      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-14-00431-CV



                  Barbara A. Garrett and Nelson Gene Garrett, Appellants

                                                 v.

                         Shay Brinkley and Robin Brinkley, Appellees


     FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
           NO. 41164, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This is an appeal from a summary judgment in a declaratory judgment action

involving a disputed road easement. Barbara A. Garrett and her husband Nelson Gene Garrett

own land adjoining that of Shay Brinkley and his wife Robin Brinkley. The Brinkleys use a road

that crosses the Garretts’ property to access a public road. The Garretts filed this action seeking a

judgment declaring that the Brinkleys did not have an easement to cross the Garretts’ property. The

Brinkleys filed a no-evidence motion for summary judgment, which the trial court granted. The

Garretts appeal. We will affirm.


                                         BACKGROUND

               In 1945, a previous landowner obtained an access easement allowing him to

cross ranch land that lay between his ranch and a public road. The recorded easement did not contain

a metes and bounds description of the easement, and everyone who was a party to the easement

is deceased.
                Over time, the Brinkleys came to own a portion of the landowner’s dominant estate,

and the Garretts came to own a portion of one of the three ranches in question over which the

easement purportedly crossed. The Brinkleys continue to use a road, a portion of which crosses

the Garretts’ property, to access a public road, claiming the right under the easement acquired by

their predecessor. The Garretts dispute that the road used by the Brinkleys is the access previously

acquired. They sought a judgment to declare that the Brinkleys’ easement does not cross the Garrett

ranch and to enjoin the Brinkleys from using the road that crosses the Garrett property. The Garretts’

pleadings allege that the Brinkleys’ use of the route is without permission, “the pathway in question

does not exist,” and “the Brinkleys do not have a right to use said pathway.” Thus, to obtain their

relief, they had the burden to prove that the road used by the Brinkleys is not the easement route.

                Ten months after the lawsuit was filed, and after discovery had been undertaken and

answered, the Brinkleys filed a no-evidence motion for summary judgment. The Garretts responded

with three interested fact-witness affidavits and an affidavit from an expert witness. The Brinkleys

asserted numerous objections to the four affidavits, all of which were granted. The trial court also

granted the Brinkleys’ motion for summary judgment.

                The Garretts appeal from the summary judgment denying their claim. They assert

three issues: (1) the trial court erred by granting the motion for summary judgment; (2) the trial court

erred by excluding their expert’s affidavit on the ground that it was based upon hearsay or

inadmissible evidence; and (3) the trial court erred by sustaining the objection to the expert’s

affidavit.




                                                   2
Standard of review

                A no-evidence motion for summary judgment must be granted if, after an adequate

time for discovery, the moving party asserts that there is no evidence of one or more essential

elements of a claim or defense on which an adverse party would have the burden of proof at trial,

and the nonmovant fails to produce more than a scintilla of summary judgment proof raising a

genuine issue of material fact on those elements. Tex. R. Civ. P. 166a(i). We examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable inference and

resolving any doubts against the motion to determine whether more than a scintilla of evidence was

presented on the elements of the nonmovant’s claim. City of Keller v. Wilson, 168 S.W.3d 802, 825

(Tex. 2005); Alder v. Laurel, 82 S.W.3d 372, 374 (Tex. App.—Austin 2002, no pet.). Less than a

scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise

or suspicion of a fact. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San Antonio

1998, pet. denied). We review the trial court’s decision de novo. Natividad v. Alexsis, Inc.,

875 S.W.2d 695, 699 (Tex. 1994).


                                            DISCUSSION

                A hearing on the record was held, at which time the trial court considered the

Brinkleys’ objections to the Garretts’ affidavits and ruled on the Brinkleys’ motion for summary

judgment. The trial court sustained multiple written objections urged by the Brinkleys and struck

large portions of the affidavits of the three interested fact witnesses, but the Garretts do not challenge

these rulings. Instead, in one paragraph of their brief they argue that the remaining portion of one

affidavit by Linda Meador Lucksinger, Mrs. Garrett’s sister, is enough to raise a material fact issue.



                                                    3
                In her affidavit, Lucksinger states that she was present at her parents’ home in

December 1988 when a man named William Hanszen came to the home asking her father to sign a

deeded easement, giving Hanszen an easement across her father’s pasture for easier access to his

land, and her father refused. The Garretts contend that this raises the issue of why Hanszen would

seek an easement if he already had one. However, this statement is no evidence as to the location

of the pasture in question, what pasture Hanszen wanted to cross, what land Hanszen wanted to

access, or how the requested easement relates in any way to the easement that is the subject of this

litigation. Thus, we hold it is less than a scintilla of evidence of the Garretts’ claim and constitutes

mere surmise or suspicion. After judgment, the Garretts attached to their motion for new trial a

“revised” affidavit from another witness, without requesting or receiving leave of court, but that

affidavit was not before the court and cannot be considered.

                The Garretts primarily complain on appeal that the trial court improperly struck the

affidavit of their expert, Holt Carson, whose affidavit reflects that he is a registered professional

land surveyor. The Garretts contend that the trial court struck the affidavit because the surveyor

lacked personal knowledge about the facts contained therein and because his opinion and the matters

on which he testified were based on hearsay. Most of their brief is directed to their argument that

these grounds should not bar the expert’s opinion and, therefore, striking the affidavit was error.

They contend that, as an expert, Carson was not required to have personal knowledge, and the basis

for his testimony was an exception to the hearsay rule. Our review of the record reflects that counsel

for the parties argued to the court about hearsay and personal knowledge, and that the trial court

questioned the reliability of Carson’s testimony in its ruling.




                                                   4
               The record further shows, however, that the Brinkleys objected in writing to

Holt Carson’s affidavit only on one ground. They objected to the concealment of the existence and

opinions of the expert without previous disclosure; they alleged that by filing an expert’s affidavit

and relying on it without previous disclosure, the Garretts violated the rules of discovery and

thus, the affidavit should be struck for abuse of discovery under Texas Rule of Civil Procedure 215.

The trial court sustained this objection. The Brinkleys contend that Carson’s affidavit was properly

struck for discovery abuse and, therefore, the contents and merits of the affidavit were

properly excluded. See Tex. R. Civ. P. 215.2(b)(4). A trial court’s decision to exclude an expert’s

testimony is reviewed for abuse of discretion. United Blood Servs. v. Longoria, 938 S. W.2d 29, 30

(Tex. 1997).

               The Brinkleys inquired about expert witnesses in their Request for Disclosures,

and the Garretts responded to the discovery request by stating, “No expert testimony is anticipated

at this time.” The Brinkleys’ inquiry and the Garretts’ response is in the record of the hearing. The

record does not reflect that the Garretts ever amended their response to designate any expert

witness or expert testimony, or that Carson was ever disclosed or designated as an expert witness,

even untimely. The subject matter of his expert testimony, his qualifications, his opinions, and the

basis of his opinions were never properly disclosed to the Brinkleys. See Tex. R. Civ. P. 194.2(f).

The Brinkleys objected to Carson’s affidavit on the basis that the Garretts concealed the expert’s

existence and opinions, despite the Brinkleys’ request for disclosure, and did not reveal the expert’s

existence or opinions until filing his affidavit nine days before the summary-judgment hearing. For

these reasons, the Brinkleys asserted that the Garretts had violated discovery rules, and the Brinkleys

requested that Carson’s affidavit be struck under Rule 215. See Fort Brown Villas III Condo. Ass’n,


                                                  5
Inc. v. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009) (no abuse of discretion in striking expert’s

affidavit when expert first disclosed in response to no-evidence summary judgment motion).

               We note that at one point in the hearing, the Garretts’ attorney stated, “And, Your

Honor, I also did supplement request for disclosures and added him as an expert and I sent that to

him after.” This was the only attempt to counter the Brinkleys’ objection and motion to strike. The

Garretts made no further argument on the point, and the record contains no proof of the fact. Later

in the hearing, the Brinkleys’ attorney stated, “Judge, I think that you have focused in on the issue

with the expert affidavit, and that’s assuming you consider it at all, because [Garretts’ attorney],

I mean, while you were reading I think he kind of acknowledges that the proper discovery has not

been followed and under Rule 215 the exclusion is automatic and so the expert affidavit should

not be considered at all.” The Garretts did not respond or counter. Later still, the Brinkleys’ attorney

argued, “The expert affidavit should be . . . excluded under 215. . . .” The Garretts did not

demonstrate or attempt to demonstrate that discovery was supplemented to include their expert.

Their brief on appeal contains only the one sentence from the attorney quoted above.

               The record of the hearing reflects argument by counsel and discussions with the

court concerning the contents of the surveyor’s affidavit and the basis for his testimony, including

the question of hearsay, personal knowledge, and reliability. The court and counsel also examined

the summary-judgment proof in an unsuccessful effort to try to locate the easement on the map,

even considering the expert’s affidavit. Nevertheless, the basis of the trial court’s ruling can rest

upon the ground alleged in the written motion—violation of the discovery rules and sanction for

abuse under Rule 215. The Brinkleys objected on this basis in writing, and the trial court granted




                                                   6
the Brinkleys’ objection in writing. The record contains nothing to show that the court erred by

granting the objection to the expert’s affidavit and striking it pursuant to Rule 215.


                                         CONCLUSION

               We hold that striking the expert’s affidavit was proper under Rule 215. We hold

that the Lucksinger affidavit was not evidence proving that the road used by the Brinkleys was

without consent and not the easement path. Because the Garretts presented no evidence in support

of their cause of action, the summary judgment was proper. We overrule the complaints raised by

the Garretts. We affirm the summary judgment.



                                              _________________________________________

                                              Marilyn Aboussie, Justice

Before Chief Justice Rose, Justices Bourland and Aboussie*

Affirmed

Filed: January 15, 2016



* Before Marilyn Aboussie, Chief Justice (retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).




                                                  7
