COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00172-CV 

THE ORCHARDS ON THE 

BRAZOS, L.L.C.

APPELLANT

V.

BYRON STINSON APPELLEE 

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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

TRIAL COURT NO. C-2013-296

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MEMORANDUM OPINION1

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This case regards the existence of an implied dedication of a public 

roadway over appellee and cross-appellant Byron Stinson’s property. Appellant 

and cross-appellee The Orchards on the Brazos, L.L.C. appeals that part of the 

trial court’s judgment declaring the roadway to be 12.2 feet wide. Stinson 

 1

See Tex. R. App. P. 47.4.
2

appeals the trial court’s order granting sanctions against him. We reverse and 

remand.

Background Facts

In 2013, The Orchards purchased property straddling Hood and Somervell 

counties with the intent to develop the land into a 60-lot housing community. The 

Orchards’s property sits in a bend of the Brazos River, and the only road access 

to the land is by a small road (sometimes referred to as County Road 307) that 

cuts through the neighboring property owned by Stinson. Stinson claimed that 

the road was private and made various attempts to limit The Orchards’s use of it. 

Stinson sued in September 2013 for a declaration that there are no public roads 

or easements crossing his property and for injunctive relief. The Orchards 

countersued for a declaratory judgment and injunctive relief.

2

 A jury found that 

the road had been impliedly dedicated to public use and that the width of the 

road was 12.2 feet. 

After trial, Stinson took out an ad in a local newspaper that included 

statements regarding settlement offers that had been made during informal 

settlement negotiations. The Orchards filed a motion for sanctions, arguing that 

Stinson’s ad violated the prohibition against disclosure of confidential 

communications under the Texas Alternative Dispute Resolution Act (the ADR 

 2

The Orchards also sued for tortious interference and business 

disparagement. The trial court ordered that The Orchards take nothing on those 

claims, and that part of the judgment was not appealed. 
3

Act). See Tex. Civ. Prac. & Rem. Code Ann. § 154.073(a) (West 2011). The trial 

court granted the motion and ordered Stinson to pay $5,000 in sanctions. The 

Orchards then appealed the trial court’s final judgment regarding the width of the 

road. Stinson appealed the sanctions award.

Discussion

I. The width of the road

In two issues, The Orchards challenges the jury’s finding regarding the 

width of the roadway. Question No. 8 of the jury charge asked, “What do you 

find to be the width of the Disputed Roadway or easement?” The jury answered 

12.2 feet. The Orchards argues that the evidence supporting the finding is 

legally insufficient and that the jury’s finding should be disregarded.

We may sustain a legal sufficiency challenge only when (1) the record 

discloses a complete absence of evidence of a vital fact; (2) the court is barred 

by rules of law or of evidence from giving weight to the only evidence offered to 

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a 

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital 

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), 

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and 

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In 

determining whether there is legally sufficient evidence to support the finding 

under review, we must consider evidence favorable to the finding if a reasonable 

factfinder could and disregard evidence contrary to the finding unless a 
4

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 

228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 

827 (Tex. 2005). If a party is attacking the legal sufficiency of an adverse finding 

on an issue on which the party had the burden of proof, and there is no evidence 

to support the finding, we review all the evidence to determine whether the 

contrary proposition is established as a matter of law. Dow Chem. Co. v. 

Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner v. Marathon Oil Co., 

767 S.W.2d 686, 690 (Tex. 1989).

The width of a dedicated road is determined at the time of dedication. See 

Hayes v. Anderson Cnty., 315 S.W.3d 170, 177 (Tex. App.—Tyler 2010, pet. 

denied). Neither party challenges the jury’s findings that the road has been 

impliedly dedicated to public use and that Stinson should have been aware of 

such public use by August 1996. Those findings are therefore binding on this 

court. See Morrell v. Finke, 184 S.W.3d 257, 285 n. 29 (Tex. App.—Fort Worth 

2005, pet. denied). So while there is no jury finding regarding the date the road 

was originally dedicated, the latest that date could have been was August 1996.

A. The evidence

Stinson testified that he purchased the property in 1996. At the time of 

conveyance, a land title survey was done by W.L. “Will” Vaughn. Stinson 

submitted and the trial court admitted the survey into evidence as Plaintiff’s 

Exhibit 4. The survey shows County Road 307 marked by hash marks. Vaughn 
5

testified that when a road is marked like that, it was not measured but was 

“strictly a sketch.” 

Vaughn also testified that in surveying the land, he found some surveying 

markers in the ground placed by previous surveyors and also placed some 

markers himself. He testified, and his survey shows, that he set a marker about 

32 feet south of the common line between Stinson’s property and The Orchards’s

property on the east boundary of County Road 307. His survey also shows that 

he set a marker on the common property line on the west boundary of the road. 

On the south boundary of Stinson’s property, where County Road 307 enters, 

Vaughn set a marker “at a fence corner” on the east boundary of the road. 

Stinson testified that Sommerville County paved the road “about 25 years 

ago.” He submitted photographs measuring the paved portion of the road by use 

of a six-foot stick. At the cattle gate leading to The Orchards’s entrance, the 

photographs show the paved road to be “basically . . . 12 feet, maybe 13.” The 

rest of the photographs show wider points along the road. 

The Orchards submitted into evidence a report by a registered professional 

land surveyor named Kent McMillan. McMillan reviewed aerial photographs and 

geological surveys and concluded that the disputed road was in existence by 

1924 “in essentially the same position” as it is now. The Orchards submitted an 

image that was a copy of the 1961 US Geological Survey Map overlaid onto a 

2012 aerial photograph of the land, which showed the road to be in the exact 

same position in both the map and the aerial photograph. All of the maps and 
6

aerial photographs show the road to be basically a consistent width from the 

highway through Stinson’s property to The Orchards’s property.

John Gabriel Margotta, also a registered professional land surveyor, 

testified that he and his firm prepared a title survey of The Orchards’s property in 

2013. He testified that the title survey he completed included County Road 307 

coming from Stinson’s property into The Orchards’s property because “[o]n the 

previous surveys, we had references to County Road 307. The Foree deed also 

referenced County Road 307 coming up to that property line, and we found the 

monumentation called for in the Foree deed on both sides of the county road.” 

The Foree deed that Margotta referenced in his testimony was a deed 

executed in April 2003 by a prior owner of The Orchards’s land. It was submitted 

into evidence as Defendant’s Exhibit 19. It describes the land as being divided 

into seven tracts, and it grants an easement along tracts 2 through 6 “extending 

from County Road 307 to the boundary of Tract 7.” 

In the description of tract 1, the Foree deed notes that along the southern 

boundary of the property 

at 849.85 feet pass a 5/8” iron set for the southeast corner of an 

Access Road in the easterly line of County Road 307, in all a 

distance of 902.42 feet to a 6” Concrete Monument with an 

aluminum cap stamped ‘1472 RPS 314’ set in the west line of said 

County Road, same being the . . . southeasterly corner of [the 

easement].
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The deed further described the surveying marker stamped “1472 RPS 314” to be 

on “the common line of said Foree tract and the tract conveyed to [Byron] 

Stinson.” 

Margotta also testified that previous surveys (referred to at trial as the 

Gunn, Lyons, and Vaughn surveys) all show County Road 307 running through 

Stinson’s property to The Orchards’s property. The Gunn survey from 2003 was 

admitted as Defendant’s Exhibit 26. It shows the location of the 1472 monument 

and records the width of County Road 307 as 52.58 feet wide at the dividing line 

between The Orchards’s property and Stinson’s property.

3 Margotta confirmed 

the distance between the two monuments as noted in the Gunn survey. 

Margotta measured the width of the paved part of the road with a robotic 

total station, which uses a laser and prism to calculate distance. He plotted the 

road digitally, which survey The Orchards introduced as Defendant’s Exhibit 9. 

The survey shows Margotta’s calculations along eleven points in the road, and 

the width varies between 12.2 feet at its narrowest at the cattle guard at the end 

of the road to 24.2 feet further south. Stinson used a copy of Defendant’s Exhibit 

 3

The 1472 monument appears to be located approximately where 

Vaughn’s survey indicates he also set a marker in 1996. Vaughn’s survey shows 

his marker to be 1961.46 feet from the west corner on the common line. 

Margotta’s survey shows the 1472 monument to be 1961.56 feet from the west 

corner. The Gunn survey notes that it found three of Vaughn’s markers, but 

none of them are the marker near the 1472 monument. The Margotta survey 

indicates the same three Vaughn markers. 
8

9 to mark where he had taken the photographs using the stick to measure the 

road. 

B. Discussion

Stinson argues that 12.2 feet is the width of the road because that width 

was all that was useable at the cattle guard. But using less of a dedicated 

roadway does not diminish the width of the dedication. See Lambright v. Trahan, 

322 S.W.3d 424, 434 (Tex. App.—Texarkana 2010, pet. denied) (“The portion of 

the granted easement which was actually put to use does not dictate the width of 

the easement; the granted easement does.”). Further, the right to a dedicated 

road “is not limited to the beaten path used, but includes sufficient land, where 

reasonably available, for drainage ditches, repairs, and the convenience of the 

traveling public.” Allen v. Keeling, 613 S.W.2d 253, 254–55 (Tex. 1981); see 

Graff v. Berry, No. 06-07-00058-CV, 2008 WL 704310, at *9 (Tex. App.—

Texarkana Mar. 18, 2008, pet. denied) (mem. op.) (noting that Allen concerns 

roads established by prescription but holding that the concept should apply to 

roads established by implied dedication). The narrowing of the road by the cattle 

guard to 12.2 feet and the measurements of the paved road are evidence that 

the travelable road is at least that wide at those points, but they are insufficient 

evidence of the actual width of the dedication. See Elliott v. Elliott, 597 S.W.2d 

795, 802 (Tex. Civ. App.—Corpus Christi 1980, no writ). We therefore must 

sustain The Orchards’s two issues and reverse that portion of the judgment. See 

City of Keller, 168 S.W.3d at 810. 
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C. Disposition

Here we reach the difficult question of what to do next. Usually, when we 

sustain a legal sufficiency issue, it is our duty to render judgment for the 

appellant because that is the judgment the trial court should have rendered. 

Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex. 1986); see Tex. R. 

App. P. 43.3. 

The Orchards argues that we should hold that the road is twenty feet wide 

because that is the smallest width of road that may be classified as a public road 

under the transportation code. See Tex. Transp. Code Ann. § 251.007(e)(1) 

(West 2013) (“[A] third class road may be less than 40 but not less than 20 feet 

wide.”). However, the classifications under section 251.007 apply only to those 

roads that have been “laid out and established according to law.” See id. 

§ 251.002 (West 2013). Roads may also become public roads through other 

ways. See Worthington v. Wade, 17 S.W. 520, 520–21 (Tex. 1891) (“All roads 

which have been laid out and established by authority of the commissioners’

courts are public roads. A road not originally established under the statute may 

become public . . ., in the sense that the public have the right to use it, by 

dedication.”). In that sense, a road may be a public road without being a “public 

road.” This is just such a road. See Hayes v. Anderson County, 315 S.W.3d 

170, 176–77 (Tex. App.—Tyler 2010, pet. denied) (holding that impliedly 

dedicated county road was thirty-five feet wide despite county requirement that 
10

roads be no less than fifty feet wide because that was width of road at time of 

dedication).

Although The Orchards’s request for a 20-foot wide dedication could be 

supported on other reasoning, doing so would require us to decide a question of 

fact, which we cannot do. See State v. Huffstutler, 871 S.W.2d 955, 960 (Tex. 

App.—Austin 1994, no writ) (“When the only question presented on appeal 

concerns the legal sufficiency of the evidence, an appellate court does not have 

the authority to resolve a question of fact.”). The only other evidence of the 

road’s width, from the 2003 Gunn survey and Foree deed description of 

surveying markers placed on either side of County Road 307 on the common 

boundary between the two properties, is that the road is 52.58 feet wide. We 

cannot render on this evidence because it requires a fact finding that the road 

was the same width in August 1996, the date at which Stinson should have 

known of the public dedication, as it was when the markers were placed in 2003. 

And although Vaughn placed markers on the sides of the road and surveys were 

admitted showing the relative placement of those markers, which may indicate 

the width of the road in 1996, The Orchards failed to use that evidence to 

conclusively establish the width so that we can render a judgment based on the 

record. 

We therefore hold that the evidence regarding the width of the road is not 

conclusive or so developed that we may render judgment on the width. We must 

remand the case in the interest of justice to the trial court for a new trial on the 
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width of the road. See id. at 960–61 (holding that no evidence supported jury’s 

finding of property value but remanding for new trial because evidence did not 

conclusively establish another value); Wegner v. State, 829 S.W.2d 922, 923 

(Tex. App.—Tyler 1992, writ denied) (holding that no evidence supported jury’s 

damages finding but remanding because evidence of two different values did not 

establish either as correct amount as a matter of law); Elliott, 597 S.W.2d at 801–

03 (remanding for a new trial in the interest of justice when the applicable facts 

had not been sufficiently developed). 

II. The sanctions award

In his cross-appeal, Stinson argues that the trial court abused its discretion 

by awarding sanctions against him for disclosing settlement negotiations. A trial 

court abuses its discretion if the court acts without reference to any guiding rules 

or principles, that is, if the act is arbitrary or unreasonable. Low v. Henry,

221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 

(Tex. 2004). “A sanctions award that fails to comply with due process constitutes 

an abuse of discretion because a trial court has no discretion in determining what 

the law is or applying the law to the facts.” Nath v. Tex. Children’s Hosp., 

446 S.W.3d 355, 361 (Tex. 2014).

After the jury had returned a verdict, Stinson published an advertisement in 

a local newspaper that stated in part, “At one point we turned down an offer of 

100K from the developer . . . !” The Orchards filed a motion for sanctions, 

claiming that this compensation offer was made during “confidential 
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communications,” as defined by the ADR Act. Stinson argued in response that 

the offer was made after the court-ordered mediation failed to produce a 

settlement. 

The ADR Act states, 

[A] communication relating to the subject matter of any civil or 

criminal dispute made by a participant in an alternative dispute 

resolution procedure, whether before or after the institution of formal 

judicial proceedings, is confidential, is not subject to disclosure, and 

may not be used as evidence against the participant in any judicial 

or administrative proceeding. 

Tex. Civ. Prac. & Rem. Code Ann. § 154.073(a). The ADR Act defines five 

types of alternative dispute resolution procedures: mediation, mini-trial, 

moderated settlement conference, summary jury trial, and arbitration. See id.

§§ 154.023–.027 (West 2011). It does not cover informal settlement 

negotiations. See Abbott v. GameTech Intern., Inc., No. 03-06-00257-CV, 2009 

WL 1708815, at *4 (Tex. App.—Austin June 17, 2009, pet. denied) (mem. op.) 

(“The alternative dispute resolution procedures described in chapter 154 do not 

include informal settlement negotiations between the parties conducted without 

an impartial third-party facilitator.”). 

The Orchards does not dispute Stinson’s claim that the offer that he 

publicized in his advertisement was not made during mediation but as part of 

private settlement discussions outside the presence of a third-party facilitator. 

The offer was therefore not subject to the confidentiality requirements of the ADR 

Act. See id., at *5 (“Even if the exchange of the settlement letters at issue in this 
13

case . . . could be generally classified as an ‘alternative dispute resolution 

procedure,’ it is not one covered by the confidentiality provisions contained in . . . 

chapter 154 of the civil practice and remedies code . . . .”). While one may 

understandably argue that touting a party’s refusal to settle for a certain sum of 

money is not of the utmost tact, we cannot say that it rises to sanctionable 

behavior. See TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 

917 (Tex. 1991) (holding that a just sanction is “directed against the abuse and 

toward remedying the prejudice caused the innocent party”). We therefore 

sustain Stinson’s issue. 

Conclusion

Having sustained The Orchards’s two issues, we reverse that part of the 

trial court’s judgment declaring the roadway to be 12.2 feet wide. Having 

sustained Stinson’s issue, we reverse the trial court’s sanction award. We 

remand the case to the trial court in the interest of justice for a new trial on the 

width of the road. 

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

DELIVERED: March 19, 2015