ACCEPTED 12-14-00260-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 10/7/2015 3:14:19 PM Pam Estes CLERK
In The Court of Appeals For The FILED IN 12th COURT OF APPEALS Twelfth District of Texas TYLER, TEXAS 10/7/2015 3:14:19 PM PAM ESTES NO. 12-14-00260-CV Clerk
Nac Tex Hotel Co., Inc., Appellant-Plaintiff
v.
Stephen Greak, Dee Winston, and E&G Investments, Appellees-Defendants
On Appeal from the 159th District Court Angelina County, Texas Trial Court Cause No. CV-01824-12-10
APPELLANT’S MOTION FOR REHEARING
Donald H. Grissom don@gandtlaw.com State Bar No. 08511550 509 West 12th Street Austin, Texas 78701 (512) 478-4059 (512) 482-8410 fax
ATTORNEY FOR APPELLANT
1 In The Court of Appeals For The Twelfth District of Texas
NO. 12-14-00260-CV
Nac Tex Hotel Co., Inc., Appellant-Plaintiff
v.
Stephen Greak, Dee Winston, and E&G Investments, Appellees-Defendants
On Appeal from the 159th District Court Angelina County, Texas Trial Court Cause No. CV-01824-12-10
APPELLANT’S MOTION FOR REHEARING
TO THE HONORABLE TWELFTH COURT OF APPEALS:
Appellant Nac Tex Hotel Co., Inc., (“Appellant”) files this, its Motion
for Rehearing of the Court’s Memorandum Opinion dated September 23,
2015. In support of its motion, Appellant respectfully shows the Court the
following:
I. INTRODUCTION
This action is one for Trespass to Try Title under Chapter 22 of the
Texas Property Code and Rule 783 et seq. of the Texas Rules of Civil
2 Procedure involving a piece of property (.054 acres/2,352 sq.ft.) located
between a Kentucky Fried Chicken and a Valero gas station (CR 21).
By this Motion for Rehearing, Appellant, Nac Tex Hotel Co., Inc.,
asks this Court to revisit its decision to affirm the Trial Court jury’s finding
that Appellant did not hold the property in adverse possession for the ten-
year limitations period. Rehearing is appropriate in this litigation because the
Court’s ruling neglects critical evidence presented and has a dispositive
effect. For that reason, Appellant urges the panel to consider the following
argument.
II. PROCEDURAL BACKGROUND
Appellant, Nac Tex Hotel Co., Inc. filed suit to try title and for
injunction on October 22, 2012 (CR 14). After a jury trial on the merits on
June 3, 2014, the trial court submitted the case to the jury. The jury found
that Appellant did not adversely possess the property for a period of ten (10)
or twenty-five (25) years, the Appellant filed the suit in bad faith, and the
Appellees should be awarded attorney’s fees (CR 62). The trial court signed
a judgment for Appellees on June 23, 2014 (CR 79). On June 16, 2015, this
Court heard oral argument. The Opinion of this Court was issued on
September 23, 2015, modifying the trial court’s judgment to remove the
finding of bad faith and the award of attorney’s fees, but affirming the
3 remainder of the judgment. Plaintiff now appeals from that Opinion.
II. ARGUMENT
The dispositive issues stated by this Court for its finding that
Appellant did not meet the ten-year statutory requirements for adverse
possession is that Appellant lacked the intent for its possession to be hostile,
and that it had an opportunity to purchase the property but chose not to.
Nowhere in the record is there any evidence that Temple offered to
sell Appellant the disputed Property in 2007. This never occurred. The only
testimony regarding purchasing the disputed property occurred in 2012 when
Appellees offered to sell the Property for $25,000. (Supp. RR. Vol. 1 P.
108).
Since Appellant bought its property in 1988 (CR 137) and already had
possession of the disputed Property, the ten-year limitations period expired
in 1998. Even if Appellant had been afforded the opportunity to purchase the
tract, it is inconsequential to the ten-year limitations period. It should further
be noted that because Parmalee testified she always thought she owned the
Property (Supp. RR Vol. 1 P. 84, 117, 126, 129, 144 173-174), any offer to
sell the adjacent tract, in her mind, would not have included the disputed
Property.
Appellant argues that Parmalee’s statement that she would never take
4 anything from the prior owner of the Property (Supp. RR Vol 1 P. 136) does
not create a fact issue regarding Appellant’s intent to claim the property.
This statement from the record is misconstrued by the Appellees to be a
judicial admission, however, when the quote is placed in context, it is clear
that Parmalee was stating her intentions as to theft from Temple, not her lack
intent to claim the Property. Appellant clearly intended to claim the Property
as is shown through Pamalee’s testimony regarding her intent when
questioned by Appellees’ counsel.
Q. You know that doesn’t have anything to do with whether or not you knew he was getting his land, did he? A. No, but he’s a very smart man. Arthur Temple is a very smart man. We all know that. Q. That’s right. You [never] discussed it, did you? A. Uh-huh. Q. Okay. A. Because I didn’t think there was anything to discuss with him. I wouldn’t never intentionally take anything from that man. Q. Well, it didn’t matter because never looked at the plat, you never been to a closing, you never read your deed, you didn’t know what you owned. A. No, and, you know—I didn’t. And maybe Arthur— Q. I know. A. I mean, I knew. I in my mind I owned that property. Q. Okay. A. Okay. I owned that property. Q. But you never told anybody? A. I told everybody. I mean, who was [I] supposed to tell? Am I supposed to go hey—you know, I 5 mean, I told, you know, everybody knew I owned the property. I don’t know who you’re talking about.
(Supp. RR Vol 1 P. 136-137)
The evidence is overwhelming that when Appellant acquired the
Property in 1981, it had every intention to claim the disputed tract where
Appellant and its predecessor in title had made improvements. Parmalee,
testified multiple times that she claimed that disputed Property because her
dad built the bridge (Supp. RR Vol. 1 P. 52); the bridge on the disputed
Property belonged to her company and always has (Supp. RR Vol. 1 P. 117,
144 173-174); she believed the tract was included in her deed (Supp. RR
Vol. 1 P. 84, 129); she believes her company is the rightful owner of the
Property (Supp. RR Vol. 1 P. 126, 129); it would hurt the business if the
Property in controversy was not claimed and used (Supp. RR Vol. 1 P. 94-
101, 118) and the property was improved for the benefit of the Appellant
and its customers (Supp. RR Vol. 1. P. 118).
The case at hand closely follows Calfee v. Duke, 544 S.W.2d 640
(Tex. 1976). In Calfee, the adverse claimant claimed property that he
believed he was included in his deed when the property was transferred to
him from his parents. Id. at 641. This is the same as the overwhelming and
repeated testimony of Parmalee. (Supp. RR Vol. 1 P. 84, 117, 126, 129, 144
6 173-174). Also, Calfee’s intent to claim the land was brought to question
when he testified that he, “was not claiming it against anybody”, because he
thought he owned it. Id. at 641. The testimony of Parmalee is the same. She
states she would not have taken the Property from Temple, but that she
didn’t have to because she believed that she already owned it. (Supp. RR
Vol 1 P. 136-137).
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ACCEPTED 12-14-00260-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 10/7/2015 3:14:19 PM Pam Estes CLERK
In The Court of Appeals For The FILED IN 12th COURT OF APPEALS Twelfth District of Texas TYLER, TEXAS 10/7/2015 3:14:19 PM PAM ESTES NO. 12-14-00260-CV Clerk
Nac Tex Hotel Co., Inc., Appellant-Plaintiff
v.
Stephen Greak, Dee Winston, and E&G Investments, Appellees-Defendants
On Appeal from the 159th District Court Angelina County, Texas Trial Court Cause No. CV-01824-12-10
APPELLANT’S MOTION FOR REHEARING
Donald H. Grissom don@gandtlaw.com State Bar No. 08511550 509 West 12th Street Austin, Texas 78701 (512) 478-4059 (512) 482-8410 fax
ATTORNEY FOR APPELLANT
1 In The Court of Appeals For The Twelfth District of Texas
NO. 12-14-00260-CV
Nac Tex Hotel Co., Inc., Appellant-Plaintiff
v.
Stephen Greak, Dee Winston, and E&G Investments, Appellees-Defendants
On Appeal from the 159th District Court Angelina County, Texas Trial Court Cause No. CV-01824-12-10
APPELLANT’S MOTION FOR REHEARING
TO THE HONORABLE TWELFTH COURT OF APPEALS:
Appellant Nac Tex Hotel Co., Inc., (“Appellant”) files this, its Motion
for Rehearing of the Court’s Memorandum Opinion dated September 23,
2015. In support of its motion, Appellant respectfully shows the Court the
following:
I. INTRODUCTION
This action is one for Trespass to Try Title under Chapter 22 of the
Texas Property Code and Rule 783 et seq. of the Texas Rules of Civil
2 Procedure involving a piece of property (.054 acres/2,352 sq.ft.) located
between a Kentucky Fried Chicken and a Valero gas station (CR 21).
By this Motion for Rehearing, Appellant, Nac Tex Hotel Co., Inc.,
asks this Court to revisit its decision to affirm the Trial Court jury’s finding
that Appellant did not hold the property in adverse possession for the ten-
year limitations period. Rehearing is appropriate in this litigation because the
Court’s ruling neglects critical evidence presented and has a dispositive
effect. For that reason, Appellant urges the panel to consider the following
argument.
II. PROCEDURAL BACKGROUND
Appellant, Nac Tex Hotel Co., Inc. filed suit to try title and for
injunction on October 22, 2012 (CR 14). After a jury trial on the merits on
June 3, 2014, the trial court submitted the case to the jury. The jury found
that Appellant did not adversely possess the property for a period of ten (10)
or twenty-five (25) years, the Appellant filed the suit in bad faith, and the
Appellees should be awarded attorney’s fees (CR 62). The trial court signed
a judgment for Appellees on June 23, 2014 (CR 79). On June 16, 2015, this
Court heard oral argument. The Opinion of this Court was issued on
September 23, 2015, modifying the trial court’s judgment to remove the
finding of bad faith and the award of attorney’s fees, but affirming the
3 remainder of the judgment. Plaintiff now appeals from that Opinion.
II. ARGUMENT
The dispositive issues stated by this Court for its finding that
Appellant did not meet the ten-year statutory requirements for adverse
possession is that Appellant lacked the intent for its possession to be hostile,
and that it had an opportunity to purchase the property but chose not to.
Nowhere in the record is there any evidence that Temple offered to
sell Appellant the disputed Property in 2007. This never occurred. The only
testimony regarding purchasing the disputed property occurred in 2012 when
Appellees offered to sell the Property for $25,000. (Supp. RR. Vol. 1 P.
108).
Since Appellant bought its property in 1988 (CR 137) and already had
possession of the disputed Property, the ten-year limitations period expired
in 1998. Even if Appellant had been afforded the opportunity to purchase the
tract, it is inconsequential to the ten-year limitations period. It should further
be noted that because Parmalee testified she always thought she owned the
Property (Supp. RR Vol. 1 P. 84, 117, 126, 129, 144 173-174), any offer to
sell the adjacent tract, in her mind, would not have included the disputed
Property.
Appellant argues that Parmalee’s statement that she would never take
4 anything from the prior owner of the Property (Supp. RR Vol 1 P. 136) does
not create a fact issue regarding Appellant’s intent to claim the property.
This statement from the record is misconstrued by the Appellees to be a
judicial admission, however, when the quote is placed in context, it is clear
that Parmalee was stating her intentions as to theft from Temple, not her lack
intent to claim the Property. Appellant clearly intended to claim the Property
as is shown through Pamalee’s testimony regarding her intent when
questioned by Appellees’ counsel.
Q. You know that doesn’t have anything to do with whether or not you knew he was getting his land, did he? A. No, but he’s a very smart man. Arthur Temple is a very smart man. We all know that. Q. That’s right. You [never] discussed it, did you? A. Uh-huh. Q. Okay. A. Because I didn’t think there was anything to discuss with him. I wouldn’t never intentionally take anything from that man. Q. Well, it didn’t matter because never looked at the plat, you never been to a closing, you never read your deed, you didn’t know what you owned. A. No, and, you know—I didn’t. And maybe Arthur— Q. I know. A. I mean, I knew. I in my mind I owned that property. Q. Okay. A. Okay. I owned that property. Q. But you never told anybody? A. I told everybody. I mean, who was [I] supposed to tell? Am I supposed to go hey—you know, I 5 mean, I told, you know, everybody knew I owned the property. I don’t know who you’re talking about.
(Supp. RR Vol 1 P. 136-137)
The evidence is overwhelming that when Appellant acquired the
Property in 1981, it had every intention to claim the disputed tract where
Appellant and its predecessor in title had made improvements. Parmalee,
testified multiple times that she claimed that disputed Property because her
dad built the bridge (Supp. RR Vol. 1 P. 52); the bridge on the disputed
Property belonged to her company and always has (Supp. RR Vol. 1 P. 117,
144 173-174); she believed the tract was included in her deed (Supp. RR
Vol. 1 P. 84, 129); she believes her company is the rightful owner of the
Property (Supp. RR Vol. 1 P. 126, 129); it would hurt the business if the
Property in controversy was not claimed and used (Supp. RR Vol. 1 P. 94-
101, 118) and the property was improved for the benefit of the Appellant
and its customers (Supp. RR Vol. 1. P. 118).
The case at hand closely follows Calfee v. Duke, 544 S.W.2d 640
(Tex. 1976). In Calfee, the adverse claimant claimed property that he
believed he was included in his deed when the property was transferred to
him from his parents. Id. at 641. This is the same as the overwhelming and
repeated testimony of Parmalee. (Supp. RR Vol. 1 P. 84, 117, 126, 129, 144
6 173-174). Also, Calfee’s intent to claim the land was brought to question
when he testified that he, “was not claiming it against anybody”, because he
thought he owned it. Id. at 641. The testimony of Parmalee is the same. She
states she would not have taken the Property from Temple, but that she
didn’t have to because she believed that she already owned it. (Supp. RR
Vol 1 P. 136-137).
The court in Calfee held that his claim of right, coupled with the
actual and visible possession and use, cannot be defeated by his lack of
knowledge of the deficiency of his title or the possibility that there may be
other claimants. Id. at 642. The only intent that is required is the intent to
claim the land, not intent to take the land belonging to another. Clearly, the
evidence shows that Appellant intended to claim the land, it was merely
mistaken about who actually held title to the Property.
III. CONCLUSION
Temple never offered to sell the property to Appellant in 2007, but
even if Temple had offered, the ten-year statute of limitations had run. Also,
the evidence clearly shows that Appellant possessed the requisite intent to
claim the property as its own, even if it had the mistaken belief that the
property already belonged to it.
IV. PRAYER
7 Appellant respectfully requests that this Court reverse its Opinion of
September 23, 2014, as to the ten-year possession statute, grant Appellant a
new hearing, and such other and further relief, at law or equity, to which it
may be justly entitled.
Respectfully submitted,
/s/DonaldHGrissom Donald H. Grissom don@gandtlaw.com GRISSOM & THOMPSON, LLP TX State Bar No. 08511550 William W. Thompson, III TX State Bar No. 19960050 509 West 12th Street Austin, Texas 78701 512/478-4059 512/482-8410 Fax ATTORNEY FOR APPELLANT
8 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been forwarded to all counsel of record in compliance with Texas Rules of Appellate Procedure, via facsimile, electronic case filing, or certified mail return receipt requested, on October 7, 2015.
/s/DonaldHGrissom Donald H. Grissom
CERTIFICATE OF COMPLIANCE I hereby certify on this date that the foregoing document contains 1,490 words.
/s/DonaldHGrissom Donald H. Grissom