Full Opinion (html_with_citations)

                          NUMBER 13-20-00568-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI – EDINBURG


CHARLIE W. TORRES AND
MARICELA R. TORRES,                                                        Appellants,

                                               v.

CAMERON COUNTY, TEXAS,                                                        Appellee.


                    On appeal from the 404th District Court
                         of Cameron County, Texas.


                          MEMORANDUM OPINION

               Before Justices Longoria, Hinojosa, and Silva
                Memorandum Opinion by Justice Hinojosa

      Appellants Charlie and Maricela Torres appeal a declaratory judgment concerning

the location of a public roadway. Following a bench trial, the trial court granted judgment

in favor of appellee Cameron County, Texas (the County), declared that the roadway was

properly located within the area expressly dedicated to the County, and required the
Torreses to remove all obstructions within the County’s sixty-foot right-of-way (ROW). In

four issues, the Torreses argue: (1) the trial court’s judgment does not conform to the

pleadings; (2) the evidence supporting the judgment is legally and factually insufficient;

(3) the trial court erred in awarding attorney’s fees and requiring the Torreses to pay for

a new survey; and (4) the trial court erred in denying the Torreses’ requested relief. We

affirm.

                                         I.       BACKGROUND

A.        Adams Lane Road

          In 1965, Floyd Reynolds dedicated a certain .81–acre ROW easement, 1 forty feet

in width, located in the Byrnes Subdivision Lot 5, to the County. The ROW was granted for

the construction of a public roadway to connect existing roads in the neighboring

subdivisions. The 1965 dedication described that the road would begin at the southwest

corner of Lot 3, Block 5 of the Arroyo Drive Subdivision and would connect to the southeast

corner of Lot 44 of the Hooks and Hodges Subdivision. The dedication contained the

following metes and bound description for the boundary of the ROW:

          BEGINNING at the southwest corner of Lot 3, Block 5, Arroyo Drive
          Subdivision, said corner being on the east line of the Byrnes Subdivision
          and being North 0° 37’ West, 679.6 feet from the northeast corner of Lot 5,
          Byrnes Subdivision;

          THENCE, South 0° 37’ East, along the east line of said Lot 5, a distance of
          20.0 feet to a point for the southeast corner of the tract herein described;

        1 The recorded document is titled “Right-of-Way Easement,” but it also states that the property is

being “donated” to the County for the construction of a highway. “The terms dedication and easement are
not synonymous.” Long Island Owner’s Ass’n, Inc. v. Davidson,
965 S.W.2d 674, 684
 (Tex. App.—Corpus
Christi–Edinburg 1998, pet. denied) (citing Russell v. City of Bryan,
919 S.W.2d 698, 702
 (Tex. App.—
Houston [14th Dist.] 1996, writ denied)). “A dedication grants an easement to the general public in the land
dedicated for its use . . . [, whereas] [a]n easement extends to certain persons the right to use the land of
another for a specific purpose.”
Id.
 (internal citations omitted).
                                                     2
       THENCE, South 87° 55’ 41” West, across said Lot 5, along a line parallel
       to and 20.0 feet south of the proposed road centerline, 886.8 feet to a point
       on the west line of Lot 5, for the southwest corner of the tract herein
       described;

       THENCE, North 0° 37’ West along said west line, at 20.0 feet pas[t] the
       southeast corner of Lot 44 of the Hooks and Hodges Subdivision, and a
       total distance of 40.0 feet to a point for the northwest corner of the tract
       herein described;

       THENCE, North 87° 55’ 41” East, across said Lot 5, along a line parallel to
       and 20.0 feet north of the proposed road centerline, 886.8 feet to point on
       the east line of said Lot 5;

       THENCE, South 0° 37’ East, along said east line, 20.0 feet to the Place or
       Beginning, containing 0.81 acre of land, more or less.

       The dedication was filed in the County deed records and was accompanied by a

drawing showing the location of the proposed roadway:




                                            3
       In 1976, Reynolds dedicated ten feet to the north and south of the ROW resulting

in a total width of sixty feet. The County built Adams Lane Road, which is twelve to fifteen

feet wide pursuant to the dedications and has continually maintained the road to the

present.

       In 2005, the Torreses purchased a two-acre portion of the Byrnes Subdivision, Lot

5 which was bordered by Adams Lane Road on the south. In 2015, the Torreses

purchased an adjacent thirteen acres located within Lot 5. In connection with the

purchase, the title company commissioned a survey of the land which showed Adams

Lane Road strayed slightly from the dedicated ROW onto the thirteen acres. The Torreses

                                             4
approached County officials and requested that the County move the road so that they

could place a fence on what they believed to be the edge of their property. The County

declined, and the Torreses proceeded to place a fence within a couple of feet of the

existing road.

B.     Pleadings

       The County sued the Torreses for declaratory judgment and injunctive relief. It

sought a declaration that “Adams Lane Road is a [sixty] feet wide public road which is a

County Road duly dedicated and accepted into the County road system[,]” and “the fence,

the electric wire, the metal posts[,] the wooden railroad posts[,] and metal gate that [the

Torreses] installed . . . encroach on and obstruct the public [ROW] and must be removed.”

The County sought a mandatory temporary and permanent injunction that the Torreses

remove the obstructions from the ROW.

       The Torreses answered and filed a countersuit against the County seeking

declaratory relief and pleading the affirmative defense of adverse possession. The

Torreses sought a declaration “that Adams Road is a [sixty] foot county [ROW] which lays

as depicted in the survey completed by Moore Land Surveying, LLC on May 31, 2017.”

According to the survey, the [ROW] is south of where the County believes it to be. The

Torreses also filed a third-party suit against James and Melanie Pemelton, who owned

property within Lot 5 of the Byrnes Subdivision on the southern side of Adams Lane Road.

The Torreses contended that their property boundary extended to the other side of the

road where the Pemeltons’ fence was currently located and sought declaratory relief to

that effect. The Pemeltons filed an answer and counter claim for declaratory relief. The


                                            5
Pemeltons alleged that they perfected title to the property located within their fence by

adverse possession.

C.     Bench Trial

       At trial, the County relied on the testimony of Daniel Orive, a licensed professional

land surveyor and former County surveyor and ROW agent. Orive reviewed all the relevant

deed records to determine the proper location of the dedicated ROW. He stated that the

most important description was from the 1965 dedication stating that the ROW began at

the southwest corner of Lot 3, Block 5, of the Arroyo Drive Subdivision and extended to

the southeast corner of Lot 44 of the Hooks and Hodges Subdivision. He states that this

locked the location of the proposed easement. Orive stated that the intent of the dedication

was to connect the two existing roads in the neighboring subdivisions so that travelers

would not have to go around Lot 5 of the Byrnes Subdivision. Orive maintained that the

drawing attached to the 1965 dedication shows where the proposed road was going to be

and that “it is monumented on the ground.” Orive testified that Adams Lane Road was

located within the ROW as described by the 1965 and 1976 dedications. Orive maintained

that the Torreses’ fence encroaches on the ROW.

       Orive explained that the metes and bounds description in a 1988 warranty deed

for a thirteen-acre portion of Lot 5 of Byrnes Subdivision was incorrect and resulted in the

subsequent 2015 and 2017 surveys being incorrect. Orive explained that the surveyor

assumed that the center line of Adams Lane Road was the southwest corner of Lot 5, but

that it was actually further south. Orive stated that the subsequent surveys used the right

direction and distance to identify the ROW, but they identified the wrong commencement


                                             6
point. As a result, the surveys identified a ROW that did not connect to the ROWs in the

neighboring subdivisions. Orive noted that a correction deed was later prepared when a

two-acre tract from the subject property was conveyed, which required County approval

through a “subdivision process.” The correction deed showed the Lot 5 boundary to be

south of the ROW.

       The Torreses called Cody Michael Moore, a registered professional land surveyor.

A title company commissioned Moore to prepare a survey pursuant to the Torreses’ 2015

land purchase. Moore testified that the metes and bounds descriptions in the original

ROW documents did not align with the physical location of the pavement. When Moore

conducted a field survey, he found physical markers or “field monumentation” that

matched the descriptions in the dedications, “but the distances between them were not

lining up with the pavement that we measured.” Moore prepared a subsequent survey in

2017, which was updated to show the location of the ROW compared to where the County

claimed it to be. The following portion of the 2017 survey illustrates the alleged competing

interpretations:




                                             7
Moore stated that the only thing that contradicted his 2017 survey was the description in

the 1965 dedication identifying the northwest corner of the ROW as twenty feet past the

southeast corner of Lot 44 of Hooks and Hodges Subdivision. Moore stated that “it[ i]s

mathematically impossible to get the rest of it to fit with that call[.]” 2 Moore explained that

if one were to use that call to locate the ROW, “that would make all of the bearings

change[,] . . . rather than running southwest, that would make it run northwest[,] which is

where the existing pavement is.” Moore conceded that the roadway would be within the

ROW if you would draw a line between the two block corners “and disregard everything

else.”

         During trial, the Torreses announced a settlement of their claims against the

Pemeltons, conceding that the Pemeltons acquired title to the disputed property on the

south side of Adams Lane Road by adverse possession.




         2   According to the witnesses, a call is a reference to direction and distance.
                                                        8
D.     Judgment

       After both parties rested and closed, the trial court announced the following from

the bench:

       So a person may not take adversely from the Government but the
       Government may take adversely from—adverse possession from anyone.
       If that road having laid where it is right now[,] judicial economy dictates that
       the road stay where it is gonna stay even if the easement was to be wrong
       because it has been there for [forty] years.

                 So the road is going to stay where it is at. Given that [the Torreses
       have] already settled with the Pemeltons, their fence stays. From that fence
       to the Torres[es’ sixty] feet away is where the fence will lie for [the]
       Torres[es]. That whenever the County is going to do anything on that road,
       they should measure to the center of that [thirty] feet and then improve that
       road evenly to each side. So if the road is off to where it[ i]s, you know, at
       midpoint being they have 8 feet and y’all have ten, it needs to be—it[ i]s
       [sixty] feet from that fence to the other. The road is midpoint. The center of
       that road should be midpoint. Wherever that zero is, it should go [thirty] and
       [thirty]. Okay? So that[ i]s the ruling of the Court.

               ....

               [T]he judicial finding of the Court is that this is the easement as
       dedicated or as conveyed or through adverse possession of the County.
       This is going to be where the easement lies.

       The trial court later signed a written judgment which contained the following

pertinent declarations: “Adams Lane Road was duly, properly, and expressly dedicated for

use as a public road” by the 1965 and 1976 dedication instruments for a total width of sixty

feet; “Adams Lane Road was constructed based on such dedications and acceptance and

has been continually maintained by [the] County . . . and has been continually used by the

traveling public[;] and “Adams Lane Road is properly located in the physical location it has

been through the years and is currently located at.” The trial court ordered the Torreses to

remove all obstructions placed within the County’s ROW and declared them to be a

                                              9
dangerous condition. The trial court ordered the parties to split the cost of a new survey

showing the center of the County’s ROW as being located thirty feet north of the

Pemeltons’ fence. The trial court awarded the County $5,000 in attorney’s fees through

trial, $5,000 in conditional appellate attorney’s fees, and $5,000 in attorney’s fees if the

County prevails in an appeal to the Texas Supreme Court.

       The Torreses requested findings of fact and conclusions of law, but the trial court

did not enter any. The Torreses filed a motion for new trial, which they later supplemented,

that was overruled by operation of law. This appeal followed.

                              II.    JUDGMENT CONFORMITY

       By their first issue, the Torreses complain that “[t]he trial court erred in rendering

judgment on a cause of action not pled or tried by consent.”

A.     Standard of Review & Applicable Law

       Under Texas Rule of Civil Procedure 301, a judgment must conform to the

pleadings. TEX. R. CIV. P. 301; Adeleye v. Driscal,
544 S.W.3d 467, 484
 (Tex. App.—

Houston [14th Dist.] 2018, no pet.). “[A] party may not be granted relief in the absence of

pleadings to support that relief.” Cunningham v. Parkdale Bank,
660 S.W.2d 810, 813

(Tex. 1983). “However, issues not raised in the pleadings can be tried by express or

implied consent of the parties.” Driscal,
544 S.W.3d at 484
 (citing TEX. R. CIV. P. 67).

“Because the party’s pleadings invoke the trial court’s jurisdiction to render a judgment,

an order not supported by the pleadings is void for lack of jurisdiction.” In re P.M.G.,
405 S.W.3d 406
, 416–17 (Tex. App.—Texarkana 2013, no pet.). We review issues concerning

a trial court’s subject-matter jurisdiction de novo. Gauci v. Gauci,
471 S.W.3d 899
, 901


                                             10
(Tex. App.—Houston [1st Dist.] 2015, no pet.).

       “[A] judgment or order that is rendered in writing and signed by the trial judge

becomes the official judgment of the court.” Lopez v. Brown,
356 S.W.3d 599
, 603 n.4

(Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Harrington v. Harrington,
742 S.W.2d 722, 724
 (Tex. App.—Houston [1st Dist.] 1987, no writ)). Any time there is a

conflict between oral pronouncements made by a trial judge and his or her written

judgment or order, the matters set forth in the written order control. In re L.G.R.,
498 S.W.3d 195, 206
 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); In re JDN Real

Estate–McKinney, L.P.,
211 S.W.3d 907
, 914 n.3 (Tex. App.—Dallas, 2006, orig.

proceeding); see also Kaur-Gardner v. Keane Landscaping, Inc., No. 05-17-00230-CV,
2018 WL 2191925
, at *4 (Tex. App.—Dallas May 14, 2018, no pet.) (mem. op.).

B.     Analysis

       The Torreses argue that the County did not plead adverse possession as a theory

of relief. Therefore, they argue that the trial court’s judgment is void to the extent it relies

on this unsupported theory.

       In its oral pronouncement, the trial court stated that “[t]he judicial finding of the

Court is that this is the easement as dedicated or as conveyed or through adverse

possession of the County.” However, the trial court’s written judgment does not contain

any reference to adverse possession. Rather, it references only the County’s pleaded

theory of express dedication. The judgment contains a declaration that “Adams Lane

Road was duly, properly, and expressly dedicated for use as a public road[.]” The

judgment further declares that “Adams Lane Road is properly located in the physical


                                              11
location it has been through the years and is currently located at.” The written judgment

constitutes the official judgment of the trial court, and it controls over the trial court’s prior

oral pronouncement. See In re L.G.R.,
498 S.W.3d at 206
; Lopez,
356 S.W.3d at 603
 n.4.

Because the written judgment is based on the County’s pleaded theory of express

dedication, it is not void. See In re P.M.G., 405 S.W.3d at 416–17. We overrule the

Torreses’ first issue

                            III.    SUFFICIENCY OF THE EVIDENCE

       By their second issue, the Torreses argue that the evidence is legally and factually

insufficient to support the judgment.

A.     Standard of Review

       In an appeal from a judgment rendered after a bench trial, the trial court’s findings

of fact have the same weight as a jury’s verdict. Catalina v. Blasdel,
881 S.W.2d 295, 297

(Tex. 1994). When the trial court does not issue findings of fact and conclusions of law,

we must imply all necessary findings to support the trial court’s judgment. Shields Ltd.

P’ship v. Bradberry,
526 S.W.3d 471, 480
 (Tex. 2017). “[I]mplied findings may be

challenged for legal and factual sufficiency in the same manner as a challenge to express

findings of fact or jury findings.” Silverio v. Silverio,
625 S.W.3d 680
, 683 (Tex. App.—El

Paso 2021, no pet.).

       The test for legal sufficiency is whether the evidence supporting the challenged

finding rises to a level that would enable reasonable and fair-minded people to differ in

their conclusions. City of Keller v. Wilson,
168 S.W.3d 802, 807, 827
 (Tex. 2005). On the

other hand, evidence is legally insufficient to support a disputed fact finding when


                                               12
(1) evidence of a vital fact is absent, (2) rules of law or evidence bar the court from giving

weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove

a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes

the opposite of the vital fact.
Id. at 810
.

       “When reviewing the factual sufficiency of the evidence, we examine the entire

record, considering all the evidence both in favor of and contrary to the challenged

finding.” Vast Constr., LLC v. CTC Contractors, LLC,
526 S.W.3d 709, 723
 (Tex. App.—

Houston [14th Dist.] 2017, no pet.). When a party attacks the factual sufficiency of the

evidence pertaining to a finding on which the party did not have the burden of proof, we

may set aside the finding only if it is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust. Bennett v. Comm’n for Law. Discipline,
489 S.W.3d 58, 66
 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

       When reviewing the sufficiency of the evidence, we view the evidence in the light

most favorable to the judgment and indulge every reasonable inference that would

support it. City of Keller,
168 S.W.3d at 822
. The factfinder is the sole judge of the weight

and credibility of the evidence.
Id. at 819
. When the evidence is conflicting, we must

presume that the factfinder resolved the inconsistency in favor of the challenged finding

if a reasonable person could do so.
Id. at 821
. We do not substitute our judgment for that

of the factfinder if the evidence falls within this zone of reasonable disagreement.
Id. at 822
.

B.     Applicable Law

       Dedication occurs when an owner of real property transfers private land to the


                                              13
public for any general or public use. Shelton v. Kalbow,
489 S.W.3d 32, 44
 (Tex. App.—

Houston [14th Dist.] 2016, pet. denied) (citing Hatton v. Grigar,
66 S.W.3d 545, 554
 (Tex.

App.—Houston [14th Dist.] 2002, no pet.)). An owner who dedicates land reserves no

rights in the property that are incompatible with the full enjoyment of the public.
Id.
 A

dedication can be express or implied.
Id.
 (citing Stein v. Killough,
53 S.W.3d 36, 42
 (Tex.

App.—San Antonio 2001, no pet.)). In either case, four elements are required to establish

the dedication: (1) a person must have fee simple title before he can dedicate his property;

(2) a public purpose is served by the dedication; (3) there must be an express or implied

offer; and (4) the public entity must accept the offer.
Id.
 (citing Stein,
53 S.W.3d at 42
 n.2).

“Generally, an express dedication is accomplished by deed or other written document.”
Id.
 (citing Stein,
53 S.W.3d at 42
; Broussard v. Jablecki,
792 S.W.2d 535, 537
 (Tex.

App.—Houston [1st Dist.] 1990, no writ)).

       An easement created by an express grant must be described with such certainty

that a surveyor could go upon the land and locate the easement from the description. Pick

v. Bartel,
659 S.W.2d 636, 637
 (Tex. 1983); see also Robles v. Mann, No. 13-14-00211-

CV,
2016 WL 1613316
, at *2 (Tex. App.—Corpus Christi–Edinburg Apr. 21, 2016, no pet.)

(mem. op.). A court’s “objective in construing a [dedication] is to discern and effectuate

the [parties’] intent as reflected in the [dedication] as a whole.” Hysaw v. Dawkins,
483 S.W.3d 1, 7
 (Tex. 2016). “Even if an easement is uncertain, however, a court is not

authorized to completely ignore the right granted, if the easement is susceptible to a

reasonable construction as to its true intent and meaning.” Schuhardt Consulting Profit

Sharing Plan v. Double Knobs Mountain Ranch, Inc.,
426 S.W.3d 800, 803
 (Tex. App.—


                                              14
San Antonio 2014, pet. denied) (cleaned up).

      [T]he metes-and-bounds description is not to be given controlling effect,
      when it is apparent from the language of the deed, read in the light of the
      surrounding circumstances, that the parties intended that the general
      description should control, or when the general description more surely
      indicates the true intention, or when the grantor’s intention clearly and
      unmistakably appears from the language of the entire instrument.

Stribling v. Millican DPC Partners, LP,
458 S.W.3d 17
, 21–22 (Tex. 2015) (quoting Ford

v. McRae,
96 S.W.2d 80, 83
 (Tex. 1936)).

C.    Analysis

      The Torreses argue that the evidence is legally and factually insufficient to

establish “the [p]aved [r]oad [l]ay [w]ithin [the] [e]xpress [d]edication[.]” The Torreses

maintain that Orive ignored the metes and bounds description in determining the original

grantor’s intent, while Moore retraced the steps of the original description, locating

multiple corresponding field monuments. The Torreses maintain that Moore’s testimony

conclusively established the location of the ROW on the ground as described in the

dedications. We disagree.

      Accepting the Torreses’ argument would require us to view the record in the light

most favorable to the Torreses and resolve conflicting evidence in the Torreses’ favor.

However, our standard of review requires the opposite. See City of Keller,
168 S.W.3d at 822
. When we view the record in the proper light, we note that Orive testified

unequivocally that Adams Lane Road was located within the ROW as described in the

dedications. He stated specifically that the most important descriptors were the

identification of the beginning of the easement—the southwest corner of Lot 3, Block 5,

of the Arroyo Drive Subdivision—and its ending—the southeast corner of Lot 44 of the

                                           15
Hooks and Hodges Subdivision. Orive explained that this locked the location of the

proposed easement and that the primary intent of the dedication was to connect the

existing roads in the neighboring subdivisions. He stated that Moore’s surveys relied on

a description of Lot 5 of the Byrnes Subdivision from a 1988 warranty deed that was later

proven to be incorrect. That warranty deed identified the southern boundary of Lot 5 as

the midpoint of the ROW instead of further south. Further, Moore’s survey description did

not properly connect the ROWs of the adjacent subdivisions, contrary to the primary intent

of the dedication.

       Moore urged a different location for the ROW, but this required that he ignore the

call designating the northwest corner of the described property. Otherwise, he claimed

that calculating the boundary was mathematically impossible. Moore further conceded

that the roadway would be within the ROW if someone were to draw a line between the

two block corners described in the dedication. See Wall v. Carrell,
894 S.W.2d 788, 798

(Tex. App.—Tyler 1994, writ denied) (rejecting a sufficiency challenge in a land dispute

where the testimony of the various surveyors was conflicting). Even if we were to accept

Moore’s representation that the boundaries as indicated in the 1965 dedication present a

mathematical impossibility, the general description of the easement as connecting the

two existing roadways would still be reflective of the true intention of the dedication. See

Stribling,
458 S.W.3d at 22
 (explaining that we may look “to the general description for

the parties’ intent [when] the specific description [is] defective or incomplete”); see also

Templeton v. Dreiss,
961 S.W.2d 645, 659
 (Tex. App.—San Antonio 1998, pet. denied)

(“It is further recognized that the description in a deed is not required to be mathematically


                                             16
certain, but only reasonably certain so as to enable a party familiar with the locality to

identify the premises to be conveyed to the exclusion of others.”).

        We conclude that the evidence would enable reasonable and fair-minded people

to reach the judgment of the trial court. See City of Keller,
168 S.W.3d at 827
. Further,

considering all the evidence both in favor of and contrary to the trial court’s judgment, see

Vast Constr.,
526 S.W.3d at 723
, we conclude that its determination is not so contrary to

the overwhelming weight of the evidence as to be clearly wrong and unjust. See Bennett,
489 S.W.3d at 66
. Therefore, we overrule the Torreses’ second issue.

        Based on our resolution of this issue, we must necessarily overrule the Torreses’

remaining issues which are dependent upon the Torreses’ argument that there is

insufficient evidence supporting the judgment. 3 See TEX. R. APP. P. 47.1 (“The court of

appeals must hand down a written opinion that is as brief as practicable but that

addresses every issue raised and necessary to final disposition of the appeal.”).

                                        IV.     CONCLUSION

        We affirm the trial court’s judgment.


                                                                        LETICIA HINOJOSA
                                                                        Justice

Delivered and filed on the
22nd day of December, 2022.




        3  We disagree with the Torreses’ argument that the County did not prevail on its declaratory
judgment action because the trial court ordered a new survey for the ROW. The trial court’s declarations
as set out above are clearly in favor of the County regarding the location of the ROW.
                                                  17