                                   NO. 12-13-00287-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

HAROLYN M. BENSON, D'METRIA                       §      APPEAL FROM THE 173RD
BENSON AND HAROLD A. BENSON,
APPELLANTS

V.                                                §      JUDICIAL DISTRICT COURT

SHEREKE DEVONDA GASTON AND
TARSIEMON V. EVERAGE,
APPELLEES                                         §      HENDERSON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Harolyn M. Benson, D’Metria Benson, and Harold A. Benson (collectively the Bensons)
appeal the trial court’s order granting a partial summary judgment in favor of Shereke Devonda
Gaston and Tarsiemon V. Everage (collectively the Gastons). In one issue, the Bensons contend
that the trial court erroneously sustained the Gastons’ objections to an affidavit that was a part of
the Bensons’ summary judgment evidence. We affirm.


                                          BACKGROUND
       This case involves a dispute over real property, the ownership of which both the Bensons
and Gastons claim to have obtained through adverse possession. The property in question was
once owned by the Fuller family. In 1944, the Fuller family sold Henry Connor a life estate in
the property. When Connor died in 1988, the Fullers’ heirs failed to retake possession of the
property.
         Connor’s only daughter, Betty, and her husband, Harold E. Benson, lived on the property
after Connor died. They had three children, Harolyn, D’Metria, and Harold A.1 When Betty
died in 1993, Harold E. continued to live on the property.
         In 1994, Harold E. married Doris Gaston, and the two lived together on the property.
Doris had two children, Shereke and Tarsiemon. When Harold E. died in 1997, Doris remained
on the property. After Doris died in 2007, Shereke lived on the property.
         In 2008, the Gastons brought a trespass to try title action against the Fullers’ heirs. The
trial court found that the Gastons were the owners of the property in question. The Bensons were
not made parties to this suit.
         Following their successful suit against the Fullers’ heirs, the Gastons attempted to sell the
property. Upon discovering this fact, the Bensons blocked the Gastons’ access to the property.
In response, the Gastons filed the instant trespass to try title action against the Bensons. By their
suit, the Gastons also sought to recover rental fees for loss of use of the property and for
conversion of their personal property.
         Thereafter, the Gastons moved for partial summary judgment on their trespass to try title
claim. In their motion, the Gastons argued that they had a right to title and possession of the
property because they had conclusively proven that (1) they held title through a regular chain of
title from the sovereign, (2) both the Gastons’ and the Bensons’ respective claims to the land
were from a common source and the Gastons’ claim was superior, and (3) they had prior
possession of the property. The Bensons filed a response in which they contended that the Estate
of Henry Connor acquired the property through adverse possession in 1998 and, as a result, the
Gastons’ suit against the Fullers’ heirs was of no consequence because the Bensons already had
obtained title to the property.
         In support of their response, the Bensons attached Harolyn’s affidavit. But Harolyn’s
affidavit testimony conflicted with her previous deposition testimony, and Harolyn did not offer
an explanation for this disparity. The Gastons objected to the Bensons’ response because (1) the
Bensons’ pleadings did not assert that they had obtained the property by adverse possession and
(2) Harolyn’s affidavit was a “sham affidavit.”2


         1
             Harold A. is deceased. Raymond Benson is Harold A.’s son and sole heir.
         2
          A party cannot file an affidavit to contradict his own deposition testimony without any explanation for the
change in the testimony, for the purpose of creating a fact issue to avoid summary judgment. Farroux v. Denny's


                                                          2
         After conducting a hearing on the matter, the trial court sustained the Gastons’
objections, granted their motion for summary judgment, and ordered that the Gastons had title to
and possession of the property. The trial court also found that its order “involve[d] controlling
questions of law about which there is a substantial ground for difference of opinion[.]” As a
result, it granted permission for the filing of this interlocutory appeal.3


                                             SUMMARY JUDGMENT
         In their sole issue, the Bensons argue that the trial court erroneously sustained the
Gastons’ objection to their summary judgment evidence. Specifically, the Bensons contend that
the inconsistencies between Harolyn’s affidavit testimony and her prior deposition testimony go
to the weight rather than the admissibility of her affidavit testimony.
Standard of Review and Applicable Law
         When multiple grounds for summary judgment are raised and the trial court’s order does
not specify the ground on which summary judgment was granted, the appellant must negate all
grounds on appeal. See Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex.
App.–Houston [1st Dist.] 2002, no pet.) (citing State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d
374, 381 (Tex. 1993)). If summary judgment may have been granted, properly or improperly, on
a ground not challenged on appeal, the judgment must be affirmed. See id.; see also Malooly
Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) (“The judgment must stand, since it may
have been based on a ground not specifically challenged by the [appellant.]”).
Discussion
         The Bensons’ sole issue on appeal focuses on whether the trial court improperly
sustained the Gastons’ objections to Harolyn’s affidavit. However, the Bensons fail to address
any of the grounds for summary judgment raised by the Gastons. Accordingly, the trial court’s
partial summary judgment must stand because, irrespective of the trial court’s ruling on the
admissibility of Harolyn’s affidavit, the trial court may have based its ruling “on a ground not



Rests., Inc., 962 S.W.2d 108, 111 (Tex. App.–Houston [1st Dist.] 1997, no pet.). If a party's own affidavit
contradicts his earlier testimony, the affidavit must explain the reason for the change. Id. Without an explanation of
the change in the testimony, we assume the sole purpose of the affidavit was to avoid summary judgment. As such,
it presents merely a “sham” fact issue. Id.
         3
             See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (West Supp. 2013).


                                                          3
specifically challenged” by the Bensons on appeal. See Malooly Bros., Inc., 461 S.W.2d at 121.4
The Bensons’ sole issue is overruled.


                                                    DISPOSITION
         Having overruled the Bensons’ sole issue, we affirm the trial court’s judgment.



                                                                            BRIAN HOYLE
                                                                               Justice




Opinion delivered March 12, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




         4
         The Bensons likewise did not make a general assignment in their brief that the trial court erred in granting
summary judgment. See id.


                                                           4
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                            MARCH 12, 2014


                                          NO. 12-13-00287-CV


      HAROLYN M. BENSON, D'METRIA BENSON AND HAROLD A. BENSON,
                              Appellant
                                 V.
        SHEREKE DEVONDA GASTON AND TARSIEMON V. EVERAGE,
                               Appellee


                                 Appeal from the 173rd District Court
                      of Henderson County, Texas (Tr.Ct.No. 2011A-0096)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellants, HAROLYN M. BENSON, D'METRIA BENSON AND HAROLD A.
BENSON, for which execution may issue, and that this decision be certified to the court below
for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
