Kennedy Con., Inc. v. Forman

502 S.W.3d 486, 2016 Tex. App. LEXIS 9993, 2016 WL 4706375
CourtCourt of Appeals of Texas
DecidedSeptember 8, 2016
DocketNO. 14-14-00776-CV
StatusPublished
Cited by3 cases

This text of 502 S.W.3d 486 (Kennedy Con., Inc. v. Forman) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kennedy Con., Inc. v. Forman, 502 S.W.3d 486, 2016 Tex. App. LEXIS 9993, 2016 WL 4706375 (Tex. Ct. App. 2016).

Opinion

OPINION

Kem Thompson Frost, Chief Justice

The defendant in a trespass-to-try-title action appeals a judgment in favor of the plaintiff. Though the evidence is legally sufficient to support the jury’s finding of [490]*490prior possession of the subject property, which had not been abandoned, the evidence is legally insufficient to support an award of lost-profits damages. The trial court also erred in awarding the plaintiff title to the improvements on the subject property and in including in the judgment certain language regarding the removal of improvements. We modify the judgment to delete the lost-profits damages, the improvements award, the improvements language, and a reference to “strips and gores” in the property description. We conclude that as modified, the judgment contains a sufficient description of the subject property, and we affirm the judgment as modified.

I. Factual and Procedural Background

Appellee/plaintiff Glenn W. Forman, Jr. filed this trespass-to-try-title action against appellant/defendant Kennedy Con., Inc.1 In his live pleading, Forman sought judgment that he is the owner in fee simple of the following property in the City of Galveston in Texas: all strips, gores, and property lying in or under the easterly one-half of abandoned 65th Street lying northerly of Channelview Drive (hereinafter the “Property”). In his live pleading, Forman also alleged that he had legal title to the following property, though he did not seek a determination of title as to this property: (1) all of that part of Lot 502 of Section One of the Trimble and Lindsey Survey of Galveston Island (hereinafter “Lot 502”) that lies north of Port Industrial Boulevard, now known as Harborside Drive, and south of Galveston Bay, and south of Parcel No. 1 described in the deed recorded under Galveston County Clerk’s file number 9038382 (hereinafter “Tract One”), and (2) all that part of Lot 502 that lies northerly of the property described in the foregoing item (1) (hereinafter “Tract Two”). Forman and Kennedy both agree that, by means of City of Galveston Ordinance No. 68-70, adopted on December 26, 1968, to take effect on January 25, 1969, the City of Galveston abandoned the part of the “street right-of-way” known as 65th Street that was north of Channelview Drive and south of Galveston Bay.

When the City of Galveston abandoned the right of way, Richard Anderson held a deed purporting to grant him title to the property to the east of the land previously burdened by the abandoned 65th Street right of way. In Anderson’s deed, the grantor did not expressly state that he was conveying any interest in the real property burdened by the 65th Street right of way. After the City of Galveston abandoned the part of the 65th Street right of way that was north of Channelview Drive and south of Galveston Bay, Anderson apparently concluded that he owned all of the real property that had been burdened by the abandoned right of way. In 1973, Anderson and his wife signed a deed in which they purported to convey the property that had previously been conveyed to Anderson as well as “all that part of 65th Street abutting said lot which was abandoned by the City of Galveston by [City of Galveston Ordinance No. 68-70].” The Galveston County Real Property records contain a chain of deeds from the grantee of the 1973 deed to the June 28, 2005 deed to Kennedy, and each of these deeds has similar language. The deed to Kennedy purports to convey “that portion of 65th Street abutting Lot 14 abandoned by [City of Galveston Ordinance No. 68-70].”

The deed under which Forman claims to hold title to Tract One and Tract Two also [491]*491contains language purporting to convey to Forman “the easterly one-half (½) of abandoned 65th Street lying northerly of Chan-nelview Drive.”

To aid in understanding the general location of these tracts, we provide the following diagram:2

[[Image here]]

In his live petition, Forman sought judgment for title to and possession of the Property, damages for alleged actual damages caused by Kennedy’s wrongful possession of the Property, and attorney’s fees. Kennedy disputed Forman’s claim of title to the Property and filed an answer in which Kennedy pleaded “not guilty.” Kennedy also filed various counterclaims against Forman. The trial court granted Forman’s summary-judgment motion. On appeal, this court reversed and remanded. See Kennedy Con., Inc. v. Forman, 316 S.W.3d 129 (Tex.App.—Houston [14th Dist.] 2010, no pet.).

On remand, the case proceeded to trial before a jury, which issued a verdict in favor of Forman on his theories of prior possession not abandoned and adverse possession and against Kennedy on its claims of adverse possession. The jury also found that when the City of Galveston abandoned the right of way over the Property, all of the land abutting the east side of the Property was not submerged by Galveston Bay. In other words, the jury found that on January 25,1969, Tract One, at least in part, abutted the Property to the east. The jury also found that $237,281.60 would fairly and reasonably compensate Forman for his damages resulting from Kennedy’s use and occupation of the Property based on Forman’s past lost profits. The trial court, as a matter of [492]*492law in its conclusions of law, found that Forman had title to the Property based on a regular chain of conveyances from the sovereign and based on superior title out of a common source.

The trial court rendered a final judgment on the jury’s verdict, in which the trial court (1) awarded Forman title to and possession of the Property, including all improvements thereon, (2) determined that Forman is the legal and rightful owner of the Property, (3) ordered that Forman is entitled to full and complete possession of the Property to the complete exclusion of Kennedy, whom the court concluded has no legal or equitable interest in the Property, (4) awarded Forman actual damages of $237,281.60 against Kennedy based on the jury’s damage finding, plus prejudgment interest thereon, (5) awarded For-man reasonable and necessary attorney’s fees under section 16.034 of the Texas Civil Practice and Remedies Code, (6) rendered a take-nothing judgment against Kennedy on its counterclaims, and (7) notwithstanding the award of improvements on the Property to Forman, ordered Kennedy to remove from the Property all improvements placed thereon by Kennedy, its agents, employees, and representatives, in a specified manner and according to a specified procedure. The trial court denied Kennedy’s post-judgment motions, and Kennedy perfected this appeal.

II. Standard of Review

On appeal, Kennedy challenges the legal sufficiency of the evidence to support various findings. When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005). We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. See id. at 827. We must determine whether the evidence at trial would enable reasonable and fair-minded people to find the facts at issue. See id.

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Bluebook (online)
502 S.W.3d 486, 2016 Tex. App. LEXIS 9993, 2016 WL 4706375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-con-inc-v-forman-texapp-2016.