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    E.G. "Gene" TURNER and James Burden, Appellant, v. Sidney R. MULLINS and Amaryllis G. Mullins, Appellees.
    No. 2-04-160-CV.
    Court of Appeals of Texas, Fort Worth.
    March 31, 2005.
    Rehearing Overruled April 28, 2005.

      Law Offices of Steven M. Williams and Joe B. Steimel, Wichita Falls, for Appellant.

      Gibson, Hotchkiss, Roach & Davenport, Matthew D. Anderson, and John D. Rosen-treter, Wichita Falls, for Appellees.
    PANEL F: HOLMAN, GARDNER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

Island in the stream?
Is that where it belongs?
Is there water in between?
To whom does it belong?

I. Introduction

E.G. “Gene” Turner and James Burden (“Turner and Burden”) appeal from the trial court’s judgment establishing ownership of a tract of land (the “Disputed Land”) in Sidney R. and Amaryllis G. Mullins (the “Mullinses”). In three issues, Turner and Burden complain that the trial court erred in finding and rendering judgment (1) that there exists no southern fork of the Red River in the vicinity of the Disputed Land, that the Disputed Land is not located in Cotton County, Oklahoma, and that the Disputed Land has accreted to the Mullinses’ land in Wichita County, Texas; (2) that Turner and Burden did not acquire title to the Disputed Land by conveyance and Oklahoma’s Simplification of Land Titles Statute; and (3) that Turner and Burden did not acquire title to the Disputed Land by adverse possession. Because we hold that the Mullinses did not acquire all the Disputed Land by accretion and that the trial court must consider Oklahoma law in determining ownership of at least a portion of the Disputed Land, we will reverse and remand.

II. Factual and Procedural Background

This is an accretion case involving title to a tract of land located in or along the Red River between Burkburnett, Texas and Devol, Oklahoma. The Mullinses own a tract of land in Texas immediately south of the Disputed Land and claim title to the Disputed Land under the doctrine of accretion, that is, they claim that the Disputed Land is now attached to the Texas mainland property they own and is therefore their property. Turner and Burden argue that the Disputed Land is an island in the bed of the Red River and claim ownership by virtue of deeds filed in Cotton County, Oklahoma and an Oklahoma statute governing the simplification of land titles. Alternatively, Turner and Burden claim title to the Disputed Land by adverse possession.

The Mullinses filed suit against Turner and Burden on September 25, 2000. The case was tried to the bench on October 14 and 15, 2003. On March 31, 2004 the trial court entered a Final Judgment declaring that (1) the Mullinses are the fee simple owners of the Disputed Land, and (2) Turner and Burden have no right, title, or interest in the Disputed Land. The trial court later issued Findings of Fact and Conclusions of Law in support of its judgment.

III. Accretion of the Disputed Land

In their first issue, Turner and Burden contend that the trial court erred when it found (1) that there exists no southern fork of the Red River separating the Disputed Land from the Mullinses’ property, (2) that the Disputed Land is not located in Oklahoma, and (3) that the Disputed Land accreted to the Mullinses’ land. Turner and Burden argue that a southern fork of the Red River separates the Disputed Land from the mainland, so the Disputed Land is an island in the bed of the Red River. Further, Turner and Burden assert that the boundary between Texas and Oklahoma lies along the south bank of this southern fork. Accordingly, Turner and Burden argue that because the Disputed Land is an island located north of this southern bank, the Disputed Land is in Oklahoma.

The Mullinses respond that there is sufficient evidence in the record to support the trial court’s findings. Specifically, the Mullinses contend that the boundary between Texas and Oklahoma, for purposes of title to the land, is the gradient boundary located along the south bank of the Red River, which here forms the northern boundary of the Disputed Land. Although the Mullinses acknowledge that a small portion of the Disputed Land was once an island in the bed of the Red River, they contend that the Red River has over time “deposited solid material, mud, sand, and sediment along [its] southern bank” so that the Disputed Land is no longer an island but is attached to the Texas mainland. Therefore, the Mullinses assert that because the gradient boundary of the river now lies north of the Disputed Land, the Disputed Land is located in Texas. Accordingly, the Mullinses argue that they have acquired the Disputed Land by accretion.

A. Standard of Review

Findings of fact entered in a case tried to the court have the same force and dignity as a jury’s answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). The trial court’s findings of fact are renewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing evidence supporting a jury’s answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994).

Because the Mullinses bore the burden of proof at trial, we will address Turner and Burden’s legal sufficiency complaint as a “no evidence” issue and their factual sufficiency complaint as an “insufficient evidence” issue. See Gooch v. Am. Sling Co., 902 S.W.2d 181, 183-84 (Tex.App.-Fort Worth 1995, no writ) (applying “no evidence” standard when the party without the burden of proof challenges the legal sufficiency of the evidence and “insufficient evidence” standard when the party without the burden of proof challenges the factual sufficiency).

In determining a “no-evidence” issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford, v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cazarez, 937 S.W.2d at 450; Leitck v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).

An assertion that the evidence is “insufficient” to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We are required to consider all of the evidence in the case in making this determination. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).

B. Analysis

The Doctrine of Accretion

Accretion is the process of increasing real estate by the gradual and imperceptible disposition by water of 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, 12 S.W.3d at 17. On the other hand, erosion is the process of wearing away the land. Id. Generally, as with accretion, erosion occurs gradually and imperceptibly. Id. A riparian owner ordinarily gains title to land by accretion and loses title to land by erosion. Id.

Texas follows the general rule that when the location of the margin or bed of a body of water that constitutes the boundary of a tract of land is gradually and imperceptibly changed by accretion or erosion, the margin or bed of the body of water, as so changed, remains the boundary line of the tract, which is extended or restricted accordingly. Id.; see Hancock v. Moore, 135 Tex. 619, 146 S.W.2d 369, 370 (1941); Manry v. Robison, 122 Tex. 213, 56 S.W.2d 438, 443-44 (1932); Tyler v. Gonzales, 189 S.W.2d 519, 521-22 (Tex.Civ.App.-San Antonio 1945, writ ref'd w.o.m.); Denny v. Cotton, 3 Tex.Civ.App. 634, 22 S.W. 122, 124 (1893, writ ref'd). Thus, a riparian owner acquires title to all additions or extensions to the land through accretion and loses title to portions of the land that are worn, washed away, or encroached upon by the water. See Brainard, 12 S.W.3d at 18. The rights of the riparian owner to additions to land by accretion are vested property rights. Id.

Title to an island arising in a river generally follows title to the bed of river in which it was formed. See Maufrais v. State, 142 Tex. 559, 180 S.W.2d 144, 150 (1944); City of Victoria v. Schott, 9 Tex.Civ.App. 332, 29 S.W. 681, 682 (1895, no writ). In navigable streams, the soil, and hence all islands formed upon it, belong to the sovereign. Schott, 29 S.W. at 682. In streams not navigable, the riparian proprietors own to the middle thread of the stream, unless, by necessary construction of their grants, their boundaries are restricted. Id. Upon formation, title to the island vests in the owner of the riverbed. Schott, 29 S.W. at 682; see Maufrais, 180 S.W.2d at 150.

Where ownership of the island and the mainland differ, and the island is later joined with the mainland through accretion, the owner of the mainland is not entitled to the island as an accretion because the island already existed as the property of another; it was not an imperceptible and gradual accretion to the mainland. See Schott, 29 S.W. at 682. It logically follows that where an island is later joined with the mainland through accretion, the owner of the island is entitled to accretions to the island, just as the owner of the mainland is entitled to accretions to the mainland. See id.; C.C. Marvel, Annotation, Applicability of Rules of Accretion and Reliction so as to Confer Upon Oimer of Island or Bar in Navigable Stream Title to Additions, 54 A.L.R.2d 643 (2004) (stating in section 2, “It may be stated as a very general principle, when followed to its ultimate, logical conclusion, that the owner of an island is entitled to additions thereto, under the proper application of general principles of accretion and reliction, in the same manner as is the owner of riparian land on the mainland.”).

In Oklahoma v. Texas, the U.S. Supreme Court held the boundary between the states of Oklahoma and Texas in this area to be along the southern bank of the Red River. 260 U.S. 606, 636, 43 S.Ct. 221, 226, 67 L.Ed. 428. To establish the boundary, the Court commissioned surveyors to run, locate, and mark the boundary upon the ground. Id. at 640, 43 S.Ct. at 228; See Oklahoma v. Texas, 261 U.S. 340, 341-44, 43 S.Ct. 376, 376-77. The Court later adopted the surveyors’ findings establishing the gradient boundary as the border between the two states, subject to the changes brought by the gradual and natural processes known as erosion and accretion. Oklahoma v. Texas, 265 U.S. 500, 504-505, 44 S.Ct. 573, 604, 68 L.Ed. 1121.

In support of their assertion that they acquired the Disputed Land by accretion, the Mullinses introduced into evidence a survey prepared by Arthur Eugene Probst Jr., an engineer and registered public surveyor. Probst’s survey, dated August 14, 2000, reflects, among other things, the location of the Disputed Land in relation to the Red River, the 1923 gradient boundary, and the gradient boundary as of the date of the survey. Probst testified that he conducted the survey at the request of Mr. Mullins. Probst’s survey shows that the gradient boundary had moved from its 1923 location south of the Disputed Land to the northern boundary of the Disputed Land. Probst stated that the 1923 map (the Mullinses’ exhibit forty-three) shows an island in the bed of the Red River approximately where the MKT railway is located. He testified that he believed that this former island comprised only a small part of the Disputed Land and that it had been connected to the south bank of the Red River by the accumulation of salt cedar, which catches a lot of material coming down the river. Turner and Burden, on the other hand, presented no survey of the Disputed Land, nor did they present any expert testimony to refute Probst’s finding that the gradient boundary had moved north of the Disputed Land.

The Mullinses also introduced into evidence several aerial photographs of the Disputed Land and surrounding area taken in the spring of 2003. The Mullinses argue that these photographs show the Red River to be a wide body of water located north of the Disputed Land.

Finally, Mr. Mullins testified that he owns 211 acres directly south of the Disputed Land and that his property extends to the southern bank of the Red River. He testified that he has lived along the Red River all his life, that he has observed the river change over the years, and that he believes the Red River has moved north of the Disputed Land. Mr. Mullins also testified that he had no recollection of the Disputed Land ever being an island in the bed of the Red River, but he admitted that to get to the Disputed Land from his property one must cross a small stream that sometimes holds water. He testified that some people call the stream Wild Horse Creek.

Turner and Burden generally assert that the Disputed Land has long been known to be an island in the bed of the Red River. In support of their position, they point out that their deeds describe the Disputed Land as being an island in the bed of the Red River bisected by the MKT Railway Bridge. In addition, Turner and Burden introduced several photographs taken on April 26, 2002 depicting a flow of water coming down what they argue is the southern fork of the Red River just north of the 1923 boundary. Turner and Burden also point out that the photographs introduced into evidence by Mullins show a flow of water south of the Disputed Land. Finally, Turner and Burden introduced into evidence an aerial photograph exhibit, upon which Burden marked in red the location of the 1923 gradient boundary. Turner and Burden assert that it is no coincidence that the 1923 boundary depicted on this exhibit so closely follows what they allege is a southern fork of the Red River.

In rebuttal, the Mullinses introduced evidence that the average rainfall for the area in the month that Turner and Burden’s photographs were taken is 2.62 inches and that in the 24 hours preceding the date of Turner and Burden’s photographs more than 2 inches of rain had fallen. Accordingly, they assert that Turner and Burden’s photographs actually show runoff from a normal month’s worth of rain in only 24 hours. Further, the Mullinses introduced photographs showing that the stream was dry on the date of trial.

After reviewing the evidence, we conclude that the evidence is both legally and factually sufficient to support the trial court’s findings that there exists no southern fork of the Red River in the vicinity of the Disputed Land and that no part of the Disputed Land lies in Oklahoma. The Mullinses presented some evidence that the southern bank of the Red River, which constitutes the boundary between Texas and Oklahoma, lies north of the Disputed Land. Thus, we conclude there to be more than a scintilla of evidence supporting the trial court’s findings. See Cazarez, 937 S.W.2d at 450; Leitch, 935 S.W.2d at 118. Further, although some evidence also suggests that there may exist a southern fork of the Red River separating the Disputed Land from the Mullinses property, we conclude that the evidence supporting the trial court’s findings is not so weak or the evidence to the contrary so overwhelming that the trial court’s findings should be set aside and a new trial ordered. See Garza, 395 S.W.2d at 823.

On the other hand, we conclude that the evidence is legally insufficient to support the trial court’s finding that all of the Disputed Land accreted to the Mul-linses’ land. The record reflects that a portion of the Disputed Land was once an island in the bed of the Red River. Therefore, title to the island vested upon its formation, and the owner of the island is entitled to accretions to the island, just as the Mullinses’, as owners of the mainland, are entitled to accretions, to the mainland. Here, the Mullinses presented no evidence at trial to prove that they ever owned the former island before it joined the mainland. Accordingly, while the Mullinses are entitled to ownership of the portion of the Disputed Land that constitutes accretions to the mainland, they are not entitled to the portion of the Disputed Land that constitutes the former island or accretions to the former island because they have not proven title to the island and because they cannot acquire title to the former island by accretion.

Therefore, we sustain Turner and Burden’s first issue to the extent it challenges the trial court’s judgment that the Mullins-es are the fee simple owners of all of the Disputed Land by virtue of accretion. We overrule the remainder of their first issue.

IV. Title by Conveyance

Turner and Burden also contend that the trial court erred in finding and rendering judgment that they did not acquire title to the Disputed Land by Oklahoma conveyances and by virtue of an Oklahoma statute governing the simplification of land titles.

A. Standards of Review

We review a trial court’s actual or implied conclusions of law de novo as legal questions. See, e.g., Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999) (applying de novo standard to question of subject matter jurisdiction); Michel v. Rocket Eng’g Corp., 45 S.W.3d 658, 667 (Tex.App.-Fort Worth 2001, no pet.) (holding “[w]e review all questions of law de novo.”) A trial court’s conclusion of law will not be reversed unless it is erroneous as a matter of law. Arch Petroleum, Inc. v. Sharp, 958 S.W.2d 475, 477 (Tex.App.-Austin 1997, no pet.). Conclusions of law are not erroneous and will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence. Copeland v. Alsobrook, 3 S.W.3d 598, 604 (Tex.App.-San Antonio 1999, pet. denied).

As to findings of fact, because Turner and Burden bore the burden to prove that they acquired title by conveyance, we will address Turner and Burden’s legal sufficiency complaint as a “matter of law” issue and their factual sufficiency complaint as an “against the great weight and preponderance” issue. See Gooch, 902 S.W.2d at 183-84.

1. “Matter of Law

If an appellant is attacking the legal sufficiency of an adverse answer to an issue on which he had the burden of proof, the appellant must overcome two hurdles. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991). First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). The issue should be sustained only if the contrary proposition is conclusively established. Dow Chem. Co., 46 S.W.3d at 241-42.

2. “Against Great Weight and Preponderance

Similarly, if a party with the burden of proof makes a factual sufficiency challenge, he must show that the finding was against the “great weight and preponderance” of the evidence. Pac. Employers Ins. Co. v. Dayton, 958 S.W.2d 452, 455 (Tex.App.-Fort Worth 1997, pet. denied). In reviewing an issue asserting that a finding is “against the great weight and preponderance” of the evidence, we must consider and weigh all the evidence and set aside the finding only if the evidence is so weak or the finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. Dow Chem. Co., 46 S.W.3d at 241; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

B. Analysis

At trial, Turner and Burden introduced into evidence deeds dated January 13, 14, and 16, 1969 to Turner conveying the following described property:

An island in the bed of Red River bisected by the MKT Railway Bridge between Burkbumett, Texas, and Devol, Oklahoma, and as a matter of record in the Agricultural Adjustment Administration of Cotton County, Oklahoma, this island is described as the Southwest One-Fourth (SW/4) of Section Five (5), Township Five (5) South, Range Thirteen (13) West, I.M. as well as all land adjoining and contiguous to the above described property which is under fence and claimed by [the grantor].

Turner and Burden assert that these deeds, along with Turner’s subsequent deed to Burden, establish that Burden currently holds title to the Disputed Land under Oklahoma law. Further, Turner and Burden argue that the Red River Boundary Compact establishes these deeds as evidence of record title.

We note that Turner and Burden’s expert, Robert Rafuse, testified that he believed that Burden had acquired title to the Disputed Land by either “color of title since 1969 ... or by adverse possession” under Oklahoma law. Further, we note that Rafuse testified that under Oklahoma’s Simplification of Land Titles Act, the Mullinses were required to file notice of any claim they had to the Disputed Land within one year of the effective date of the Act, and it was his understanding that they failed to do so. On cross-examination, however, Rafuse acknowledged that his opinions were based on Oklahoma law and would apply only if the Disputed Land were in Oklahoma. Accordingly, the Mullinses argue that Turner and Burden’s claims to the Disputed Land under Oklahoma law are irrelevant because the Disputed Land lies in Texas, not Oklahoma. In addition, we note that if any part of the Disputed Land represents accretions to the mainland, there is no evidence in the record of any conveyances purporting to give Turner or Burden interest in those accretions.

As previously discussed, the boundary between Texas and Oklahoma in this area lies along the southern bank of the Red River. The record reflects that as of 1923, the Texas-Oklahoma border was south of the island, and the island was located in Oklahoma. However, the record also reflects that as of August 14, 2000, the island was connected to the Texas mainland, the Texas-Oklahoma border was north of the former island, and the former island was located in Texas.

In determining the ownership of property, we apply the law of the jurisdiction in which the land is located. See Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328, 335-36 (1943) (indicating that title to realty can be affected only by the law of the jurisdiction in which it is situated); Toledo Soc. for Crippled Children v. Hickok, 152 Tex. 578, 261 S.W.2d 692, 696 (1953) (indicating that the validity of an instrument conveying realty is determined by the laws of the jurisdiction in which it is located). Thus, in deciding who owns the Disputed Land today, we must apply Texas law.

Texas law provides that “[t]itles to land in ceded or even conquered territory acquired from a former sovereignty when it had the right to grant them are of course valid, even as against the succeeding sovereignty.” See Kenedy Pasture Co. v. State, 111 Tex. 200, 231 S.W. 683, 691 (1921); see also Jones v. P.A.W.N. Enters., 988 S.W.2d 812, 821 (Tex.App.-Amarillo 1999, pet. denied). Thus, because at least a portion of the Disputed Land was once located validly in Oklahoma, Texas law requires that we look to Oklahoma law in determining whether Turner or Burden acquired title to any portion of the Disputed Land while it was located in Oklahoma.

Our review of the record indicates that the trial court did not consider Oklahoma law in evaluating Turner and Burden’s claims of ownership by conveyance. Thus, because we have already determined, in evaluating Turner and Burden’s first issue, that the trial court erred when it found that the Mullinses acquired title to all the Disputed Land by accretion, and because we now determine that the trial court erred by not evaluating the validity of Turner and Burden’s claims of ownership by conveyance under Oklahoma law, we hold that the trial court’s fact finding that Turner and Burden did not acquire title to any portion of the Disputed Land by virtue of conveyance to be against the great weight and preponderance of the evidence. Further, for these same reasons we also hold that the trial court erred as a matter of law in concluding the Mullinses to be the fee simple owners of all the Disputed Land and that Turner and Burden have no right, title, or interest in any portion of the Disputed Land. Accordingly, we sustain Turner and Burden’s third issue challenging the trial court’s judgment that Turner and Burden have no right, title, or interest in the Disputed Land.

Title by Adverse Possession

Finally, Turner and Burden in their second issue contend that the trial court erred when it found that they had not acquired title to the Disputed Land by adverse possession. Specifically, Turner and Burden assert that they have pleaded and proven the affirmative defense of adverse possession under the three year, ten year, and twenty-five year provisions of the Texas Civil Practice and Remedies Code and under Oklahoma’s adverse possession statute. In support of their contention, Turner and Burden presented expert testimony indicating that they had established title by adverse possession under both Texas and Oklahoma law.

A. Standard of Review

Turner and Burden, as the parties seeking to establish title to land by adverse possession, had the burden to prove every fact essential to that claim by a preponderance of the evidence. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex.1990) (op. on reh’g). Accordingly, we will address Turner and Burden’s legal sufficiency complaint as a “matter of law” issue and their factual sufficiency complaint as an “against the great weight and preponderance” issue. See Gooch, 902 S.W.2d at 181, 183-84. Conclusions of law may not be challenged for factual sufficiency, but they may be reviewed to determine their correctness based upon the facts. Rogers v. City of Fort Worth, 89 S.W.3d 265, 277 (Tex.App.-Fort Worth 2002, no pet.).

Because the question of adverse possession normally is a question of fact, only in rare instances is a reviewing court justified in holding that adverse possession has been established as a matter of law. See Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985). In order to establish adverse possession as a matter of law, the claimant must show by undisputed evidence that he adversely possessed the property continuously for the statutory period. See id. The claimant must submit undisputed and conclusive evidence of probative force on each essential element of adverse possession, and inferences are never indulged in his favor. See id.; Dunn v. Taylor, 102 Tex. 80, 113 S.W. 265, 267 (1908).

B. Analysis

The three year, ten year, and twenty-five year Texas statutes under which Turner and Burden assert title by adverse possession all require that Turner and Burden prove, at a minimum, that they adversely possessed the Disputed Land for the relevant time period provided for in the statute. See Tex. Civ. Pkao. & Rem. Code Awn. §§ 16.024,16.026,16.027,16.028 (Vernon 2002).

Adverse possession is defined in section 16.021 of the civil practice and remedies code as “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” Id. § 16.021(1); Rhodes, 802 S.W.2d at 645. The possession must be actual, visible, continuous, notorious, distinct, hostile, and of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant. Rhodes, 802 S.W.2d at 645. Exclusive possession of the land is required to support an adverse possession claim; the adverse possession claimant must wholly exclude the owner of the property. Terrill v. Tuckness, 985 S.W.2d 97, 107 (Tex.App.-San Antonio 1998, no pet.); Kleckner v. McClure, 524 S.W.2d 608, 613 (Tex.Civ.App.-Fort Worth 1975, no writ). Joint or common possession by the adverse possession claimant and the owner defeats the requisite quality of ex-elusiveness. West End API Ltd. v. Rothpletz, 732 S.W.2d 371, 375-76 (Tex.App.Dallas 1987, writ ref. n.r.e.) (citing Rick v. Grubbs, 147 Tex. 267, 214 S.W.2d 925, 927 (1948)).

Here, the record reflects that both parties were using the Disputed Land. Although Turner and Burden produced evidence that they used the Disputed Land, so too did the Mullinses. Mr. Mullins testified that he was born on December 20, 1958 and that as far back as he could remember he and other family members had hunted, fished, and camped on the Disputed Land. He also testified that he and other members of his family visited the Disputed Land to go swimming. He testified that over the years he had gone on the Disputed Land approximately twenty times per year and that during that time he encountered Turner three or four times. He testified that Turner had never asked him to leave the Disputed Land and that he was unaware of Turner ever asking any member of the Mullins family to do so.

Several other members of the Mullins family also testified that they used the Disputed Land. Mrs. Mullins testified that she and Mr. Mullins’s cousins would go swimming on the property on Sunday afternoons and that Mr. Mullins’s cousins would hunt on the property. In addition, she testified that she and Mr. Mullins’s cousins would see Turner while on the Disputed Land and that he never asked them to leave. Further, Tim Mullins, Mr. Mullins’s cousin, testified that he first entered the Disputed Land around 1964 and that he has hunted, trapped, swum, and ridden motorcycles on the Disputed Land in the years since. He testified also that he had seen Turner while on the Disputed Land and that Turner had never asked him to leave. Finally, Monte Mullins, Mr. Mullins’s brother, testified that he would walk, hunt, and swim on the Disputed Land and that Turner had never asked him to leave.

Turner and Burden contend that these entries came at a time when the Mullinses did not claim any interest in the Disputed Land. The Mullinses respond that Turner and Burden are attempting to shift the burden of proof regarding the elements of adverse possession. See Tex. Civ. PRAc. & Rem.Code Ann. § 16.021. We agree. As previously stated, Turner and Burden bore the burden to prove every fact essential to their claim by a preponderance of the evidence. See Rhodes, 802 S.W.2d at 645. Accordingly, Turner and Burden had the burden to prove that the Mullinses entries came at a time when the Mullinses did not claim any interest in the Disputed Land. See id. This is something they did not do.

Turner and Burden also contend that these entries occurred with permission. In support of this contention, Turner and Burden assert that the Mullinses spoke with and obtained a key from Turner. However, we note that the key was to a gate located on Turner’s adjacent property and not the Disputed Land. Further, witness Tim Mullins testified that he asked Turner for a key to the gate on Turner’s land so that he could have better access to the Disputed Land, not because he believed that it was necessary to get Turner’s permission to go on the Disputed Land.

Thus, after reviewing the record, we conclude that Turner and Burden did not prove as a matter of law that their possession of the Disputed Land was adverse or hostile to the claim of the Mullinses or that Turner and Burden wholly excluded the Mullinses from the Disputed Land for any of the requisite limitations periods. Further, we conclude that while Turner and Burden presented expert testimony indicating that they had obtained title by adverse possession, the adverse findings of the trial court as to Turner and Burden’s adverse possession of the Disputed Land were not against the great weight and preponderance of the evidence. We also conclude, for these same reasons, that Turner and Burden failed to establish that they obtained title to the Disputed Land by adverse possession under Oklahoma law. See Francis v. Rogers, 40 P.3d 481, 486 (Okla.2001) (stating that an adverse possession claimant must show that the possession was hostile, under a claim of right or color of title, actual, open, notorious, exclusive, and continuous for the full statutory period); Rodgers v. Int’l Land Co., 111 Okla. 98, 238 P. 407, 408 (1924) (stating adverse possession must be shown by clear and positive proof).

Accordingly, we hold that the trial court did not err in finding that Turner and Burden had not acquired title to the Disputed Land by adverse possession under Texas or Oklahoma law. Turner and Burden’s second point is overruled.

Y. Conclusion

In sum, we hold that the Mullinses did not acquire title to all the Disputed Land by accretion, that the trial court must consider Oklahoma law in determining ownership of at least a portion of the Disputed Land, and that Turner and Burden did not acquire title to the Disputed Land by adverse possession. Accordingly, we reverse the judgment of the trial court and remand the case to the trial court for (1) a determination, in accordance with this opinion, of whether under Oklahoma law either Turner and Burden or the Mullinses have any right, title, or interest in the former island, and (2) if it be determined that ownership of the former island does not lie with the Mullinses, then for a determination by the tidal court of what portion of the Disputed Land, if any, represents accretions to the Mullinses’ property and what portion, if any, represents accretions to the former island.

Appendix

The trial court’s Findings of Fact and Conclusions of Law challenged on appeal are as follows:

Findings of Fact

2. As referred to herein, the “Disputed Land” consists of all land located in the J.H. Hadden Survey A-90, Wichita County, Texas, north of the “1923 bank established by Supreme Court” as depicted in Exhibit # 1 to the gradient boundary of the south bank of the Red River. The Disputed Land is further depicted in Exhibit # 3 as the area which is shaded by vertical lines.

4. Plaintiffs or their predecessors in title have owned all of the J.H. Hadden Survey A-90, Wichita County, Texas, save and except certain parcels.

7. There are no “multiple channels,” nor is there a “southern fork” of the Red River in the vicinity of the Disputed Land.

10. The Disputed Land is not Goat Island, nor is the Disputed Land an island in the bed of the Red River that is bisected by the MKT Railway Bridge.

11. The Disputed Land was once an island in the Red River, that was bisected by the MKT Railway Bridge, and which has since accreted to the J.H. Hadden Survey A-90 of Wichita County, Texas.

12. The Disputed Land is now bounded on the north by the gradient boundary of the south bank of the Red River and on the south by the “1923 bank established by Supreme Court” as depicted in Exhibits # 1 and # 3 and further described as the shaded area of Exhibit # 3.

13. As of August 14th, 2000, the location of the gradient boundary of the south bank of the Red River to the Disputed Land was that boundary depicted on Exhibits # 1 & # 3 of the “South Bank Using Gradient Boundary.”

14. The Disputed Land has accreted to the Plaintiffs land.

15. The Disputed Land is located in Wichita County, Texas.

16. No part of the Disputed Land is located in the State of Oklahoma.

17. Defendants did not acquire title to the Disputed Land by legal conveyance.

18. Defendants did not acquire title to the Disputed Land by adverse possession or by limitations.

19. Plaintiffs’ suit is not barred by limitations.

20. . Defendants have not continuously held the Disputed Land in peaceable and adverse possession for three, ten or twenty five years.

21. Defendants have never held the Disputed Land in good faith under duly recorded deeds.

22. Defendants’ have not continuously used, possessed, enjoyed or cultivated the Disputed Land for three, ten, or twenty five years. Rather, Defendants’ use of the land was only occasional and intermittent.

23. Defendants’ occasional use of the land was neither open, nor notorious.

24. Defendants’ occasional use of the land was neither adverse, nor hostile to Plaintiffs’ possession.

25. The deeds under which Defendants claimed possession of the Disputed Land were not filed in the county where the Disputed Land was located (Wichita County, Texas).

26. Defendants did not actually or visibly appropriate the Disputed Land.

27.Defendants did not commence or continue their occasional use of the Disputed Land under a claim of right that was inconsistent with or hostile to the claims of the Plaintiffs or claims of Plaintiffs’ predecessors.

Conclusions of Law

1. Plaintiffs are the fee simple owners of the land described in Exhibit #2, which includes a portion of the Disputed Land.

2. Plaintiffs are the fee simple owners of the Disputed Land.

3. Defendants have no right, title or interest in the Disputed Land or in any other land described in Exhibit # 2.

5. Defendants did not acquire title to the Disputed Land by legal conveyance.

6. Defendants did not acquire title to the Disputed Land by adverse possession.

7. Plaintiffs’ suit is not barred by limitations.

      . This is not the same as the lyrics to Islands in the Stream written by Barry Gibb, Robin Gibb, and Maurice Gibb, released in 1983, and recorded by, among others, Kenny Rogers and Dolly Parton (RCA 1983).

      . We address Turner and Burden’s issues in this order for ease of discussion.

      .Accretion is the process of increasing real estate by the gradual and imperceptible disposition by water of 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).

      . The trial court’s Findings of Fact and Conclusions of Law challenged on appeal are included in the appendix to this opinion.

      . Turner and Burden's first issue challenges the trial court's findings of fact numbers 2, 4, 7, 10, 11, 12, 13, 14, 15, 16, and 25.

      . A gradient boundary is a boundary established by using the survey method created for, and approved by, the United States Supreme Court in a series of cases styled Oklahoma v. Texas. See 265 U.S. 500, 504-05, 44 S.Ct. 573, 604, 68 L.Ed. 1121 (1924); 261 U.S. 340, 341-44, 43 S.Ct. 376, 376-77 (1923); 260 U.S. 606, 631-32, 43 S.Ct. 221, 224-25, 67 L.Ed. 428 (1923). For additional information on the gradient boundary, see Arthur A. Stiles & Graham B. Smedley, The Gradient Boundary — The Line Between Texas and Oklahoma Along the Red River, 30 Tex. L.Rev. 305 (1952).

      . At trial and appeal, both parties addressed accretion under Texas law rather than Oklahoma law; thus, we will analyze this issue in accordance with Texas law.

      . Burden testified that he prepared his red line based upon the 1923 concrete survey markers he personally observed on the property.

      . Turner and Burden’s third issue challenges the trial court's findings of fact numbers 2, 4, 10, 11, 14, 16, 17, 21, and 25 and conclusions of law numbers 1, 2, 3, and 5.

      . The Red River Boundary Compact (the "Compact”) provides, "It is the principal purpose of the party states in entering into this compact to establish an identifiable boundary between the states of Texas and Oklahoma along the Red River as of the effective date of this compact without interfering with or otherwise affecting private property rights or title to [;the\ property." Tex. Nat. Res.Code Ann. § 12.002 art. 1(b) (Vernon 2001) (emphasis added). The Compact further provides that “[a]ll public records in either party state concerning any lands the sovereignty over which is changed by this compact are accepted as evidence of record title to such lands.” Id. art. V(a) (emphasis added). Here, there has been no assertion that the sovereignty of the Disputed Land was changed by the Compact. Further, this dispute involves title to property, and the Compact specifically provides that it does not affect private property rights or title to property. See id. art. 1(b). Accordingly, we conclude that the Compact has no effect on the dispute before us. See id. art 1(b), V(a).

      . See Olka. Stat. Ann. tit. 16, § 68 (2002).

      . There is no determination as to whether the island existed as such on the date of the inception of the Act, triggering the one-year notice requirement.

      . Turner and Burden's second issue challenges the trial court's final judgment and its findings of fact numbers 4, 18, 19, 20, 21, 22, 23, 24, 25, and 27, and its conclusions of law numbers 1, 2, 3, 5, 6, and 7.


source: Caselaw Access Project

author: Justice FITZGERALD.

license: Public Domain

text:
    Tom E. DISHNER, Appellant, v. HUITT-ZOLLARS, INC., Appellee.
    No. 05-04-00110-CV.
    Court of Appeals of Texas, Dallas.
    April 4, 2005.
    Rehearing Overruled May 11, 2005.

      Tom E. Dishner, Dallas, pro se.
    Katrin U. Schatz, Baker Botts, Dan Hartsfield, Baker & Botts, L.L.P., Gary Michael Ashmore, Dallas, for Appellee.
    Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion by

Justice FITZGERALD.

Tom E. Dishner appeals the trial court’s judgment in his religious discrimination suit against his former employer, Huitt-Zollars, Inc. The trial court’s final order (the “Order”) decreed that Dishner take nothing from Huitt-Zollars and determined that Dishner was a vexatious litigant within the meaning of section 11.054 of the Texas Civil Practice and Remedies Code. We affirm the trial court’s Order.

Background

Dishner was employed by Huitt-Zollars, an architectural and engineering firm. Dishner filed his claim against Huitt-Zol-lars pursuant to the Texas Commission on Human Rights Act (the “TCHRA”), alleging that he was subjected to harassment and a hostile work environment on account of his religion. Specifically, Dishner’s petition alleged that the employees of Huitt-Zollars are members of a powerful and extensive religious cult,

which has as part of [its] beliefs the systematic harassment of Tom Dishner, including the invasion of my privacy using high-tech surveillance, and the use of an electroconvulsive type signal which interrupts the thought process.

According to Dishner, the cult is led by one of his high school classmates, and its membership includes a long list of local and state public officials and members of the judiciary. At Huitt-Zollars, Dishner claims, the cult subjected him to physical and sexual hostilities, attempted to murder him by infecting him with smallpox, tortured and killed his cat, and held a gun to his head. Dishner objected to “their beliefs in evil and evil deeds being forced on [him]” to no avail. Ultimately, he claims, he could bear no more and left his employment.

During the course of proceedings in the trial court, Dishner filed a motion to re-cuse trial judge Jay Patterson on grounds Judge Patterson was a member of the cult. The motion was denied. Huitt-Zollars filed a motion to declare Dishner a vexatious litigant. That motion was heard twice, and it was granted the second time. At the same time, the trial court granted Huitt-Zollars’s no-evidence motion for summary judgment and entered its Order that Dishner take nothing on his claim. The trial court determined it had no jurisdiction to hear Dishner’s late-filed motion for new trial. Dishner appeals based on this series of adverse rulings.

Motion for Recusal

In his first issue, Dishner complains that during the recusal proceedings he received “improper notification” of both the appointment of the assigned judge and the hearing itself. ■ The record establishes Judge Patterson declined to recuse himself and properly referred the case to the presiding judge of the relevant administrative region. See Tex.R. Civ. P. 18a(d). Judge Patterson’s December 6, 2002 order to that effect indicated a copy of the order was to be sent to the “Pro Se Plaintiff’ and “Defendant Counsel of Record.” Appellant denied receiving a copy of this order. Regardless, the presiding judge issued his order on December 12, 2002, assigning the motion to Judge Pat McDowell. That same order required the clerk to post a copy of the order “on the notice board so that attorneys and parties may be advised” of the assignment. Nothing in the record indicates the notice was not posted. Finally, appellant’s brief concedes that he received notice by telephone on or about December 23, 2002, of the hearing to be held, by Judge McDowell on January 3, 2003. Appellant appeared at the January 3 hearing and presented his own testimony in support of the motion to recuse. Judge McDowell denied the motion to recuse at the close of the hearing.

Dishner’s complaints concerning notice are governed by rule 18a. That rule states in relevant part:

The presiding judge of the administrative judicial district shall immediately set a hearing before himself or some other judge designated by him, shall cause notice of such hearing to be given to all parties or their counsel, and shall make such other orders ... as justice may require.

Tex.R. Civ. P. 18a(d) (emphasis added). We find no specific directive requiring separate notice of the identity of the assigned judge. Accordingly, the presiding judge’s posted notice of the assignment of Judge McDowell to hear the motion to recuse was more than adequate notice of that assignment. Notice of the hearing itself is required by the rule, but we conclude the court’s telephonic notice to Dishner some ten days before the hearing setting was appropriate notice pursuant to rule 18a. The method of notice was clearly calculated to inform — and in fact did inform— Dishner of the hearing on his motion. Moreover, Dishner had sufficient time to object to the assigned judge or to the time of the hearing if either had been of concern to him. He did not object during the approximately ten-day period before the hearing; nor did he object at the hearing. We decide appellant’s first issue against him.

Appellant’s second issue complains of Judge McDowell’s denial of appellant’s recusal motion. We review the denial of this motion for abuse of discretion. Tex.R. Civ. P. 18a(f). Dishner’s motion set forth three grounds supporting recusal: (1) a 2002 “confrontation” between Dishner and Judge Patterson, (2) a 1982 “encounter” between Dishner and Judge Patterson, and (3) Dishner’s conjecture that his case was not randomly assigned to Judge Patterson’s court because of the purported involvement by the district clerk and members of his staff in the cult described in Dishner’s petition. However, Dishner stressed the 2002 meeting in his testimony at the hearing on the recusal motion, and only this ground is addressed in Dishner’s brief before this Court. We will, therefore, limit our consideration to that proposed ground for recusal.

According to Dishner, the 2002 meeting took place at the Senate District 8 Republican Convention at Newman Smith High School. There, Judge Patterson purportedly made statements to Dishner indicating Judge Patterson knew about Dishner’s employment at Huitt-Zollars and about his complaint against Huitt-Zollars. According to Dishner, Judge Patterson told Dish-ner there was an incorrect date in the complaint and that the case would end up in Judge Patterson’s court. But at that time, Dishner’s complaint was pending only before the Texas Commission on Human Rights; no case had been filed in district court. Therefore, according to Dishner, Judge Patterson must have “know[n] in some way or [been] involved in some way with the defendants.” On cross-examination, Dishner testified that “[e]very indication would be” that Judge Patterson is a member of the cult he alleges was persecuting him at Huitt-Zollars. Dishner offered no evidence other than his own testimony to support the claim that Judge Patterson was somehow biased against him.

Judge McDowell was charged with evaluating Dishner’s credibility in deciding the motion. Judge McDowell had the opportunity to view Dishner during the hearing and to question him concerning his allegations. We do not determine the credibility of any witness, nor will we substitute our judgment for that of the trial court. Reese v. Duncan, 80 S.W.3d 650, 661 (Tex.App.Dallas 2002, pet. denied). We find no abuse of discretion in Judge McDowell’s denial of the motion to recuse. We decide Dishner’s second issue against him.

Summary Judgment

Dishner’s third issue avers the trial court erroneously granted Huitt-Zollars’s motion for summary judgment. Dishner argues the no-evidence motion was insufficient because it was global and lacked specificity as to the element or elements challenged, it offered evidence in support and thus should be read as a traditional motion under rule 166a(c), and it was proffered before adequate time for discovery had passed. We disagree with each of these arguments.

The United States Supreme Court has prescribed a shifting burden of proof in employment discrimination cases. At the outset, the employee has the burden of establishing a prima facie case of unlawful discrimination. Tex. Dep’t of Human Servs. of State of Tex. v. Hinds, 904 S.W.2d 629, 636 (Tex.1995) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Dishner’s religious discrimination claim is based on “accommodations being denied in the form of the intentional creation of a hostile work environment based on [his] bona fide beliefs.” A plaintiff bringing such a claim under the TCHRA makes a prima facie case by establishing three elements: (1) he has a bona fide religious belief that conflicts with an employment requirement; (2) he informed the employer of this belief; and (3) he suffered an adverse consequence for failure to comply with the conflicting employment requirement. Grant v. Joe Myers Toyota, Inc., 11 S.W.3d 419, 422-23 (Tex.App.-Houston [14th Dist.] 2000, no pet.). When a no-evidence summary judgment is filed against a plaintiff making this claim, the plaintiff must provide more than a scintilla of proof for each of the three elements of his case to survive summary judgment. Id. at 423.

The rules of civil procedure require a no-evidence summary judgment motion to “state the elements as to which there is no evidence.” Tex.R. Civ. P. 166a(i). In this case, Huitt-Zollars’s motion correctly identified the elements of Dishner’s religious discrimination claim. Then under the heading “Plaintiff Has No Evidence of an Adverse Employment Action,” the motion charged that Dishner “cannot come forward with evidence showing that he was subjected to any adverse employment action during his tenure with Huitt-Zollars.” This language was specific and sufficient to identify the third element of the claim— the existence of an adverse employment consequence — as a ground of Huitt-Zol-lars’s no-evidence motion. Our review of the record establishes that Dishner did not proffer even a scintilla of evidence to establish that he had in fact suffered an adverse employment action because of his failure to comply with some religious requirement imposed by Huitt-Zollars. Accordingly, this single ground suffices to support the adequacy of the no-evidence motion and the judgment based thereon. See Grant, 11 S.W.3d at 422-23 (showing of adverse employment action required for prima facie case of religious discrimination).

Dishner next complains that— because Huitt-Zollars proffered summary judgment evidence with its motion — the motion should have been treated as a traditional summary judgment motion under rule 166a(c). Our supreme court has rejected the theory that a no-evidence motion that attaches evidence is somehow transformed by that attachment into a traditional motion. See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004) (disapproving of “decisions that hold or imply that, if a party attaches evidence to a motion for summary judgment, any request for summary judgment under Rule 166a(i) will be disregarded”). Dishner also argues that the motion is based on various “affirmative defenses.” If this were so, a no-evidence motion would be inappropriate, because Huitt-Zollars would bear the burden of proof on the affirmative defense. However, we identify no affirmative defense argued within the motion or supported by summary judgment evidence. We conclude Huitt-Zollars’s motion was clearly a no-evidence motion within the understanding of rule 166a(i). If, despite the motion’s clarity, Dishner purports to have been confused by the grounds for the motion, he was required to specially except to preserve the error for appeal. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex.1993) (“An exception is required should a non-movant wish to complain on appeal that the grounds relied on by the movant were unclear or ambiguous.”). Dishner did not specially except to the motion. He cannot complain now that the nature of the motion was insufficiently clear. See id.

Finally, Dishner claims that he was denied adequate time for discovery before being required to respond to the no-evidence motion. See Tex.R. Crv. P. 166a(i) (party may move on no-evidence grounds “[a]fter adequate time for discovery”). Dishner first stresses that the discovery period set by scheduling order was not over when Huitt-Zollars filed its motion. This Court has refused to read into the rule a bright-line requirement that the discovery period be completed before a no-evidence motion can be filed. See Restaurant Teams Intern., Inc. v. MG Secs. Corp., 95 S.W.3d 336, 339 (Tex.App.-Dallas 2002, no pet.). We have stressed, instead, that whether a nonmovant has had adequate time for discovery under rule 166a(i) is case specific. Id. Dishner next argues his case is so complex that he required more time to pursue discovery. But we need not analyze the relative complexity of Dishner’s case. When a party contends he has not had an adequate opportunity for discovery before a no-evidence summary judgment hearing, he must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Brown v. Brown, 145 S.W.3d 745, 749 (Tex.App.-Dallas 2004, pet. denied). Dishner did neither. Accordingly, he cannot show an abuse of discretion in the trial court’s hearing and deciding the motion when it did.

We decide Dishner’s third issue against him as well.

Declaration op Vexatious Litigant

Dishner’s fourth issue raises procedural objections to the trial court’s declaration-made in the same Order as the grant of summary judgment-that Dishner is a vexatious litigant. Texas law provides a mechanism allowing a plaintiff to be declared a vexatious litigant. See Tex. Civ. Prac. & RemlCode Ann. ch. 11 (Vernon 2002). But a defendant must file the motion triggering that mechanism “on or before the 90th day after the date the defendant files the original answer ...” Id. § 11.051. Dishner asserts that the motion to declare him a vexatious litigant, although originally filed in a timely fashion, was first continued and then withdrawn by Huitt-Zollars. The record indicates this is correct. Nevertheless, the trial court later made the vexatious-litigant declaration under the auspices of Huitt-Zollars’s motion for summary judgment. The summary judgment motion was filed after the statutory 90-day period had expired. It was, therefore, error for the trial court to grant relief under that circumstance. See, e.g., In re Marriage of Grossnickle, 115 S.W.3d 238, 252 (Tex.App.-Texarkana 2003, no pet.) (“the ‘vexatious litigant’ statute applies only when filed within ninety days after the date on which a defendant files his or her original answer”); Spiller v. Spiller, 21 S.W.3d 451, 454 (Tex.App.-San Antonio 2000, no pet.) (motion filed some seven months after answer was untimely).

We decide Dishner’s fourth issue in his favor and modify the judgment to remove the trial court’s finding that Dishner is a vexatious litigant. This modification will not affect any other ruling by the trial court.

Motion for New Trial

Finally, in his fifth issue, Dishner argues that the tidal court erroneously dismissed his request to extend post-judgment deadlines in order to allow consideration of his motion for new trial. The Order was signed on December 23, 2003, triggering the final 30-day period of the trial court’s plenary power. See Tex.R. Civ. P. 329b(d). However, Dishner alleged that he received no notice from the clerk that the trial court had signed a judgment in this case on December 23, 2003. Indeed, Dishner’s motion claimed he did not learn the judgment had been signed until February 10, 2004, when he received a fax copy of the signed Order from Huitt-Zol-lars’s counsel.

The trial court held a hearing on Dish-ner’s motion. Dishner testified that he had not received notice of the signed judgment from the clerk. On cross-examination, Dishner acknowledged that he had received a letter from opposing counsel dated December 15, 2003, and that the letter transmitted a copy of the order counsel was proposing to the trial court. This proposed order, according to Dishner, granted Huitt-Zollars’s motion for summary judgment and declared Dishner to be a vexatious litigant. Dishner further acknowledged that the Order he first saw in February was exactly the same as the proposed order he saw in December. Dishner testified in response to- opposing counsel’s questions that he did not, after seeing the proposed order, make any inquiry to opposing counsel or the clerk to determine its status. The trial court issued an order finding that Dishner had failed to show that he did not receive notice or actual knowledge of the signing of the Order before the expiration of 20 days from the date of the Order. Thus, the trial court concluded it lacked jurisdiction to consider Dishner’s motion for new trial.

We review the trial court’s findings of the date a party received notice of judgment by the well-known standards of legal and factual sufficiency of the evidence. Welborn Mortgage Corp. v. Knowles, 851 S.W.2d 328, 331-32 (Tex.App.-Dallas 1993, writ denied). As the fact finder, the trial judge weighs the evidence and judges a witness’s credibility, and the judge may accept or reject any witness’s testimony in whole or in part. See id. at 332. In this instance, the only evidence that Dishner had not received notice as required by rule 306a was his own testimony to that effect. The record indicates that the clerk did mail notice of the signed judgment to both parties. The trial court established that the mailing was made to Dishner at his correct mailing address. The court also established that its file did not indicate the mailing had been returned. Huitt-Zollars received its copy of the signed judgment from the clerk in a timely fashion. We conclude there is ample evidence to support the trial court’s conclusion that Dish-ner did not prove he did not receive notice or have actual knowledge of the signed order within the time period required. To the extent the trial judge’s ruling was based on determinations of credibility, we will not substitute our judgment for his. See id.

We decide Dishner’s fifth issue against him.

Conclusion

We modify the trial court’s Order by deleting the following two sentences:

The Court further heard arguments on Defendant’s Motion for Order Determining Plaintiff a Vexatious Litigant and finds that this motion is well taken and should likewise be GRANTED. The Court hereby determines Plaintiff to be a vexatious litigant pursuant to Tex. Civ. Prac. & Rem.Code § 11.054.

As modified, we affirm the trial court’s Order.

      . Huitt-Zollars’s evidence is actually limited to anticipated rebuttal. Specifically, Huitt-Zollars anticipated Dishner would offer his own testimony in response to the no-evidence motion. The evidence accompanying the motion was intended to establish that such testi-, mony would be inadmissible. When Dishner offered no testimony, the evidence became irrelevant to the disposition of the motion.

      . Huitt-Zollars’s original answer was filed November 8, 2002. Its motion for summary judgment was filed September 24, 2003.

      . Nevertheless, on January 28, 2004, Dishner filed his notice of appeal, which stated:
      On December 12 of 2003, Judge Patterson, granted the Defendant’s Motion for Summary Judgment in this Employment Discrimination case. As of January 24, 2004, the Plaintiff has not been served with a signed order. The Defendant has served the Plaintiff with a proposed order by fax only — No "hard” copy has been served to the Plaintiff by mail.
      Plaintiff Dishner intends to appeal this order to the Texas 5th Circuit Court of Appeals in Dallas County Texas.

      . That rule states:
      When the final judgment or other appeal-able order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment or order was signed.
      Tex.R. Civ. Pro. 306a(3).

      .On appeal, Dishner complains the trial court’s comments on these matters were inadmissible hearsay, but Dishner did not object at the hearing. Even if the trial court’s comments were hearsay, "[i]nadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.” Tex.R. Evid. 802.


author: Justice WHITTINGTON.

text:
    Ronald A. WEISFELD, Slawomir Leszinski, Arturo Singer, and Blankenship # 1 F.L.P., Appellants, v. TEXAS LAND FINANCE COMPANY II, Appellee.
    No. 05-04-00441-CV.
    Court of Appeals of Texas, Dallas.
    April 18, 2005.
    Rehearing Overruled May 23, 2005.

      Melinda D. Blackwell, G. Walter McCool, Brusniak McCool & Blackwell, P.C., Dallas, for Appellants.
    George S. Henry, Law Office of George S. Henry, Dallas, for Appellee.
    Before Justices MORRIS, WHITTINGTON, and FRANCIS.
   OPINION

Opinion by

Justice WHITTINGTON.

After a bench trial, the trial judge entered judgment for Texas Land Finance Company II for taxes due on property purchased by Ronald A. Weisfeld, Slawom-ir Leszinski, Arturo Singer, and Blankenship # 1 F.L.P. In three issues, appellants allege the trial judge erred in dismissing their counterclaim for usury and awarding attorneys’ fees and interest in the judgment. We affirm the trial court’s judgment.

BACKGROUND

Teleamerica Spanish Network, L.L.C. owned property at 2090 San Jacinto in Dallas. In October, 2001, and January, 2002, Texas Land Finance paid the taxes due on the property for the years 2000 and 2001, and the County of Dallas Tax Office transferred the tax liens on the property to Texas Land Finance. See Tex. Tax Code Ann. § 32.06 (Vernon 2001) (taxing unit’s tax lien may be transferred to person authorized to pay taxes on another person’s real property). On January 22, 2002, Teleamerica as maker signed a real estate lien note in the amount of $38,825.91 to Texas Land Finance as payee. The note reflected the funds advanced by Texas Land Finance to pay the taxes due on the property. Texas Land Finance later brought suit against Teleamerica for the amounts due on the note. In March, 2003, appellants purchased the property at a foreclosure sale, and Texas Land Finance joined appellants as defendants in the suit.

Appellants answered and filed a counterclaim for usury. They also tendered the last amount allegedly demanded by Texas Land Finance, $53,220.33, into the registry of the court. Texas Land Finance filed a plea in abatement alleging appellants did not have standing to assert their usury claim. The trial judge granted the plea. After a bench trial, the trial judge awarded Texas Land Finance $49,996.34 as the amount owing on the transferred liens, plus interest and attorneys’ fees. Appellants allege the trial judge erred in granting the plea in abatement and awarding Texas Land Finance attorneys’ fees and interest.

Standard of Review

In a bench trial, the trial judge, as fact finder, is the sole judge of the credibility of the witnesses. Nelson v. Najm, 127 S.W.3d 170, 174 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). The judge may take into consideration all the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Nelson, 127 S.W.3d at 174. The trial judge did not file findings of fact and conclusions of law. We therefore imply the trial judge made all the necessary findings to support its judgment, and we may uphold the judgment on any legal theory supported by the pleadings and evidence. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83-84 (Tex.1992) (in nonjury trial, where no findings of fact or conclusions of law filed or requested, it will be implied that trial judge made all necessary findings to support judgment); Nelson, 127 S.W.3d at 174 (when trial judge does not enter findings of fact and conclusions of law after a bench trial, appellate court may uphold judgment on any legal theory supported by pleadings and evidence).

Plea in Abatement and CounteRCLAIm

In them first issue, appellants contend the trial judge erred in granting Texas Land Finance’s plea in abatement and dismissing appellants’ counterclaim for usury. Appellants contend they have standing to assert their usury claim under section 32.065(e) of the Texas Tax Code even though they are not “obligors” under the applicable usury statutes. See Tex. Tax Code Ann. § 32.065(e) (Vernon 2001) (providing for penalty if excessive interest is charged in contract for foreclosure of tax lien). Texas Land Finance argues appellants are not “obligors” who can recover for usury under the applicable statutory provisions. See Tex. Fin.Code Ann. § 349.001 (Vernon Supp.2004-05) (“Liability for Contracting For, Charging, or Receiving Excessive Amount”). We conclude the trial judge did not err in granting Texas Land Finance’s plea in abatement.

Appellants concede that where a statute imposes a usury penalty and establishes the lender’s liability for the penalty “to the obligor,” only the obligor has standing to assert a usury claim. See Houston Sash & Door Co., Inc. v. Heaner, 577 S.W.2d 217, 222 (Tex.1979) (statutory language “to the obligor” evidences legislature’s intent that usury defense remain personal to debtor; statutes of penal nature to be strictly construed, so penalty forfeitures provided in statute restricted to immediate parties to transaction creating usury defense). Appellants argue, however, that their claim for usury arises under section 32.065(e), which provides:

If in a contract under this section a person contracts for, charges, or receives a rate or amount of interest that exceeds the rate or amount allowed by this section, the amount of the penalty for which the person is obligated is determined in the manner provided by Chapter 349, Finance Code.

Tex. Tax Code Ann. § 32.065(e) (Vernon 2001).

Citing Quick v. City of Austin, 7 S.W.3d 109 (Tex.1998), appellants contend that in section 32.065(e), the legislature intended to make usury remedies available to parties who are not obligors because there is no language restricting the remedy to the obligor. In Quick, the petitioners claimed a City of Austin water pollution control ordinance was void because it was not approved in advance by the Texas Natural Resource Conservation Commission. Quick, 7 S.W.3d at 112. The judge disagreed, pointing to numerous statutes in which the legislature had expressly required prior commission approval before a local ordinance became effective. See Quick, 7 S.W.3d at 122-23. The statute at issue in Quick had no similar language. The judge reasoned: ‘We presume that this omission has a purpose. The only purpose that we can ascribe for such an omission is that the Legislature did not intend that water pollution programs such as the Ordinance require Commission approval before becoming effective.” Quick, 7 S.W.3d at 122-28 (citation omitted).

Unlike the statute in Quick, however, section 32.065(e) cross-references a statute that does limit the lender’s liability to an obligor. Section 32.065(e) cross-references Chapter 349 of the Finance Code to determine the amount of the penalty. Section 349.001 of the Finance Code provides that a person who contracts for, charges, or receives interest greater than the amount permitted by statute “is liable to the obli-gor” for certain penalties. See Tex. Fin. Code Ann. §§ 349.001(a) & (b) (Vernon Supp.2004-05). The legislature’s cross-reference to a statute expressly including the limiting language does not evidence an intent to create a new, broader rule not limited to obligors. We overrule appellants’ first issue.

ATTORNEYS’ FEES

In their second issue, appellants contend the trial judge erred in awarding attorneys’ fees to Texas Land Finance. The judgment awards attorneys’ fees as follows:

Attorney’s Fees: $2,922.37
Additional Attorney’s Fees: $3,051.38 (due only on foreclosure sale)

The evidence showed taxes for two different years, 2000 and 2001, were at issue. The first award of attorneys’ fees in the judgment is for the tax year 2001; the second award is for the tax year 2000. Appellants’ complaint about these awards is twofold: first, the total amount of attorneys’ fees awarded exceeds the applicable statutory limit, and second, the smaller award also should have been contingent on the completion of a foreclosure sale.

Because of its contract with Telem-erica and the taxing authority’s transfer of liens, Texas Land Finance could “exercise any right or remedy possessed by the transferring taxing unit.” See Tex. Tax Code Ann. § 32.065(c) (Vernon 2001). Texas Land Finance relies on two statutory provisions to support the award of attorneys’ fees in the judgment. First, Texas Land Finance contends for the year 2001 it could recover attorneys’ fees of 15 percent under section 33.48 of the tax code. See Tex. Tax Code Ann. § 33.48(a)(5) (Vernon 2001) (in suit to collect delinquent tax, taxing unit entitled to recover attorneys’ fees of 15 percent of total amount of taxes, penalties, and interest due). Second, Texas Land Finance contends for the year 2000 it could recover attorneys’ fees of 10 percent under section 32.06(h), contingent upon foreclosure. See Tex. Tax Code Ann. § 32.06(h) (Vernon 2001) (if lienholder files suit to foreclose lien, and suit results in foreclosure, lienholder may recover attorneys’ fees in an amount not to exceed 10 percent of judgment). Texas Land Finance argues the judgment correctly treats the two tax years at issue differently because the taxes for 2000 were delinquent while the taxes for 2001 were not.

Appellants counter that section 33.07(c) of the tax code prohibits any recovery of attorneys’ fees. Section 33.07(c) provides: “If a penalty is imposed pursuant to this section, a taxing unit may not recover attorneys’ fees in a suit to collect delinquent taxes subject to the penalty.” See Tex. Tax Code Ann. § 33.07(c) (Vernon 2001). A penalty is imposed “pursuant to this section,” however, only where taxes become, and remain, delinquent. See Tex. Tax Code Ann. § 33.07(a) (taxing unit may provide for additional penalty to defray costs of collection of taxes becoming delinquent on or after specific dates in tax year). Texas Land Finance argues section 33.07(c) does not apply to the taxes for 2001, because the 2001 taxes were paid before any penalties, interest, or fees were imposed. We agree. Texas Land Finance was not prohibited by section 33.07(c) from recovering attorneys’ fees of 15 percent for the year 2001, and the trial judge did not err in including this award in the judgment. See Tex. Tax Code Ann. § 33.48.

For the year 2000, the taxes were delinquent, and the lien transferred from the taxing authority to Texas Land Finance included amounts for penalties and interest. Texas Land Finance does not argue it is entitled to recover the 15 percent measure of section 33.48 for the year 2000. Instead, Texas Land Finance contends it could recover attorneys’ fees for the year 2000 under section 32.06(h), in the event of foreclosure of the lien. As noted above, under section 32.06(h), a holder of a lien may file suit to foreclose the lien, and, “[i]f the suit results in foreclosure of the lien, the person filing suit is entitled to recover attorneys’ fees in an amount not to exceed 10 percent of the judgment.” Tex. Tax Code Ann. § 32.06(h). The trial judge found Texas Land Finance could recover attorneys’ fees for 2000 under this provision only upon foreclosure. Therefore, the judgment reflects that the award of attorneys’ fees for the year 2000 is “due only on foreclosure sale.”

Contrary to appellants’ arguments, the awards of attorneys’ fees in the judgment do not exceed the applicable statutory percentages, and because section 33.48 does not condition recovery of attorneys’ fees upon foreclosure, it was not necessary for the judgment to make the award for the year 2001 contingent upon foreclosure. We overrule appellants’ second issue.

INTEREST

In their third issue, appellants contend the trial judge erred in awarding interest after the date appellants tendered the amount due on the note into the registry of the court. Appellants urge their tender stopped the accrual of interest, citing section 3.603(c) of the Texas Business and Commerce Code. See Tex. Bus. & Com.Code Ann. § 3.603(c) (Vernon 2002) (tender of payment of amount due on instrument discharges obligation to pay interest after the date of tender). Texas Land Finance argues no valid tender was made.

Appellants deposited the sum of $53,220.33 into the registry of the court when they filed their answer and counterclaim for usury. While appellants alleged this sum was the amount demanded by Texas Land Finance on the two tax liens, they further alleged this amount included charges for excessive interest, and requested damages for the alleged usurious interest. “Tender is an unconditional offer by a debtor to pay a sum not less than the full amount due on a debt or obligation.” Bray v. The Cadle Co., 880 S.W.2d 813, 818 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (emphasis in original). The burden of proving a valid tender is on the party asserting it. Bray, 880 S.W.2d at 818. Appellants deposited the funds into the registry of the court and counterclaimed for usury. These actions were not an unconditional offer to pay the full amount due. See Clanton v. Cmty. Fin. & Thrift Corp., 262 S.W.2d 252, 255 (Tex.Civ.App.-Eastland 1953, no writ) (filing of suit for damages for usury clearly terminated tender of amount due on note). We overrule appellants’ third issue.

We affirm the trial court’s judgment.


author: Justice FRANCIS.

text:
    INDUSTRIAL CLEARINGHOUSE, INC., Appellant, v. JACKSON WALKER, L.L.P., Appellee.
    No. 05-03-01752-CV.
    Court of Appeals of Texas, Dallas.
    April 18, 2005.
    Rehearing Overruled May 25, 2005.

      Jody Sheets, Glast, Phillips & Murray, P.C., D. Patrick Long, Law Office of D. Patrick Long, Dallas, for Appellant.
    Luke Madole, Jeffrey S. Levinger, Car-rington, Coleman, Sloman & Blumenthal, Dallas, for Appellee.
    Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
   OPINION

Opinion by

Justice FRANCIS.

This is a legal malpractice action brought by appellant Industrial Clearinghouse, Inc. against appellee Jackson Walker, L.L.C. In its petition, appellant asserted malpractice claims on behalf of Coastal Plains, Inc. (as Coastal’s successor in interest) as well as malpractice claims on its own behalf. After granting two partial summary judgments in favor of Jackson Walker, the trial court rendered a final take-nothing judgment against appellant. In two issues, appellant challenges the trial court’s summary judgments with respect to Coastal’s malpractice claims and its own malpractice claims against Jackson Walker. For the reasons that follow, we affirm the trial court’s judgment.

This lawsuit has its genesis in a bankruptcy proceeding filed in 1986. Jackson Walker represented Coastal as debtor in possession in the bankruptcy court. While Coastal’s bankruptcy case was pending, appellant purchased several of Coastal’s assets including its causes of action against Browning Manufacturing (Coastal’s largest supplier). The Browning claims were tried in federal court and judgment was rendered in favor of Coastal/appellant. The judgment was ultimately reversed on appeal after the fifth circuit concluded Coastal/appellant were judicially estopped from asserting the claims because Coastal never disclosed the Browning claims in its bankruptcy schedules or in its stipulation for lifting the automatic bankruptcy stay to allow Coastal’s largest secured creditor to foreclose on Coastal’s assets.

After losing the Browning judgment, appellant filed this lawsuit on April 27, 2001 as Coastal’s successor in interest. Appellant asserted Jackson Walker was negligent in failing to disclose the Browning claims to the bankruptcy court and never advised Coastal that the claims should have been disclosed. Appellant’s petition was later amended to include a legal malpractice claim on appellant’s own behalf. Specifically, appellant asserted that Jackson Walker negligently assisted it in purchasing the Browning claims by failing to disclose that the claims had not been scheduled in the bankruptcy proceeding or by failing to take the steps necessary to preserve the. viability of these claims. Jackson Walker filed several motions for partial summary judgment, two of which the trial court granted. After appellant non-suited its remaining claim, the trial court rendered a final, take-nothing judgment against it. Appellant timely filed this appeal challenging two of the trial court’s partial summary judgments.

In its first issue, appellant contends the trial court erred in granting summary judgment (and denying its motion for new trial) with respect to the legal malpractice claims appellant brought on behalf of Coastal. Jackson Walker moved for summary judgment on these claims asserting, among other things, that appellant never acquired ownership of Coastal’s malpractice claims because Coastal never acquired the claims from Coastal’s bankruptcy estate. Appellant acknowledges the bankruptcy estate’s initial ownership of the claims. It argues, however, that once the bankruptcy case was closed, the malpractice claims were abandoned to Coastal as a matter of law pursuant to 11 U.S.C. § 554(c). Jackson Walker, on the other hand, asserts Coastal’s post-petition malpractice claims cannot be abandoned under section 554(c) because they were not property required to be scheduled under section 521(1). The question before us, then, is whether Coastal’s malpractice claims against Jackson Walker are subject to automatic abandonment pursuant to section 554(c).

Because Jackson Walker moved for a traditional motion for summary judgment on these claims, it had the burden to demonstrate no genuine issues of material fact existed and that it was entitled to judgment as a matter of law. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). The summary judgment evidence reveals that Coastal’s claims against Jackson Walker arose after the filing of the original petition for bankruptcy. Such post-petition legal malpractice claims become the property of Coastal’s bankruptcy estate. See In re C-Power Products, Inc., 230 B.R. 800, 803 (N.D.Tex.1998). Appellant, however, relies on section 554(c) of the bankruptcy code in support of its position that the claims reverted to Coastal upon the closing of the bankruptcy case.

Section 554(c) of the bankruptcy code provides that absent a court order stating otherwise, any property scheduled under section 521(1) and not otherwise administered at the time of the closing of the case is automatically abandoned to the debtor. 11 U.S.C. § 554(c). Unlike sections 554(a) and 554(b), which apply to any property, section 554(c) is specifically limited to “any property scheduled under section 521(1).” 11 U.S.C. § 554. The only property required to be scheduled under section 521(1) is that property that was owned by the debtor at the time of the filing of the petition for bankruptcy. See 4 COLLIER OF BANKRUPTCY ¶ 521.06[3][a] (15th rev. ed.2002) (no general duty to amend schedules to list property acquired during a case, despite the fact that such property becomes property of the estate). Coastal’s malpractice claims against Jackson Walker arose after the bankruptcy petition was filed, were not owned by Coastal at the time the petition was filed, and therefore were not required to be scheduled under 521(1). Because such post-petition property is not “property scheduled under 521(1),” it is not subject to the technical abandonment provisions of 554(c). In reaching this conclusion, we find In re DeLash, 260 B.R. 4, 9 (E.D.Cal.2000) persuasive.

In DeLash, the court addressed the issue of who was entitled to reopen a bankruptcy case for purposes of dealing with money received on a preference judgment after the case had been closed. Resolution of that question depended upon whether the preference judgment remained in the bankruptcy estate or whether it was abandoned to the debtors at the closing of the bankruptcy case under section 554(c). Id. at 8.

After analyzing section 554 in its entirety, the court reasoned “if property of the estate in question is not of the type the debtor is required to schedule, it is not abandoned by operation of law when the case is closed.” Id. at 9. Concluding that the preferential transfer and preferential judgment were not required to be scheduled under 521(1), the court stated they could not be abandoned by operation of law under 554(c). In contrast to DeLash, appellant relies on In re Kottmeier, 240 B.R. 440 (M.D.1999) and In re Menk, 241 B.R. 896 (9th Cir.BAP1999) to support its position that such post-petition claims may be abandoned under section 554(c). While these cases may suggest the possibility of a section 554(c) abandonment for post-petition property, there is little or no analysis accompanying their conclusions. We find the reasoning of DeLash persuasive and reject appellant’s cases to the extent they suggest otherwise.

Here, like DeLash, post-petition malpractice claims were not required to be scheduled under 521(1). Accordingly, they were not subject to section 554(c)’s technical abandonment provisions and Coastal did not acquire the claims at the close of its bankruptcy case. Instead, the claims remain the property of the bankruptcy estate. Coastal’s failure to acquire ownership of the malpractice case necessarily means that appellant does not own the claim as Coastal’s successor. We therefore conclude the trial court did , not err in granting summary judgment to- Jackson Walker on Coastal’s malpractice claim. We resolve appellant’s first issue against it.

In its second issue, appellant challenges the trial court’s summary judgment and denial of its motion for new trial with respect to its own malpractice claim against Jackson Walker. Specifically, appellant contends it presented sufficient evidence on each element of its claim to defeat Jackson Walker’s no-evidence summary judgment motion. We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. Gen. Mills Rests., Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). We must therefore determine whether appellant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. Id. at 833. When analyzing a no-evidence summary judgment, we consider the evidence in the light most favorable to the nonmovant. See id.

To prevail on its legal malpractice claim, appellant must show (1) Jackson Walker owed appellant a duty, (2) Jackson Walker breached that duty, (3) the breach proximately caused appellant’s injuries, and (4) damages occurred. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113 (Tex.2004). Although Jackson Walker’s no-evidence summary judgment motion challenged each element of appellant’s legal malpractice claim, we focus only on whether Industrial presented sufficient evidence on the element of proximate cause as this analysis is dispositive of this issue. Because appellant alleges that some failure on Jackson Walker’s part caused the adverse result in the Browning litigation, it must produce evidence from which a jury may reasonably infer that the attorney’s conduct caused the damages alleged. See id. at 117. In other words, appellant had to produce evidence to raise a fact issue as to whether the fifth circuit would have decided the underlying Browning litigation differently if Jackson Walker had not been negligent. To meet this burden, appellant was required to present expert evidence explaining the legal significance of Jackson Walker’s alleged failure and the impact of this failure on the fifth circuit ruling. See id. at 118. This it did not do.

Appellant first relies on the fifth circuit’s June 18, 1999 opinion as evidence of causation. Specifically, it focuses on the fifth circuit’s holding that appellant was judicially estopped from recovering the judgment as a result of the debtor Coastal’s failure to disclose the Browning claims in Coastal’s bankruptcy proceeding. The fifth circuit opinion, however, does not constitute expert evidence that Jackson Walker caused any damage to appellant. The opinion does not address the issue of legal malpractice on the part of Jackson Walker or connect any actions of Jackson Walker to appellant’s alleged damages (the loss of the Browning judgment).

Appellant attempted to make such a connection through its expert, Richard Countiss. Appellant initially refers to Countiss’s supplemental report in which he states that certain enumerated failures on the part of Jackson Walker were “either singularly or in combination ... the proximate causes of damages to [appellant].” Appellant further directs us to Countiss’s deposition where he states, “It was my opinion that Jackson Walker was negligent and that that negligence caused damage to Coastal/ICHI” and, “My first conclusion was that without the — without the negligence, the judgment probably would have been affirmed.” The trial court, however, sustained Jackson Walker’s objections to the “opinions of Countiss as to proximate cause or damage.” Because appellant has not challenged the trial court’s evidentiary ruling on appeal, we will not consider this evidence in our review. See Vallante v. Irving C.A.R.E.S., Inc., 14 S.W.3d 833, 838 (Tex.App.-Dallas 2000, no pet.).

As additional evidence of causation, appellant cites extensively from an affidavit by Countiss attached to its motion for new trial. This affidavit was not before the trial court at the time of the summary judgment hearing and ruling. Generally, a party may not rely on new evidence in a motion for new trial unless it demonstrates the evidence was newly discovered and could not have been discovered through due diligence prior to the ruling on the summary judgment motion. See McMahan v. Greenwood, 108 S.W.3d 467, 500 (Tex.App.-Hous. [14th Dist.] 2003, pet. denied) Appellant does not argue that the affidavit was newly discovered evidence and could not have been discovered through due diligence prior to the trial court’s ruling. Instead, appellant asserts that because it was unaware the trial court was going to sustain Jackson Walker’s objections until the tidal court signed the order granting summary judgment, it must be given the opportunity to amend its summary judgment proof.

After the trial court sustained Jackson Walker’s objection, appellant never requested by its motion for new trial, rehearing or otherwise the opportunity to amend its summary judgment evidence. Consequently, this complaint has not been preserved for review. In order to preserve a complaint for appellate review, a party must first present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling it requests and obtain a ruling on that request. Tex.R.App. P. 33.1.

Finally, appellant refers us to two other affidavits as evidence of causation. First, it presents the affidavit of Wayne Duke, appellant’s CEO. Duke states that he consulted with Jackson Walker about possibly acquiring the Browning claims. While this evidence arguably raises a fact issue on the element of duty, it is irrelevant with respect to the issue of causation. Appellant also contends evidence of causation can be found in the affidavit of its bankruptcy expert Mar-illee Madan who states “leave to amend or supplement a bankruptcy schedule is freely given.” Again, this evidence does not support a finding that Jackson Walker’s action or inaction caused appellant damage. We resolve appellant’s second issue against it.

We affirm the trial court’s judgment.