Carl Erves and Dale Erves v. Gerald Hosemann, Valda R. Hosemann, Troyce Luke Gullett and Kristy Burke Gullett

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-CA-00467-COA

CARL ERVES AND DALE ERVES APPELLANTS

v.

GERALD HOSEMANN, VALDA R. HOSEMANN, APPELLEES
TROYCE LUKE GULLETT AND KRISTY
BURKE GULLETT

DATE OF JUDGMENT: 04/13/2020
TRIAL JUDGE: HON. BENNIE LE NARD RICHARD
COURT FROM WHICH APPEALED: WARREN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANTS: KENYA REESE MARTIN
ATTORNEYS FOR APPELLEES: MICHAEL S. McKAY
KEVIN EARL GAY
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: AFFIRMED - 03/08/2022
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., WESTBROOKS AND McCARTY, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. This case involves a dispute about real property. Carl and Dale Erves sought

injunctive and monetary relief based on an alleged encroachment by Gerald and Valda

Hosemann and Troyce and Kristy Gullett onto the Erveses’ property. The chancellor found

that the Erveses were not entitled to the relief they sought, and they appealed.

FACTS AND PROCEDURAL HISTORY

¶2. This action involves property situated in Section 8 and a portion of Section 7,

Township 15 North, Range 5 East in Warren County, Mississippi. A property line dispute

arose between landowners who own property on each side of Bovina Cutoff Road and share
an abutting property line.

¶3. The Erveses’ ancestor John Erves owned over 200 acres of land in Section 8 and in

a portion of Section 7, Township 15 North, Range 5 East in Warren County, Mississippi.

John Erves donated approximately two acres to Warren County for use in installing a public

road called Bovina Cutoff Road. The road generally runs north and south and originally had

a large curve that cut through the Erveses’ property. According to a 1966 survey presented

by the Erveses, they owned a narrow strip (approximately 150 feet) on the west side of

Bovina Cutoff Road that was marked with a barbed wire fence, which the Erveses claim was

not moved until the Hosemanns built driveways. In September 1966, John Erves’ property

was subdivided into ten parcels. Tract 4, through which the curved section of Bovina Cutoff

Road ran, was bought by James Wilson in 1986. Ronald Lampkin owned a large tract of

property (also situated in Section 7, Township 15 North, Range 5 East) that was adjacent to

the Erveses’ property. The Erveses’ property and the Lampkin property shared a common

boundary that ran north to south. The Erveses’ owned the land on the east side of the

property line and Lampkin owned the land on the west side of the property line. The

Hosemanns and the Gulletts (hereinafter referred to collectively as the “Hosemanns” unless

otherwise specified) each purchased land from Ronald Lampkin in April and May of 2016,

respectively, and built homes on their properties. These properties are adjacent to and abut

Bovina Cutoff Road. Wilson deeded Tract 4 and part of Tract 5 to Carl Erves in August

2016. The boundary between the Hosemanns’ property and the Erveses’ property runs north

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to south. In 2018, Carl Erves quitclaimed the property to himself and his cousin Dale Erves.1

We note that both Carl and Dale Erves left Mississippi in the early 1980s and later testified

that they return only a few times a year.

¶4. In 2016, just after buying their property, the Hosemanns obtained the necessary

permits from Warren County so they could build driveways connecting Bovina Cutoff Road

to their properties, and Wilson, the prior owner of Tract 4, did not object to the construction.

Although construction on the Hosemanns’ driveways had begun prior to the Erveses coming

into possession of Tract 4, the Erveses claim that the Hosemanns’ driveways encroach on

their land. On July 28, 2017, Carl Erves filed an action for a preliminary and permanent

injunction to stop the Hosemanns from using their driveways and accessing their property

from Bovina Cutoff Road; he also sought monetary damages.2 There was no claim to remove

a cloud on title or for adverse possession.

¶5. The case was originally assigned to Judge Vickie R. Barnes but was reassigned to

Judge Marie Wilson. Judge Wilson presided over a bench trial on October 2-3, 2018. Judge

Bennie L. Richard replaced Judge Wilson as chancellor upon her retirement and issued a

ruling in favor of the Hosemanns on April 13, 2020. The chancellor held that the Erveses

had failed to establish legal title to the property on the west side of Bovina Cutoff Road

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The Erveses’ petition did not contain a deraignment of title. While it does not
appear to us that deraignment was required in this instance, the “failure to deraign title is not
grounds for dismissal[; instead,] a party may file a Rule 12(e) motion to force the
complainant to do so.” White v. Usry, 800 So. 2d 125, 129 (¶15) (Miss. Ct. App. 2001).
Where this does not occur, as in this case, the failure to provide a title deraignment is
waived. Id. at 129 (¶16).
2
Dale Erves joined the litigation in 2018 after he acquired an interest in the property.

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where the Hosemanns’ driveways are located. Specifically, the chancellor found that (1) the

Erveses did not obtain a survey when they bought the property; (2) the Erveses failed to offer

expert testimony pertaining to the property’s ownership; and (3) based on the testimony of

the Hosemanns’ experts, the boundary line of the Erveses’ property had not changed, and the

barbed wire fence the Erveses tried to establish as the boundary line was not an accurate

measure of the line because it had been moved when Bovina Cutoff Road was paved and

widened. The Erveses argue on appeal that the chancellor erred (1) by admitting the

testimony of Hosemanns’ two expert witnesses; and (2) because his judgment was against

the overwhelming weight of the evidence.

STANDARD OF REVIEW

¶6. “In boundary disputes, a determination of the legal boundary between properties is a

question of fact for the chancellor.” Kleyle v. Mitchell, 736 So. 2d 456, 459 (¶8) (Miss. Ct.

App. 1999). “The same standard applies to questions involving the accuracy of a survey.”

Id. This Court reviews a chancellor’s factual findings for abuse of discretion. McNeil v.

Hester, 753 So. 2d 1057, 1063 (¶21) (Miss. 2000). “Put another way, this Court ought and

generally will affirm a trial court sitting without a jury on a question of fact unless, based

upon substantial evidence, the court [is] manifestly wrong.” Yarbrough v. Camphor, 645 So.

2d 867, 869 (Miss. 1994) (quoting Tricon Metals & Servs. Inc. v. Topp, 516 So. 2d 236, 238

(Miss. 1987)). For questions of law, we employ a de novo standard of review. Cherokee Ins.

Co. v. Babin, 37 So. 3d 45, 48 (¶8) (Miss. 2010).

DISCUSSION

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¶7. “The ownership of property and the right to have it protected in the courts is so deeply

embedded in the law that the denial of such right is always a matter of grave concern to the

courts.” Bright v. Michel, 242 Miss. 738, 750, 137 So. 2d 155, 159 (1962).

I. Whether the chancellor erred by allowing Richard Tolbert and
Marc Broome to testify as expert witnesses.

¶8. The Erveses argue on appeal that neither of the Hosemanns’ expert witnesses, Richard

Tolbert or Marc Broome, should have been allowed to testify at trial. The Erveses made no

pre-trial Daubert3 challenge to the use of Tolbert or Broome as experts. However, there is

no requirement that an actual hearing be held before determining the admissibility of expert

testimony to comply with Daubert. Gray v. State, 202 So. 3d 243, 257 (¶47) (Miss. Ct. App.

2015). “[T]he basic requirement under the law is that the parties have an opportunity to be

heard before the [trial] court makes its decision.” Id. (quoting Edmonds v. State, 955 So. 2d

787, 792 (¶10) (Miss. 2007)). During the trial, the Erveses objected to the qualification of

Tolbert and Broome as experts based on the allegedly scant number of times they had

previously testified as experts and clearly indicated to the chancellor that this was their “only

objection.” Counsel for the Erveses also stated that “[Broome’s] testimony is really going

to be based on speculation[,]” but no objection was made on this basis, nor were the experts’

credentials or opinions challenged. The chancellor accepted both Tolbert and Broome as

experts.

¶9. “A trial judge’s determination as to whether a witness is qualified to testify as an

expert is given the widest possible discretion[,] and that decision will only be disturbed when

3
Daubert v. Merrill Dow Pharms. Inc., 509 U.S. 579 (1993).

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there has been a clear abuse of discretion.” Denham v. Holmes ex rel. Holmes, 60 So. 3d

773, 783-84 (¶34) (Miss. 2011). Similarly, “the admission or exclusion of expert testimony

falls within the sound discretion of the trial court and will only be reversed if the decision

was arbitrary or clearly erroneous.” Greenwood Leflore Hosp. v. Bennett, 276 So. 3d 1174,

1179 (¶14) (Miss. Ct. App. 2018). In deciding whether a witness may give expert testimony,

a court must look to the Mississippi Rules of Evidence. Regarding expert testimony, Rule

702 of the Mississippi Rules of Evidence provides:

[I]f scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.

Mississippi Rule of Evidence 703 states:

An expert may base an opinion on facts or data in the case that the expert has
been made aware of or personally observed. If experts in the particular field
would reasonably rely on those kinds of facts or data in forming an opinion on
the subject, they need not be admissible.

¶10. “[A]n expert’s qualification and reliability of testimony are separate questions.”

Rebelwood Apartments RP, LP v. English, 48 So. 3d 483, 494 (¶51) (Miss. 2010). “The

purpose of qualifying a witness as an expert[] is to allow opposing counsel the opportunity

to challenge the witness’ credentials and qualifications prior to testimony being proffered.

It puts opposing counsel on notice and grants an opportunity to prepare rebuttal.” Hobgood

v. State, 926 So. 2d 847, 854-55 (¶24) (Miss. 2006) (citation omitted). Although no specific

reference is made to Rule 702, the Erveses’ objection to Tolbert and Broome on the basis that

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they lacked experience testifying as expert witnesses appears to have been a challenge their

qualifications. Tolbert said he had testified four or five times, and Broome had testified

once.

¶11. Although Rule 702 lists “experience” as one of the ways in which a witness may

qualify as an expert, this does not mean that the witness must have experience testifying as

an expert. Clearly, Rule 702 directs the court to look at the “knowledge, skill, experience,

training, or education” of each proposed expert with an eye to the subject matter about which

they have been designated to testify. In this situation, Tolbert and Broome had less

experience as expert witnesses than some, but they had many years of experience in

engineering and surveying. Tolbert graduated with an engineering degree in 1981 with a

specialty in surveying and has been licensed by the Mississippi Board of Licensure for

Engineers and Professional Surveyors since that time. He has been a licensed surveyor for

thirty-seven years. Broome obtained his engineering degree in 2001. He has been licensed

as an engineer since 2001 and as a surveyor since 2004. He has completed thousands of

surveys. Both Tolbert and Broome testified about the methodologies they used to survey the

Hosemanns’ property. Accordingly the chancellor did not abuse his discretion in finding that

Tolbert and Broome qualified as experts.

¶12. The chancellor also found the testimony from Tolbert and Broome would be relevant

and reliable. “When determining whether expert testimony is admissible, our trial judges

should act as gatekeepers and must determine whether the proposed testimony meets the

requirements of Rule 702 [(governing testimony of expert witnesses)] and Daubert’s

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relevance and reliability prongs.” Patterson v. Tibbs, 60 So. 3d 742, 749 (¶22) (Miss. 2011).

Expert testimony “is relevant when it helps the fact finder understand the evidence or resolve

a fact in issue.” Willie v. State, 204 So. 3d 1268, 1273 (¶12) (Miss. 2016). “Testimony is

reliable when it is ‘based upon sufficient facts or data,’ is ‘the product of reliable principles

and methods,’ and when ‘the witness has applied the principles and methods reliably to the

facts of the case.’” Corrothers v. State, 148 So. 3d 278, 294 (¶25) (Miss. 2014) (quoting

MRE 702). Reliable testimony “must be grounded in the methods and procedures of science,

not merely a subjective belief or unsupported speculation.” Worthy v. McNair, 37 So. 3d

609, 615 (¶16) (Miss. 2010).

¶13. Despite the argument in the Erveses’ briefing on appeal about the reliability of

Tolbert’s and Broome’s testimony, the only objection set forth at trial pertained to the

number of times they had previously testified as expert witnesses. Specific objections must

be presented to the trial court so that the judge has the opportunity to rule on them. Shields

v. Easterling, 676 So. 2d 293, 296 (Miss. 1996). This Court cannot review an objection

based on a different legal theory from one raised at the trial level. Id. Although we are not

bound to address the reliability of Tolbert’s and Broome’s testimony, we find it prudent to

do so because the Erveses also have challenged the sufficiency of the evidence, and the

chancellor’s ultimate finding relies, in large part, on this expert testimony.

A. Tolbert’s Expert Testimony

¶14. Tolbert’s surveys were not prepared for this litigation; they were prepared in

conjunction with the sale of the property from Lampkin to the Hosemanns and the Gulletts.

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Tolbert testified that all his opinions were given with a reasonable degree of certainty and

that he abided by the standard principles of surveying when preparing the surveys for

Lampkin. Before preparing the survey, he reviewed an abstract of title, notes, and old

township plats from the general land office in the Warren County Courthouse, tax maps, the

State Aid Road Plan for Bovina Cutoff Road, and aerial photographs, all in addition to going

to the property. He did not review the 1966 survey because he was only locating the

boundaries of the Hosemanns’ and the Gulletts’ property. Tolbert located the monuments

described in the deeds he relied on and determined that the eastern portion of both the

Hosemanns’ and the Gulletts’ property abuts Bovina Cutoff Road, and the dividing line

between the properties is, in fact, in the middle of the road. He placed a “PK pin,” a type of

monument normally used by surveyors, for the purpose of marking the common corner

between the Hosemanns’ and the Gulletts’ properties. Tolbert testified that the title line is

the common boundary between the Erveses on the east and the Hosemanns and the Gulletts

on the west, and that title line is actually in the pavement of Bovina Cutoff Road. According

to Tolbert, the State Aid Road Plan had the following effect on the Erveses’ property:

Q. Based on these drawings that represent where the old road was and the
property title line is based on those drawings before the new road was
built would the property owners on the east side of the old road, that
would be the Erves, would they have had a strip of land between the old
road west to the fence?

A. Yes, ma’am.

Q. But since the road has been realigned and moved do you have any
opinion of how that affected the[ir] property line?

A. A large portion of that is just absorbed into the roadway -- the roadway

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and proposed right of way -- the new road.

He stated that the Hosemanns’ and Gulletts’ driveways did not cross over their property lines

onto the Erveses’ property. We find no abuse of discretion in the chancellor’s finding

Tolbert’s testimony was reliable.

B. Broome’s Expert Testimony

¶15. Broome testified that he did not use the PK pin placed by Tolbert (which the Erveses

make much of) to find a starting point for his survey. Instead, he found other corners based

on the 1966 survey and Tolbert’s plat. Broome prepared his own survey plat after looking

at relevant property deeds, sending a team to the property, locating all the monuments he

could from the 1966 survey (approximately 80%), studying the Mississippi State Aid Road

Plan for Bovina Cutoff Road, and reviewing aerial photographs—all of which are customary

methods used in surveying and engineering. Ultimately, the coordinates and measurements

used to show the boundaries in the 1966 survey were still accurate when taking into account

new technology. Broome testified, “The road moved. That’s the only thing that changed on

the old survey and my survey is the road shifted. The property line is in the same location.”

He further stated that a fence is not necessarily indicative of a boundary line, and in this

instance, when Bovina Cutoff Road was widened and the course was changed so it curved

slightly less than before, the updated road covered the Erveses’ property on the west side of

the old road. Broome’s ultimate opinion, to a reasonable degree of certainty, was that the

Hosemanns’ and Gulletts’ driveways were completely within their property lines.

¶16. The reliability inquiry into the admission of expert testimony under the modified

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Daubert standard is “‘a flexible one,’ with the trial court having ‘considerable leeway in

deciding in a particular case how to go about determining whether particular expert testimony

is reliable.’” Univ. of Miss. Med. Ctr. v. Peacock, 972 So. 2d 619, 624 (¶11) (Miss. Ct. App.

2006) (quoting Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 37 (¶13) (Miss. 2003)).

Despite the Erveses’ argument to the contrary, whether the fence was moved makes

absolutely no difference here. Although the Erveses claim the fence, in its original place,

tracked the boundary of their property line, they also rely on the 1966 survey. The

Hosemanns’ experts did not invalidate the 1966 survey or change the property line between

the parties in any way; they took into account the 1984-1986 State Aid Road Plan (which the

Erveses did not) that widened and paved Bovina Cutoff Road and, at the same time,

realigned the roadway where it cut through the Erveses’ property so that it curved slightly

less than it had before. As a result of the modification of the road, any existing fence would

have had to have been relocated to make way for the road. Again, the updated road covered

the Erveses’ property on the west side of Bovina Cutoff Road. The chancellor therefore did

not abuse his discretion in finding Broome’s testimony was reliable.

II. Whether the chancellor’s ruling was against the overwhelming
weight of the evidence.

¶17. The Erveses provide no authority in support of their allegation that the chancellor’s

ruling was against the overwhelming weight of the evidence. The Mississippi Rules of

Appellate Procedure require that the argument section of an appellant’s brief “contain the

contentions of appellant with respect to the issues presented, and the reasons for those

contentions, with citations to the authorities, statutes, and parts of the record relied on.”

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M.R.A.P. 28(a)(7). The Erveses’ brief sets forth only a short recitation of the facts from their

perspective. This presentation clearly is not the type of information contemplated by Rule

28(a)(7). The Mississippi Supreme Court and this Court have consistently held that the

“[f]ailure to cite any authority is a procedural bar, and [a reviewing court] is under no

obligation to consider the assignment.” Taylor v. Kennedy, 914 So. 2d 1260, 1262 (¶4)

(Miss. Ct. App. 2005). Despite the Erveses’ failure, we will briefly address this assignment

of error.

¶18. “In determining whether a . . . verdict is against the overwhelming weight of the

evidence, we must accept as true the evidence presented as supportive of the verdict, and we

will disturb a . . . verdict only when convinced that the lower court has abused its discretion

. . . or if the final result will result in an unconscionable injustice.” Myles ex. rel Sparks v.

Miss. Entergy Inc., 828 So. 2d 861, 869 (¶18) (Miss. Ct. App. 2002). Furthermore, once a

verdict has been returned in a civil case, “we are not at liberty to direct that [a] judgment be

entered contrary to that verdict short of a conclusion on our part that, given the evidence as

a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical [finder

of fact] could have” made the same finding. Starcher v. Byrne, 687 So. 2d 737, 739 (Miss.

1997).

¶19. In this instance, the Erveses presented no expert testimony to rebut what the

Hosemanns presented. Although expert testimony is not required, the Erveses’ proof that the

Hosemanns’ driveways encroached on their property does not provide a sufficient basis for

their requested remedies. The Erveses largely rely on a 1966 survey that fails to take into

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account the 1984 widening and paving of Bovina Cutoff Road as part of a State Aid Road

Plan and lay-witness testimony evincing that the fence was on the property line. Bovina

Cutoff Road originally cut through the Erveses’ property, but the State Aid Road Plan called

for Bovina Cutoff Road to be widened and moved, which resulted in the road extending over

the property lines of all parties. Once the road work was completed, the updated road

covered the Erveses’ property that had once been to the west of Bovina Cutoff Road. Our

review of the evidence and testimony presented by the parties leaves us unpersuaded that the

Hosemanns’ case was so weak or that the Erveses’ proof was so persuasive that the

chancellor’s ruling amounts to a manifest injustice. We find no basis on which to overturn

the chancellor’s decision.

CONCLUSION

¶20. The chancellor properly allowed the testimony of the Hosemanns’ experts, Richard

Tolbert and Marc Broome. We further hold that the chancellor’s ruling was not against the

overwhelming weight of the evidence.

¶21. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, McDONALD,
LAWRENCE, SMITH AND EMFINGER, JJ., CONCUR. McCARTY, J., CONCURS
IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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