Percy Lofton, Jr., Conal Lofton, James Lofton, Lonnie E. Turner, Carol S. Lofton Fowler, Delilah A. Lofton, and Horace Lofton v. Eddie Dyer

  Opinion issued May 15, 2008  

    In The  

Court of Appeals  

For The  

First District of Texas  

---

  NO. 01-07-00184-CV

  __________

PERCY LOFTON, JR., CONAL LOFTON, JAMES LOFTON,

LONNIE E. TURNER, CAROL S. LOFTON FOWLER,

DELILAH A. LOFTON, AND HORACE LOFTON, Appellants  

V.

J. EDDIE DYER, Appellee  

---

On Appeal from the 278th District Court

Grimes County, Texas

Trial Court Cause No. 28-297  

---

MEMORANDUM OPINION  

          J. Eddie Dyer brought this trespass to try title case against Percy Lofton, Jr., Conal Lofton, James Lofton, Lonnie E. Turner, Carol S. Lofton Fowler, Delilah A. Lofton, and Horace Lofton (collectively “the Loftons”). After a bench trial, the trial court awarded Dyer fee simple title to 87.41 acres in Grimes County under the 10-year adverse possession statute. In three issues, the Loftons contend that the trial court erred in (1) denying the Loftons their right to a trial by jury, (2) refusing the Loftons sufficient time to retain legal counsel by denying their request to continue the case, and (3) failing to consider newly-discovered evidence in denying the Loftons’ motion for new trial.        

          We affirm.

Background

          In June 1999, Dyer sued the Loftons and 21 additional defendants in this trespass to try title case. In September 2005, more than five years after the case was filed, the Loftons’ attorney filed a motion to withdraw, and the trial court granted the unobjected-to motion. The parties were sent a “Notice of Bench Trial,” and the case proceeded to trial before the court on April 3, 2006. During the pre-trial docket calls, which the Loftons attended, the trial court encouraged the Loftons to retain counsel.

          Minutes before the trial began, Dyer settled with the 21 additional defendants, and he proceeded to trial against the Loftons only. After Dyer and the ad litem made their opening remarks, the Loftons notified the trial court of their need for an attorney and requested a jury trial Without ruling on the Loftons’ request, the trial court carried on with the bench trial, and James Lofton cross-examined two of Dyer’s witnesses. After Dyer rested his case, James Lofton orally requested a continuance so that he could obtain an attorney. The trial court reminded the Loftons that the case had been pending for seven years and that the court had repeatedly advised them to get counsel. The trial court denied the requested continuance and, on June 9, 2006, awarded Dyer fee simple title to 87.41 acres in Grimes County by virtue of adverse possession, pursuant to the 10-year statute of limitations.

          The Loftons filed a motion for new trial which, among other things, asserted that newly-discovered evidence warranted a new trial. After a hearing, the trial court denied the motion.   

           Right to Trial by Jury

In issue one, the Loftons argue that the trial court erred in denying them their right to a trial by jury.  

A litigant waives the right to trial by jury if he participates in a bench trial without objection. See, e.g., In re D.R., 177 S.W.3d 574, 580 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (holding that litigants waived their objection to bench trial by failing to object or otherwise indicate they possessed “perfected” right to jury trial until charge conference); In re A.M., 936 S.W.2d 59, 61 (Tex. App.—San Antonio 1996, no writ) (observing that perfected right to jury trial in civil case may be waived by party’s failure to act when trial court proceeds with bench trial); Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat’l Assur. Co., 875 S.W.2d 385, 387 (Tex. App.—Dallas 1993, no writ) (holding that, “when a party has perfected its right to a jury trial in accordance with rule 216 but the trial court instead proceeds to trial without a jury, the party must, in order to preserve any error by the trial court in doing so, either object on the record to the trial court’s action or indicate affirmatively in the record it intends to stand on its perfected right to a jury trial”).
         The Loftons contend that they made a demand and paid a jury fee on October 24, 2001, and, when the case was called to bench trial, they requested that the trial proceed before a jury. On August 2, 2005, all parties, through their respective attorneys, including the Loftons, waived their right to a jury trial and elected to try the case to the trial court without a jury. In February 2006, the trial court sent out a Notice of Bench Trial to be held on April 3, 2006. On March 6, 2006, the trial court sent out a Notice of Docket Call, which also reflected that the case was set for a bench trial. The Loftons never objected. Accordingly, the trial court did not err in denying the Loftons’ belated request for a jury trial.

We overrule issue one.

Continuance

In issue two, the Loftons argue that the trial court erred in refusing to allow them sufficient time to retain legal counsel by denying their request to continue the case.     

We review the grant or denial of a motion for continuance for an abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). We will not overrule the trial court’s decision unless the trial court acted unreasonably or in an arbitrary manner “without reference to any guiding rules and principles.” Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).

The Loftons’ attorney withdrew from the case. The Loftons contend that they were not notified of the withdrawal hearing or informed that the attorney had withdrawn. Once they were notified, the Loftons represent that they “sought diligently to secure legal representation in the rural and surrounding area where they reside.” They further assert that, due to their “extremely modest means, ethnicity, and lack of sophistication,” they should be given additional time to find competent counsel.

The record reflects that the Loftons’ attorney withdrew because the Loftons had not paid his fees. It also reflects that the Loftons were aware of his withdrawal more than five months before the trial setting. Furthermore, the Loftons’ request for a continuance was made orally after Dyer had rested his case and after the Loftons had cross-examined two witnesses. Accordingly, we hold that the trial court did not abuse its discretion in denying the oral motion for continuance. See Taherzadeh v. Ghaleh-Assadi, 108 S.W.3d 917, 928 (Tex. App.—Dallas 2003, pet. denied).

We overrule issue two.  

Motion for New Trial

In issue three, the Loftons assert that the trial court erred in failing to consider newly-discovered evidence when it denied their motion for new trial. The Loftons did not address this argument during their motion for new trial hearing, but it was contained in their motion.  

A party who seeks a new trial on the ground of newly discovered evidence must satisfy the court that (1) the evidence has come to his knowledge since the trial, (2) it was not owing to want of due diligence that the evidence did not come to his attention sooner, (3) the evidence is not cumulative, and (4) the evidence is so material that it would probably produce a different result if a new trial were granted. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983); Summers v. WellTech, Inc., 935 S.W.2d 228, 233 (Tex. App.—Houston [1st Dist.] 1996, no writ). We review the trial court’s denial of a motion for new trial for an abuse of discretion. Jackson, 660 S.W.2d at 809.

In their motion for new trial, the Loftons listed two items of newly discovered evidence. First, they discussed some correspondence from a timber company.11. After the discovery process and sending information to the attorney, the [Loftons] discovered correspondence from a timber company, Williams Forest Products, dated 1987, indicating that Percy Lofton, Sr. was the Executor of the Estate of Tilford Kennard. . . . The timber company was communicating with Percy Lofton, Sr. seeking permission to cut timber on the property. This evidence corroborates the pleadings that the [Loftons] sought recovery of timber cut down. This evidence would dispositively prove that Percy Lofton, Sr. was actively protecting the interest of the property.

The Loftons’ motion for new trial does not explain why they could not have obtained the new evidence before trial. The Loftons have therefore failed to demonstrate that it was not owing to want of due diligence that the evidence did not come to their attention sooner. See Jackson, 660 S.W.2d at 809; Summers, 935 S.W.2d at 233. We hold that the trial court did not abuse its discretion in denying the Loftons’ motion for new trial with respect to the timber company letter. See Xenos Yuen v. Fisher, 227 S.W.3d 193, 204–05 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding that trial court did not abuse its discretion in denying motion for new trial because appellant failed to demonstrate that it was not through want of diligence that he did not obtain new evidence sooner); Mayhew v. Dealey, 143 S.W.3d 356, 367 (Tex. App.—Dallas 2004, pet. denied) (same); GJR Mgmt. Holdings, L.P. v. Jack Raus, Ltd., 126 S.W.3d 257, 262 (Tex. App.—San Antonio 2003, pet. denied) (same).  

          In their second item of newly-discovered evidence, the Loftons direct the trial court to some new tax information regarding the property.

12. New evidence has come to light that was provided by the Grimes County Tax Assessor’s office pertaining to taxes paid by Percy Lofton, Sr. Apparently, at the time of trial the representative for Grimes County Appraisal District testified that the outstanding taxes were approximately $60,000.00. However, subsequently corrections were forwarded and/or made known to the [Loftons] that, in fact, Percy Lofton, Sr. had paid and/or was in the process of making payment on taxes, and that the balance was far below $60,000.00. Such evidence is essential and/or dispositive as to the recognition of ownership by the local taxing authority, and is consistent with the fact that the [Loftons] could not secure and did not further seek agricultural exemption. It would further show that the [Loftons] did not make further payment of taxes. The [Loftons] have produced evidence from an account statement that certain payments were made, and additional statements were found indicating payments made as early as 1981. Therefore, the testimony was extremely overstated and inaccurate.

While this evidence appears to have come to the Loftons’ knowledge since the trial, not owing to want of due diligence, and it does not appear to be cumulative, the Loftons did not show that the evidence was so material that it would probably produce a different result if a new trial were granted. See Jackson, 660 S.W.2d at 809.

          “Adverse possession” means an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person. Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1) (Vernon 2002). A party claiming adverse possession must prove: 1) actual possession of the disputed property, 2) under a claim of right, and 3) that is adverse or hostile to the claim of the owner and that it was consistently and continuously so for the duration of the statutory period. Taub v. Houston Pipeline Co., 75 S.W.3d 606, 625 (Tex. App.—Texarkana 2002, pet. denied); Sarandos v. Blanton, 25 S.W.3d 811, 815 (Tex. App.—Waco 2000, pet. denied). Possession must not only be actual, but also visible, continuous, notorious, distinct, hostile (i.e., adverse), and of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990). The test of hostility is whether acts performed by the claimant on the land, and the use made of the land, was of such a nature and character as to reasonably notify the true owner of the land that a hostile claim was being asserted to the property. Taub, 75 S.W.3d at 626; Templeton v. Dreiss, 961 S.W.2d 645, 670 (Tex. App.—San Antonio 1998, pet. denied). One essential element of adverse possession under the 10-year limitation statute is that the possession of the claimant, or those in privity with the claimant, must be an actual and visible appropriation of the land for 10 or more consecutive years. Tex. Civ. Prac. & Rem. Code Ann. § 16.026; Cherokee Water Co. v. Freeman, 145 S.W.3d 809, 817 (Tex. App.—Texarkana 2004, pet. denied).

          The Loftons have made no effort to explain why the fact that “the testimony [regarding tax payments] was extremely overstated and inaccurate” was so material that it would probably produce a different result if a new trial were granted. See Jackson, 660 S.W.2d at 809. Accordingly, we hold that the trial court did not abuse its discretion in denying the Loftons’ motion for new trial.  

          We overrule issue three.

Conclusion

We affirm the trial court’s judgment.

                                                                        George C. Hanks, Jr.

                                                                        Justice

Panel consists of Justices Nuchia, Hanks, and Higley.