In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-14-00193-CV ____________________
EARNEST TAYLOR, AS LAWFUL POWER OF ATTORNEY FOR FRANKIE TAYLOR, Appellant
V.
JEFF LANGHAM AND BRENDA LANGHAM, Appellees
_______________________________________________________ ______________
On Appeal from the 258th District Court San Jacinto County, Texas Trial Cause No. CV13181 ________________________________________________________ _____________
MEMORANDUM OPINION
This is an appeal of a summary judgment. Appellant, Earnest Taylor “as
lawful power of attorney for Frankie Taylor” 1 argues the trial court erred in
1 Earnest Taylor alleged in his Original Petition that he was acting as “lawful power of attorney for Frankie Taylor.” He later described his status in subsequent pleadings as “Earnest Taylor Frankie Taylor in all capacities [d]escribed in this petition” and then included references to Earnest Taylor and Frankie Taylor
1 granting a summary judgment in favor of Jeff Langham and Brenda Langham (the
Langhams or appellees). The underlying suit involves the ownership of certain real
property located in San Jacinto County, Texas. Taylor raises five issues on appeal.
Finding no error, we affirm the trial court’s judgment.
UNDERLYING FACTS
On August 29, 2011, Taylor filed a petition styled as “Plaintiff’s Original
Petition in Trespass to Try Title,” against the Langhams, wherein Taylor alleged
that Taylor held superior title and ownership of an undivided one-half interest in
and to an eighty acre tract of land located in the R.W. Wilbourn Survey, Abstract
308, in San Jacinto County, Texas (hereinafter “the Property”). Taylor alleged that
he was seeking a judgment to “clear Plaintiffs’ title” and seeking to remove a
“cloud on title” to the Property. Taylor alleged that the Langhams acquired their
title to the Property “unlawfully.” Taylor further alleged that “[a]t all times
mentioned herein, Plaintiff [Taylor] and her predecessors in title were, by deed of
record dated the 15th day of August, 2005, and still are, the lawful owners in fee
simple” of the Property. Taylor did not include a claim for adverse possession in _______________________ globally as “Plaintiffs.” Earnest Taylor argues in his responses to the motions for summary judgment and on appeal that he is acting with a power of attorney for his mother, “Frankie Taylor.” We collectively reference Earnest Taylor and Frankie Taylor as “Taylor” or appellant, and we use a masculine pronoun, where appropriate.
2 the Original Petition. Taylor did not attach a copy of the referenced August 15th
Deed or provide a recording reference thereto.
On or about September 22, 2011, the Langhams filed an answer and asserted
they were not guilty of trespass, and they also included a general denial to the
Original Petition. The Langhams also served a Demand for Abstract of title on
Taylor. On or about January 9, 2013, the Langhams filed a Traditional and No-
Evidence Motion for Final Summary Judgment (hereinafter the “initial MSJ”),
which was set for a hearing on January 30, 2013. In the initial MSJ, the Langhams
argued that, as a matter of law, they hold lawful and superior title to and ownership
of the Property, that there is no genuine issue of any material fact, and that Taylor
has no evidence to support any of his claims. The Langhams alleged that they
could
trace their chain of title in the undivided one-half interest in the Property to a common source - that being JH and Willie Nicholson in 1929. This documented chain of title from San Jacinto County affirmatively and conclusively proves Defendants’ rightful and legal indefeasible title to the Property. Therefore, there are no genuine issues of material fact and summary judgment should be granted and the Plaintiff’s suit to quiet title should be dismissed as a matter of law, as it is frivolous. Defendants, through their summary judgment evidence have established their ownership and right to the Property.
The Langhams attached several documents including a land survey, an affidavit of
heirship, an affidavit from a title examiner regarding title to the Property, and
3 certified copies of the deeds and other documents pertaining to their chain of title.
The Langhams also attached an affidavit from a landman who conducted a title
search on the property and found the following: (1) On December 12, 1929, Jeff
Cochran, by and through the administrator of his estate, J.M. Hansbro, sold and
conveyed a full undivided interest in the Property to JH and Willie Nicholson; (2)
On March 21, 1934, JH and Willie Nicholson sold and conveyed an undivided one-
half interest in the Property to Isom V. Johnson, Sr.; (3) Isom V. Johnson, Sr.
owned the undivided one-half interest in the Property until he died in October
1941, and his interests in the Property passed to his only surviving heir, his son,
Isom V. Johnson, Jr.; and (4) On or about August 30, 2004, Isom V. Johnson Jr.,
sold and conveyed the undivided one-half interest in the Property to the Langhams.
On January 18, 2013, Taylor filed a Motion for Continuance with respect to
the hearing on the initial MSJ, arguing that he needed more time to “hire an
attorney” and to “[r]eview and gather documents[.]”The trial court granted the
Motion for Continuance, and reset the hearing. On April 9, 2013, which was one
week before the hearing on the initial MSJ, Taylor filed a document styled as
“Clarification and Supplementation of Original Petition,” wherein Taylor alleged
that:
4 Plaintiffs would clarify that the first basis for their ownership of the 40 acres in contest is the 25 year adverse possession of this land. The second basis for non ownership by Isom V. Johnson Sr. & Jr[.] is that they never fulfilled their financial obligation under which they claim ownership. They never in fact paid any consideration for any transfer of land to them. Rather they wholly defaulted in the initial attempt to buy this land.
....
Both JH Nicholson and Calvin Johnson the two mainstays on this land became disgusted with the I. Johnsons and adverse [sic] possessed against them. Earnest Taylor continued the adverse possession to the present. There has never been a break in such adverse [sic] since the 1930’s.
Plaintiff file [sic] this document to clarify and expand on their original pleadings. These very allegations were understood []to be [sic] their pleaded position and this is to clarify and give certainty to their pleaded position.
On that same date, Taylor also filed a response to the initial MSJ, an Affidavit in
Support thereof, and a Motion for Default Judgment. On April 17, 2013, the
Langhams filed a Response to the Motion for Default Judgment, and also filed
Objections to Taylor’s Summary Judgment Evidence and subject thereto filed a
Reply to Plaintiffs’ Response to Defendants’ Traditional and No-Evidence Motion
for Final Summary Judgment.
On April 17, 2013, the court held a hearing on the initial MSJ, entered an
Interlocutory Order granting the initial MSJ as to the title to the Property, and
5 expressly found that the Langhams “have established that they have good and
indefeasible title to an undivided one-half (1/2) interest in and to the surface of the
Property[.]” The trial court noted, however, on the face of the Order that “the
Plaintiffs have reserved their right to challenge that title by their claims of adverse
possession.”2
On December 17, 2013, the Langhams filed another motion for summary
judgment which was styled as “Defendants Jeff Langham and Brenda Langham’s
No-Evidence Motion for Final Summary Judgment” (hereinafter the “December
MSJ”) wherein they argued that Taylor had no evidence to support an adverse
possession claim, and they attached a copy of the land survey, a copy of the initial
MSJ (with copies of the attached exhibits), and a copy of the Interlocutory Order.
On January 7, 2014, Taylor filed a “Response/Legal Memorandum Reurging
the Original Response to Second Identical Motion,” which also included a
reference to the previous affidavit Taylor filed in response to the initial MSJ.
Thereafter, on March 4, 2014, the Langhams hand-delivered a copy of their “First
Amended No-Evidence Motion for Final Summary Judgment and Motion to Show
2 At the inception of this lawsuit, Plaintiff was prosecuting his claim pro se. However, at Defendants’ summary judgment hearing on April 17, 2013, Mr. John P. Mustachio appeared and represented to the court that he would be counsel for Taylor.
6 Authority Pursuant to Rule 12” (hereinafter “the First Amended MSJ”) to Taylor’s
attorney. On that same date, Langham also served Taylor with an Amended Notice
of Hearing, indicating a hearing on the no evidence motion for summary judgment
was set for March 26, 2014. In the First Amended MSJ, the Langhams argued that
Taylor “has no evidence to substantiate a claim for adverse possession,” and that
Taylor has presented “no evidence of standing to assert an adverse possession
claim.” Additionally, the Langhams included a Rule 12 Motion to Show Authority.
The Langhams also contend on appeal that in addition to hand-delivering the
First Amended MSJ and the Amended Notice of Hearing to Taylor on March 4,
2014, they e-mailed both documents to the clerk of court for filing on March 4,
2014. Nevertheless, the file-stamped copies of the First Amended MSJ and the
Amended Notice of Hearing that appear in the clerk’s record reflect a file stamp of
March 11, 2014. After the clerk’s record was filed with this Court, the Langhams
also sent a letter to the district clerk asking the clerk to supplement the record with
the e-mail from the Langhams to the court coordinator to show they sent the First
Amended MSJ and Amended Notice of Hearing to the court coordinator by e-mail
for filing on March 4, 2014. The clerk has not supplemented the record. 3
3 Taylor admits that he received the First Amended MSJ and the Amended Notice of Hearing on March 4, 2014. In his brief he states “Appellant’s counsel
7 On March 18, 2014, the Langhams filed a “First Amended Verified
Answer.” That same day, Taylor filed a “Motion to Strike Late Filed Amended
Answer of Defendants,” arguing that the First Amended Answer was untimely
filed because it was filed “within thirty days of the trial.” Taylor also filed a
document styled as “Plaintiff’s Response/Legal Memorandum Reurging the
Original Response to Second Identical Motion.” On March 26, 2014, the day of the
hearing on the no evidence motion for summary judgment, the Langhams filed
their reply to Taylor’s response to the First Amended MSJ. Following an oral
hearing wherein both parties appeared with counsel, the trial court signed a Final
Judgment on March 26, 2014. The Final Judgment reads as follows:
Final Judgment
The Court having considered the No Evidence Motion for Summary Judgment filed by Defendants Jeff Langham and Brenda Langham is of the opinion that it should be in all things GRANTED.
Defendants Jeff and Brenda Langham, through their proof, have established as a matter of law that they have good, marketable and indefeasible title to an undivided one-half (1/2) interest in and to the surface of the Property known as:
_______________________ was served with a copy of the First Amended Motion for Summary Judgment on March 4, 2014 and assumed it had been filed the same date, now in the course of this Brief Counsel has determined that the real date of filing [with the clerk] was March 11, 2014.” Taylor also admits in his brief that he did not object at the hearing to the “untimely” filing of the First Amended MSJ.
8 80.9185 acres of land, more or less, out of the R.W. Willbourn Survey, Abstract 308, San Jacinto County, Texas, being all of that certain 81.3 acre tract described in a deed from James H. Nicholson and wife Willie Nicholson to Isom Johnson, dated February 8, 1932 recorded in Volume 29, page 398 of the Deed of Records of San Jacinto County, Texas and being more accurately described by metes and bounds description as described in Exhibit A to this Final Judgment which is incorporated herein by reference for all purposes.
The Court further ORDERS that all claims filed by Plaintiff Earnest Taylor as Lawful Power of Attorney for Frankie Taylor against Jeff Langham and Brenda Langham are denied in their entirety as a matter of law with prejudice and are dismissed as a matter of law.
This order shall serve as a Final Appealable Judgment. All costs shall be borne by the parties bearing same. All relief not expressly granted herein is denied. This Final Judgment shall also serve as a muniment of title.
Taylor timely filed a Notice of Appeal.
ISSUES ON APPEAL
On appeal, Taylor asserts five issues. In his first issue, Taylor contends there
are “fact questions which are supported by the [a]ppellant’s affidavits filed in
opposition to the [m]otions for summary judgment.” In his second issue, appellant
argues that the December MSJ “is not supported by the pleadings[]” because the
“original unverified answer raised only a not guilty issue and a general denial[,]”
and the “[First] [A]mended [A]nswer was filed . . . 8 days before the hearing” and
“is disqualified under the 21 day rule.” In his third issue, appellant argues “[t]he
9 only timely notice of 21 days given by appellee” was the December MSJ and it
was not a “live pleading having been superseded and abandoned” by the First
Amended MSJ. In his fourth issue, appellant argues that the First Amended MSJ
which was not filed until March 11, 2014, which is less than twenty-one days
before the hearing, is “disqualified from consideration because no notice was given
at all or no notice of 21 days was given.” Finally, in his fifth issue, appellant
contends that neither the filing of the “[First Amended MSJ] on 3/11/14 and . . .
[the First] Amended Answer on 3/18/14 which legally superseded the original
general denial answer and superseded the [initial MSJ] neither of which were ripe
for hearing on March 26, 2014, and both were disqualified for improper filing 21
days before trial[,]” and therefore there is no support for the summary judgment
issued by the court.
STANDARD OF REVIEW
We review a trial court’s summary judgment de novo. Joe v. Two Thirty
Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). To prevail on a traditional
motion for summary judgment, the movant must show “there is no genuine issue as
to any material fact and the [movant] is entitled to judgment as a matter of law[.]”
Tex. R. Civ. P. 166a(c); accord Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,
548 (Tex. 1985). In our review of the trial court’s judgment, we examine “the
10 evidence presented in the motion and response in the light most favorable to the
party against whom the summary judgment was rendered, crediting evidence
favorable to that party if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not.” Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); see City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005). “We indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor.” Rhone-Poulenc, Inc.
v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); accord Goodyear Tire & Rubber Co. v.
Mayes, 236 S.W.3d 754, 756 (Tex. 2007) (per curiam). A defendant moving for
traditional summary judgment must conclusively disprove at least one essential
element of each of the plaintiff’s claims. Elliott-Williams Co. v. Diaz, 9 S.W.3d
801, 803 (Tex. 1999); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472,
476-77 (Tex. 1995).
We review a no-evidence summary judgment using a legal sufficiency
standard. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).
“We review the evidence presented by the motion and response in the light most
favorable to the party against whom the summary judgment was rendered,
crediting evidence favorable to that party if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not.” Mack Trucks,
11 Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (citing City of Keller, 168 S.W.3d
at 827). A trial court may not properly grant a no-evidence motion for summary
judgment if the non-movant’s summary judgment evidence contains “more than a
scintilla of probative evidence to raise a genuine issue of material fact[.]” Smith v.
O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); see Tex. R. Civ. P. 166a(i). When
evidence is so weak as to do no more than create a surmise or suspicion of the
matter to be proved, the evidence is “‘no more than a scintilla and, in legal effect,
is no evidence.’” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)
(quoting Kindred v. Con/Chem, Inc., 640 S.W.2d 61, 63 (Tex. 1983)). Under the
no-evidence standard, a defendant may move for summary judgment after adequate
time for discovery on the ground that there is no evidence of one or more essential
elements of a claim on which the plaintiff would have the burden of proof at trial.
See Tex. R. Civ. P. 166a(i).
When the trial court does not specify the grounds on which it granted a
summary judgment, we will affirm the judgment if any of the theories presented to
the trial court are meritorious. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d
211, 216 (Tex. 2003). As the movant on the motions for summary judgment, the
Langhams had the burden to conclusively negate at least one element of Taylor’s
adverse possession cause of action or to conclusively establish all elements of an
12 affirmative defense. See Little v. Tex. Dep’t of Crim. Justice, 148 S.W.3d 374, 381
(Tex. 2004); Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 645-46 (Tex.
2000).
NOTICE OF HEARING, FILING OF FIRST AMENDED MOTION FOR NO-EVIDENCE SUMMARY JUDGMENT AND FIRST AMENDED ANSWER
We first address Taylor’s third and fourth issues in which he contends that
the trial court could not consider the Langhams’ First Amended MSJ because it
was not timely filed and that Taylor did not receive twenty-one-days’ notice before
the hearing, and that the trial court could not consider the December MSJ because
the untimely filed First Amended MSJ had “superseded” it. The record reflects and
Taylor admits on appeal that the Langhams hand-delivered a copy of the First
Amended MSJ and a notice of the hearing to Taylor on March 4, 2014, twenty-two
days before the hearing which was held on March 26, 2014. Nevertheless, the First
Amended MSJ was not file stamped into the clerk’s record until March 11, 2014.
The Langhams argue on appeal that they also e-mailed the First Amended MSJ and
notice to the clerk of court for filing on March 4, 2014, and they attached a copy of
an affidavit and an e-mail to an appendix with appellee’s brief.
We may not consider documents in appendices that are not also in the
appellate record. In re Guardianship of Winn, 372 S.W.3d 291, 297 (Tex. App.–
13 Dallas 2012, no pet.); Jarvis v. Field, 327 S.W.3d 918, 932 n.4 (Tex. App.–Corpus
Christi 2010, no pet.). Under the Rules of Appellate Procedure, a party or the court
can request the trial court clerk to supplement the appellate record with missing
items. See Tex. R. App. P. 34.5(c). Appellees sent a letter to the district clerk
requesting the clerk to supplement the record with a copy of the e-mail in question.
To date the district clerk has not supplemented the record or responded to the
request. We also have no evidence in the clerk’s record that indicates the San
Jacinto County District Clerk accepted the “filing” of the First Amended MSJ by e-
mail. Therefore, we have not considered the documents contained in the Appellees’
appendix.
Texas Rule of Civil Procedure 166a(c) states: “Except on leave of court,
with notice to opposing counsel, the motion and any supporting affidavits shall be
filed and served at least twenty-one days before the time specified for hearing.”
Tex. R. Civ. P. 166a(c). The Rules of Civil Procedure also provide that if any
document is sent to the proper clerk by first-class United States mail in an
envelope or wrapper properly addressed and stamped and is deposited in the mail
on or before the last day for filing same, the document shall be considered timely
filed, as long as the clerk of court receives the document not more than ten days
thereafter. Tex. R. Civ. P. 5. A legible postmark affixed by the United States Postal
14 Service (“USPS”) shall be prima facie evidence of the date of mailing. Id. Our
Supreme Court has also promulgated certain e-filing procedures allowing parties to
electronically file documents with an “electronic filing service provider” (EFSP)
which means a business entity that provides electronic filing services and support
to its customers (filers). Rule 21(f) of the Texas Rules of Civil Procedure outlines
the e-filing procedures in part as follows:
(f) Electronic Filing.
(1) Requirement. Except in juvenile cases under Title 3 of the Family Code, attorneys must electronically file documents in courts where electronic filing has been mandated. Attorneys practicing in courts where electronic filing is available but not mandated and unrepresented parties may electronically file documents, but it is not required.
(2) Email Address. The email address of an attorney or unrepresented party who electronically files a document must be included on the document.
(3) Mechanism. Electronic filing must be done through the electronic filing manager established by the Office of Court Administration and an electronic filing service provider certified by the Office of Court Administration.
Tex. R. Civ. P. 21(f). The appellees do not argue that they filed the First Amended
MSJ by hand-delivery, or first class mail with the USPS, or that they complied
with the electronic filing requirements of Rule 21(f). Rather, the appellees argue
that they e-mailed the First Amended MSJ to the clerk of the trial court via an e-
15 mail address. The appellate record before us provides no evidence of the alleged e-
mail, or whether or not the First Amended MSJ was attached to an e-mail and
forwarded to the clerk of court, or whether or not the clerk of court actually
received the e-mail, or related details. The clerk’s file stamp is prima facie
evidence of the date of filing, but the presumption it raises may be rebutted. Dallas
Cnty. v. Gonzales, 183 S.W.3d 94, 103 (Tex. App.—Dallas 2006, pet. denied)
(citing Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371,
371-72 (Tex. 1990) (per curiam)). The appellate record before us provides no
evidence that rebuts the presumption that the First Amended MSJ was not “filed”
until March 11, 2014.
Accordingly, although the First Amended MSJ was timely served upon
Taylor, based upon the record before us, and the presumption that the file stamp on
the First Amended MSJ reflects the date the document was filed with the clerk of
court, we find that the First Amended MSJ was filed with the district clerk less
than twenty-one days before the time specified for the hearing. Therefore, we must
presume that the trial court did not consider the late filed First Amended MSJ.
There is no reporter’s record in this case and there is no indication in the appellate
16 record or in the Final Judgment that the trial court actually considered the First
Amended MSJ.4
The trial court’s Final Judgment expressly stated: “The Court having
considered the No Evidence Motion for Summary Judgment filed by Defendants
Jeff Langham and Brenda Langham is of the opinion that it should be in all things
GRANTED.” The trial court did not include any language in the Final Judgment
that would allow us to conclude on appeal that the trial court considered the First
Amended MSJ. Therefore, it must be presumed that the trial court did not consider
the First Amended MSJ. INA of Tex., 686 S.W.2d 614, 615 (Tex. 1985).
Taylor argues that the untimely filed First Amended MSJ supplants and
replaces the December MSJ, and therefore the December MSJ became a nullity
and there was nothing on file for the trial court to consider or grant at the time of
the Summary Judgment hearing. We disagree. Because the First Amended MSJ
4 Appellate courts apply different presumptions to an amended answer filed less than seven days before a summary judgment hearing than the presumptions applicable to late filed summary judgment responses or late filed evidence. See Goswami v. Metropolitan Sav. & Loan Ass’n, 751 S.W.2d 487, 491 n.1 (Tex. 1988). In the case of a late filed answer, the appellate court will generally presume the trial court granted leave for a late filed pleading absent some showing to the contrary. In contrast, as “stated in INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985), when nothing appears of record to indicate that the late filing of the written response was with leave of court, it must be presumed that the trial court did not consider the response.” Id.
17 was untimely filed into the record as evidenced by the file-stamped copy reflecting
a date of March 11, 2014, and there is no indication in the record that the
Langhams sought leave to file the First Amended MSJ or that the trial court
considered the late filed motion, we presume the trial court did not consider it.
Therefore, the December MSJ remained before the trial court as the live motion for
summary judgment.5 See Johnston v. Vilardi, 817 S.W.2d 794, 796 (Tex. App.—
Houston [1st Dist.] 1991, writ denied) (holding that because appellant filed an
untimely amended response to appellee’s motion for summary judgment, it could
consider only appellant’s original response); see generally ENGlobal U.S., Inc. v.
5 Taylor does not challenge the timeliness or filing of the December MSJ which was styled as a No-Evidence Motion for Final Summary Judgment and filed by the Langhams on December 17, 2013. Furthermore, Taylor affirmatively states in his appellate brief that “[t]he only timely notice of 21 days given by appellee was the Original Motion for No Evidence Summary Judgment filed 12/17/13. . . . that was set for hearing on March 26, 2014.” We note that in his discussion of his second issue, and then again generally in his global discussion of his third, fourth, and fifth issues, Taylor contends on appeal that Sams v. N.L. Industries, Inc., 735 S.W.2d 486 (Tex. App.—Houston [1st Dist.] 1987, no writ) and cases cited therein require a reversal of the trial court’s summary judgment. In Sams, the First Court of Appeals held that by including two additional grounds for the summary judgment in the Reply, the appellee filed “what is essentially a new motion for summary judgment” and therefore the employee was entitled to the mandatory twenty-one day notice for the Reply which he did not receive. In the case at bar, Taylor admits he received twenty-two days’ notice of the First Amended MSJ, and then also admits he received timely notice of the December MSJ. Because we must assume that the trial court in granting the summary judgment only considered the December MSJ, and Taylor acknowledges he received timely notice of the December MSJ, the reasoning outlined in Sams does not apply.
18 Gatlin, 449 S.W.3d 269, 277 n.5 (Tex. App.—Beaumont 2014, no pet.) (noting
that “[a]s a general rule, ‘[a] plaintiff’s timely filed amended pleading supersedes
all previous pleadings and becomes the controlling petition in the case regarding
theories of recovery[]’”) (emphasis added) (quoting Elliott v. Methodist Hosp., 54
S.W.3d 789, 793 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)). Issues three
and four are overruled.
In his second issue, Taylor contends that the December MSJ is not supported
by the pleadings because he argues that the original answer raised only a not guilty
issue and general denial and the Langhams’ first amended answer which was filed
eight days before the hearing should be “disqualified under the 21 day rule.”
Taylor further contends that the Amended Answer was filed only eight days before
the hearing on the Motion for Summary Judgment, and the “New Motion for
Summary Judgment [filed] on 3/11/14 and a New 1st Amended Answer on
3/18/14” superseded the original answer and previous motions for summary
judgment, and “the Summary Judgment of 3/26/14 has no legal standing or support
under the law.” We disagree.
Taylor conflates the twenty-one day requirement for notice of the hearing as
set forth in Rule 166a(c) upon the filing requirements for amended pleadings. Rule
63 of the Texas Rules of Civil Procedure provides that “[p]arties may amend their
19 pleadings, . . . by filing such pleas with the clerk at such time as not to operate as a
surprise to the opposite party; provided, that any pleadings, responses or pleas
offered for filing within seven days of the date of trial or thereafter, or after such
time as may be ordered by the judge under Rule 166, shall be filed only after leave
of the judge is obtained[.]” Tex. R. Civ. P. 63. In the context of an amended
petition, if the amendment is not timely and is not allowed by the trial court, the
amended pleading does not supersede the prior pleading, and a summary judgment
movant need not amend or supplement the summary judgment motion to address
the amendment. Mensa-Wilmot v. Smith Int’l, Inc., 312 S.W.3d 771, 779-80 (Tex.
App.—Houston [1st Dist.] 2009, no pet.). The seven-day limitation in Rule 63 also
applies to amendments to pleadings that are made before a hearing on a motion for
summary judgment. Fletcher v. Edwards, 26 S.W.3d 66, 74 (Tex. App.—Waco
2000, pet. denied); Leche v. Stautz, 386 S.W.2d 872, 873 (Tex. Civ. App.—Austin
1965, writ ref’d n.r.e.) (stating a summary judgment proceeding is a trial within
meaning of Rule 63). We conclude that the amended answer which was filed by
the Langhams eight days before trial was timely filed under Rule 63 and further
that the December MSJ is supported by the Langhams’ pleadings. We overrule
Taylor’s second issue.
20 In his fifth issue, Taylor argues that the Appellees have created “a legal
disqualification for a summary judgment in that they filed a New Motion for
Summary Judgment on 3/11/14 and a New []1st Amended Answer on 3/18/14”
which Taylor argues then superseded the original answer and previous motions for
summary judgment and that “the Summary Jud[g]ment of 3/26/14 has no legal
standing or support under the law.” Taylor grouped issues three, four, and five
together and he presents no additional analysis or argument to support this issue.
For the same reasons as outlined above in overruling issues two, three, and four,
we also overrule Taylor’s fifth issue.
MERITS OF THE NO EVIDENCE MOTION
Having overruled Taylor’s second, third, fourth, and fifth issues, we now
consider Taylor’s first issue which essentially requires us to consider the merits of
the December MSJ. More specifically, Taylor contends that fact questions were
raised by the affidavit he filed in opposition to the motion for summary judgment.
On appeal, Taylor does not specify the nature of the “fact questions” or exactly
how the unspecified “fact questions” provide a genuine issue of a material fact.
Elsewhere in his brief, Taylor alleges that Taylor holds “priority of title by adverse
possession against the Appellee’s sellers/predecessors in title to the 40 [sic] acres
in issue.” Taylor refers to the property as “40 acres in issue” without any
21 explanation of how the undivided one-half interest in the eighty acre tract became
“40 acres in issue.” Based upon the uncontroverted facts and unchallenged findings
of the trial court, the Langhams hold an undivided one-half interest in the eighty
acre tract, as cotenants. An undivided possessory interest in property is a tenancy
in common and the owners are referenced as cotenants. Rittgers v. Rittgers, 802
S.W.2d 109, 113 (Tex. App.—Corpus Christi 1990, writ denied); Freeman v.
Southland Paper Mills, Inc., 573 S.W.2d 822, 824 (Tex. Civ. App.—Beaumont
1978, writ ref’d n.r.e.). 6
Taylor has not challenged the ruling of the trial court that
Defendants Jeff and Brenda Langham, through their proof, have established . . . that they have good, . . . and indefeasible title to an undivided one-half (1/2) interest in and to the surface of the Property known as:
80.9185 acres of land, more or less, out of the R.W. Willbourn Survey, Abstract 308, San Jacinto County, Texas, being all of that certain 81.3 acre tract described in a deed from James H. Nicholson and wife Willie Nicholson to Isom
6 Cotenants may either voluntarily agree to partition land by written agreement or seek a court order to divide their interest and sever their rights of possession and thereafter hold exclusive possession of specific parts of property to which all joint owners had an equal right of possession prior to partition. Garza v. Cavazos, 221 S.W.2d 549, 552 (Tex. 1949); Ruff v. Brown, 446 S.W.2d 103, 112 (Tex. Civ. App.—Texarkana 1969, no writ). However, all cotenants must participate in a voluntary partition. Joyner v. Christian, 113 S.W.2d 1229, 1232-33 (Tex. 1938); State v. Kirkpatrick, 299 S.W.2d 394, 397 (Tex. Civ. App.—Dallas 1957, writ ref’d n.r.e.); see also Tex. Prop. Code Ann. § 23.001 (West 2013).
22 Johnson, dated February 8,1932 recorded in Volume 29, page 398 of the Deed of Records of San Jacinto County, Texas[.]
Taylor does not dispute on appeal that the Langhams’ survey, deeds, and
affidavit of heirship establish they acquired by deed the same undivided interest
previously held by Isom Johnson.
Rather, Taylor argues that his affidavit created a fact question relating to his
claim of “adverse possession” and Taylor requests in his appellate brief that this
Court should “refer to” the “case [r]ecords” and he cites the Court generally to his
affidavits, pleadings, and briefing that he filed in the trial court. The Appellees
argue that Taylor has waived this issue on appeal because this global reference to
trial court documents amounts to inadequate briefing and lacks a “succinct, clear,
and accurate statement of the arguments made in the body of the brief[]” in
violation of Rule 38.1(h) of the Texas Rules of Appellate Procedure. See Tex. R.
App. P. 38.1(h); see generally Kuykendall v. State, 335 S.W.3d 429, 436 (Tex.
App.—Beaumont 2011, pet. ref’d). While we agree that Taylor’s brief lacks a
succinct and clear statement and argument in the body of the brief that would
establish the specific “fact issue” in question, we find it unnecessary to decide this
issue based upon the failure of Taylor to comply with Rule 38.1(h) because we
conclude that the affidavit submitted by Taylor in response to the December MSJ
23 does not amount to even a scintilla of credible evidence that would create a
genuine issue of material fact that would preclude the granting of the summary
judgment.
More specifically, because Taylor’s underlying claim is based upon what he
characterized as “priority of title by adverse possession,” and because the
Langhams’ December MSJ expressly challenged each of the elements of his
adverse possession claim, in response to the motion for summary judgment and
now on appeal, Taylor must establish that he presented at least a “scintilla of
evidence” to support each of the necessary elements of his adverse possession
claim.
An adverse possession claimant must hold real property in adverse
possession and cultivate, use, or enjoy it for more than the required time limits as
specified in the applicable statute. See Tex. Civ. Prac. & Rem. Code Ann. §§
16.025, 16.026, 16.027 (West 2002). Adverse possession is defined by statute as
“an actual and visible appropriation of real property, commenced and continued
under a claim of right that is inconsistent with and is hostile to the claim of another
person.” Id. § 16.021(1) (West 2002). In his supplemental petition Taylor asserted
that his claim for adverse possession is pursuant to the twenty-five year statute.
24 Section 16.027 of the Texas Civil Practice and Remedies Code reads as
follows:
§ 16.027. Adverse Possession: 25-Year Limitations Period Notwithstanding Disability
A person, regardless of whether the person is or has been under a legal disability, must bring suit not later than 25 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.
Id. § 16.027. Title to property by adverse possession is said to “mature” when the
applicable statutory limitations period expires. See generally Gandy v. Culpepper,
528 S.W.2d 333, 337 (Tex. Civ. App.—Beaumont 1975, no writ). On appeal,
Taylor has not challenged the finding of the trial court that the Langhams acquired
an undivided one-half interest in the eighty acre tract, and that the Langhams hold
good and defeasible title thereto. Taylor does not dispute that the Langhams, and
their predecessor in title, Isom Johnson, Jr. and Isom Johnson, Sr., are cotenants on
the property. Rather, Taylor contends in his affidavit and response to the motion
for summary judgment that neither Isom Johnson Sr. nor Jr. ever paid anyone for
their undivided one-half interest, that neither paid taxes on the eighty acres, that
Isom Johnson abandoned the land, and that Taylor’s predecessors in title paid the
taxes and used and cultivated the land.
25 Possession and use by a cotenant is presumed to be in recognition of
common title, and a cotenant cannot claim title by adverse possession unless the
cotenant clearly repudiates title of his cotenant and is holding the property
adversely to the cotenant. See Calfee v. Duke, 544 S.W.2d 640, 641-42 (Tex.
1976). Cotenants to an undivided estate have an equal right to “enter upon the
common estate and a corollary right to possession.” Dyer v. Cotton, 333 S.W.3d
703, 712 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (quoting Byrom v.
Pendley, 717 S.W.2d 602, 605 (Tex. 1986)). Therefore, a cotenant seeking to
establish title by adverse possession must prove, in addition to the usual adverse
possession requirements, an ouster of the cotenant not in possession or a
repudiation of the co-tenancy relationship. Id. “Possession by one co-tenant, or by
one claiming under a co-tenant, is not sufficient to give notice of a claim by that
co-tenant adverse to the interest of the other co-tenant.” Gibraltar Sav. Ass’n v.
Martin, 784 S.W.2d 555, 559 (Tex. App.—Amarillo 1990, writ denied). Exclusive
use and possession of the property for long periods of time is common in a co-
tenancy relationship and usually occurs “with the acquiescence of the other
cotenants.” Todd v. Bruner, 365 S.W.2d 155, 159 (Tex. 1963). The party claiming
property by adverse possession against a cotenant “must prove actual or
constructive notice of the ouster, and the clear, unequivocal, and unmistakable
26 repudiation of the common title.” Frazier v. Donovan, 420 S.W.3d 463, 467 (Tex.
App.—Tyler 2014, no pet.).
In the December MSJ, the Langhams asserted that there is no evidence that
either Taylor or her predecessors had actual possession of the property, or that
Taylor had peaceable possession of the property under a claim of right, or that
Taylor consistently and continuously maintained possession adverse and hostile to
the claim of any cotenant, including the predecessor in title to the Langhams,
during any applicable statutory period, or that Taylor repudiated the co-tenancy
relationship or provided notice of that repudiation to the Langhams or their
predecessors in title. The Langhams further challenged and objected to Taylor’s
affidavit for various reasons, including hearsay, the Deadman’s Statute, and
conclusory statements. However, the record before us is silent as to whether or not
the trial court ruled on the objections to the affidavit.
The granting of a summary judgment motion “does not necessarily provide
an implicit ruling that either sustains or overrules the objections to the summary
judgment evidence.’” Gonzalez v. VATR Constr. LLC, 418 S.W.3d 777, 783 (Tex.
App.—Dallas 2013, no pet.) (quoting Allen v. Albin, 97 S.W.3d 655, 663 (Tex.
App.—Waco 2002, no pet.)). Objections to the “form” of summary judgment
evidence are preserved for appellate review only if such objections are made and
27 ruled on in the trial court, while objections to the “substance” of summary
judgment evidence do not require a ruling from the trial court and may be raised
for the first time on appeal. Id.; Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 207
(Tex. App.—Dallas 2005, no pet.); Choctaw Props., L.L.C. v. Aledo Indep. Sch.
Dist., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.). We cannot imply a
ruling on the Langhams’ objections from this record. See Choctaw Props., 127
S.W.3d at 241; Allen, 97 S.W.3d at 663.
We find it unnecessary to determine whether the Langhams’ objections to
the affidavits were objections to “form” or “substance” because even if we assume
that all of the statements made in the affidavits were true, and that the objections
thereto were to form and thereby waived, the affidavits filed by Taylor in
opposition to the no evidence motions for summary judgment simply fail to create
a scintilla of evidence to support his adverse possession claim. Nothing in the
affidavits filed by Taylor established any evidence that any cotenant clearly
repudiated the co-tenancy relationship and provided notice of the repudiation to
either the Langhams or their predecessors in interest. See Frazier, 420 S.W.3d at
467. Reviewing the basis for the December MSJ and the evidence presented by the
Langhams attached to the December MSJ, as well as Taylor’s response filed
thereto in the light most favorable to Taylor, we conclude that the evidence is so
28 weak as to do no more than create a surmise or suspicion of the matter to be
proved, and the evidence is “‘no more than a scintilla and, in legal effect, is no
evidence.’” Ford Motor Co., 135 S.W.3d at 601 (quoting Kindred, 650 S.W.2d at
63). Because Taylor produced no evidence on a necessary element of his adverse
possession claim, the trial court did not err in granting the no-evidence summary
judgment in favor of the Langhams. Issue one is overruled. Having overruled all of
appellant’s issues, we affirm the summary judgment granted by the trial court.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on November 21, 2014 Opinion Delivered April 2, 1015
Before McKeithen, C.J., Kreger and Johnson, JJ.