      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00723-CV



            TEA Ranch, LP, through its General Partner, Thomas Everett Allen;
                  and Thomas Everett Allen, Individually, Appellants

                                                v.

                         Jan Yates Boultinghouse, in her Capacity as
                        Executor of the Estate of Mack Yates, Appellee


     FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT
        NO. 13883, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Jan Boultinghouse filed suit against Thomas Everett Allen (Tommy)1 seeking,

among other things, a declaration that a public road had been established over Tommy’s property.

After a trial, the district court entered a judgment incorporating the jury’s findings granting the

requested declaration and stating that the road had not been abandoned. In addition, the district

court awarded Jan attorney’s fees. Tommy appeals the judgment of the district court, and we will

affirm the judgment.




       1
          Many of the individuals involved in this case share identical last names. In an effort to
minimize confusion, we will refer to them by their first names when necessary. Although the style
of this case lists Thomas Allen as a party, he refers to himself as Tommy Allen. To be consistent
with his preference, we will refer to him as Tommy.
                                          BACKGROUND

                The dispute in this case involves access to a roadway crossing privately owned land

in Llano County. The events leading up to the dispute began in the 1930s. To provide context for

the issues on appeal, we provide a description of the land involved as well as the individuals owning

land in the area.

                In 1932, several property owners petitioned the Commissioners Court of Llano County

to establish a public road. Specifically, the petition stated that the proposed road was a class 3 road,

was 20 feet wide, and was approximately 6½ miles long. Further, the petition generally set out the

origin and termination points for the road and set out how the road traversed the land by reference

to the petitioners’ land over which the road spanned.2 The petition asked the court to appoint a jury

of view to “lay out and survey” the road. The appointed jury of view recommended that the road

be established and prepared a report setting out the contours of the road. The report also listed the

property owners that had relinquished their property for the establishment of the road. After reviewing

the petition and the report by the jury of view, the Commissioners Court granted the petition.




       2
          The handwritten petition requested that “a public road of the 3rd class, 20 feet in width,
be established” and described the road as follows:

        Commencing at Allen Rileys place approximately two miles from Lone Grove on
        the Lone Grove and Baby Head road. Thence approximately one half mile across
        Rileys property. Thence approximately one half mile across Schneiders property.
        Thence approximately three hundred yards across Mrs. Whitts property. Thence
        approximately two miles across Rogers’ property. Thence approximately three and
        one-half miles across Everetts property and ending at San Saba County line in
        Precinct No. 2 the whole distance being approximately six and one half miles.

                                                   2
                The dispute in this case partially rests on whether the road described in the petition is

the same roadway commonly referred to as County Road 216A (“CR-216A”).3 Portions of CR-216A

cross privately owned land in Llano County, including land owned by Tommy. See Allen v. Allen,

280 S.W.3d 366, 371 (Tex. App.—Amarillo 2008, pet. denied). We will refer to Tommy’s property

as TEA Ranch. CR-216A travels through TEA Ranch and up to another ranch along the northern

border. That ranch was owned by Mack Yates prior to his death and is now being run by Yates’s

daughter, Jan, who is the executor of the estate. This ranch will be referred to as Yates Ranch. The

portion of CR-216A at issue here enters TEA Ranch and “traverses [TEA Ranch] in a north-south

direction, terminating at the gate of the Yates Ranch.” Id.

                At several points along CR-216A, there are gates. For example, as mentioned above,

there is a gate where CR-216A reaches Yates Ranch, and that gate is referred to as the Yates Gate.

Id. In addition to that gate, Tommy has installed two gates along the road as it traverses his property.

In 1974, Tommy placed a gate “[n]ear the center of” the current boundaries of [TEA Ranch]. Id.

This gate is referred to as the 1974 Gate. At the time that the gate was installed, TEA Ranch was

smaller, and the gate was along the southern border. After acquiring additional property along the

southern border, Tommy installed another gate further south on CR-216A “[n]ear the point where

it enters the southwest corner of” the now larger TEA Ranch. Id. That gate is referred to as the

1987 Gate. In 1974, Tommy started locking the 1974 Gate out of concern for his mother who lived

on TEA Ranch. Id. Later, Tommy moved the lock to the 1987 Gate. Id. Over the years, the type

of lock used has shifted from a combination lock to a lock with a key. Id.


       3
          It is not entirely clear from the record how the road became designated as CR-216A. See
Allen v. Allen, 280 S.W.3d 366, 374 n.3 (Tex. App.—Amarillo 2008, pet. denied). But for ease of
reading, we will refer to the road by that name.

                                                   3
                  In response to a dispute concerning a different roadway, some of Tommy’s neighbors

filed suit against him, and Jan intervened in the suit “in her representative capacity.” In the suit, Jan

sought a declaration that CR-216A is a public road. Id. at 372. In addition, she named Llano County

as a defendant and alleged that it failed to provide maintenance for CR-216A and to keep it open to

the public. Id.

                  Subsequent to the suit being filed, Jan and Tommy filed cross-motions for summary

judgment. Id. After reviewing the motions, the district court declared in an interlocutory order

that CR-216A was a public road and that it had been dedicated to the public in 1932 through

the proceeding before the Commissioners Court. Id. After the district court issued its summary-

judgment ruling regarding CR-216A, the issues raised by the other plaintiffs were tried before a jury.

Id. At the conclusion of the trial, the jury found, among other things, that no portion of CR-216A

had been abandoned. Id. In light of the jury’s determinations, the district court entered a judgment

incorporating its prior summary-judgment ruling as well as the jury’s decision. Id. Tommy appealed

the district court’s judgment, but Llano County did not. Id.

                  In his appeal, Tommy challenged the declaration regarding CR-216A. Id. After

examining the summary-judgment evidence, the appellate court determined that the record did “not

conclusively prove that CR-216A was established in the 1932 proceedings, or that those proceedings

established its course through the [TEA Ranch].” Id. at 377. In light of this determination, the court

remanded the case for further proceedings. Id. at 384.

                  After the remand, the other plaintiffs settled with Tommy, and Jan was the only

remaining plaintiff. On remand, Jan again argued that CR-216A “has been designated and maintained



                                                   4
by Llano County as a public or county roadway and used and traveled by the general public.” In her

suit, Jan also sought injunctive relief prohibiting Tommy from interfering with the public’s ability

to use CR-216A. In addition, she asked for an award of attorney’s fees.

                After a trial, the jury determined that the portion of CR-216A starting at the 1987

Gate and ending at the Yates Gate was part of the road established in the Commissioners Court, that

CR-216A was dedicated to public use prior to the lawsuit, that the road had not been abandoned,

and that Jan was entitled to attorney’s fees incurred during trial as well as fees for any later appeals.

Subsequent to the jury reaching its decision, the district court issued its final judgment incorporating

the jury’s findings and ordering Tommy to not install any new gates on CR-216A, maintain any gates

on CR-216A, lock any gates on CR-216A, create any other obstructions on CR-216A, or make

CR-216A impassable. In addition, the district court ordered Llano County to maintain CR-216A and

to keep it “open and free from obstructions.” Finally, the district court awarded Jan the attorney’s

fees calculated by the jury.

                Tommy appeals the judgment of the district court.


                                            DISCUSSION

                In four issues on appeal, Tommy challenges the district court’s judgment. First, he

argues that the jury’s determination stating that the portion of CR-216A at issue was included as

part of the road established in the Commissioners Court did not have the effect of establishing

a cognizable road. Second, he asserts that the jury’s determination that CR-216A was dedicated

to public use was not supported by legally or factually sufficient evidence. In his brief, Tommy

analyzes these two issues jointly and treats them both as a sufficiency challenge, and we will address

                                                   5
those issues in the same manner. Third, he contends that the jury’s determination that CR-216A had

not been abandoned is not supported by factually sufficient evidence. Finally, he insists that the

award of attorney’s fees should be vacated. We will address these issues in the order raised.


Sufficiency of the Evidence of the Jury’s Road Determinations

               In his first two issues on appeal, Tommy raises various challenges to the jury’s

determinations regarding CR-216A.


Challenge to the Commissioners Court’s Establishment of a Road

               In his first group of assertions, Tommy challenges the propriety of the Commissioners

Court’s establishment of a road in 1932. Specifically, he argues that to properly dedicate land for

a road, either expressly or impliedly, several elements must be but were not met. For both express

and implied dedications, the following four elements must be satisfied: “(1) the person making the

dedication must have the ability to do so; he must have fee simple title before he can dedicate his

property; (2) there must be a public purpose served by the dedication; (3) the person must make

either an express or implied offer; and (4) there must be an acceptance of that offer.” Linder v. Hill,

673 S.W.2d 611, 616 (Tex. App.—San Antonio 1984), aff’d, 691 S.W.2d 590 (Tex. 1985); see also

Lambright v. Trahan, 322 S.W.3d 424, 431 (Tex. App.—Texarkana 2010, pet. denied) (explaining

that express dedications are generally accomplished by written instrument); Reed v. Wright,

155 S.W.3d 666, 672 n.6 (Tex. App.—Texarkana 2005, pet. denied) (setting out proof needed for

implied dedications). In his brief, Tommy contends that the evidentiary documents offered to the

Commissioners Court in 1932, including the petition for a public road, did not establish the land



                                                  6
owners’ intent to donate the land or the public’s acceptance of the offer of dedication.4 Similarly,

Tommy urges that the description of the road included in the petition before the Commissioners

Court was not specific enough to properly convey land.

                Tommy’s evidentiary arguments regarding the Commissioners Court’s judgment

are not jurisdictional challenges to the Commissioners Court’s judgment. “All errors other than

jurisdictional deficiencies render the judgment merely voidable, and such errors must be corrected

on direct attack.” Solomon, Lambert, Roth & Assocs., Inc. v. Kidd, 904 S.W.2d 896, 900 (Tex.

App.—Houston [1st Dist.] 1995, no writ); see also PNS Stores, Inc. v. Rivera, 379 S.W.3d 267,

271 (Tex. 2012) (explaining that voidable judgments may only be challenged by direct attack). The

Commissioners Court’s judgment established a public road in Llano County and was not appealed,

and the time for directly attacking that judgment has long since passed.

                In his brief, Tommy also argues that the Commissioners Court’s judgment is subject

to collateral attack. A judgment is void and, therefore, subject to collateral attack when the trial

court had no jurisdiction over the parties or the property, had no jurisdiction over the subject

matter, had no jurisdiction to enter the judgment at issue, or had no capacity to act. PNS Stores, Inc.,

379 S.W.3d at 272. Tommy asserts that the Commissioners Court’s judgment is subject to collateral

attack because the documents presented “lacked legally sufficient reference to the dedicating




       4
          On appeal, Tommy notes that the establishment of the public road in 1932 was based on
conveyances from the affected landowners at the time but that those conveyances were not made part
of the record in 1932. Similarly, he argues that the Commissioners Court did not have a survey or
field notes concerning the road. Referring to these alleged deficiencies, Tommy contends that the
absence of this type of evidence was fatal to “the proof of dedication as a matter of law.”

                                                   7
parties or the property involved.” Accordingly, Tommy insists that the Commissioners Court lacked

jurisdiction over the parties and the subject matter of the proceeding.

               We disagree. At the relevant time, Commissioners Courts had the authority to

establish public roads, including by a petition filed by property owners owning land over which the

road would traverse. See Act of Feb. 2, 1884, 18th Leg., 1st C.S., ch. XI, § 1, art. 4360, 1884 Tex.

Gen. Laws 551, 551 (bestowing on Commissioners Courts of counties power to lay out and open

public roads), and Act of Feb. 2, 1884, 18th Leg., 1st C.S., ch. XIII, § 1, arts. 4360-4390c, 1884 Tex.

Gen. Laws 552, 552-57 (authorizing Commissioners Courts to open public roads, including by

petition of property owners, and requiring jury of view to lay out road), repealed by Act of May 20,

1983, 68th Leg., R.S., ch. 288, § 2, 1983 Tex. Gen. Laws 1431, 1526, and Act of Apr. 21, 1995, 74th

Leg., R.S., ch. 165, § 24, 1995 Tex. Gen. Laws 1024, 1870. Accordingly, the Commissioners Court

had jurisdiction over the subject matter of the proceeding.

               Moreover, during the trial in this case, Wayne Hutto, the owner of a title company,

testified that the individuals who signed the petition to dedicate land for the road owned property in

Llano County, and our review of the record in this case revealed nothing that would indicate that the

Commissioners Court did not have jurisdiction over those parties. In light of the testimony and the

remainder of the record, we cannot agree with Tommy’s assertion that the Commissioners Court did

not have jurisdiction over the parties to the proceeding.

               For these reasons, we do not believe that the Commissioners Court’s judgment is

subject to the type of collateral attack suggested by Tommy. Although Tommy was free to and did

challenge whether the road established by the Commissioners Court is the road that traverses TEA



                                                  8
Ranch, he did not have the ability to challenge in a collateral attack the Commissioners Court’s

establishment of a public road in 1932. That prohibition against collateral attacks seems particularly

warranted in circumstances like those present in this case where the prior judgment is 80 years old

and is based on evidence that was even older.


Challenge to Whether the Road Traverses TEA Ranch

                In his first two issues, Tommy also challenges the legal and the factual sufficiency

of the evidence establishing that the portion of CR-216A traversing TEA Ranch is part of the public

road established through the 1932 proceeding.5

                When evaluating the legal sufficiency of the evidence, “appellate courts must view

the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors

could, and disregarding contrary evidence unless reasonable jurors could not.” See City of Keller

v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). The evidence presented at trial is legally insufficient

if the record disclosed one of the following situations: “‘(a) a complete absence of evidence of a

vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only

evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than

a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact.’” Id. at 810




       5
          The road established in the 1932 proceeding ended at the San Saba County line and went
over what is now a portion of Yates Ranch. During the trial, testimony was introduced establishing
that a gate was installed across the road at the boundary between Yates Ranch and TEA Ranch.
Moreover, evidence was also presented showing that the Yates Gate had been locked for decades and
that members of the public had not been allowed to travel through the Yates Gate. After the trial,
the jury determined that the road traversing TEA Ranch and ending at the Yates Gate was a public
road and made no additional finding regarding the road on the other side of the Yates Gate.

                                                   9
(quoting Robert W. Calvert, “No Evidence” & “Insufficient Evidence” Points of Error, 38 Tex.

L. Rev. 361, 362-63 (1960)). Ultimately, the test is “whether the evidence at trial would enable

reasonable and fair-minded people to reach the [judgment] under review.” Id. at 827. For factual-

sufficiency reviews, appellate courts “must consider and weigh all the evidence, and should set aside

the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong

and unjust.” Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In performing this review, an appellate

court “may not reverse merely because [it concludes] that the evidence preponderates toward a

different answer.” McMillin v. State Farm Lloyds, 180 S.W.3d 183, 201 (Tex. App.—Austin 2005,

pet. denied). Under both standards of review, the fact-finder is the sole judge of witnesses’ testimony

as well as the weight to be given to their testimony. City of Keller, 168 S.W.3d at 819; McDonald

v. Dankworth, 212 S.W.3d 336, 339 (Tex. App.—Austin 2006, no pet.).

               During the trial, Tommy denied that the roadway traversing TEA Ranch was the road

established by the Commissioners Court. In fact, he testified that the road leading up to the Yates

Gate was moved by an agreement of the various property owners. Further, he explained that he

“periodically” used the road leading up to the Yates Gate as an airstrip and that he used the road for

aviation training while he was a member of the Texas Army National Guard. In addition, Tommy

related his belief that the road established by the Commissioners Court at one time extended to the

1974 Gate but currently extends only to the 1987 Gate, and he denied that the road extended any

further into TEA Ranch.

               In addition to Tommy’s testimony, other witnesses testified regarding whether the

portion of CR-216A traversing TEA Ranch is part of the road established by the Commissioners



                                                  10
Court. Specifically, Hutto testified that after reviewing the relevant records, title information, and

maps, he came to the conclusion that the road traversing TEA Ranch was the road established by the

Commissioners Court. When explaining how he reached this conclusion, Hutto stated that his

conclusion was premised on his determination that the people named in the road minutes and listed

in the petition to establish the road owned the property over which the road would run. In addition,

he related that the County’s historical maps showed a road traversing TEA Ranch. However, Hutto

did admit that his conclusion was “educated speculation,” that the road’s starting point as described

in the road minutes was uncertain, and that the descriptions in the documents regarding the direction

of the road and its length were not clear and used estimates. In addition, Hutto conceded that he was

only able to ascertain the physical location of the road established by the Commissioners Court by

the use of the County’s maps.

               After Hutto concluded his testimony, a land surveyor, Fred Thompson, testified

regarding the portion of CR-216A at issue. In his testimony, Thompson explained that he reviewed

several maps and aerial photos of the area at issue that had been made at various points in time and

also reviewed the relevant deeds and other public records. During his testimony, Thompson related

that the maps made after the 1932 proceeding showed a roadway crossing TEA Ranch, and many

of those maps as well as aerial photos taken at various times were admitted into evidence. Further,

he explained that he performed a survey of the land and CR-216A and compared the portion of

CR-216A crossing TEA Ranch with the road described in the 1932 proceedings. When summarizing

his comparison, he testified that after performing his review, his opinion was “that there’s a very

high probability that the roadway that is on the ground is that same roadway described in the 1932



                                                 11
document.” During his testimony, Thompson also discussed a map of the area that he created that

showed that the description of the road from the 1932 proceedings generally matched the actual

location of the road. In addition, Thompson explained that although the road did not prominently

appear in an aerial photograph taken in 1938, he believed that the road was there but was not readily

observable due to technological limitations existing at the time that the photo was taken.

               Although Thompson testified that it was likely that the portion of CR-216A crossing

TEA Ranch was part of the road established in 1932, Thompson also admitted that his assertion that

the road generally followed the description from the 1932 proceedings was based on his observation

of where the road currently is. In other words, he related that although the 1932 description generally

sets out various directions and distances for the road, it does not specify where there are turns or

bends in the road. Thompson also admitted that the measurements from the 1932 proceedings would

be a better fit if the beginning point had been 1/10th of a mile north of where the roadway traversing

TEA Ranch started.

               Bearing in mind that the fact-finder is the sole judge of the witnesses’ testimony and

of the weight to be given to their testimony under both a legal and a factual sufficiency review,

City of Keller, 168 S.W.3d at 819; McDonald, 212 S.W.3d at 339, we must conclude that the

evidence presented at trial would allow “reasonable and fair-minded people to reach the” decision

made by the jury, City of Keller, 168 S.W.3d at 827, and that the jury’s verdict is not “so contrary

to the overwhelming weight of the evidence as to be clearly wrong and unjust,” Cain, 709 S.W.2d

at 176. Accordingly, we believe that the evidence is legally and factually sufficient to establish that

the portion of CR-216A traversing TEA Ranch is part of the public road established by the

Commissioners Court in 1932.

                                                  12
Exclusion of Testimony

               In his first and second issues, Tommy also challenges the district court’s decision to

refuse to admit specific testimony from Gary Howell, who was an administrator for Llano County

Road and Bridge. The testimony was presented as an offer of proof by reading Howell’s prior

deposition testimony. In his deposition, Howell explained that he was asked to review County

records related to CR-216A and that during his review he did not find any field notes describing the

road, any record establishing where the road started and ended, or any document showing that the

landowners involved in the 1932 proceeding actually conveyed property to Llano County. When

Tommy attempted to elicit similar testimony from Howell during trial, Jan objected and argued that

the testimony was an impermissible collateral attack on the 1932 judgment from the Commissioners

Court, and the district court sustained the objection. On appeal, Tommy contends that the district

court erred by refusing to admit the disputed portion of Howell’s testimony because the testimony

was necessary to show that “the 1932 County Commissioners’ Court proceedings are incomplete

and legally insufficient” because there was no evidence of an intent by the landowners to donate their

property for a public road.

               Generally speaking, appellate courts review a trial court’s decision to admit or

exclude evidence under an abuse-of-discretion standard. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d

623, 629 (Tex. 2002); Commerce & Indus. Ins. Co. v. Ferguson-Stewart, 339 S.W.3d 744, 746 (Tex.

App.—Houston [1st Dist.] 2011, pet. denied). A trial court abuses its discretion when it acts without

regard to any guiding rules or principles, and appellate courts uphold the ruling if there is a

legitimate basis for it. Commerce & Indus. Ins. Co., 339 S.W.3d at 746-47. In order for an appellate



                                                 13
court to reverse a judgment based on an error in the admission or exclusion of evidence, the

requesting party must show that the trial court committed an error and that the error probably caused

the rendition of an improper judgment. Pickett v. Texas Mut. Ins. Co., 239 S.W.3d 826, 839 (Tex.

App.—Austin 2007, no pet.); see Tex. R. App. P. 44.1(a).

               By his own admission, Tommy asserts that he wanted the evidence admitted in order

to attack the 1932 judgment by the Commissioners Court. As discussed previously, Tommy has not

shown that the judgment is subject to a collateral attack. Accordingly, we cannot conclude that the

district court abused its discretion by refusing to admit the challenged portion of Howell’s testimony.

               In light of our previous determinations, we overrule Tommy’s first and second

issues on appeal.


Sufficiency of the Evidence of the Jury’s Abandonment Finding

               As mentioned previously, the jury found that the 1932 Commissioners Court

established a public road traversing TEA Ranch and that the roadway had not been abandoned. In

his third issue on appeal, Tommy challenges the factual sufficiency of the jury’s finding that the

roadway had not been abandoned. See Cain, 709 S.W.2d at 176 (setting out standard for factual-

sufficiency reviews). Because Tommy bore the burden of proof regarding the abandonment issue,

he concedes that to prevail on this issue, he must show that the jury’s finding is against the great

weight and preponderance of the evidence. See Urista v. Bed, Bath & Beyond, Inc., 245 S.W.3d 591,

601 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also Maples v. Henderson Cnty., 259

S.W.2d 264, 267 (Tex. Civ. App.—Dallas 1953, writ ref’d n.r.e.) (explaining that party asserting

abandonment must prove elements).

                                                  14
               As discussed in the prior issue, the 1932 Commissioners Court established a

public roadway that traversed TEA Ranch. “Once a road is dedicated to public use, that road

remains subject to that use unless it is abandoned.” Betts v. Reed, 165 S.W.3d 862, 870 (Tex.

App.—Texarkana 2005, no pet.). Under the Transportation Code, a county road may be deemed

abandoned “when its use has become so infrequent that one or more adjoining property owners have

enclosed the road with a fence continuously for at least 20 years.” Tex. Transp. Code § 251.057(a).

In addition to statutory abandonment, a road may be abandoned under common law. “To show

common-law abandonment, one must show intent to abandon and acts of relinquishment.” Betts,

165 S.W.3d at 871. Stated differently, a road is abandoned under common law when the use for

which the road was dedicated becomes impossible, “‘or so highly improbable as to be practically

impossible, or where the object of the use for which the property is dedicated wholly fails.’” Id.

(quoting Griffith v. Allison, 96 S.W.2d 74, 77 (1936)).

               When challenging the sufficiency of the evidence, Tommy contends in his brief that

the evidence presented during trial demonstrated that no one used the road, that the road was

“practically impassable,” and that gates had been installed at various points along the road. Further,

although Tommy admits that neighbors were given access, he asserts that the evidence showed that

the gates had been locked to prevent public use. As support for these assertions, Tommy points to

portions of his testimony during trial, to the testimony of some of his current and former neighbors,

to the testimony of an individual serving in the Texas Army National Guard, and to photographs of

the roadway submitted by Jan. Regarding those photographs, Tommy urges that they show that the

road has not been maintained and “clearly show[] that there is no road either accessible to or being

used by the public.”

                                                 15
                During the trial, Tommy testified that a Llano County Commissioner informed him

that the road traversing TEA Ranch was a private and not a public road. Further, he discussed that

he installed the 1974 Gate and later installed the 1987 Gate. Additionally, he explained that he put

a combination lock on the 1974 Gate and a regular lock on the 1987 Gate. When explaining why

he put locks on the gates, he testified that he installed them out of concern for his elderly mother who

lived on the property and to prevent trespassers from entering the property. In addition, Tommy

testified that no one from the County ever told him that he was not allowed to have gates on the road.

In fact, he stated that from the time that the 1987 Gate was built to the time of the first lawsuit in

2004, no one protested his decision to lock the gate. In addition, Tommy related that the Yates Gate

had been shut since the 1950s and that he was unaware of anyone from the Yates family ever using

the road traversing TEA Ranch. Moreover, he explained that although his neighbors had permission

to use the roadway, the roadway was not open to the public. As further support for the idea that

the road was not public, Tommy discussed the fact that when the County wanted to place a

communications tower on his property, it entered into a lease agreement with him that allowed the

County to install the equipment and to have access to it. In other words, Tommy contends that the

agreement would not have been necessary if the County otherwise had access to the road.

                In his testimony, Tommy also described how his father built an airstrip in the 1960s

along the path leading up the Yates Gate and stated that the County did not maintain that portion

of the roadway. As discussed previously, Tommy explained that he landed planes on the airstrip.

Moreover, Charles Sawers, who also served in the Texas Army National Guard, testified that he

landed on the airstrip on two occasions. Furthermore, although Tommy admitted that the County



                                                  16
had installed low-water crossings along the road as well as cattle guards, he insisted that the County

only did that because his family allowed the County to gather caliche from their land to be used

elsewhere in the County. In addition, he related that although the County had maintained other parts

of the road by grading it, a Llano County Commissioner informed him years ago that the County

would no longer maintain the portion of the road going across TEA Ranch. Similarly, a former

employee of Llano County, Gordon Hodges, testified that he worked to maintain the roads in

Llano County from 1976 to shortly before the trial and that although the County used to maintain the

roadway all the way up to the Yates Gate, the County stopped maintaining the road after Tommy

installed the 1987 Gate.

               As further support for the idea that the roadway had been abandoned, Tommy points

to testimony from various neighbors. First, he discusses the testimony of Jan and her husband

Kenneth Boultinghouse indicating that the last time that either of them had used the roadway was

in the 1960s or the 1970s. In addition, because of when she stopped using the road, Jan admitted that

she would have had no knowledge regarding the 1974 Gate or the 1987 Gate. Second, Tommy refers

to the testimony of Mark Martin whose family purchased a ranch near TEA Ranch in the 1950s. In

his testimony, Martin explained that his family used the road to cross TEA Ranch but that he did not

have knowledge of anyone using the road other than individuals living near TEA Ranch.6 Third,




       6
         In his appellate briefs, Tommy points to testimony from Martin indicating that a gate on
the road was continuously locked. But after reading the record, we believe that these portions of
Martin’s testimony refer to the Yates Gate and not to the 1974 or 1987 Gates. Moreover, Martin
explained that the road traversing Yates Ranch was a private roadway past the Yates Gate.

                                                 17
Tommy mentions the testimony of another neighbor owning land near TEA Ranch, Andrew Allen.7

In his testimony, Andrew stated that the road had not been used as a public road since the 1987 Gate

was installed.

                 However, in addition to the testimony relied on by Tommy in his briefs, Tommy also

testified that the 1974 Gate was not always shut and that people “could’ve driven through there when

it was open till they got to the Yates [Gate], . . . which was always locked.” He also explained that

County employees were given the combination to the lock on the 1974 Gate and were allowed to

enter the property to collect caliche. Further, he admitted that he did not keep the gates locked all

the time and that the Yateses and other neighbors may have used the road crossing TEA Ranch.

Tommy testified that he gave Andrew and his wife a key to the lock on the 1987 Gate. During his

testimony, Tommy admitted that when he purchased a portion of what is now TEA Ranch, the deed

specified that the road in dispute is a public road. In addition, Tommy testified that he never

petitioned to have the road closed and conceded that he benefitted from the County’s decision to

install low-water crossings and cattle guards on his property and from the County’s decision to

maintain the roadway until he installed the 1987 Gate.

                 In addition, current and former neighbors testified to using the road traversing TEA

Ranch. First, Andrew testified and explained that he owns land that is next to TEA Ranch. Further,

he stated that from the time that his family acquired their ranch, they drove over the road crossing

TEA Ranch to get to their land. In fact, he described the use as continuous from the 1970s to the




       7
         Although Tommy and Andrew share last names, they are not related to one another. See
Allen, 280 S.W.3d at 370 n.1.

                                                  18
year before trial. Moreover, Andrew testified that although Tommy installed a lock on the 1987

Gate, the gate was not continuously locked.

               In addition to the testimony from Andrew, other current and former neighbors

testified about their use of the road. Although Tommy correctly points out that their testimony

indicated that they stopped using the road prior to the installation of the 1987 Gate, “[m]ere nonuse

is not sufficient to constitute abandonment.” Betts, 165 S.W.3d at 871. Specifically, Joe Yates, who

is the stepbrother of Jan, testified that he regularly used the road to go to Yates Ranch, that he did

not remember anyone ever telling him that the road was a private road, and that he did not recall

there being any locked gates across the road. Similarly, Martin testified that his family purchased

a ranch near TEA Ranch in the 1950s and that his family drove on the road through TEA Ranch.

Further, Martin explained that he believed that it was a county road. In addition, Kenneth testified

that he has worked on Yates Ranch for decades and that during his employment, he has used the road

for various reasons. Moreover, he related that when he used the road, he was never informed that

it was private property or that he could not use it. Finally, Jan testified that she grew up on Yates

Ranch, that her family traveled on the road crossing TEA Ranch for a variety of reasons, and that

she believed that the road was “for the public to use.”

               In addition to the testimony describing the use of the road, testimony was also

introduced regarding the County’s treatment of the property. As previously discussed, the County

stopped maintaining the road after the 1987 Gate was installed, but Howell, an administrator for

Llano County Road and Bridge, testified that the County only maintains public roads, not private

ones, and that the County had maintained the road in question and only stopped because Tommy



                                                 19
installed the 1987 Gate. Furthermore, a county’s failure to maintain a road is not sufficient to

establish abandonment. See id. Moreover, two retired employees for the County, Nathan Garrett

and Gordon Hodges, testified that when the County maintained the road, the road was maintained

all the way to the Yates Gate, and Howell stated that he has driven the road all the way to the Yates

Gate as recently as the year before trial. Further, Howell explained that the County continues to

maintain the road up to the 1987 Gate. Regarding the installation of the gates, Howell explained

that property owners are allowed to install gates on third class roads and that the road established in

the 1932 proceeding was a third class public road.

               In his testimony, Howell also discussed how the Commissioners Court in 1993

included within its assessment of the total mileage of the County’s roads the part of CR-216A

that is located beyond the 1987 Gate and within TEA Ranch. This part of Howell’s testimony was

consistent with portions of Thompson’s testimony in which he mentioned that in 1993 the Texas

Department of Transportation asked all Texas counties to provide an accurate account of the mileage

of their roads for funding purposes and that the Commissioners Court included in its assessment the

portion of the road traversing TEA Ranch and ending at the Yates Gate. Further, Howell explained

that when he researched the public documents related to the road, he did not find any documents

suggesting that the road established in the 1932 proceeding had ever been closed. Finally, Howell

acknowledged that he was currently unaware of any public traffic on the road past the 1987 Gate,

but he also explained that some county roads simply end at someone’s property. See City of Houston

v. Hughes, 284 S.W.2d 249, 252 (Tex. Civ. App.—Austin 1955, writ ref’d n. r. e.) (explaining that

determination regarding whether road is public is not determined by its length, by where it goes,



                                                  20
or by number of people using it and that road may be public even though one person benefits

from it most).

                 As for the photographs that Tommy urges demonstrate that there is not a continuous

roadway to the Yates Gate, we note that those photographs were admitted into evidence and that

it is the jury’s province to resolve conflicts in the evidence, Del Lago Partners, Inc. v. Smith,

307 S.W.3d 762, 764 n.2 (Tex. 2010), and to decide what weight to give the evidence presented, see

McDonald, 212 S.W.3d at 339. Moreover, although one of the photographs does demonstrate that

a portion of the roadway is covered by grass, other photographs do show the existence of a road over

TEA Ranch. In addition, in resolving this conflict, the jury was also aided by the testimony

regarding the existence and use of the road over TEA Ranch, by testimony concerning photographs

of the road as well as aerial photographs of TEA Ranch, and by maps highlighting roads in the area.

                 Moreover, although there was testimony that portions of the road had not been

recently maintained, no testimony was introduced establishing that the road could no longer be used

for traveling purposes. See Betts, 165 S.W.3d at 871 (explaining that road was not abandoned when

there was no evidence that it had become “practically impossible” to use it).

                 In light of the testimony summarized above, including testimony regarding past

and current use of the road and testimony establishing that the gates across the road had not

been continuously locked or closed, we cannot conclude that the jury’s determination that the road

had not been abandoned is against the great weight and preponderance of the evidence regardless

of whether abandonment is considered under the Transportation Code or under common law. See

Urista, 245 S.W.3d at 601; see also Betts, 165 S.W.3d at 871(explaining that one purpose of local



                                                 21
public road is to provide access to abutting property and concluding that public road was not

abandoned when used for that purpose even though number of people using road had decreased).

Accordingly, we overrule Tommy’s third issue challenging the factual sufficiency of the jury’s

abandonment determination.


Attorney’s Fees

                  In his fourth issue on appeal, Tommy asks this Court to vacate the attorney’s fees

award and remand the issue of attorney’s fees in the event that we reverse the district court’s

judgment by sustaining any of his prior appellate issues. In light of the fact that we have overruled

all of Tommy’s other issues on appeal and will be affirming the district court’s judgment, we

overrule Tommy’s final issue on appeal.


                                           CONCLUSION

                  Having overruled all of Tommy’s issues on appeal, we affirm the judgment of the

district court.



                                               __________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Pemberton, and Rose
 Concurring Opinion by Justice Pemberton

Affirmed

Filed: February 26, 2014




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