Gerald K. Johnson v. Frederick M. Evans and Christine G. Evans ( 2014 )

NO. 12-12-00312-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
GERALD K. JOHNSON, § APPEAL FROM THE 3RD
APPELLANT
V. § JUDICIAL DISTRICT COURT
FREDERICK M. EVANS AND
CHRISTINE G. EVANS,
APPELLEES § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Gerald K. Johnson, appearing pro se, appeals the trial court’s judgment denying his
request for partition of a 45.59 acre tract and a permanent injunction against Frederick M. Evans
and Christine G. Evans. In ten issues, Johnson contends the trial court erred in its judgment. We
affirm.
BACKGROUND
Several years before Johnson filed the underlying suit, the Evanses filed an action
seeking to partition two tracts of land in Anderson County. One of the tracts was the 45.59 acres
that is the subject of this appeal. In a 2005 decree ordering partition and appointing
commissioners, the trial court determined that the Evanses owned an undivided seven-eighths
interest and Eldredge Jasper and his unknown heirs owned an undivided one-eighth interest in
the 45.59 acre tract (the tract). However, the Evanses nonsuited their request for partition of the
tract, and therefore the tract was not partitioned. Johnson appealed, and the Houston Fourteenth
Court of Appeals, in its opinion affirming the trial court’s judgment, stated as follows:
Furthermore, the first judgment did not establish [Gerald] Johnson’s right to Tract 1 [the 45.59
acres that is the subject of the present suit]. The first judgment determined only the Evanses and
the Jasper heirs had ownership rights to Tract 1. While Johnson claimed an interest in Tract 1, as
an heir of Eldredge Jasper, Johnson did not file a counterclaim or otherwise seek affirmative relief
to prove his heirship.1
In the present suit, which was in the same trial court, Johnson alleged that he owned an
interest in the tract. He sought a temporary injunction, and ultimately a permanent injunction,
prohibiting the Evanses from preventing his and his agents’ entry onto the tract. He also
requested that the tract be partitioned.
On January 23, 2012, the trial court held a temporary injunction hearing. Johnson
introduced affidavits from his mother, Vernita Jasper Johnson, and aunt, Bernice Jasper, and a
flow chart prepared by the three of them purporting to show the descendants of William E.
Jasper. The affidavits stated that Eldredge Jasper was a son of William E. and Harriett Jasper,
that he died a single man, and that his only child had predeceased him. It was thus undisputed
between Johnson and the Evanses that Eldredge Jasper’s interest in the tract passed to his
brothers and sisters at his death. Johnson introduced into evidence deeds from his mother,
Arnette Cain, H.D. Cain, and Leon Ealy conveying ―all [their] interest, right, [and] title‖ in all or
a portion of the tract.2 He testified that each of these four grantors was an heir of a brother or
sister of Eldredge Jasper. He further testified that as a result of these four deeds, he owned about
one acre in the tract.
Stephen Evans, an attorney who had examined the title to the tract, testified on the
Evanses’ behalf. He agreed with Johnson that Eldredge Jasper’s interest passed to his seven
brothers and sisters. However, the Evanses introduced into evidence documents that, according
to Stephen Evans’s testimony, established a chain of title to the tract from Willis Jasper to the
Evanses. Stephen Evans testified further that the Evanses owned the undivided one-eighth
interest of Eldredge Jasper and his unknown heirs through the doctrine of after acquired title.
Therefore, he stated, Johnson owns no interest in the tract. The trial court denied the temporary
injunction.
1
Johnson v. Evans, No. 14-08-00160-CV, 2010 WL 431292, at *4 (Tex. App.–Houston [14th Dist.]
Feb. 9, 2010, pet. denied) (mem. op., not designated for publication).
2
The deeds described the land in which the grantors had an interest as 11.40 acres. This acreage was the
portion of the 45.59 acre tract that had been designated by the commissioners in the previous suit to be set aside to
Eldredge Johnson and his unknown heirs. Because of the Evanses’ nonsuit, no partition of the tract occurred.
Johnson’s mother, Vernita Jasper Johnson, executed a correction deed to reflect that the tract in which she owned an
interest was the 45.59 acre tract. The record does not include a correction deed from the other three grantors.
2
On May 30, 2012, the trial court conducted a hearing on Johnson’s request for partition.
Following the hearing, the trial court signed a final judgment identifying the previously unknown
heirs of Eldredge Jasper, determining that the Evanses are their successors in interest, and
denying ―[a]ll other relief not expressly granted.‖ Later, the trial court filed the following
findings of fact and conclusions of law:
I. FINDINGS OF FACT:
1. Plaintiff filed cause of action alleging title interest, through conveyances and
inheritance, to subject real property, and requesting injunctive relief from the court
that would grant an affirmative remedy providing him access to or on said property.
(22.904 acres of land, Jesse Gibson Survey, Abstract No. 26, Anderson County,
Texas).
2. Defendants filed response denying the title interest and Plaintiff’s basis for the
injunctive relief.
3. Plaintiff set hearing for temporary injunctive relief and appeared represented by
counsel. Defendants appeared by and through counsel. The matter was heard by the
court. Temporary injunction was denied. Plaintiff filed a motion for new trial which
was not heard by the court.
4. The matter was set for final trial before the court. Plaintiff appeared pro se,
Defendants appeared by and through their counsel of record. The court heard all
testimony and received exhibits and evidence as tendered by the parties.
5. The real property was the subject of prior litigation between the parties herein, as to
the title interests held, under Cause No. 3-39909. The prior court entered judgment
finding that the Defendants herein held an undivided 7/8ths title interest in the
subject property, and the remainder being held by Eldredge Jasper, his heirs or
assigns.
6. The evidence submitted during the trial to the court supports the finding that the
Defendants are the resulting holders of the undivided 1/8th interest, as such interest
flowed to the Defendants through the chain of title in the property. The heirs of
Eldredge Jasper were his collaterals (brothers and sisters), as captioned in the
judgment signed by this court, and all such heirs conveyed their interest in the
property, which followed a chain of title to the Defendants. The evidence, including
the affidavits provided by Plaintiff, that were [sic] presented to this court was not
submitted or considered by the prior court in its ruling. Eldredge Jasper died
intestate, without surviving spouse or children. The Grantor(s) of conveyances to
Plaintiff were not heirs at law of Eldredge Jasper.
7. Plaintiff did not show any compelling interest to enter upon the real property; which
is the homestead of the Defendants, nor did he show any irreparable harm as would
merit injunctive relief.
3
II. CONCLUSIONS OF LAW
1. Plaintiff does not have a title interest in the subject property. (22.094 acres of land,
Jesse Gibson Survey, Abstract No. 26, Anderson County, Texas).
2. Plaintiff is not entitled to extraordinary relief as requested, pursuant to the Texas
Civil Practice and Remedies Code. He has failed to show a justiciable interest in the
real property, or any irreparable harm that would merit injunctive relief.
3. Defendants hold the undivided 1/8th title interest formerly attributable to Eldredge
Jasper. The evidence produced by the parties demonstrates a regular chain of title,
following conveyances from all of his collateral heirs at law, through successive
conveyances to the Defendants.
4. Plaintiff did not submit sufficient evidence to support or merit any ground of relief
requested in his pleadings.
Johnson’s motion for new trial was denied by operation of law. He then timely filed this
appeal, raising ten issues.
REQUEST FOR ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW
In his sixth issue, Johnson complains that the trial court erred when it did not file
additional findings of fact and conclusions of law as he had requested. After a trial court files
original findings of fact and conclusions of law, a party may request ―specified additional or
amended findings or conclusions that are appropriate.‖ TEX. R. CIV. P. 298. But in doing so,
―[a] bare request is not sufficient; proposed findings and conclusions must be submitted.‖
Alvarez v. Espinoza, 844 S.W.2d 238, 242 (Tex. App.–San Antonio 1992, writ dism’d w.o.j.)
(op. on reh’g).
The trial court should make additional findings of fact only if they have some legal
significance to an ultimate issue in the case. Vickery v. Comm’n for Lawyer Discipline, 5
S.W.3d 241, 255 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). The court is not required
to make additional findings of fact that are unsupported in the record or that are contrary to other
previous findings. In re Marriage of Grossnickle, 115 S.W.3d 238, 254 (Tex. App.—Texarkana
2003, no pet.). Nor is the trial court required to make findings on every controverted fact.
Vickery, 5 S.W.3d at 255. And if a trial court errs by failing to make additional findings or
conclusions, the error is not reversible if the trial court’s failure does not prevent the requesting
party from adequately presenting an argument on appeal. H.K. Global Trading, Ltd. v. Combs,
429 S.W.3d 132, 141 (Tex. App.–Austin 2014, pet. denied).
4
Johnson requested the trial court to file additional findings and conclusions pertaining to
ten different issues. However, he did not submit proposed findings and conclusions as required
by Rule 298. Therefore, the trial court did not err in failing to file additional findings and
conclusions. But even if the trial court’s failure was error, Johnson has been able to identify the
factual and legal bases for the trial court’s action and challenge them on appeal. Consequently,
any error in failing to comply with Johnson’s request would not be reversible error. See id. We
overrule Johnson’s sixth issue.
ERROR IN FINDINGS OF FACT AND CONCLUSIONS OF LAW
In his first issue, Johnson contends that the trial court erred by stating in its finding of fact
number one and its conclusion of law number one that the tract involved in this suit comprises
22.904 acres. He contends that there is legally and factually insufficient evidence to show that he
sought title and injunctive relief pertaining to part of what is known as the Martha Barnett tract.
Johnson’s pleadings and the evidence he introduced at trial showed that the tract in
question contained 45.59 acres. The Evanses erroneously introduced documents pertaining to
the Martha Barnett tract along with documents pertaining to the 45.59 acre tract. Before the
conclusion of the partition hearing, the Evanses informed the trial court of their mistake and
clarified that the Martha Barnett tract was not involved in the suit. Consequently, the evidence
does not support the trial court’s description of the tract.
An appellate court is not permitted to reverse a judgment in a civil case unless it
concludes that the error complained of probably caused the rendition of an improper judgment or
probably prevented the appellant from properly presenting the case to the court of appeals. TEX.
R. APP. P. 44.1(a); see Thota v. Young, 366 S.W.3d 678, 691 (Tex. 2012) (appellate court reverses
only if alleged error was harmful). Here, the judgment includes a determination of the
previously unknown heirs of Eldredge Jasper and declares that the Evanses are their successors
in interest. It does not refer to any specific tract of land or number of acres. Therefore, the error
did not cause the rendition of an improper judgment. Moreover, Johnson does not argue, nor can
we conclude, that the trial court's error probably prevented Johnson from properly presenting his
case to this court. Therefore, the incorrect statement of acreage in finding of fact number one
and conclusion of law number one is harmless error. See H.H. Holloway Trust v. Outpost
Estates Civic Club Inc., 135 S.W.3d 751, 754 (Tex. App.–Houston [1st Dist.] 2004, pet. denied)
5
(harmless error where finding of fact erroneously stated acres conveyed as fifty-three instead of
forty-three). We overrule Johnson's first issue.
SUFFICIENCY OF THE EVIDENCE
In this appeal, Johnson challenges the trial court’s denial of his request for partition of the
tract and a permanent injunction against the Evanses.3 To show himself entitled to the requested
relief, Johnson was required to prove that he owns an interest in the tract. See Manchaca v.
Martinez, 148 S.W.2d 391, 391 (Tex. 1941) (party seeking partition has burden to prove that he
is joint owner of real property to be partitioned and has equal right to possession with other joint
owners); Murphy v. Tribune Oil Corp., 656 S.W.2d 587, 589 (Tex. App.–Fort Worth 1983, writ
dism’d) (applicant seeking to enjoin another from denying him access to real property must
prove right in property by evidence of title or some other interest to be protected).
In his second, third, and seventh issues, Johnson argues that the evidence is legally and
factually insufficient to support the trial court’s finding that he owns no interest in the tract.4 He
maintains that he proved he owns an undivided interest in the tract and that the Evanses did not
meet their burden to show they acquired their title from a common source. These complaints
relate to part of finding of fact number six and conclusions of law one, three, and four.
Standard of Review
In an appeal of a judgment rendered after a nonjury trial, a trial court’s findings of fact
have the same weight as a jury’s verdict, and the standard of review of the trial court’s findings
of fact is the same as that applied in reviewing a jury’s findings. Speer v. Presbyterian
Children’s Home and Serv. Agency, 847 S.W.2d 227, 233 n.4 (Tex. 1993); Catalina v. Blasdel,
881 S.W.2d 295, 297 (Tex. 1994). Where, as here, the appellate record contains a reporter’s
3
The trial court also denied Johnson’s request for a temporary injunction. The purpose of a temporary
injunction is to preserve the status quo of the litigation subject matter pending a trial on the merits. Butnaru v. Ford
Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). Thus, a temporary injunction generally expires after the trial court
renders a final judgment. Perry Bros., Inc. v. Perry, 734 S.W.2d 211, 212 (Tex. App.–Dallas 1987, no writ); Tex.
City v. Cmnty. Pub. Serv. Co., 534 S.W.2d 412, 414 (Tex. Civ. App.–Beaumont 1976, writ ref’d n.r.e.). When that
occurs, an appeal from the grant or denial of a temporary injunction becomes moot. Richards v. Mena, 820 S.W.2d
372, 372 (Tex. 1991) (order granting temporary injunction); Johnson v. City of Corpus Christi, 419 S.W.2d 201,
202 (Tex. 1967) (per curiam) (order denying temporary injunction); but see Nat’l Collegiate Athletic Ass’n v.
Jones, 1 S.W.3d 83, 87 (Tex. 1999) (holding appeal of temporary injunction not moot where propriety of temporary
injunction relevant to disposition of another issue).
4
In a partition suit, the court ―shall determine . . . all questions of law or equity affecting the title to such
land which may arise.‖ TEX. R. CIV. P. 760.
6
record, findings of fact are not conclusive on appeal if the contrary is established as a matter of
law or if there is no evidence to support the findings. Ramsey v. Davis, 261 S.W.3d 811, 815
(Tex. App.–Dallas 2008, pet. denied). We review a trial court’s conclusions of law de novo. See
Benedictine Sisters of the Good Shepherd v. Ellison, 956 S.W.2d 629, 631 (Tex. App.–San
Antonio 1997, pet. denied). When performing a de novo review, we exercise our own judgment
and redetermine each legal issue. Sembera v. Petrofac Tyler, Inc., 253 S.W.3d 815, 822 (Tex.
App.–Tyler 2008, pet. denied). To make this determination, we consider whether the
conclusions are correct based on the facts from which they are drawn. Potcinske v. McDonald
Prop. Invs., Ltd., 245 S.W.3d 526, 529 (Tex. App.–Houston [1st Dist.] 2007, no pet.).
If a party with the burden of proof challenges the legal sufficiency of the evidence to
support an adverse finding, he must demonstrate on appeal that the evidence establishes, as a
matter of law, all vital facts in support of the issue. See Dow Chem. Co. v. Francis, 46 S.W.3d
237, 241 (Tex. 2001). In reviewing a ―matter of law‖ challenge, we first examine the record for
evidence supporting the adverse finding. Id. If there is no evidence supporting the adverse
finding, we then examine the entire record to determine if the contrary proposition is established
as a matter of law. Id. We sustain the legal sufficiency challenge only if the contrary
proposition is conclusively established. Id. A matter is conclusively established only if
reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d
802, 817 (Tex. 2005).
If a party with the burden of proof challenges the factual sufficiency of the evidence to
support an adverse finding, he must demonstrate on appeal that the adverse finding is against the
great weight and preponderance of the evidence. Dow, 46 S.W.3d at 242. In addressing factual
sufficiency, we review all of the evidence in a neutral light and will reverse only if the evidence
supporting the finding is so contrary to the overwhelming weight of the evidence as to make the
judgment clearly wrong and manifestly unjust. Id. In a bench trial, the trial court, as the fact
finder, is the sole judge of the witnesses’ credibility and the weight to be given their testimony.
Alonso v. Alvarez, 409 S.W.3d 754, 757 (Tex. App.–San Antonio 2013, pet. denied). In
resolving factual disputes, the trial court can accept or reject any part or all of a witness’s
testimony. Id. The trial court may believe one witness and disbelieve others and resolves any
inconsistencies in a witness’s testimony. Id. We will not interfere with the fact finder’s
resolution of conflicts or determine the weight or credibility of the witness’s testimony because a
7
fact finder’s determination of conflicting evidence is generally regarded as conclusive.
Cunningham v. Hughes & Luce, L.L.P., 312 S.W.3d 3d 62, 67 (Tex. App.–El Paso 2010, no
pet.).
The Evidence5
The undisputed evidence shows that the tract was formerly owned by William E. Jasper
and his wife, Harriet (the Jaspers), and was inherited by their heirs at law. Johnson and the
Evanses disagree on the identity of the Jaspers’ heirs at law and specifically about how many
children were born to the Jaspers.
Johnson, who is a descendant of the Jaspers, contended at the partition hearing that he
acquired part of the interest formerly owned by one of their grandsons, William Elfford Jasper.6
Relying on the flow chart that he had introduced into evidence at the temporary injunction
hearing, Johnson testified that (1) the Jaspers had nine children, including Elfford Jasper; (2)
Elfford was the father of William Elfford Jasper; and (3) William Elfford Jasper was also known
as Eldredge Jasper. Thus, Johnson contended that there were two men named Eldredge Jasper–
one a son and the other a grandson of the Jaspers. He contended further that the Eldredge Jasper
mentioned in the 2005 partition judgment was the Jaspers’ son. According to the flow chart and
Johnson’s testimony, the grandson Eldredge Jasper inherited an undivided interest in the tract.
Upon his death, his interest passed to his aunts and uncles (his father’s brothers and sisters) and
ultimately to their children. Johnson introduced deeds from four of these children conveying
him ―all [their] interest, right, [and] title‖ in the tract.
The Evanses disputed Johnson’s claim of title. They contended that the Jaspers had eight
children, including a son named Eldredge Jasper. They asserted that this Eldredge Jasper is the
person to whom the 2005 judgment refers. They also contended that, through the doctrine of
after acquired title, they own the undivided one-eighth interest in the tract attributed to Eldredge
Jasper and his unknown heirs in that judgment. The Evanses introduced into evidence an
affidavit of heirship executed by A.W. Whitehead on August 7, 1956, and recorded on
November 6, 1956. In his affidavit, Whitehead stated that the Jaspers had eight children,
including a son named Eldredge Jasper. He recounted that his family and the family of William
5
Although both sides initially asserted various pleas in bar, including res judicata and collateral estoppel,
neither side objected to the other’s evidence.
6
Johnson’s testimony at the partition hearing conflicted in some respects with his testimony at the
temporary injunction hearing.
8
Jasper went to school and church together and had been neighbors for the preceding seventy-five
years. And he stated further that he was personally acquainted with the Jaspers’ eight children.
Additionally, the Evanses introduced an 1897 partition deed through which, they contended,
Willis Jasper, their predecessor in title, acquired the tract. Eldredge Jasper did not sign the deed.
The Trial Court’s Finding and Conclusions
To determine whether Johnson owned an interest in the tract, the trial court was required
to assess the credibility of the witnesses and the weight to give their testimony and to resolve
conflicts in the evidence. See City of Keller, 168 S.W.3d at 819-20, 822. This included the
conflict concerning how many children the Jaspers had.
The 1956 affidavit states that the Jaspers had eight children and had been of record for
more than fifty years. The affiant stated facts that showed he had personal knowledge of the
information in the affidavit and that he was well acquainted with the individuals named in the
affidavit and their relationship to each other. Johnson’s flow chart provided the sole support for
his testimony that there were two Eldredge Jaspers. The chart was prepared by Johnson, his
mother, and his aunt, and was unaccompanied by any documentation from which the trial court
could verify its accuracy.
The trial court heard the testimony of the witnesses and reviewed the evidence introduced
by each side. The trial court then resolved the conflicting evidence concerning the number of
Jasper children in the Evanses’ favor. Thus, the trial court found that the grantors in the deeds to
Johnson were not heirs of Eldredge Jasper and concluded that Johnson had no ownership interest
in the tract and was not entitled to any of the relief he sought.
We will not interfere with the trial court’s resolution of this conflict in the evidence. See
Cunningham, 312 S.W.3d at 67. Therefore, we conclude that the 1956 affidavit supports the
trial court’s finding and that the court’s conclusions from that finding are correct. Consequently,
Johnson cannot show that, as a matter of law, he established that he has an ownership interest in
the tract. We further conclude that the finding is not against the great weight and preponderance
of the evidence. Accordingly, we overrule Johnson’s second, third, and seventh issues.
AFTER ACQUIRED TITLE
In his fourth and fifth issues, Johnson challenges the legal and factual sufficiency of the
evidence supporting the Evanses’ theory of ownership through the doctrine of after acquired title.
9
In his eighth issue, he argues that the court erred in not applying the doctrines of ―stare decisis
and sua sponte and res judicata and collateral estoppel to after-acquired title.‖
We have held that the evidence is sufficient, both legally and factually, to support the
trial court’s finding that the grantors in the deeds to Johnson were not heirs of Eldredge Jasper.
Consequently, even if he prevailed on his after acquired title issues, he would not have
established that he owned an interest in the tract. Therefore, he still would not be entitled to the
relief he sought. Accordingly, we do not address Johnson’s fourth, fifth, and eighth issues. See
TEX. R. APP. P. 47.1.
PERJURED TESTIMONY
In his tenth issue, Johnson asserts that Christine Evans gave perjured testimony during
the temporary injunction hearing and Frederick Evans gave perjured testimony in his deposition.
He argues that because of this perjured testimony, he is entitled to a new trial.
In Texas, the crime of perjury is committed if, ―with intent to deceive and with
knowledge of the statement’s meaning,‖ a person makes a false statement under oath or unsworn
declaration. TEX. PENAL CODE ANN. § 37.02(a) (West 2011).
Christine Evans testified that she ―absolutely‖ believed she and her husband owned 100%
of the tract. She relied on the fact that they received a title policy guaranteeing that they owned
100% of the tract. On cross examination, she testified further that the 2005 judgment does not
affect her opinion on whether they own 100% of the tract because ―[w]e own the property. We
have a guaranteed title on the property.‖ When asked if she believed that regardless of what the
courts have said, she responded, ―We own the property, sir.‖
Frederick Evans testified in his deposition that he thought he was awarded the tract in its
entirety in the prior partition suit. He also testified that he was not familiar with the opinion
issued by the Houston Fourteenth Court of Appeals. He stated that at the time he purchased the
tract, ―there was no Eldr[e]dge Jasper,‖ and he did not believe he owned only an undivided
seven-eighths interest in the tract, even if the court of appeals’ opinion said that. When asked the
basis of his opinion, he replied, ―By the deed I received on it.‖ He testified that he had an
attorney who handled his purchase of the tract and he received a deed from an individual who
purported to own the entire tract. Thus, he insisted that he owns the entire tract.
10
In sum, the Evanses testified that they purchased the tract from someone who purported
to own it. They also received a deed purporting to convey the entire tract and a title policy
insuring that they owned 100% of the tract. The Evanses stated their opinion concerning the
ownership of the tract and explained the basis for it. And they both were clear that they did not
agree with any court that found to the contrary. We cannot say that the elements of perjury are
satisfied here. We overrule Johnson’s tenth issue.
MOTION FOR NEW TRIAL
In his ninth issue, Johnson argues that the trial court abused its discretion in not granting
his motion for new trial. He made the same arguments in his motion for new trial that he has
made in this appeal.
We review the denial of a motion for new trial under an abuse of discretion standard. In
re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (per curiam). Under this standard, we may not
overrule the trial court’s decision unless the trial court acted unreasonably or in an arbitrary
manner, without reference to guiding rules or principles. El Dorado Motors, Inc. v. Koch, 168
S.W.3d 360, 368 (Tex. App.–Dallas 2005, no pet.) (citing Beaumont Bank, N.A. v. Buller, 806
S.W.2d 223, 226 (Tex. 1991)). In our review, we indulge every reasonable presumption in favor
of the trial court’s failure to grant a new trial. See Koch, 168 S.W.3d at 368.
The pivotal issue at trial was whether Johnson owned an interest in the tract. The trial
court concluded that he did not, and we have held that the evidence is legally and factually
sufficient to support the underlying finding. We also have held that the trial court’s conclusions
from that fact are correct. Moreover, we have overruled Johnson’s issue pertaining to the
Evanses’ allegedly perjured testimony. Therefore, we cannot say that the trial court abused its
discretion in failing to grant a new trial on these grounds.
The remaining arguments in Johnson’s motion for new trial pertain to the application of
after acquired title. As we have stated, however, the outcome of the proceeding turned on
whether Johnson could prove he owned an interest in the tract. Because the evidence is legally
and factually sufficient to support the trial court’s adverse finding on Johnson’s claim of title, we
decline to hold that the trial court abused its discretion in failing to grant a new trial based on his
after acquired title.
We overrule Johnson’s ninth issue.
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DISPOSITION
Having overruled Johnson’s first, second, third, sixth, seventh, ninth, and tenth issues, we
affirm the judgment of the trial court. All pending motions are dismissed as moot.
JAMES T. WORTHEN
Chief Justice
Opinion delivered September 18, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
12
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 18, 2014
NO. 12-12-00312-CV
GERALD K. JOHNSON,
Appellant
V.
FREDERICK M. EVANS AND CHRISTINE G. EVANS,
Appellee
Appeal from the 3rd District Court
of Anderson County, Texas (Tr.Ct.No. 3-41481)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, GERALD K. JOHNSON, for which execution may issue, and that this
decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.