issue, the Jupes contend the trial court erred in refusing to submit a jury question asking whether a fence between the parties' properties was recognized and accepted as the boundary between the two properties for more than 25 years.

Rule 278 of the Texas Rules of Civil Procedure requires the submission of questions that are raised by written pleadings and the evidence. Tex.R. Civ. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992). When evaluating whether a party is entitled to a jury question, we examine the record for evidence supporting the submission of the question, and ignore evidence to the contrary. Elbaor, 845 S.W.2d at 243. A trial court may refuse to submit an issue only if no evidence exists to warrant its submission. Id.

Mere acquiescence in a line other than the true boundary line will not support a judgment in favor of such other line when there is no evidence, other than such acquiescence, of an agreement fixing the line. Gulf Oil Corp. v. Marathon Oil Co., 137 Tex. 59, 152 S.W.2d 711, 714 (1941). In order to establish a boundary by acquiescence, evidence must be presented to show that “there was some uncertainty as to the true boundary, which resulted in a line being established (generally by a fence), and that thereafter the adjoining land owners acquiesced in and recognized this line as the true boundary line between them.” Boothe v. Fuentes, 262 S.W.2d 754, 755 (Tex.Civ.App.-San Antonio 1953, no writ). “The mere erection of a fence off the boundary line is not in itself sufficient to make the...