                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                              ________________________

                                   No. 07-13-00241-CV
                              ________________________

                     SOUTH PLAINS LAMESA RAILROAD, LTD.
                     AND LARRY DALE WISENER, APPELLANTS

                                            V.

                     KITTEN FAMILY LIVING TRUST, APPELLEE



                           On Appeal from the 99th District Court
                                   Lubbock County, Texas
             Trial Court No. 2005-529,345; Honorable William Sowder, Presiding


                                       March 3, 2015

                            MEMORANDUM OPINION
                   Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


       Appellants, South Plains Lamesa Railroad, Ltd. and Larry Dale Wisener

(collectively “SPLR”), appeal from a property dispute decided in favor of Appellee, Kitten

Family Living Trust (hereinafter the “Trust”), following a jury trial. In support, SPLR

asserts (1) the evidence is legally and factually insufficient to support the jury’s finding

that the parties reached an agreement for the Trust to perpetually operate multiple wells
on the disputed property at the same time, (2) the judgment impermissibly expands the

Trust’s rights beyond the scope of the agreement of the parties, (3) the Trust’s failure to

produce a prior survey of the disputed property warrants a new trial, (4) the trial court

erred when it failed to submit SPLR’s affirmative defenses to the jury, and (5) the trial

court abused its discretion when it awarded attorney’s fees to the Trust that included

fees from two prior appeals and the first trial. The Trust filed a cross-appeal asserting

the trial court erred by awarding SPLR attorney’s fees that were neither just nor

equitable. Finding SPLR’s third issue to be dispositive of this appeal, we reverse the

trial court’s judgment and remand for a new trial.


                                      BACKGROUND


       The controversy in this case has a long and contorted legal history, including the

appeal of a related matter, a summary judgment, two jury trials, two prior appeals of this

dispute, and the instant appeal. As such, we do not see the need to restate the history

of this litigation or render a detailed factual background but simply refer to our prior

opinions. See South Plains Lamesa Railroad, Ltd. and Kitten Family Living Trust v.

High Plains Underground Water Conservation District No. 1, 52 S.W.3d 770 (Tex.

App.—Amarillo 2001, no pet.) (reversing water conservation district’s revocation of

water permit in favor of the Trust and denial of water permit in favor of SPLR, and

rendering judgment in favor of SPLR and the Trust); South Plains Lamesa Railroad, Ltd.

and Larry Dale Wisener v. The Kitten Family Trust and Jerry Kitten, No. 07-06-0209-CV,

2008 Tex. App. LEXIS 603 (Tex. App.—Amarillo Jan. 28, 2008, pet. denied) (mem. op.)

(reversing summary judgment in favor of the Trust and finding easement agreement and

lease agreement should be construed together); South Plains Lamesa Railroad, Ltd.

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and Larry Dale Wisener v. The Kitten Family Living Trust, No. 07-09-0343-CV, 2011

Tex. App. LEXIS 7300 (Tex. App.—Amarillo Sept. 6, 2011, no pet.) (mem. op.)

(reversing judgment in favor of the Trust following the first jury trial based on charge

error). Due to the extensive history that has been previously set out, in this opinion we

will confine our discussion to pleadings, facts, and proceedings pertinent to our

consideration of SPLR’s third issue.


        In September 2012, after remand following the second appeal,1 the Trust filed its

Third Amended Original Petition alleging its wells were “on such tract of land and under

such easement . . . .” The next month the Trust filed its Brief . . . In Support of Its First

Amended Special Exception to [SPLR’s] Counterclaim . . . Alleging Trespass. By that

brief, the Trust alleged that “the case at bar clearly does not involve any issue of

trespass and as a matter of law there is no basis for any claim by [SPLR] against [the

Trust] under the theory of trespass.” In response, SPLR reiterated its claim, sounding in

trespass, that the Trust had no right to drill or pump water from wells on property

belonging to SPLR, not covered by their agreement.


        In December 12, 2012, a second jury trial was held. After the parties presented

their evidence, the Trust objected to the submission of SPLR’s action for trespass and

claim for related damages arguing, in part, the cause of action was unsupported by the

evidence at trial. Although that objection was overruled and the issues were eventually

submitted, the jury never answered the questions because they were conditionally


         1 In our last memorandum opinion, we reversed the previous judgment based on a faulty jury

instruction and the omission of a necessary instruction, together with the improper admission of irrelevant
evidence. See 2011 Tex. App. LEXIS 7300, at *25-27, *31-33.



                                                    3
submitted.2 On April 23, 2013, based upon the verdict of the jury, the trial court entered

a judgment that denied SPLR any relief on its claim of trespass.


        In May 2013, SPLR filed an Amended and Supplemental Motion for New Trial

alleging the Trust failed to supplement its discovery responses to reveal a survey that

would have shown that “all or a part of THE KITTEN TRUST’S wells and supporting

structures [were] outside of the ten-foot easement.” Specifically, Wisener testified by

affidavit that, following the most recent trial, he contacted Brent Carroll of Hugo Reed

and Associates to request the preparation of a survey of SPLR’s property, including the

location of the disputed water wells and supporting structures. At that time, Carroll

advised Wisener that such a survey had been performed three years earlier, in June

2009, at the request of the Trust. James Gorsuch, SPLR’s attorney, testified by affidavit

that the Trust never produced the 2009 survey by Hugo Reed and Associates in any

original or supplemental response to SPLR’s Requests for Production.3 Both Wisener

and Gorsuch further stated in their affidavits they had no knowledge of the 2009 survey

until February or early March 2013, when they were made aware of the survey by

Carroll.    Because the survey showed water wells and pipelines were constructed

        2  The two jury questions not answered were: (1) “Did The Kitten Family Living Trust trespass
upon the property of South Plains Lamesa Railroad?” and (2) “What sum of money, if any, if now paid in
cash, would fairly and reasonably compensate South Plains Lamesa Railroad for its damages, if any, that
resulted from the trespass?” The questions were conditionally submitted based on the potentially false
assumption that the wells in question were actually located on the property described in the easement
and lease agreements.
        3 Among other requests, Request for Production No. 5 sought “True and correct copies of all
correspondence, communications, letters, notes or oral communications, emails, facsimiles, and all other
documents or writings sent to or received from or exchanged by and between you, your officers,
employees, agents or representatives, and any person or entity, relating to the tract of land in question
situated in the southeast corner of Section 23, Block 24, HE & WT Ry. Company Survey, Lubbock,
Lubbock County, Texas.” Request for Production No. 24 sought “True and correct copies of each and
every drawing, sketch, motion picture, videotape or other graphic illustration of the tract of land in
question in the Southeast corner of Section 23, Block 24, HE & WT Ry. Company Survey, Lubbock,
Lubbock County, Texas, concerning the laying of the underground waterline.”

                                                   4
outside the easement described in the parties’ agreements,4 SPLR moved for a new

trial asserting the survey was newly discovered evidence that would have changed the

jury’s verdict with respect to SPLR’s claim of trespass. The trial court denied SPLR’s

motion and issued its judgment. This appeal followed.


                                      NEWLY DISCOVERED EVIDENCE


        Under Rule 320 of the Texas Rules of Civil Procedure, a trial court may grant a

new trial for “good cause” or “in the interest of justice.” In re Columbia Medical Ctr. of

Las Colinas, L.P., 290 S.W.3d 204, 210, 213 (Tex. 2009) (orig. proceeding); In re City of

Houston, 418 S.W.3d 388, 393 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Whether

to grant a new trial based on newly discovered evidence is a matter within the discretion

of the trial court. Neyland v. Raymond, 324 S.W.3d 646, 652 (Tex. App.—Fort Worth

2010, no pet.) (citing Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983),

overruled in part on other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003)). As

such, we review the decision to grant or deny a motion for new trial under an abuse of

discretion standard. Dir., State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d

266, 268 (Tex. 1994). That said, a trial court’s discretion is not limitless. In re Columbia

Medical Ctr. of Las Colinas, L.P., 290 S.W.3d at 210.



        4  In its judgment, at page 5, the trial court attempts to state the legal description of the “Water
Well and Pipeline Easement” in question. That description does not, however, describe the property with
sufficient certainty to fix its location on the ground. The description in the judgment describes a tract that
“is a width of 10’ . . . [running] parallel to the existing railroad tracks . . . .” It does not, however, describe
the distance from the centerline of the easement to the centerline of the railroad tracks. While we know
from the easement agreement that “wells may be drilled anywhere along the easement at a point no less
than 25 feet West of the center of the existing railroad tracks,” we do not know if the centerline of the
disputed property is thirty feet from the centerline of the railroad tracks (the minimum distance given the
twenty-five foot restriction) or forty-five feet from the centerline of the railroad tracks (the maximum
distance given the fact that SPLR’s property extends fifty feet West of the center of the existing railroad
tracks).

                                                        5
      Although a trial court’s decision to grant or deny a new trial on the basis of newly

discovered evidence should be accorded great deference and appellate courts should

be reluctant to interfere with the exercise of that discretion, “there are cases where the

established rules of law and the principles of adjudged cases would be disregarded if a

party was denied a new trial upon newly discovered evidence.” Terbay v. Pat Canion

Excavating Co., 396 S.W.2d 482, 490 (Tex. Civ. App.—Austin 1965, writ ref’d n.r.e.)

(quoting Mitchell v. Bass, 26 Tex. 372 (1862)). In that same opinion, the court further

quoted Mitchell as follows:


      The party who brings himself within the principles of [cases granting new
      trials on the basis of newly discovered evidence] is entitled to a new trial
      as a matter of right, unless it be in those cases where it is apparent to the
      court that the justice of the case has been attained. Where there can be
      any doubt of the justice of the verdict, to refuse a new trial, when the party
      has discovered new evidence of a conclusive tendency, would be against
      justice and precedent; and by new evidence is meant proof of some new
      and material fact in the case, which has come to light since the trial.



Id. (emphasis in original). Accordingly, a party seeking a new trial on the ground of

newly discovered evidence must show that (1) the evidence has come to light after trial,

(2) it was not owing to want of due diligence that the evidence did not come to light

sooner, (3) the new evidence is not cumulative, and (4) the evidence is so material that

it would likely produce a different result if a new trial were granted. Van Winkle, 660

S.W.2d at 809.


      Here, the first requirement is met because there is no dispute that the 2009

survey did not come to SPLR’s attention until after trial. As to the second requirement,

due diligence, the Trust asserts SPLR did not exercise diligence because the same


                                            6
diligence used to procure the survey after trial would have had the same result if

exercised prior thereto. The cases supporting this rule are inapposite because they

presume the “newly discovered evidence” was available to all parties before trial. See

Terbay, 396 S.W.2d at 491. Such was not the case here where the survey was only

available to the Trust, and despite SPLR’s pretrial efforts to discover the document, it

was not produced until the Trust was confronted with evidence it had contracted for and

obtained the survey before trial. See Gainway v. Trinity Universal Ins. Co., 85 S.W.2d

345, 347 (Tex. Civ. App.—San Antonio 1935, writ ref’d). Furthermore, SPLR’s failure to

discover the 2009 survey was not owing to any want of due diligence because

production of the survey was requested by SPLR in its Request for Production, and the

Trust, the only party with knowledge of the survey, did not timely produce it before trial.

See Terbay, 396 S.W.2d at 490, 492 (exercising “ordinary diligence” during pretrial

investigation is equivalent to a finding that the party seeking a new trial exercised due

diligence to discover the information pretrial). To rule otherwise would promote litigation

by “hiding-the-ball” from the opposing party and the trial court.


       Concerning the third requirement, the 2009 survey is not cumulative, as there is

no other document of record showing what it purports to depict, i.e., that all or part of

the wells drilled by the Trust and its underground pipelines lie outside the easement

granted by SPLR. Finally, we cannot help but comment on the fact that the Trust

sought to defeat SPLR’s trespass claim at every opportunity by arguing to the court that

the claim had no basis in law or in fact, when, if accepted by the fact finder as true, the

2009 survey would have established just the opposite. “[W]hen we consider the nature

of the controversy, and of the new evidence, and the very material bearing it may have


                                             7
upon a just decision of the case, we are constrained to conclude that the refusal of the

application [for new trial] was the denial of a right to which the [movant] was entitled

according to established rules of law governing such applications, and consequently

that it must be regarded as error, for which the judgment will be reversed.” See Terbay,

396 S.W.2d at 490 (again quoting Mitchell v. Bass, 26 Tex. 372 (1862)). Based on a

review of these factors, we have a serious doubt concerning the justness of the verdict

and resulting judgment. Accordingly, SPLR’s third issue is sustained and all remaining

issues are pretermitted. TEX. R. APP. P. 47.1.5


                                              CONCLUSION


        The trial court’s judgment is reversed and we remand for a new trial.




                                                                   Patrick A. Pirtle
                                                                        Justice




        5  We recognize that SPLR’s legal sufficiency issue, if sustained, would result in the rendition of a
judgment against the Trust. Scott Bader, Inc. v. Sandstone Products, Inc., 248 S.W.3d 802, 821 (Tex.
App.—Houston [1st Dist.] 2008, no pet.). Having reviewed the record, we have determined that SPLR’s
legal sufficiency issue would not result in greater relief than that already granted because the jury’s fact
findings were supported by some evidence. Accordingly, we need not address SPLR’s legal sufficiency
issue. For the same reasons, we need not address the factual sufficiency issue also raised in issue one
as it too would result in no greater relief being granted. See Bright Now! Dental, Inc. v. Teligistics, Inc.,
No. 09-09-00221-CV, 2010 Tex. App. LEXIS 3656, at *10 (Tex. App.—Beaumont May 13, 2010, no pet.)
(mem. op.). Furthermore, we also pretermit the Trust’s issue on cross-appeal pertaining to the off-set of
SPLR’s attorney’s fees because that question will need to be addressed in its entirety by the parties or
the trial court upon settlement or retrial.

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