Reba Jaynette Fussell Hollis v. Robert Hollis and Wife, Sherry Hollis ( 2024 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00082-CV
REBA JAYNETTE FUSSELL HOLLIS, Appellant
V.
ROBERT HOLLIS AND WIFE, SHERRY HOLLIS, Appellees
On Appeal from the 76th District Court
Titus County, Texas
Trial Court No. 38,214
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
MEMORANDUM OPINION
This is a trespass-to-try-title case in which Robert Hollis entered into an oral agreement
to purchase 304.84 acres of land (the Ranch) from Robert’s father, Wayford Hollis. Several
years after Wayford’s death,1 his widow, Reba Hollis, informed Robert that she was going to sell
the Ranch. In response, Robert and his wife, Sherry Hollis, filed this suit and asserted their fee-
simple ownership of the Ranch based on the oral agreement and adverse possession. After a jury
trial, the jury entered a verdict and found that (1) Robert and Wayford entered into an oral
agreement for Robert to purchase the Ranch, (2) Robert and Sherry completed performance of
the agreement, (2) Reba was bound by the agreement, and (3) Robert and Sherry completed all
actions necessary to adversely possess the Ranch under the ten-year and twenty-five-year statutes
of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 16.026–.027. The trial court entered
an additional finding that Reba failed to comply with the oral agreement. Based on the jury’s
verdict, the trial court entered judgment confirming and quieting title to the Ranch in Robert and
Sherry.
On appeal, Reba asserts that the trial court erred because (1) Robert and Sherry did not
affirmatively plead estoppel as a basis that Reba was bound by the oral agreement, (2) the jury
questions on adverse possession should have been conditioned upon a negative response to the
issue asking if an oral agreement existed, (3) the evidence was legally and factually insufficient
to support the jury’s estoppel findings, (4) it submitted a defective partial performance question,
1
Wayford passed away in November 2005. In his will, Wayford bequeathed the Ranch to Robert.
2
and (5) it improperly limited Reba’s inquiry during voir dire. We will affirm the trial court’s
judgment.
I. Background
Robert testified that he had owned cattle since he was a young boy and bought his first
Red Brangus in 1971. By the time he graduated from college, Robert had between fifty-one and
fifty-four certified Red Brangus, and he wanted to be a cattle rancher. Robert and Wayford
began looking for property, and Robert’s uncle, Dan Hollis, showed them the Ranch.
According to Robert, he could not purchase the Ranch, so he and Wayford entered into
an oral agreement. Under the agreement, Wayford would purchase the Ranch, and Robert would
bring his cattle to the Ranch, manage the cattle operations, conduct cattle sales, and repay
Wayford with all of the proceeds from cattle sales. Under the agreement, when the property lien
note was paid off, Robert would become owner of a one-half interest in the Ranch, and Robert
would receive the other one-half interest upon Wayford’s death. Sherry testified that Robert told
her of the agreement in 1981, the first year of their marriage. It was undisputed that Robert and
Wayford were also in a fifty-fifty partnership for the cattle operations.2
The Ranch was purchased in Wayford’s and Reba’s names in 1978. Robert brought fifty-
four cattle to the Ranch in 1978, and he moved into an old house on the Ranch in 1980 after he
graduated from college. In 1981, he married Sherry, and they moved into a trailer on the Ranch
shortly before their second child was born. When the herd grew to several hundred head, he
2
Robert and Wayford also submitted an affidavit to the Titus-Camp-Franklin-Morris County FSA (Farm Service
Agency) Committee that affirmed that they were fifty-fifty partners in the Ranch.
3
rented additional pasture space. Over several years, Robert improved the quality of the grass on
the Ranch to make it more productive.
Most of the cattle were sold at Hollis Family Production Sales, which, for the most part,
took place in a large barn facility that was built on the Ranch by Robert and laborers hired for
that purpose. Wayford and Reba paid for the materials and some of the labor to build the barn.
Robert testified that some money from smaller cattle sales went into the Ranch’s business
account to pay expenses, but the money from the larger cattle sales went to Wayford. Even after
the property lien note was paid in full, Wayford continued to receive all of the money from the
production sales. Based on Wayford’s financial records, Robert testified that Wayford received
cattle income from 1978 through 2000 in the amount of $823,672.47. Wayford paid Robert a
small salary, which from 1981 through 1999 totaled $185,784.85. According to Robert, when he
and Wayford dissolved their cattle partnership around 2000, Wayford received the cattle located
in Louisiana, and Robert received the cattle on the Ranch and assumed $180,000.00 in notes
related to the Ranch’s operation.
The lien on the property was released on January 8, 1993. The next year, Robert and
Sherry began building a new house on the Ranch. The evidence showed that they spent
$45,000.00 building the house. According to Robert, if it were not for the agreement and Reba’s
knowledge of the same, he would not have built the house on the Ranch. Reba knew before they
broke ground that they were building the house. Nevertheless, she did not object to them
building the house, did not tell them to stop, and did not claim that they were building it on her
property. Rather, Reba helped hang wallpaper in the house. Robert has also replaced the fence
4
around the Ranch twice since Wayford’s death, at a cost of $33,456.00, and built a pool to
provide water for the cattle. Nevertheless, Robert acknowledged that, at some point after the
house was built, Reba told him to survey off an area for the house, and they would deed it to
him.
Wayford passed away in November 2005. In his last will and testament, Wayford
bequeathed to Robert “all of the farm property and all improvements thereon situated and
belonging, located in Titus County, Texas.”3 Robert testified that, by including this language in
the will, his father kept his word regarding the oral agreement. When Wayford’s will was read,
Robert told Reba and his sisters that he had owned one-half of the Ranch since the note was paid
off and that he owned all of it as a result of the agreement with his father. Robert claimed that
everybody was already aware of this.
After Wayford’s death, Reba tried to sell the Ranch two times. The first time, Reba
claimed that she just wanted to know the value of the property and that she did not intend to sell
it. Nevertheless, Reba executed a Farm and Ranch Real Estate Listing Agreement that listed the
Ranch for sale in March 2013. The second time, in March 2015, she called Robert to let him
know beforehand. She told Robert that she would give him something for the house, but she was
going to sell the land and use the money as needed. As a result, Robert and Sherry filed this
lawsuit.
Reba testified that she and Wayford were close, that they discussed everything, and that
they made the major decisions regarding family and property together. She denied that there was
3
Wayford’s last will and testament was executed in August 2005, about three months before his death.
5
ever an oral agreement between Robert and Wayford or that she had ever heard anything about
it. Rather, she testified that she and Wayford purchased the Ranch because they did not have a
retirement program. She also testified that she and Wayford found the Ranch and decided to
purchase it and that Robert was not involved in the conversation. She also testified about the
renovation that she and Wayford made to the old house that was on the Ranch.
Reba maintained that Wayford purchased the Red Brangus cattle to put on the Ranch and
that he approached Robert in 1983 or 1984 to manage the cattle because Robert had two children
and no job. She denied that Robert brought any cattle with him to the Ranch. Rather, she
maintained that Wayford sold him sixteen head of cattle in 1983 and that he would give him a
head of cattle now and then for working on the Ranch. She also denied that money from the
cattle sales paid the note on the Ranch.
She testified that she and Wayford removed their cattle from the Ranch in 1999, that they
planned to sell the Ranch, except for the amount Robert needed for his family, and that Wayford
was diagnosed with cancer in August 2005. Before he passed away three months later, Wayford
had his will prepared, but according to Reba, he did not say anything about an agreement with
Robert about the Ranch.
Both Reba and Robert’s sister, Lisa Herbert, testified that Robert never mentioned the
agreement when they met with an attorney after Wayford’s death. Lisa also testified that she had
talked to Robert at a Memorial Day celebration after their father’s death about Reba needing to
sell some of the Ranch. Although Robert said he did not want to sell the Ranch because it was
6
how he made his living and he wanted to leave it to his children, he did not say anything about
an agreement with their father to buy it.
At the conclusion of the evidence, the jury found, inter alia, that:
1. Wayford and Robert “enter[ed] into an oral agreement” in which Robert “agreed
to devote his time, toil, effort, and expense to operate” the Ranch and “to pay [Wayford]
all the proceeds from the sale of the cattle until the note on the [Ranch] was paid,” and
Wayford agreed to “convey one-half of the [Ranch] to Robert” “when the note was paid,”
and to “convey the remaining one-half interest in the [Ranch] to [Robert] in his will”;
2. Robert and Sherry “completed performance of the oral agreement” by paying the
consideration as agreed in number one above, taking possession of the Ranch and
“making permanent and valuable improvements on the [Ranch] with [Wayford]’s
consent”;
3. Reba was “bound by the oral agreement” because her “name was on the deed to
the [Ranch],” she “was aware of the oral agreement at the time the agreement was being
performed,” and she “was aware of the improvements [Robert and Sherry] made to the
property at the time the improvements were made”;
4. Reba “receive[d] and accept[ed] the proceeds from the sale of cattle with full
knowledge or notice of the facts and rights involved in the oral agreement”;
5. Wayford “fully compl[ied] with the oral agreement”;
6. Robert and Sherry “held peaceable and adverse possession of the [Ranch] for a
period of [ten] years after January 1, 1980, but prior to March 23, 2015, by cultivating,
using, or enjoying the [Ranch]”;
7. Robert and Sherry “committed acts after January 8, 1993, which unmistakably
assert[ed] a claim of exclusive ownership of the [Ranch]”;
8. In 1994, Reba had notice of Robert’s and Sherry’s “acts which unmistakably
assert[ed] a claim of exclusive ownership of the [Ranch]”; and
9. Robert and Sherry “complet[ed] performance of the oral agreement” in 1993.
7
The jury also awarded Reba $9,000.00 for her counterclaim for payment of taxes on the Ranch
and found against Reba on her remaining counterclaims. In addition, on Robert and Sherry’s
motion, the trial court entered an additional finding that Reba failed to comply with the oral
agreement. See TEX. R. CIV. P. 279 (“[T]he trial court, at the request of either party, may after
notice and hearing and at any time before the judgment is rendered, make and file written
findings on such omitted element or elements in support of the judgment.”). The trial court
subsequently entered its judgment based on the jury’s verdict and its additional finding and
ordered (1) that Robert and Sherry “recover fee simple title to and possession of” the Ranch,
(2) that title to the Ranch be quieted in them “to the exclusion of any and all other rights, claims,
or interests of any third parties,” (3) that Reba recover “$9,000.00 for taxes paid on the
[Ranch],”4 and (4) that she “take nothing on her [other] counterclaims.”
II. Unchallenged Findings
Initially, we note that Reba has not challenged the sufficiency of the evidence supporting
several of the jury’s findings, which affect our disposition of some of her issues on appeal.
When an appellant fails to challenge the sufficiency of the evidence supporting a jury’s findings,
she, like this Court, is bound by the jury’s unchallenged findings. Aviation Off. of Am., Inc. v.
Alexander & Alexander of Tex., Inc., 751 S.W.2d 179, 179–80 (Tex. 1988) (per curiam); see
Petroleum Sols., Inc. v. Head, 454 S.W.3d 482, 488 n.2 (Tex. 2014).
On appeal, Reba did not challenge the sufficiency of the evidence supporting the jury’s
findings (1) that Robert and Sherry have had peaceable and adverse possession of the Ranch for
4
Robert and Sherry filed a cross-appeal, conditioned upon this Court’s reversal of the judgment in their favor, and
asked that the award to Reba also be reversed.
8
a period of ten years after January 1, 1980, but before March 23, 2015, by cultivating, using, or
enjoying the Ranch;5 (2) that they committed acts after January 8, 1993, that unmistakably
asserted a claim of exclusive ownership of the Ranch; and (3) that Reba had notice of Robert’s
and Sherry’s acts that unmistakably asserted a claim of exclusive ownership of the Ranch in
1994 (the Adverse-Possession Findings). As a result, unless Reba has asserted some other
reversible error related to these findings, both Reba and this Court are bound by them.
III. The Unconditional Submission of the Adverse-Possession Questions
In her second issue, Reba asserts that the trial court erred when it failed to condition the
jury questions regarding adverse possession on a negative response to jury question number one6
5
To answer this question, the jury was instructed, inter alia, “A person claiming title to property by adverse
possession must show that the possession is not only actual, but also visible, continuous, notorious, distinct, hostile
and of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership of the occupant.”
6
Jury question number one asked:
Question No. 1: Did Wayford Hollis and Robert Hollis enter into an oral agreement whereby:
l) Wayford Hollis agreed to purchase the property,
2) Robert Hollis agreed to devote his time, toil, effort, and expense to operate a
ranch on the property,
3) Robert Hollis agreed to pay Wayford Hollis all the proceeds from the sale of
cattle until the note on the property was paid,
4) Wayford Hollis agreed that when the note was paid, he would convey one-half
of the property to Robert, and
5) That upon his death, Wayford Hollis would convey the remaining one-half
interest in the property to Robert Hollis in his will.
In deciding whether the parties reached an agreement, you may consider what they said and did in
light of the surrounding circumstances, including any earlier course of dealing. You may not
consider the parties’ unexpressed thoughts or intentions.
In this question, “the property” means the real property identified in Plaintiffs’ Exhibit 5.
Answer “yes” or “no.”
Answer: yes
9
regarding the existence of an oral agreement. Reba argues that, since Robert and Sherry’s claim
to title was based on the oral agreement with Wayford or, alternatively, on adverse possession,
the existence of an oral agreement would mean that their possession of the Ranch was permissive
and, therefore, not adverse to Wayford and Reba. Because, she argues, these were mutually
exclusive theories, the theories should have been submitted disjunctively, with the adverse-
possession questions conditioned upon a negative answer to the oral-agreement question. We
disagree.
A. Standard of Review
In its jury charge, the trial court is required to “submit the questions, instructions and
definitions . . . , which are raised by the written pleading and the evidence.” TEX. R. CIV. P. 278.
“A trial court has considerable discretion to determine proper jury instructions, and we review a
trial court’s decision to submit or refuse a particular instruction for an abuse of discretion.”
Gunn v. McCoy, 554 S.W.3d 645, 675 (Tex. 2018) (citing Thota v. Young, 366 S.W.3d 678, 687
(Tex. 2012)). “One way in which a trial court may abuse its discretion is by failing to follow
guiding rules and principles.” Id. (citing Columbia Rio Grande Healthcare, L.P. v. Hawley, 284
S.W.3d 851, 856 (Tex. 2009)). We will reverse “only if a review of the record reveals the error
was harmful.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 728 (Tex. 2016) (citing
TEX. R. APP. P. 44.1).
B. Disjunctive Submission
The Texas Rules of Civil Procedure permit the disjunctive submission of a question
“when it is apparent from the evidence that one or the other of the conditions or facts inquired
10
about necessarily exists.” TEX. R. CIV. P. 277. “A disjunctive submission has been described as
‘an “either/or” question posed in a manner that necessarily prevents the two factual alternatives
inquired about from being found to exist concurrently.’” Turner v. Precision Surgical, L.L.C.,
274 S.W.3d 245, 250 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (quoting R. Mike Borland,
Comment, Disjunctive Submission of Inferential Rebuttal Issues, 33 BAYLOR L. REV. 147, 148
(Winter 1981)). Thus, “rule 277 allows the trial court to submit, disjunctively, the existence of
two mutually exclusive propositions when conflicting answers are possible.” Id. (citing Lake
LBJ Mun. Util. Dist. v. Coulson, 692 S.W.2d 897, 908 (Tex. App.—Austin 1985), rev’d on other
grounds, 734 S.W.2d 649 (Tex. 1987)). But the submission of a disjunctive question has been
held improper when “[t]he alternatives presented were not true opposites; they were not factually
inconsistent; they were not mutually exclusive; and one of the . . . alternatives . . . did not
necessarily exist.” Rathmell v. Morrison, 732 S.W.2d 6, 12 (Tex. App.—Houston [14th Dist.]
1987, no writ).
One of our sister courts of appeals has also noted,
Certain commentators have opined that “[d]isjunctive submissions . . . should be
used sparingly and with great caution” because they
run the danger of either misplacing the burden of proof (when one of two
options must be shown by a preponderance of the evidence and the other
need not be) or of unduly limiting the jury’s choices (when the jury in fact
has more than two choices—e.g., the plaintiff was negligent, the defendant
was negligent, or the negligence of neither party was shown by a
preponderance of the evidence).
Turner, 274 S.W.3d at 250 (quoting 5 THE HONORABLE JOE BROWN, ET AL., TEXAS PRACTICE
GUIDE: PERSONAL INJURY § 13:115 (2nd ed. 2008) (citing Borland, Comment, Disjunctive
11
Submission of Inferential Rebuttal Issues, 33 BAYLOR L. REV. at 148 (“stating that disjunctive
submission ‘is appropriate only when one or the other of the conditions or facts must exist; its
use would be inappropriate where there is the possibility of an alternative finding not presented
in the issue’”))).
C. Analysis
In her argument, Reba focuses only on jury question one, regarding the existence of an
oral agreement between Wayford and Robert, and jury questions six through nine, regarding
adverse possession. She argues that the existence of an oral agreement “would have precluded
adverse possession as the legal theory because Robert and Sherry’s possession of Hollis Ranch
would have been permissive and, therefore, not adverse.” Consequently, she concludes, Robert
and Sherry’s oral agreement theory and adverse possession theory of recovery “are mutually
exclusive.”
In support of this argument, Reba cites Martinez v. Galvan, No. 04-09-00497-CV, 2010
WL 2679984 (Tex. App.—San Antonio Jul. 7, 2010, no pet.) (mem. op.), and Bustamante v.
Gutierrez Flores, 770 S.W.2d 934, 937 (Tex. App.—San Antonio 1989, no writ). While both of
those cases support the proposition that a claimant’s entry onto land pursuant to an oral contract
is permissive and, without more, is not adverse to the record owner, neither of them preclude the
possibility that the claimant’s possession of the land may later become adverse to the record
owner.
The San Antonio court of appeals in Martinez, relying on Bustamante, noted that, when
an adverse claimant enters property under an oral contract with the owner and “without asserting
12
a claim at the outset, the claimant’s possession of the land is not commenced under a claim of
right inconsistent with and hostile to the claim of the owner within the meaning of the ten year
adverse possession statute.” Martinez, 2010 WL 2679984, at *2 (emphasis added) (citing
Bustamante, 770 S.W.2d at 937). However, the court then explained how the permissive entry
under an oral contract may become adverse to the record owner:
[I]n order for the adverse claimant to prevail against the record owner, the adverse
claimant must prove: (1) a repudiation of the owner’s title and commencement of
the assertion of an open and notorious claim to the land; (2) with notice thereof
clearly brought home to the owner, either actually or constructively; and (3) with
the further proof that there had been adverse possession of the land for the
necessary limitation period subsequent to the time of notice.
Id. (citing Bustamante, 770 S.W.2d at 937). Therefore, a claimant’s permissive entry onto land,
such as under an oral agreement, does not preclude the claimant’s possession from becoming
adverse to the record owner at a later date.
As a result, the existence of an oral agreement was not factually inconsistent with, or
mutually exclusive of, Robert and Sherry’s adverse possession theory of recovery. An
examination of the record and the jury charge makes this clear. It was undisputed at trial that the
oral agreement was between Wayford and Robert, and this was set forth in jury question one. It
was also undisputed that Wayford and Reba purchased the Ranch during their marriage and that
the Ranch was their community property. As a result, in order to recover Reba’s community
property interest in the Ranch under the oral agreement, Robert and Sherry had to establish that
Reba was bound by the oral agreement. This was a major issue at trial, and Robert and Sherry
13
sought findings that Reba was bound by the oral agreement under two theories, as reflected in
jury questions three7 and four.8
Under the jury charge, the jury could have answered question one affirmatively and
found that there was an oral agreement between Wayford and Robert and also answered
questions three and four in the negative and found that Reba was not bound by the oral
agreement. In that scenario, Robert and Sherry could not recover Reba’s community interest in
the Ranch under their oral agreement theory, even though the jury found that there was an oral
agreement. Nevertheless, they would have been entitled to have the jury consider their alternate
adverse possession theory of recovery. See Turner, 274 S.W.3d at 249 (“[A] party is entitled to
7
Jury question number three stated:
Question No. 3: ls Reba Hollis bound by the oral agreement?
You are instructed that Reba Hollis is bound by the oral agreement if you find by a preponderance
of the evidence that:
(1) Reba Hollis’ name was on the deed to the property,
(2) Reba Hollis was aware of the oral agreement at the time the agreement was
being performed, and
(3) Reba Hollis was aware of the improvements Robert and Sherry Hollis made to
the property at the time the improvements were made.
In this question, “the property” means the real property identified in Plaintiffs’ Exhibit 5.
Answer “yes” or “no.”
Answer: ____
8
Jury question number four stated:
Question No. 4: Did Reba Hollis receive and accept the proceeds from the sale of cattle with full
knowledge or notice of the facts and rights involved in the oral agreement?
Answer “yes” or “no.”
Answer: _____
14
an affirmative submission of all of its theories of recovery that have support in the pleadings and
evidence.” (citing TEX. R. CIV. P. 278; Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex. 1992)
(per curiam))). As a result, it would have been improper for the trial court to submit the adverse-
possession questions conditioned upon a negative answer to the oral-agreement question, as
requested by Reba. See Rathmell, 732 S.W.2d at 12.
Therefore, we find that the trial court did not abuse its discretion when it did not
condition the jury questions regarding adverse possession on a negative response to the oral-
agreement question. We overrule Reba’s second issue.
IV. Effect of the Adverse-Possession Findings
In her first issue, Reba asserts that the trial court erred in submitting jury questions three
and four because Robert and Sherry did not affirmatively plead estoppel as a basis to bind Reba
to Wayford’s oral agreement with Robert. In her third issue, Reba contends that there was
legally and factually insufficient evidence to support the jury’s affirmative answers to jury issues
three and four. Reba’s fourth issue asserts that the trial court erred when it refused to submit her
requested partial-performance question. Each of these issues challenge Robert and Sherry’s oral
agreement ground of recovery. In their response on appeal, Robert and Sherry argue that
because Reba has not successfully challenged the Adverse-Possession Findings, any error
complained about in these issues was harmless.9 We agree.
“On appeal, the appellant must challenge all independent grounds supporting the
judgment.” Curtis v. Urbina, No. 06-19-00028-CV, 2019 WL 4124632, at *3 (Tex. App.—
9
In her reply, Reba only argues that the adverse-possession theory does not support the judgment because of the
alleged error asserted in her second issue, which we have overruled.
15
Texarkana Aug. 30, 2019, pet. denied) (mem. op.) (quoting Shirley v. Butcher, No. 06-16-00089-
CV, 2017 WL 1538164, at *3 (Tex. App.—Texarkana Apr. 27, 2017, pet. denied) (mem. op.)).
If the unchallenged independent ground supports the trial court’s judgment, “we must accept the
validity of that unchallenged independent ground, and thus any error in the grounds challenged
on appeal is harmless because the unchallenged independent ground fully supports the
complained-of ruling or judgment.” Hartwell v. Lone Star, PCA, 528 S.W.3d 750, 763 (Tex.
App.—Texarkana 2017, pet. dism’d) (quoting Oliphant Fin. LLC v. Angiano, 295 S.W.3d 422,
424 (Tex. App.—Dallas 2009, no pet.)); see TEX. R. APP. P. 44.1(a)(1) (“No judgment may be
reversed on appeal on the ground that the trial court made an error of law unless the court of
appeals concludes that the error complained of . . . probably caused the rendition of an improper
judgment . . . .”).
The Adverse-Possession Findings established each of the elements10 set forth in Martinez
and Bustamante, which would entitle Robert and Sherry to recovery under their adverse-
possession theory. See Martinez, 2010 WL 2679984, at *2; Bustamante, 770 S.W.2d at 937.
Because these unchallenged findings establish an independent ground of recovery that supports
the trial court’s judgment, we find that any error in submitting jury questions three and four, any
10
To the extent that the Adverse-Possession Findings omitted an element of this ground of recovery, we presume
that it was “found by the [trial] court in such manner as to support the judgment.” TEX. R. CIV. P. 279. This is
because, under Rule 279,
[w]hen some but not all of a cluster of issues necessary to sustain an independent ground of
recovery or defense are given and answered by the jury without objection or request, the trial court
may make written findings on omitted issues raised by the evidence. If no written findings are
made, the omitted issues are deemed to have been found by the court in such manner as to support
the judgment.
Harmes v. Arklatex Corp., 615 S.W.2d 177, 179 (Tex. 1981) (quoting Strauss v. LaMark, 366 S.W.2d 555, 557
(Tex. 1963)).
16
insufficiency of the evidence supporting the jury’s findings under those jury questions, or the
trial court’s refusal to submit Reba’s partial performance jury question was harmless.11
Hartwell, 528 S.W.3d at 763. We overrule Reba’s first, third, and fourth issues.
V. Limitation of Voir Dire
Reba also asserts that the trial court improperly limited her inquiry during voir dire. She
argues that the trial court erred when it forbade her inquiry as to Sherry’s brother, Ricky Baker,
who was a prominent businessman in the community. She contends that she was thereby
restricted in her ability to identify biases and prejudices and to intelligently exercise her
peremptory strikes.
A. Standard of Review
“Litigants have the right to question potential jurors to discover biases and to properly
use peremptory challenges.” In re Commitment of Wiley, No. 06-18-00056-CV, 2019 WL
490142, at *2 (Tex. App.—Texarkana Feb. 8, 2019, no pet.) (mem. op.) (quoting In re
Commitment of Hill, 334 S.W.3d 226, 228 (Tex. 2011) (per curiam)). As a result, “trial courts
should allow ‘broad latitude’ to counsel ‘to discover any bias or prejudice by the potential jurors
so that peremptory challenges may be intelligently exercised.’” Hyundai Motor Co. v. Vasquez,
189 S.W.3d 743, 749 (Tex. 2006) (quoting Babcock v. Nw. Mem’l Hosp., 767 S.W.2d 705, 709
(Tex. 1989)). However, “[c]ounsel’s latitude in voir dire, while broad, is constrained by
reasonable trial court control.” Id. at 750 (citing Cortez ex rel. Est. of Puentes v. HCCI-San
11
Because Reba has not challenged the sufficiency of the evidence supporting the Adverse-Possession Findings, we
need not address her arguments in support of her first, third, and fourth issues. See Petroleum Solutions, Inc., 454
S.W.3d at 488 n.2 (when an appellant fails to challenge the sufficiency of evidence supporting the jury’s findings on
an independent ground supporting the trial court’s judgment, an appellate court need not address an issue
challenging the sufficiency of evidence supporting the jury’s findings on other grounds of recovery).
17
Antonio, Inc., 159 S.W.3d 87, 92 (Tex. 2005)). A trial court’s “refusal[] to allow lines of
questioning during voir dire are reviewed under an abuse of discretion standard.” In re
Commitment of Hill, 334 S.W.3d at 229 (citing Vasquez, 189 S.W.3d at 753–54). “[A] court
abuses its discretion when its denial of the right to ask a proper question prevents determination
of whether grounds exist to challenge for cause or denies intelligent use of peremptory
challenges.” Id. (quoting Babcock, 767 S.W.2d at 709). A trial court does not abuse its
discretion by refusing to allow counsel to voir dire on matters not relevant to the proceeding.
Sw. Elec. Power Co. v. Martin, 844 S.W.2d 229, 238 (Tex. App.—Texarkana 1992, writ denied).
“To obtain a reversal, an appellant must show that the trial court abused its discretion and that
the error was calculated to cause and probably did cause the rendition of an improper judgment.”
McCoy v. Wal-Mart Stores, Inc., 59 S.W.3d 793, 797 (Tex. App.—Texarkana 2001, no pet.)
(citing TEX. R. APP. P. 44.1; Babcock, 767 S.W.2d at 709).
B. Background
Prior to trial, Robert and Sherry filed a motion in limine and sought to restrict “[a]ny
mention or reference of Ricky Baker . . . , or that Ricky Baker . . . is the brother of [Sherry].”
Baker is the former owner of a trailer manufacturer near Mt. Pleasant and a prominent person in
the community. At the hearing on the motion, the trial court granted the motion after it
determined that Baker would not be a witness at trial. Nevertheless, the trial court clarified its
ruling in the following exchange:
THE COURT: . . . I’m going to grant this motion in limine, but if
it becomes apparent during voir dire that this needs to be brought up for some
reason or during the course of trial, then you all can approach and we’ll take it up
at that time.
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[COUNSEL FOR ROBERT AND SHERRY]: And your Honor, it
may develop if someone -- if [Reba’s attorney] asks does anyone know Sherry
Hollis and the jury says yep, I don’t know her but I know her brother, Ricky
Baker, well, that may pop out and --
THE COURT: Absolutely. And once that pops out, then it’s fair
game. Then y’all can approach, and once that comes out, if Mr. Baker’s name is
mentioned by a juror, not by the attorney, then we’ll revisit that, because that may
then open it up.
....
THE COURT: . . . . But again, if a juror mentions it, then I expect
y’all to approach immediately, and then we’ll take that up. If a juror doesn’t
mention it, then I don’t expect Mr. Baker’s name to be used.
Then, before voir dire, Reba sought further clarification of the trial court’s order:
[COUNSEL FOR REBA]: Yes, your Honor.
....
I’m bringing this up before the voir dire starts. It’s regarding
motions in limine.
The first is paragraph eight in plaintiff’s first motion in limine.
Agree to approach the bench before anything is said or done with regard to that
issue. Paragraph eight precludes me as representative of Mrs. Hollis from asking
the panel if anyone here knows Ricky Baker, the brother of Sherry Hollis.
And is it the Court’s ruling that I cannot do that?
THE COURT: I believe that was the Court’s ruling. I believe it
was stated that no one intended to call Mr. Baker as a witness. Therefore, there
was no reason -- no relevancy in asking the panel if they know Ricky Baker.
Reba objected and argued that, because Baker was a “prominent person” who had “great
business and political influence” in the county, it was unlikely that there was any adult in the
county who did not know of him and that many knew him personally. She also argued that the
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denial of her ability to inquire of such knowledge and follow up deprived her of her right to a fair
and impartial jury. In response, Robert and Sherry pointed out that, under the trial court’s ruling,
Reba could inquire whether the veniremembers knew Robert and Sherry or any of their family
members, and if any said they knew her brother, Baker, then it was out and in the open. Then
this exchange followed:
THE COURT: So you have no objection to [Reba] asking in voir
dire if anyone knows any family members --
[COUNSEL FOR ROBERT AND SHERRY]: Correct.
THE COURT: -- of Mrs. Hollis or Mr. Hollis.
[COUNSEL FOR ROBERT AND SHERRY]: I believe that’s
very fair, and it would be unfair of me to ask different. And if it comes out at that
point, well, we can deal with it, but I don’t think he needs to ask it to interject it to
inform people they’re brother and sister where they might not know that they’re
brother and sister.
[COUNSEL FOR REBA]: Well, your Honor, I disagree. I feel
like I have a right to advise the panel that Ricky Baker is the brother of Sherry
Hollis and I ask that I have the right to ask who knows him and the nature and
extent of that knowledge. And then, of course, if you felt like the law and
evidence on the issue was in favor of Mrs. Hollis, would your knowledge of Mr.
Baker as a very influential person make -- your personal knowledge make it
difficult to decide in favor of the defendant.
That’s a logical question. That’s a common question that’s asked
in voir dire examination. And that’s my position.
THE COURT: [Addressing Counsel for Reba] . . . I understand
your position. I stand by the ruling on the motion in limine Number 8. Your
objection is overruled. I do not believe that there is any benefit for you
specifically asking the jury if they know Ricky Baker is the brother of Mrs.
Hollis.
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If you ask if they know any of the family and anyone says that they
know that Ricky Baker is the brother, then that opens it up. But I think that’s as
far as we need to go on that one.
During her voir dire examination, Reba asked whether any of the veniremembers knew Robert or
Sherry. Although several indicated they knew either Robert or Sherry, or both, Reba did not
inquire whether any of them knew any of Sherry’s family members. Also, several
veniremembers stated they had worked at the trailer manufacturing facility, and one
veniremember indicated that he lived next to it, but none of them indicated they knew Baker.
Only two other veniremembers said they knew Baker and his wife, and one said she went to
school with their children. Reba did not inquire whether those veniremembers knew any of
Baker’s family members.
C. Analysis
Generally, parties are allowed a wide latitude in voir dire in order to uncover any bias or
prejudice held by the potential jurors. Vasquez, 189 S.W.3d at 749. For example, in In re Hill,
counsel was entitled to question potential jurors whether they would be able to give a fair trial to
a person they thought was a homosexual, when the defendant’s sexual history was relevant to the
State’s proof in the case. In re Commitment of Hill, 334 S.W.3d at 228–29. However, this
latitude is subject to the trial court’s authority to exercise reasonable control over the court
proceedings. Vasquez, 189 S.W.3d at 750. For example, in Martin, the trial court did not err in
refusing to allow the defense counsel to voir dire the jury regarding a specific lawsuit that was
not relevant to the action. Martin, 844 S.W.2d at 237–38. Likewise, a trial court properly
exercised its control when it refused to allow a party to interject potentially prejudicial facts that
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were neither known to the jury nor relevant to any issue in the case. See Gulf States Utils. Co. v.
Reed, 659 S.W.2d 849, 855–56 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e).
At the motion in limine hearing and before voir dire, it was undisputed that Baker was an
influential person in the community and that, if a juror knew that he was Sherry’s brother, there
was a possibility that the juror may be biased either for the benefit of Sherry or to her detriment.
It was also undisputed that Baker would not be a witness at trial. Nevertheless, Reba sought to
first inform the veniremembers that Baker was Sherry’s brother, then inquire whether any
veniremember knew Baker and how his relationship to Sherry would affect her ability to give
Reba a fair trial.
In its ruling, the trial court attempted to balance Reba’s right to discover the bias or
prejudice of any juror who already knew both Baker and that he was Sherry’s brother against the
potential prejudicial effect of informing the entire venire panel that Sherry was the sister of a
wealthy and influential member of the community. The court’s solution was to forbid Reba from
disclosing that Baker was Sherry’s brother but to allow her to inquire whether the
veniremembers knew Sherry or her family and to inquire further as to the prejudice or bias held
by any veniremember that indicated she knew that Baker was Sherry’s brother.
Reba argues that the trial court’s ruling “wholly foreclosed an entire line of questioning.”
However, the trial court’s ruling provided Reba with an avenue to determine whether any
veniremember knew Baker and knew that he was Sherry’s brother. Nevertheless, Reba did not
ask those veniremembers who disclosed that they knew Sherry, if they also knew any of her
family members. She also did not ask those veniremembers who knew Baker whether they also
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knew his family members.12 As a result, any deficiencies in the trial court’s ruling remain
unknown.
Further, if she was not satisfied with the trial court’s solution, “it was incumbent on
[Reba] to request alternative approaches to avoid the problems the trial court was addressing by
its ruling.” Vasquez, 189 S.W.3d at 759. Because she did not “propos[e] a different method of
inquiry that would avoid [the problems addressed by the trial court], the breadth of the trial
court’s ruling is untested.” Id. As a result, we are unable to determine “whether the trial court
would have allowed other sorts of inquiries had counsel presented their substance.” Id. at 760.
On this record, we find that the trial court did not abuse its discretion in limiting Reba’s
voir dire inquiry. We overrule this issue.
VI. Disposition
For the reasons stated, we affirm the trial court’s judgment.13
Jeff Rambin
Justice
Date Submitted: January 24, 2024
Date Decided: February 6, 2024
12
Reba points out that, when the trial court considered motions to strike for cause after voir dire, she asked to inquire
further of veniremember 48, who had indicated she knew Baker, but that the trial court denied the request.
However, veniremember 48 was then struck for cause on Reba’s unopposed motion. As a result, Reba was not
harmed by the trial court’s denial.
13
Because we affirm the trial court’s judgment, we need not address Robert and Sherry’s conditional cross-appeal.
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