West 17th Resources, LLC, Pamela Mika Wolf, and Thomas Mika v. Lucian A. Pawelek and Carleen J. Pawelek

• Court: Court of Appeals of Texas
• Decided: February 6, 2015
• Docket: 04-14-00668-CV
• Status: Published

Opinion

ACCEPTED 04-14-00668-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 2/6/2015 3:59:47 PM KEITH HOTTLE CLERK

No. 04-14-00668-CV

FILED IN 4th COURT OF APPEALS IN THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 02/6/2015 3:59:47 PM AT SAN ANTONIO, TEXAS KEITH E. HOTTLE Clerk

West 17th Resources, LLC, Pamela Mika Wolf, and Thomas Mika Appellants

v.

Lucian A. Pawelek and Carleen J. Pawelek Appellees

Cause No. 13-04-00087-CVK Appealed from the 81st District Court of Karnes County, Texas

APPELLANTS’ BRIEF

Michael D. Jones State Bar No. 10929350 Leann Pinkerton State Bar No. 24038826 JONES GILL, LLP ORAL ARGUMENT REQUESTED 6363 Woodway, Suite 1100 Houston, Texas 77057 Telephone: 713.652.4068 Facsimile: 713.651.0716 mjones@jonesgill.com ATTORNEYS FOR APPELLANTS STATEMENT REGARDING ORAL ARGUMENT

Appellants request oral argument for this appeal. The title issues in this appeal present

complex facts. In addition, where, as here, two competing motions for summary judgment have

been filed, oral argument will assist the Court in understanding the underlying facts and legal

arguments.

The trial court did not nor is it required to provide the grounds for its ruling. So, for the

first time in Texas, the trial court potentially used the estoppel by deed doctrine to supply a

required recitation of grantor capacity where there was no such recitation. This issue has not

been decided by the Supreme Court of Texas. This issue is not frivolous and involves important

considerations of Texas real property law.

The trial court potentially ruled that the January 2012 telephone call and February 2012

letter did not constitute acknowledgment of title in Appellants. This is a fact question that is not

adequately presented by the facts and legal argument.

The trial court potentially ruled that Appellees constructively ousted their co-tenants,

Appellants, from the real property at issue. The trial court potentially ruled that Appellees

constructively repudiated the co-tenancy with Appellants. The doctrine of constructive ouster

and repudiation requires oral argument to assist the Court in its deliberations.

Appellants assert that the decisional process will be significantly aided by oral argument.

Appellants respectfully request this honorable Court to set this matter for oral argument.

i IDENTITY OF PARTIES AND COUNSEL

In accordance with Texas Rule of Appellate Procedure 38.1 (a), Appellants certify that

the following is a complete list of the parties to the trial court’s final judgment, as well as the

parties= counsel. Unless otherwise indicated, counsel identified below are both trial and appellate

counsel:

PARTY COUNSEL Appellants: Michael D. Jones Leann Pinkerton WEST 17TH RESOURCES LLC Jones Gill LLP PAMELA MIKA WOLF 6363 Woodway, Suite 1100 THOMAS MIKA Houston, TX 77057-1796 Facsimile: 713-651-0716 mjones@jonesgill.com Appellees: Ricardo Morales Joe Maldonado, Jr. LUCIAN A. PAWELEK Person, Whitworth, Borchers & Morales L.L.P. CARLEEN J. PAWELEK 602 East Calton Road 2nd Floor Laredo, Texas 78041 Facsimile: 956-727-2696 remorales@personwhitworth.com

Michael R. Hedges Fred Riley Jones Goode Casseb Jones Riklin Choate & Watson, P.C. 2122 N. Main Avenue San Antonio, Texas 78212 Facsimile: (210) 733-0330 hedges@goodelaw.com

ii TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ...................................................................... i IDENTITY OF PARTIES AND COUNSEL ................................................................................. ii TABLE OF CONTENTS ............................................................................................................... iii TABLE OF AUTHORITIES .......................................................................................................... v ISSUES PRESENTED FOR REVIEW ......................................................................................... ix I. STATEMENT OF FACTS ................................................................................................. 1 A. Introduction ...................................................................................................................... 1 B. Ownership of the Real Property at Issue .......................................................................... 1 C. Appellees Claim to the Real Property at Issue ................................................................. 3 II. SUMMARY OF THE ARGUMENT ................................................................................. 4 A. Standard of Review .......................................................................................................... 4 B. Estoppel by Deed Does Not Apply .................................................................................. 5 C. The Legal and Beneficial Interests in the Trust Did not Merge ....................................... 5 D. Appellees Cannot Claim Title by Adverse Possession .................................................... 6 III. ARGUMENT ...................................................................................................................... 7 A. Estoppel by Deed Does not Apply ................................................................................... 7 1. The trial court erred in holding that doctrine of estoppel by deed overcomes the failure to disclose the representative capacity of a grantor holding title as both an individual and trustee. .............................................................................................................................. 7 2. The trial court erred in holding that Irene Mika conveyed an interest in real property held in trust, despite no disclosure of her representative capacity in the 1994 Deed. ............ 8 3. Appellees are not Without Fault ................................................................................... 9 4. The Trial Court Erred in Excluding Appellants’ Exhibit E-1 .................................... 10 5. Recording Statutes and Acknowledgement Statutes Support Appellants’ Position ... 11 6. The court erred in holding that estoppel by deed allowed the grantor to convey a remainder interest in trust without the disclosure of the grantor’s capacity. ........................ 13 7. The court erred in holding that estoppel by deed prevented Appellants, who were not parties to the 1994 Deed, from challenging the conveyance. ............................................... 14 B. The Trial Court Erred in Holding That a Merger of the Legal and Beneficial Title in the Prosper A. Mika Trust Estate Occurred .................................................................................... 17 C. Cotenancy and adverse possession ................................................................................. 21 1. General Elements of Appellees= Claims ..................................................................... 21 2. Appellants Can Disprove Ouster and Repudiation, and Notice Thereof .................... 21 3. No >clear ouster and repudiation= ................................................................................ 22 4. 1994 Deed was not an Ouster ..................................................................................... 23 iii 5. The short period of Appellees= possession did not constitute constructive ouster. .... 26 6. The Murphy Lease was not an Ouster ........................................................................ 29 7. Appellees acknowledged title in Appellants .............................................................. 30 8. No notice of ouster and repudiation ........................................................................... 32 9. Conclusion .................................................................................................................. 33 D. Appellants can Disprove Adverse Possession: Limitations Period ................................ 33 1. Appellants disprove Appellees’ Three-Year Adverse Possession .............................. 33 2. Appellants disprove Appellees= Five-Year Adverse Possession ................................ 40 3. Appellants disprove Appellees= Ten-Year Adverse Possession ................................. 41 4. Appellees are Estopped from Claiming Adverse Possession ..................................... 41 IV. CONCLUSION ................................................................................................................. 43 CERTIFICATE OF COMPLIANCE ............................................................................................ 47 CERTIFICATE OF SERVICE ..................................................................................................... 47 LIST OF APPENDICES ............................................................................................................... 48

iv TABLE OF AUTHORITIES Cases Amador v. Berrospe, 961 S.W.2d 205, 208-209 (Tex. App.CHouston [1st Dist.] 1996, writ denied)................................................................................................................................. 22, 26 American Nat. Bank of Beaumont v. Wingate, 266 S.W.2d 934, 945 (Tex. Civ. App.CBeaumont 1953, writ ref'd n.r.e.) ............................................................................................................... 39 Angell v. Bailey, 225 S.W.3d 834, 841-42 (Tex. App.—El Paso 2007, no pet.) .......................... 14 Backhus v. Wisnoski, 14-09-00924, 2011 WL 6396497 (Tex. App.BHouston [14th Dist.] Dec. 8, 2011, pet. denied) ...................................................................................................................... 25 Bagby v. Bredthauer, 627 S.W.2d 190, 194 (Tex. App.--Austin 1981, no writ) .......................... 14 Bailey v. Bailey, 212 S.W.2d 189, 191 (Tex. Civ. App.CWaco 1948, writ ref'd) ........................ 24 Blackwell v. Blackwell, 86 Tex. 207, 24 S.W. 389, 390 (1893) ................................................... 25 BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 70 (Tex. 2011) ............................................ 22, 29 Bradford v. Rain, 562 S.W.2d 514, 518 (Tex. Civ. App.—Texarkana 1978, no writ) ................. 16 Bradshaw v. Steadfast Financial, L.L.C. 395 S.W.3d 348, 352-53 (Tex. App.--Fort Worth 2013) ................................................................................................................................................... 13 Burnham v. Hardy Oil Co., 108 Tex. 555, 195 S.W.1139, 1142 (1917) ...................................... 34 Byrom v. Pendley, 717 S.W.2d 602, 605 (Tex. 1986) .................................................................. 29 Chapman v. King Ranch, Inc., 41 S.W.3d 693, 698 (Tex. App.CCorpus Christi 2001, rev=d on other grounds, 118 S.W.3d 742 (Tex. 2003)............................................................................. 32 Cherokee Water Co. v. Forderhause, 641 S.W.2d 522, 525 (Tex. 1982) .................................... 36 Cleveland v. Hensley, 548 S.W.2d 473, 477 (Tex. Civ. App.CTexarkana 1977, no writ) ........... 31 Cleveland v. Smith, 156 S.W. 247, 250 (Tex. 1913)..................................................................... 16 Clift v. Clift, 72 Tex. 144, 10 S.W. 338, 340 (1888)..................................................................... 25 Cochran v. Cochran, 43 Tex. Civ. App. 259, 95 S.W. 731 (1906, no writ) ................................. 19 Collins v. New, 558 S.W.2d 108, 112 (Tex. Civ. App.CCorpus Christi 1977) ............................ 24 Concord Oil Co. v. Pennzoil Exploration and Production Co., 966 S.W.2d 451, 460 (Tex. 1998) ................................................................................................................................................... 36 Deutsche Bank Nat. Trust Co. v. Stockdick Land Co., 367 S.W.3d 308, 311-312 (Tex.App.BHouston [14th Dist.] 2012, pet. denied) ................................................................. 14 Dyer v. Cotton, 333 S.W.3d 703, n.2 (Tex. App.CHouston [1st Dist.] 2010, no pet.) ................ 30 Enserch Exploration, Inc. v. Wimmer, 718 S.W.2d 308, 311 (Tex. App.BAmarillo 1986, writ. ref. n.r.e.) ................................................................................................................................... 24, 25 Estate of Trevino v. Melton, 04-07-00654-CV, 2009 WL 891881, at 5 (Tex. App.--San Antonio Apr. 3, 2009, pet. denied) (mem. op.) ....................................................................................... 17 Evans v. Covington, 795 S.W.2d. 806 (Tex. App. BTexarkana 1990, no writ) ............................ 27 Financial Freedom Sr. Funding Corp. v. Horrocks, 294 S.W.3d 749 (Tex. App.CHouston [14th Dist.] 2009, no pet.) .................................................................................................................. 19 FM Properties. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000) ....................... 4 Forister v. Coleman, 418 S.W.2d 550, 559 (Tex. Civ App.--Austin, 1967) ................................ 15 Freeman v. Stephens Prod. Co., 171 S.W.3d 651, 654 (Tex. App.--Corpus Christi 2005, pet. denied)................................................................................................................................... 7, 14 Gilcrease Oil Co. v. Cosby, 132 F.2d 790, 793 (5th Cir. 1943) ................................................... 16 Haley v. Sabine Valley Timber & Lumber Co., 150 S.W. 596 (Tex. Civ. App.—Texarkana 1912, v writ ref’d) .................................................................................................................................. 15 Hamilton v. Hamilton, 42 S.W.2d 814, 817 (Tex. Civ. App.--Amarillo 1931, writ ref'd) ........... 25 Hamrick v. Ward 359 S.W.3d 770, 785-786 (Tex. App.--Houston [14th Dist.] 2011), rev’d, 446 S.W.3d 377 (Tex. 2014)............................................................................................................ 14 Haring v. Shelton, 114 S.W. 389, 391 (Tex. Civ. App. 1908) ...................................................... 19 Harrison v. Foote, 9 Tex. Civ. App. 576, 30 S.W. 838 (1895) .................................................... 19 Hensley v. Conway, 29 S.W.2d 416, 417B18 (Tex. Civ. App.--Eastland 1930, no writ) ............. 25 Hobson v. Shelton, 302 S.W.2d 268 (Tex. Civ. App.--Waco 1957, writ ref'd n.r.e.) ............. 19, 24 Horrocks v. Horrocks, 608 S.W.2d 733, 736 (Tex. Civ. App.CDallas 1980, no writ) ................ 28 Hunt Oil Co. v. Moore, 656 S.W.2d 634, 641 (Tex. App.CTyler 1983, writ ref'd n.r.e.) ............ 36 Killough v. Hinds, 338 S.W.2d 707, 709 (Tex. 1960) .................................................................. 22 King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 756 (Tex. 2003) ............................................... 21 Kirby Lumber Corp. v. Smith, 305 S.W.2d 829, 830 (Tex. Civ. App.--Beaumont 1957, writ dism'd) ....................................................................................................................................... 38 Kuykendall v. Spiller, 299 S.W. 522 (Tex. Civ. App—Fort Worth 1927, writ ref’d, 299 S.W. 522) ........................................................................................................................................... 16 Lambe v. Glasscock, 360 S.W.2d 169, 172-173 (Tex. Civ. App.--San Antonio 1962, writ ref'd n.r.e.) ......................................................................................................................................... 15 Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000) ............................. 41 Medlin v. Medlin, 203 S.W.2d 635, 640 (Tex. Civ. App.CAmarillo 1947, writ ref'd); ............... 24 Mills v. Vinson, 342 S.W.2d. 33 (Tex. Civ. App. B 1960, writ ref=d n.r.e.) .................................. 27 Moore v. Reed, 668 S.W.2d 847, 849 (Tex.App.CEl Paso 1984, writ ref'd n.r.e.) ...................... 24 Munawar v. Cadle Co., 2 S.W.3d 12, 16 (Tex.App.CCorpus Christi 1999, no pet.) ................... 30 Nash v. Beckett, 365 S.W.3d 131, 143 (Tex. App.BTexarkana 2012, pet. denied)....................... 14 Natural Gas Pipeline Co. v. Pool, 124 S.W.3d 188, 194-195 (Tex. 2003 ............................. 22, 36 O'Neil v. Powell, 470 S.W.2d 775, 778 (Tex. App.--Fort Worth 1971, writ ref'd n.r.e.) ......... 9, 35 Pickering v. Miles, 477 S.W.2d 267, 270 (Tex. 1972) ................................................................. 16 Pinchback v. Hockless, 158 S.W.2d 997, 998 (Tex. 1942)........................................................... 40 Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003) ........................... 4 Randall v. Estes, 218 S.W.2d 338, 341 (Tex. Civ. App.--Dallas 1949, writ ref. n.r.e.) .............. 18 Reilly v. Huff, 335 S.W.2d 278, 278 (Tex. Civ. App.—San Antonio 1960, no writ) ................... 16 Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990) .................................................................... 21 Rogers v. Ricane Enterprise, Inc., 884 S.W.2d 763, 768-9 (Tex. 1994) ...................................... 34 Sanchez v. Telles 960 S.W.2d 762, 767 (Tex. App.CEl Paso 1997, pet. denied)......................... 11 Sauceda v. Kerlin, 164 S.W.3d 892, 915 (Tex. App.--Corpus Christi, 2005, no pet. h.) ............... 7 Singleton v. Donalson, 117 S.W.3d 516, 518 (Tex. App.--Beaumont 2003, pet. denied) ............ 19 Spiller v. Woodard, 809 S.W.2d. 624, 629 (Tex. App. BHouston [1st Dist] 1991, no writ) .. 27, 28 State v. Beeson, 232 S.W.3d 265, 277 (Tex. App.BEastland, 2007 pet. dism=d) .......................... 25 Strong v. Garrett, 224 S.W.2d 471, 475 (Tex. 1949) ................................................................... 25 Talley v. Howsley, 142 Tex. 81, 176 S.W.2d 158 (1943) ............................................................. 15 Teal Trading and Development, LP v. Champee Springs Ranches Property Owners Ass'n, 432 S.W.3d 381 (Tex. App.--San Antonio 2014) ............................................................................ 13 Tex-Wis Co. v. Johnson, 534 S.W.2d 895, 899 (Tex. 1976) ................................................... 22, 27 Thedford v. Union Oil Co. of California, 3 S.W.3d 609, 614 (Tex. App.CDallas 1999, pet.

vi denied)........................................................................................................................... 23, 26, 32 Todd v. Bruner, 365 S.W.2d 155, 159-160 (Tex. 1963) ............................................. 22, 28, 29, 32 W.T. Waggoner Estate v. Siegler Oil Co., 19 S.W.2d 27, 28-29 (Tex. 1929) .............................. 36 Wagnon v. Wagnon, 16 S.W.2d 366, 370 (Tex. Civ. App.--Austin 1929, writ ref’d) .................. 19 Wallace v. Pruitt, 1 Tex. Civ. App. 231, 234, 20 S.W. 728, 728B29 (Houston 1892, no writ) .... 14 West End API Ltd. v. Rothpletz, 732 S.W.2d 371, 377 (Tex. App.CDallas 1987, writ ref=d n.r.e.) ................................................................................................................................................... 38 West End API Ltd. v. Rothpletz, 732 S.W.2d 371, 377 (Tex. App.BDallas,1987 writ ref=d n.r.e.) 39 Wolgamot v. Corley, 523 S.W.2d 491, 495 (Tex. Civ. App.CWaco 1975, ref. n.r.e.) ................. 31 XTO Energy Inc. v. Nikolai, 357 S.W.3d 47, 55 (Tex. App.BFort Worth 2011, pet. denied)....... 14 York v. Flowers, 872 S.W.2d 13, 15 (Tex. App.CSan Antonio 1994, pet. denied) ...................... 22 Statutes 16 Tex.Admin.Code, '' 3.5(b-d) (2013) ...................................................................................... 37 Tex. Civ. Prac. & Rem. Code Ann. ' 16.021 ............................................................................... 21 Tex. Civ. Prac. & Rem. Code Ann. '16.021 .......................................................................... 34, 35 Tex. Civ. Prac. & Rem. Code Ann. '16.024 .............................................................. 21, 33, 34, 35 Tex. Civ. Prac. & Rem. Code Ann. '16.025 .......................................................................... 21, 40 Tex. Civ. Prac. & Rem. Code Ann. '16.026 ................................................................................ 21 Tex. Civ. Prac. & Rem. Code Ann. §16.003(6) ............................................................................ 12 Tex. Prop. Code Ann. '11.001 ..................................................................................................... 11 Tex. Prop. Code Ann. '121.006(b)(5) .......................................................................................... 13 Tex. Prop. Code Ann. '13.001 ..................................................................................................... 11 Tex. Prop. Code Ann. '13.002 ..................................................................................................... 11 Texas Prop. Code Ann., '112.034(b) ........................................................................................... 17 Other Authorities 44 A.L.R.2d 595............................................................................................................................ 21

vii STATEMENT OF THE CASE

Nature of the Case: This trespass to try title suit involves title in and to an undivided 10% interest in a 290 acre tract located in Karnes County, Texas.

Trial Court: 81st District Court of Karnes County District Court Judge Donna Rayes

Course of Proceedings: Appellants filed their Original Petition on April 22, 2013 (CR 1:4). Appellees defended by asserting the estoppel by deed doctrine and various adverse possession limitations (CR 1:13). Appellants later amended their Original Petition to demand attorney’s fees (CR 1:18). Appellees responded by filing their Amended Answer, Counter-Claims and Third Party Claims (CR 1:161). The parties later filed competing motions for summary judgment (CR 1:247, 2:403).

Trial Court Disposition: The trial court denied Appellants= Traditional and No-Evidence Motion for Partial Summary Judgment (CR 4:1207), granted Appellees= Traditional Motion for Partial Summary Judgment (CR 4:1210), severed all of Appellees non-title counterclaims (CR 4:1203), and entered its Final Judgment as to title on August 28, 2014 (CR 4:1214).

Notice of Appeal: Appellants perfected their appeal to this honorable Court on September 23, 2014 (CR 4:1220).

viii ISSUES PRESENTED FOR REVIEW

Issue 1: The trial court erred by holding that the doctrine of estoppel by deed overcomes the failure to disclose a representative capacity of a grantor who holds title both individually and as a trustee.

Issue 2: The trial court erred in holding that estoppel by deed prevented Appellants, not parties to the deed, from challenging the conveyance.

Issue 3: The trial court erred by holding that Irene Mika conveyed a trust interest in real property without disclosing her representative capacity in the deed.

Issue 4: The trial court erred by holding that Irene Mika also conveyed an interest in real property held in trust when conveying only her individual interest.

Issue 5: The trial court erred in holding that estoppel by deed allowed the grantor to convey a remainder interest in trust without disclosure of the grantor=s capacity.

Issue 6: The trial court erred by holding that Irene Mika also conveyed an interest in real property held in trust when conveying only her individual interest.

Issue 7: The trial court erred in holding that a merger of the legal and beneficial title in the Prosper A. Mika Trust estate occurred allowing the Trustee to convey the property of the estate without disclosing her capacity.

Issue 8: If the estoppel by deed doctrine does not apply, the trial court erred in holding that the three year Statute of Limitations for adverse possession, Section 16.024, Tex.Civ.Prac.&Rem. Code, applies to this case because entry by Appellees was not under color of title.

Issue 9: If the estoppel by deed doctrine does not apply, the trial court erred in holding that the five year Statute of Limitations for adverse possession, Section 16.025, Tex.Civ.Prac.&Rem. Code, applies to this case because entry by Appellees was not under a registered deed conveying all of the real property.

Issue 10: If the estoppel by deed doctrine does not apply, the trial court erred in holding that the ten year Statute of Limitations for adverse possession, Section 16.026, Tex.Civ.Prac.&Rem. Code, applies to this case because there has never been an ouster of Appellants.

Issue 11: If the estoppel by deed doctrine does not apply, the trial court erred in vesting title to the entire tract of land in Appellees under the ten year statute of adverse possession because Appellees can only adversely possess 160 acres.

ix Issue 12: The trial court erred in concluding that the fence surrounding the land was a designed enclosure where there is no evidence of the purpose of the fence.

Issue 13: The trial court erred in concluding that the 1994 deed was an ouster of a co-tenant not yet in possession and not a party to the deed.

Issue 14: The trial court erred in concluding that the statute of limitations was not tolled as to the remaindermen of the trust during the life tenancy.

Issue 15: The trial court erred in concluding that Appellees did not acknowledge Appellants title in 2013 through Appellees= request for a correction deed.

Issue 16: The trial court erred in excluding Appellants= Exhibit E-1 because said deed was relevant in demonstrating no mutual mistake.

Issue 17: The trial court erred in excluding Appellants= Exhibits I, J, N, O and P because the oil and gas leases taken by Murphy Oil & Exploration are relevant in examining ouster and in elucidating the title defect in Appellees= claim to all of the title to the 290 acre tract.

x I. STATEMENT OF FACTS

A. INTRODUCTION

This case concerns title to an undivided 1/10th interest in the mineral estate and the

surface estate of a 290 acre tract of land located in Karnes County, Texas (A290 acre tract@),

more particularly described in Exhibit A to Appellants= Motion for Partial Summary Judgment.

(CR 1: 64-66). Appellants Pamela Mika Wolf and Thomas Mika (“Mika Plaintiffs”) are the

children of Prosper A. Mika and Irene Mika. Appellant West 17th Resources, LLC (AWest 17th@)

acquired oil and gas leases from Pamela Mika Wolf and Thomas Mika covering their undivided

1/10th interest in the 290 acre tract. (CR 1:109-116).

On April 22, 2013, Appellants filed a Trespass to Try Title lawsuit against Appellees.

(CR 1:4-11). After discovery, both Appellants and Appellees filed traditional motions for

summary judgment. (CR 1:28-62, 247-283, CR 2:404-438). The trial court heard argument on

April 10, 2014, issued a letter ruling on May 27, 2014, and issued its final judgment on August

28, 2014. (CR 4:1207-1218). Appellants filed their Notice of Appeal on September 23, 2014.

(CR 4:1220-1221).

B. OWNERSHIP OF THE REAL PROPERTY AT ISSUE

The real property interest at issue in the underlying suit and this appeal is the 1/10th

undivided interest in the 290 acre tract, which originated through an April 22, 1983 Gift Deed

(recorded at Volume 536, Page 455 of the Official Records of Karnes County, Texas) from

Appellants’ grandmother, Mary Mika, to her husband, Felix Mika, Sr., of an undivided one-half

(2) interest in the 290 acre tract.1 (CR 1:64-66).

1 Two tracts, including the 290 acre tractBcollectively called to be 298.72 acres.

1 Felix Mika, Sr. died testate on September 25, 1985, having never conveyed his ½ interest

in the 290 acre tract (CR 1:67-69). His Last Will and Testament, probated under Cause No. 4698

in the County Court of Karnes County, Texas, devised all of his property, including his ½

interest in the 290 acre tract, in equal shares to his five sons. (CR 1:67-69). Prosper Mika, one

of the five sons and the Mika Plaintiffs father, inherited an undivided 1/10th separate property

interest in the 290 acre tract. (CR 1:67-69).

Prosper Mika died testate on July 16, 1986, having never conveyed his 1/10 th undivided

interest in the 290 acre tract. (CR 1:70-79). Prosper Mika=s Last Will and Testament probated

under Cause No. 51,045 in the County Court at Law of Travis County, Texas, devised all of his

property to the Prosper A. Mika Trust. (CR 1:70-79). The trust provision of the Last Will and

Testament appointed Irene M. Mika, Prosper's wife, as Trustee for the benefit of herself and the

couple's two children, Appellants Thomas Mika and Pamela Mika Hanson (now Wolf). (CR

1:72). Pamela Mika Hanson (now Wolf) was appointed as substitute trustee. (CR 1:72). The Last

Will and Testament further stipulated that upon the death of Irene M. Mika, the trust estate

passes to and vests in Thomas Mika and Pamela Mika Wolf. (CR 1:70-71).

The remainder of Mary Mika’s undivided ½ interest in the 290 acre tract was conveyed to

Aloys Mika, et. al, by Gift Deed dated October 9, 1992 (recorded at Volume 639, Page 124 of

the official records of Karnes County, Texas) (hereinafter “1992 Gift Deed”). (CR 1:80-83). This

1992 Gift Deed conveyed all of Mary Mika's title in the 290 acre tract. (CR 1:80-83). Irene

Mika, the wife of Prosper Mika and mother of Appellants Pamela Mika Wolf and Thomas Mika,

individually received an undivided 1/6 interest - being one third of Mary Mika=s one half interest.

(CR 1:80-82).

2 In a deed dated December 15, 1994 but effective December 31, 1994 (recorded in

Volume 668, Page 398 of the Official Records of Karnes County, Texas) (CR 1:84-92)

(hereinafter A1994 Deed@), Aloys Mika, Irene Mika, Joyce M. Pitzer, Arthur R. Mika, Dennis C.

Mika, Virginia S. DuBose, Leslie B. Mika, Beverley J. Mika, Charlene A. Mika, Dolores F.

Mika, Evelyn R. Mika, Germaine C. Mika, Norma L. Mika, Stephanie R. Mika, and Jacqueline

G. Mika, the purported heirs of Felix Mika, Sr. and Mary Mika, conveyed the 290 acre tract to

Lucian A. Pawelek and his wife Carleen J. Pawelek. (CR 1:84-92, App. A). Irene M. Mika

executed the December 15, 1994 deed as a Grantor in her individual capacity, but not as Trustee

of the Prosper A. Mika Trust. (CR 1:87, App. A). Thus, she conveyed the 1/6 undivided interest

she acquired from Mary Mika through the 1992 Gift Deed - not the 1/10th undivided interest in

the 290 acre tract devised under the Will of Prosper Mika to the Prosper A. Mika Trust. (CR

1:84-92, App. A)

Irene M. Mika died on February 4, 2003 without having conveyed any interest in the 290

acre tract in her capacity as Trustee of the Prosper A. Mika Trust. (CR 1:93). As a result, all

property in the Prosper A. Mika Trust at the time of Irene Mika's death, including the 1/10th

undivided interest in the 290 acre tract, passed to Thomas Mika and Pamela Mika Wolf, in equal

shares. (CR 1:70).

C. APPELLEES CLAIM TO THE REAL PROPERTY AT ISSUE

The Appellees claim to hold an undivided 100% interest in the 290 acre tract

through the 1994 Deed. (CR 2:404-405). Appellees cite to language in the 1994 Deed referring

to Aall@ of the interest. (CR 2:405). On April 1, 2009, Appellees executed an Oil, Gas, and

Mineral Lease covering the 290 acre tract in favor of Murphy Exploration & Production

3 Company- USA (AMurphy@) (recorded by a Memorandum of Oil, Gas, and Mineral Lease in

Volume 899, Page 776 of the Official Records of Karnes County, Texas). (CR 1:94-95, CR

2:117-128). The 290 acre tract has been included in the Murphy Exploration & Production Co.

Whitfield West Unit and the Murphy Exploration & Production Co. Whitfield East Unit. (CR

1:135-136, 142-143). Murphy has drilled producing oil and gas wells on and within these two

units. (CR 1:133-134, 138-141, 144-149).

On February 23, 2012, Appellees' attorney sent a letter to Appellant, Pamela Wolf. (CR

1:96). The letter specifically suggests that Wolf's mother, Irene Mika, "forgot" to sign the 1994

Deed in her capacity as Trustee of the Prosper A. Mika Trust. (CR 1:96, App. A). Appellees

acknowledged by and through their attorney and agent that they did not have "clear title" to the

entirety of the 290 acre tract and requested Pamela Mika Wolf and Thomas Mika to execute a

Special Warranty Deed granting their interests in the 290 acre tract to Appellees. (CR 1:96).

II. SUMMARY OF THE ARGUMENT

A. STANDARD OF REVIEW

The review of competing motions for summary judgment is a de novo review. Provident

Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). When both parties move

for summary judgment on the same issues and the trial court grants one motion and denies the

other, as here, this Court should consider the summary judgment evidence presented by both

sides, determine all questions presented, and if, this Court determines that the trial court erred,

render the judgment the trial court should have rendered. See FM Properties. Operating Co. v.

City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

Appellants submit that there are no material issues of fact and that Appellants are entitled

4 to judgment as a matter of law vesting title to an undivided 10% of the 290 acre tract in

Appellants. In the alternative, there are material issues of fact regarding Appellees= claims to title

to the 290 acre tract and the trial court’s final judgment must be reversed and remanded for

further proceedings.

Appellees asserted multiple claims including (1) estoppel by deed, (2) merger of the legal

and beneficial interests under a testamentary trust, (3) adverse possession title under the 3 year

statute, (4) adverse possession title under the 5 year statute, and (5) adverse possession title

under the 10 year statute. (CR 2:404-436). Since Appellants have demonstrated a clear, unbroken

chain of title from Mary Mika, Appellants must address each of these claims to demonstrate their

inapplicability - or inadequacy - to defeat Appellants= claim to title.

B. ESTOPPEL BY DEED DOES NOT APPLY

The estoppel by deed doctrine does not apply to Appellants= claims because Appellants

were not parties to the 1994 Deed. (CR 1:84-92, App. A). Appellants were not in Aestoppel by

deed@ privity with Irene Mika, their mother, when she executed the 1994 Deed individually.

Estoppel by deed has never been applied in Texas to cure a missing capacity defect. Irene Mika

did not sign as trustee - she only signed individually. (CR 1:87, App. A). Thus, the trust interest

comprising an undivided 1/10th was not conveyed by the 1994 Deed.

C. THE LEGAL AND BENEFICIAL INTERESTS IN THE TRUST DID NOT MERGE

The legal and beneficial interests arising upon the creation of a trust may be merged

when the trustee and beneficiary are united. In that event, the trustee may freely deal with the

corpus of the trust. Appellees urge this argument to validate the 1994 Deed. However, merger

never occurred. Irene Mika, the trustee of the Prosper A. Mika Trust, was a beneficiary only for

5 life and the legal and entire beneficial interests were never united.

D. APPELLEES CANNOT CLAIM TITLE BY ADVERSE POSSESSION

Since Appellants are co-tenants with Appellees in the 290 acre tract, the usual indices of

adverse possession must be augmented with an ouster. Exclusive, continuous, open and

notorious possession is not inconsistent with rights of a co-tenant. The possession does not

become adverse until there is an ouster.

If estoppel by deed does not apply, Appellees cannot claim under the 3 year statute

because they have no color of title or a muniment of title not lacking in fairness. The 1994 Deed

does not convey Appellants= 1/10th undivided interest in the 290 acre tract. Therefore, no title to

the 1/10th undivided interest passed by and through the 1994 Deed and the 3 year statute is

inapplicable.

If estoppel by deed does not apply, Appellees cannot claim under the 5 year statute

because they did not enter possession of Appellants= undivided 1/10th interest in the 290 acre

tract under a registered deed. The 1994 Deed does not convey Appellants= 1/10th undivided

interest in the 290 acre tract. In the absence of this element, the 5 year statute is inapplicable.

If estoppel by deed does not apply, Appellees must claim under the 10 year statute of

adverse possession because they have no title document. Appellees cannot prevail under the 10

year statute of adverse possession because they can show no ouster followed by 10 years of

continuous, open, exclusive, adverse and notorious possession of the 290 acre tract. In the

alternative, if this Honorable Court finds that the 10 year statute of limitations does apply, then

Appellees can only claim 160 acres. Further, in February 2012, Appellees acknowledged title in

Appellants and interrupted the running of limitations, if any, created by the 1994 Deed after

6 February 4, 2003, the date full possession vested in Appellants.

III. ARGUMENT

A. ESTOPPEL BY DEED DOES NOT APPLY

Appellees argue that the 1994 Deed conveyed all of the ownership in the 290 acre tract.

(CR 2:405). Appellees base this argument upon the doctrine of estoppel by deed. Estoppel by

deed stands for the general proposition that all parties to a deed are bound by the recitals therein,

which operate as an estoppel, working on the interest in the land if it be a deed of conveyance,

and binding both parties and privies; privies in blood, privies in estate, and privies in law.

Sauceda v. Kerlin, 164 S.W.3d 892, 915 (Tex. App.--Corpus Christi, 2005, no pet. h.), Freeman

v. Stephens Prod. Co., 171 S.W.3d 651, 654 (Tex. App.--Corpus Christi 2005, pet. denied). In

their Motion for Partial Summary Judgment, Appellees state: AThe Mika Plaintiffs are effectively

estopped to deny that Aall@ of the Subject Property passed to Paweleks under the (1994 Deed).@

(CR 2:420). Appellees argue that the 1994 Deed contained all of the individuals holding title to

the 290 acre tract, thus ALL of the titleholders conveyed ALL of the interest. (CR 2:410). While

it is true that the fifteen grantors in the 1994 Deed were all of the heirs of Mary Mika and Felix

Mika, the fifteen grantors were NOT all of the owners of the 290 acre tract. Thus, Appellees

legal conclusions that the 1994 Deed conveyed AAny@ and AAll@ rights to the property is correct

only as to those grantors signing in the capacity in which they executed the Deed.

1. The trial court erred in holding that doctrine of estoppel by deed overcomes the

failure to disclose the representative capacity of a grantor holding title as both

an individual and trustee.

Irene Mika owned a 1/6th undivided interest individually in the 290 acre tract, thru the

7 1992 Gift Deed, and she was also the trustee of The Prosper A. Mika trust, a trust owning a

1/10th undivided interest in the 290 acre tract. (CR 1:70-83). Irene Mika was a party to the 1994

Deed but her trustee capacity was not listed. (CR 1:84). The Prosper A. Mika Trust was not a

party to the 1994 Deed. (CR 1:84, App. A). Irene Mika signed the conveyance individually and

did not include any capacity description or trustee identification. (CR 1:87, App. A).

2. The trial court erred in holding that Irene Mika conveyed an interest in real

property held in trust, despite no disclosure of her representative capacity in the

1994 Deed.

Within the four corners of the 1994 Deed, there is no conveyance of the 1/10 th undivided

interest owned by the Prosper A. Mika Trust. (CR 1:84-92, App. A). Irene Mika did not sign in

or disclose her capacity as Trustee of the Prosper A. Mika Trust to convey the 1/10th interest, she

only signed in her individual capacity conveying her 1/6th interest. (CR 1:87, App. A). Appellees

argue that even though Irene Mika did not sign in her representative capacity, her signature

individually included her capacity as trustee despite there being no mention of Atrustee@ or

Atrust.@ (CR 2:416-417).

Appellants contend that the law in Texas is very clear on this subject. In Taylor v.

Guillory, 439 S.W.2d 362 (Tex. Civ. App.--Houston [1st Dist.] 1969, n.w.h.), a trespass to try

title case, the Court considered evidence presented by the defendants that the deed at issue in the

case failed to convey title because it did not identify the proper capacity of the signators. The

Court held that:

“The deed which was identified as plaintiffs' exhibit 2 is an indispensable link in their chain of title, and we presume that the trial court found that those who executed it as grantors lacked authority to act for the trustees or to act as trustees for the church. In view of such presumed finding, it is well settled that appellants

8 were not entitled to recover the land.”

Id. at 364.

Additionally, in O'Neil v. Powell, 470 S.W.2d 775, 778 (Tex. App.--Fort Worth 1971, writ ref'd n.r.e.), the Court held:

“It is also contended that Grace Irene Powell, as the independent executrix and trustee under the will of Guy E. Powell, has full power and authority to convey the land in question. This may be true, however, she signed the contract in her individual capacity and was sued herein in her individual capacity. She cannot be compelled to execute a deed in any other capacity. A deed signed by her in her individual capacity would not pass title.” (emphasis added).

Thus, Irene Mika only conveyed her individual interest. She did not convey the Prosper A. Mika

Trust=s 1/10th interest in the 290 acre tract. The 1/10th undivided interest owned by the Prosper A.

Mika Trust was never conveyed to Appellees.

The failure to disclose Irene Mika=s capacity as trustee in the 1994 Deed resulted in the

non-conveyance of the undivided 1/10th interest in the 290 acre tract held in trust. Title to the

undivided 1/10th interest in the 290 acre tract has been in the trust with Appellants as vested

remaindermen from the formation of the Prosper A. Mika Testamentary Trust. Upon Irene

Mika’s death on February 4, 2003, Appellants became fully vested.

3. Appellees are not Without Fault

Appellees had a duty to review title to the 290 acre tract and determine the title holders in

and to the 290 acre tract. In Westland Oil Development Corp., v. Gulf Oil Corp., 637 S.W.2d

903, 908 (Tex. 1982), the Texas Supreme Court held that:

“…a purchaser is bound by every recital, reference and reservation contained in or fairly disclosed by any instrument which forms an essential link in the chain of title under which he claims. [emphasis in the original].

9 The rationale of the rule is that any description, recital of fact, or reference to other

documents puts the purchaser upon inquiry, and he is bound to follow up this inquiry, step by

step, from one discovery to another and from one instrument to another, until the whole series of

title deeds is exhausted and a complete knowledge of all the matters referred to and affecting the

estate is obtained. Id. (emphasis in the original).

The 1994 Deed refers to the Gift Deed from Mary Mika to Felix Mika and provides the

volume and page where it can be located. The Gift Deed leads to the Probate of Felix Mika and

the interest of Prosper A. Mika. The 1994 Deed did not convey the 1/10 th interest of the Prosper

A. Mika Trust. The Paweleks have no claim to this interest as they have never been deeded the

1/10th interest. It is correct to surmise that the parties in the 1994 Deed conveyed Aall the rights@

they owned within the capacity in which they executed the 1994 Deed. However, Appellees

cannot produce any conveyance into Appellees from Prosper Mika, Irene Mika as Trustee for the

Prosper A. Mika Trust, Pamela Mika Wolf, or Thomas Mika.

The Appellees had a duty to investigate if there were additional parties who had an

ownership interest in the subject property. The duty did not belong to the 15 Mika Family

Grantors to research the real property records. The duty belonged solely to Appellees and they

failed to conduct their due diligence. Appellants should not be dispossessed by Appellees=

counsel=s failure to follow the law as expressed in Westland.

4. The Trial Court Erred in Excluding Appellants’ Exhibit E-1

Further, the trial court struck one of Appellants= exhibits which demonstrate that the

omission of Irene Mika=s capacity as trustee was not a Amistake.@ Appellants attached a 1992

deed pre-dating the 1994 Deed as Exhibit E-1 to their Amended Motion for Partial Summary

10 Judgment.2 This deed clearly shows Irene Mika=s capacity as Atrustee.@ Appellees filed a Motion

to Strike this evidence based upon relevance. This deed is relevant to the issue of mistake and it

should not have been stricken.

5. Recording Statutes and Acknowledgement Statutes Support Appellants’

Position

Under Tex. Prop. Code Ann. '11.001, to be effectively recorded, an instrument relating

to real property must be eligible for recording and must be recorded in the county in which a part

of the property is located. The recording laws in Texas were meant to protect innocent

purchasers and creditors without notice of the prior transfer from being injured or prejudiced by

their lack of knowledge of the competing claim. Sanchez v. Telles 960 S.W.2d 762, 767 (Tex.

App.CEl Paso 1997, pet. denied). The 1992 Gift Deed from Mary Mika into Irene Mika

conveying a 1/6 interest was properly recorded in Karnes County at Volume 639, Page 124 on

February 25, 1993. (CR 1:80-83) The Probate of Felix Mika conveying his 1/10th interest into

the Prosper A. Mika was also recorded in Karnes County, Texas in Volume 100, Page 468 on

August 15, 1989. (CR 1:67-69) Both conveyances were recorded prior to the 1994 Deed, thus

creating constructive notice for all later purchasers that others had an ownership interest in the

subject property.

The recording statutes are designed to provide notice to avoid mistakes and confusion.

Tex. Prop. Code Ann. '13.002 states an instrument that is properly recorded in the proper county

is: (1) notice to all persons of the existence of the instrument; and (2) subject to inspection by the

public. Appellees only had to look in the real property records to know that Prosper Mika owned

a 1/10th interest in the subject property, see also Tex. Prop. Code Ann. '13.001.

2 App. B 11 The Appellees only had to look at the real property records of Karnes County to see that

Felix Mika (the recipient of one half of the 290 acre tract from his wife, Mary Mika) left a 1/10 th

undivided interest to his son, Prosper Mika. Had the Appellees taken the time to review the real

property records, they would have known to seek a conveyance from Irene Mika as the Trustee

of the Prosper A. Mika Trust=s 1/10th undivided interest. The additional parties that Appellees

sought to bring into the litigation,3 the Grantors, did not have a duty to review the real property

records, they were only conveying that which they owned at the time of the 1994 Deed. There is

no mutual mistake of fact.

Further, the 1994 Deed was recorded on February 1, 1995. If Appellees are claiming

Irene Mika conveyed the 1/10th interest of Prosper Mika at the time of the execution of the 1994

Deed, then a defect would exist in Irene Mika=s signature and defendants would only have two

years to correct the defect.

Tex. Civ. Prac. & Rem. Code Ann. §16.003(6) and (7) provides, in part, that:

A person with a right of action for the recovery of real property or an interest in real property conveyed by an instrument with one of the following defects must bring suit not later than two years (emphasis added) after the day the instrument was filed for record with the county clerk or the county where the real property is located: ... (6) acknowledgment of the instrument in an individual, rather than a representative or official, capacity; (7) execution of the instrument by a trustee without record of the authority of the trustee or proof of the facts recited in the instrument. (Emphasis added.)

According to the referenced statute, Appellees would have had to claim the 1/10th interest

owned by the Prosper A. Mika Trust by January 31, 1997. Appellees are now forever barred by

the statute of limitations from making claims that the 1/10th interest owned by Prosper A. Mika

3 See November 1, 2013 Counter Claims, Third Party Claims and First Amended Answer, November 8, 2013 Motion for Leave to File Third Party Claims filed by Appellees in this litigation.

12 Trust was somehow included in the 1994 Deed when there is no evidence, either in word, in

signature, or within the acknowledgment that there existed an intent to convey the 1/10 th

undivided interest owned by the Prosper A. Mika Trust into the Appellees. Superior title to the

1/10th undivided interest is held by Pamela Mika Wolf and Thomas Mika by virtue of their

father=s ownership interest passing to them and the documents recorded prior in time and

therefore superior to the 1994 Deed to the Paweleks.

With regard to the acknowledgment in the 1994 Deed (CR 1:84-92), Tex. Prop. Code

Ann. '121.006(b)(5) provides, in part, that:

In the case of a person acknowledging as aYtrustee, Ythat the person personally appeared before the officer taking the acknowledgment and acknowledged executing the instrument by proper authority in the capacity stated and for the purposes and consideration expressed in it.

Irene Mika did not sign in the capacity as Trustee for the Prosper A. Mika Trust, and the

Acknowledgement in the 1994 Deed fails to comply with Tex. Prop. Code Ann. '121.006(b)(5);

therefore, she did not convey the 1/10th undivided interest owned by the Prosper A. Mika Trust.

6. The court erred in holding that estoppel by deed allowed the grantor to convey a

remainder interest in trust without the disclosure of the grantor’s capacity.

Additionally, the Appellees cannot prove estoppel by deed against Appellants because

Irene Mika was the Trustee of the Prosper A. Mika Trust and never conveyed the 1/10th interest

owned by Trust. The Trust was the sole beneficiary of the entire estate of Prosper Mika and

Irene Mika only retained a life estate, with Appellants as remaindermen. There are no reported

cases applying estoppel by deed to the trust situation and capacity issue presented in this appeal.

Appellees cite no such authority and Appellants have been unable to locate any. See Teal

Trading and Development, LP v. Champee Springs Ranches Property Owners Ass'n, 432 S.W.3d

13 381 (Tex. App.--San Antonio 2014) (restrictive covenants, no capacity issue); Bradshaw v.

Steadfast Financial, L.L.C. 395 S.W.3d 348, 352-53 (Tex. App.--Fort Worth 2013) (fraction of

royalty or fractional royalty case, no capacity issue); Nash v. Beckett, 365 S.W.3d 131, 143 (Tex.

App.BTexarkana 2012, pet. denied) (no claim under the deed, no capacity issue); Deutsche Bank

Nat. Trust Co. v. Stockdick Land Co., 367 S.W.3d 308, 311-312 (Tex.App.BHouston [14th Dist.]

2012, pet. denied) (quitclaim, no capacity issue); Hamrick v. Ward 359 S.W.3d 770, 785-786

(Tex. App.--Houston [14th Dist.] 2011), rev’d, 446 S.W.3d 377 (Tex. 2014) (claimed

inapplicable because claims do not arise out of deed, no capacity issue).

7. The court erred in holding that estoppel by deed prevented Appellants, who were not parties to the 1994 Deed, from challenging the conveyance.

Appellees cite to XTO Energy Inc. v. Nikolai, 357 S.W.3d 47, 55 (Tex. App.BFort Worth

2011, pet. denied) for an explication of the estoppel by deed doctrine. The Fort Worth Court of

Appeals stated that:

…all parties to a deed are bound by the recitals therein, which operate as an estoppel, working on the interest in the land if it be a deed of conveyance, and binding both parties and privies; privies in blood, privies in estate, and privies in law.@ Freeman, 171 S.W.3d 651, 654 (Tex. App.--Corpus Christi 2005, pet. denied) (quoting Wallace v. Pruitt, 1 Tex. Civ. App. 231, 234, 20 S.W. 728, 728B29 (Houston 1892, no writ)); see Angell v. Bailey, 225 S.W.3d 834, 841-42 (Tex. App.—El Paso 2007, no pet.).

The estoppel by deed doctrine only applies to the parties to the deed. Neither Thomas

Mika nor Pamela Mika Wolf were parties to the 1994 Deed. Thus, the doctrine of estoppel by

deed is inapplicable to them. Further, while estoppel by deed is applicable to privies, as

described above, Thomas and Pamela Mika already owned their own interest in the land

themselves, as vested remaindermen to the undivided 1/10th interest. See Bagby v. Bredthauer,

627 S.W.2d 190, 194 (Tex. App.--Austin 1981, no writ) (discussing remainders as vested at their

14 creation in reference to the Rule Against Perpetuities). They did not have a mere future interest

as a privy in blood, or by privy of estate. See Forister v. Coleman, 418 S.W.2d 550, 559 (Tex.

Civ App.--Austin, 1967):

"When the term `privity' is considered with respect to its relationship to estates in realty, it must be understood that it implies succession, that is, successive ownership or possession of the identical estate in the same property, and one who is in privity with another with respect to an estate stands in exactly the same position with respect thereto as did his predecessor in title; he takes the estate with all the burdens and benefits attending it."

Thomas Mika and Pamela Mika Wolf would have privity of estate as to their mother=s

1/6th individual interest in the event Thomas Mika and Pamela Mika Wolf challenged their

mother=s conveyance of her 1/6th individual interest. However, there is no privity to connect the

Prosper A. Mika Trust and the grantors in the 1994 Deed because the life estate and remainder

do not “stand in exactly the same position…with all the burdens and benefits…”.

This result is further supported by the general rule in Texas that recitals in a deed are

binding only when the parties or their privies thereto claim under such deed. Lambe v.

Glasscock, 360 S.W.2d 169, 172-173 (Tex. Civ. App.--San Antonio 1962, writ ref'd

n.r.e.); Talley v. Howsley, 142 Tex. 81, 176 S.W.2d 158 (1943); Robert Oil Corp. v. Jones, 23

S.W.2d 472, 479 (Tex. Civ. App.--El Paso, 1929, writ dism=d); Haley v. Sabine Valley Timber &

Lumber Co., 150 S.W. 596 (Tex. Civ. App.—Texarkana 1912, writ ref’d). Pamela Mika Wolf

and Thomas Mika do not claim any interest under or out of the 1994 Deed. Quite to the

contrary, they claim that their chain of title does not include and is not affected by the 1994

Deed. Therefore, the doctrine of estoppel by deed does not preclude the Appellants from

asserting their title to an undivided 1/10th of the 290 acre tract. This is so because Pamela Mika

15 Wolf and Thomas Mika were vested remaindermen. Texas law favors a construction that allows

vesting at the earliest possible time, and Texas courts will not construe a remainder as contingent

when it can reasonably be taken as vested. Chadwick v. Bristow, 146 Tex. 481, 208 S.W.2d 888,

891 (1948). See Pickering v. Miles, 477 S.W.2d 267, 270 (Tex. 1972). It is well settled that a

remainder is vested when there is a person in being at the creation of the interest who would have

a right to immediate possession upon termination of the intermediate estate. Chadwick, 208

S.W.2d 888, 891; Bradford v. Rain, 562 S.W.2d 514, 518 (Tex. Civ. App.—Texarkana 1978, no

writ); Reilly v. Huff, 335 S.W.2d 278, 278 (Tex. Civ. App.—San Antonio 1960, no writ).

The Appellants were vested with their remainder to the 1/10th undivided interest and did

not join in the execution of the 1994 Deed or the underlying Real Estate Sales Contract. (CR

1:84-92, App. A), (CR 3:674-723). Nevertheless, the Appellees are attempting to acquire this

1/10th interest by claiming the Appellants are estopped due to language in a deed to which the

Appellants were not parties. It is well settled that title to real property cannot be acquired by

estoppel, especially where it is alleged to flow from deeds and transactions to which the party

against whom estoppel is claimed, i.e. Thomas Mika and Pamela Mika Wolf in this instance, was

not a party to the deed. Kuykendall v. Spiller, 299 S.W. 522 (Tex. Civ. App—Fort Worth 1927,

writ ref’d, 299 S.W. 522); Gilcrease Oil Co. v. Cosby, 132 F.2d 790, 793 (5th Cir. 1943).

A warranty in a deed only binds the grantor=s heirs to the extent of the property received

by them from the grantor=s estate. Cleveland v. Smith, 156 S.W. 247, 250 (Tex. 1913).

Additionally, the heir of a trustee-grantor is not estopped to acquire and assert against a grantee a

title to the land superior to that acquired by the grantee. Id. In this case, Thomas Mika and

Pamela Mika Wolf already had title as vested remaindermen. Since the 1994 Deed post-dates

16 the 1986 probate and does not convey the 1/10 interest, estoppel by deed does not apply to

Appellants.

The Appellees have further cited the rule that A[A] party to a contract or deed may not, at

a later date, take a position inconsistent with its provisions, to the prejudice of another.@ Estate

of Trevino v. Melton, 04-07-00654-CV, 2009 WL 891881, at 5 (Tex. App.--San Antonio Apr. 3,

2009, pet. denied) (mem. op.). Again, however, this rule is inapplicable because Thomas Mika

and Pamela Mika Wolf were not a party or in privity to the Real Estate Sales Contract (CR

3:674-723) or the 1994 Deed (CR 1:84-92, App. A). Additionally, Appellants do not claim their

interest by or through Irene Mika, but instead owned their interest as vested remaindermen under

the Will of their father.

B. THE TRIAL COURT ERRED IN HOLDING THAT A MERGER OF THE LEGAL AND BENEFICIAL TITLE IN THE PROSPER A. MIKA TRUST ESTATE OCCURRED

Appellees argue that Irene Mika was the sole beneficiary of the trust and was the trustee

of the trust, and that under Texas law, a merger of title occurred so that Irene Mika conveyed the

trust interest as well as her individual interest. Appellees have also urged a concept akin to

estoppel by deed in arguing that the legal title and beneficial title of the Prosper A. Mika Trust

merged in Irene Mika and that her signature on the 1994 Deed effected a conveyance of the

merged title. This argument is incorrect. Under Texas Prop. Code Ann., '112.034(b), merger

cannot apply in this situation because Aa trust terminates if the legal title to the trust property and

all equitable interest in the trust become united in one person.@ (emphasis added). All equitable

interest did not become united in Irene Mika. The remainder interests in Appellants were never

conveyed to Irene Mika.

17 Appellees misconstrue the trust provision of Prosper A. Mika=s Last Will and Testament.

Appellees claim that Irene Mika was the sole beneficiary of the trust. As such, the argument is

that her conveyance, individually, of the 290 acre tract in the 1994 Deed includes the interest

held in trust in the 290 acre tract. However, Irene Mika was not the sole beneficiary. The exact

wording of Prosper Mika=s Will states the following:

AIn the event my wife, Irene M. Mika, shall survive me, I bequeath and devise my entire estate in trust unto the Trustee, or Substitute Trustee, hereinafter appointed.

1. This Trust shall be known as the Prosper A. Mika, Trust.

2. I direct that my said Trustee shall hold and reinvest the property in the Trust Estate in accordance with the terms hereof, shall collect and receive the income therefrom, and after paying all expenses incident to the management of the trust shall pay all of the net income from the said trust to my beloved wife, IRENE M. MIKA, for so long as she shall live in as nearly equal monthly installments as practical.

3. Upon the death of my wife, IRENE M. MIKA, the trust estate shall pass to and vest in my children, THOMAS ANTHONY MIKA AND PAMELA A MIKA HANSON, in equal sharesY@ (emphasis added) (CR 1:70).

The trust clearly sets up a life estate in Irene Mika with a remainder in the Appellants.

Appellees= claims to the contrary misread the plain language of the Will. The intent is to create

the trust to care for Irene Mika during her lifetime and upon the death of Irene Mika, the trust

assets pass to the individual Appellants free of the trust.

By virtue of the express words and intent of the testamentary trust, a merger of title did

not occur and cannot occur because all equitable interest in the trust did not become united in

one person. It is quite to the contrary. There is no sole beneficiary as Appellees have stated.

The intent is clear that the beneficiaries were Irene Mika during her lifetime and upon her death

to Pamela Mika Wolf and Thomas Mika. Merger did not occur. When the remaindermen have a

clear, vested indefeasible interest in the property, a life-tenant has the duty to preserve and

18 protect the property over which the life-tenant has fiduciary control. Randall v. Estes, 218

S.W.2d 338, 341 (Tex. Civ. App.--Dallas 1949, writ ref. n.r.e.).

A Alife estate@ is created by a deed or will where the language of the instrument manifests

an intention on the part of the grantor or testator to pass to a grantee or devisee a right to possess,

use, or enjoy property during the period of the grantee's life. Financial Freedom Sr. Funding

Corp. v. Horrocks, 294 S.W.3d 749 (Tex. App.CHouston [14th Dist.] 2009, no pet.). AWhere

property is granted or devised to an individual during her lifetime or as long as she may live, she

is said to take a life estate and to be the life tenant of the property.@ A life estate is created by

language to the effect that the taker is to have the property Aso long as he may live.@ Wagnon v.

Wagnon, 16 S.W.2d 366, 370 (Tex. Civ. App.--Austin 1929, writ ref’d); (Aduring his life@);

Harrison v. Foote, 9 Tex. Civ. App. 576, 30 S.W. 838 (1895)); (Afor his life@); Cochran v.

Cochran, 43 Tex. Civ. App. 259, 95 S.W. 731 (1906, no writ); (devise to a woman during

widowhood); Haring v. Shelton, 114 S.W. 389, 391 (Tex. Civ. App. 1908), aff’d 103 Tex. 10,

122 S.W. 13 (1909) (bequest of sum annually).

The Last Will & Testament of Prosper A. Mika (AWill@) creates a life estate in Irene Mika

in the testamentary trust and a remainder in his children, Thomas Mika and Pamela Mika Wolf.

(CR 1:70-79). Generally, a life estate tenant is entitled to all profits or income accruing during

his or her tenancy but cannot dispose of the corpus of the estate unless he or she is expressly

authorized to do so. See Singleton v. Donalson, 117 S.W.3d 516, 518 (Tex. App.--Beaumont

2003, pet. denied) ; Hudspeth v. Hudspeth, 756 S.W.2d 29, 31 (Tex. App.--San Antonio 1988,

writ denied). The Will provides that Irene Mika is to have the Aincome@ from the trust assets.

(CR 1:70). This creates a life estate. Texas does not recognize an implied power to dispose of

19 the corpus by the life tenant of an express life estate. Hobson v. Shelton, 302 S.W.2d 268 (Tex.

Civ. App.--Waco 1957, writ ref'd n.r.e.).

The Will, in paragraph VI.C. states that the Executrix and Trustee shall have the power

to:

sell, exchange, assign, transfer and convey any security or property, real or personal, held in my estate or any trust fund, at public or private sale, at such time and price and upon such terms and conditions (including credit) as such Executrix or Trustee may determine. (CR 1:73).

However, the Will also states in Section IV, that:

It is specifically provided that none of my property, nor the increase, income or proceeds thereof, nor the equitable title therein, while same is held by said Trustee, in trust, shall be [...] in any manner affected by the transfer, assignment, conveyances, sale or encumbrances, voluntary or involuntary, by the said beneficiaries named herein, nor shall they have the right or power to transfer, assign, convey, sell, or encumber the same or any part thereof. (CR 1:71-72).

Irene Mika had the power of sale when acting as trustee, but she did not sell any of the

1/10th undivided interest in the 290 acre tract because her capacity as Trustee was not described

in the 1994 Deed. Even if Irene Mika did convey her interest, the 1994 Deed conveyed nothing

but her life estate portion, and could not transfer the interest of Thomas Mika and Pamela Mika

Wolf.

Further, since a merger of the legal and beneficial interests under the Will did not occur,

Appellees= arguments and contentions that Irene Mika transferred the Prosper A. Mika Trust

ownership interest in the 290 acre tract fail. It is wishful thinking.

Appellees= oil and gas lessee, Murphy Exploration & Production Company (AMurphy@),

did not succumb to this wishful thinking. Murphy noted a question as to Appellees= title to the

entire mineral estate and Murphy=s title attorney made a requirement for corrective action to

20 remedy this title defect. (CR 2:321). Appellees attempt to Asugar coat@ the magnitude of this

independent, third party observation of the defect in Appellees= title. Appellees attempt to

minimize this defect by describing the defect as a Acloud on title@ and the warranty deed required

as a Acorrective@ deed.

C. COTENANCY AND ADVERSE POSSESSION

In the alternative, Appellees seek to establish title to the 290 acre tract by adverse

possession. (CR 2:421-436). Appellees have the burden of proving every fact essential to that

claim by a preponderance of the evidence. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990).

Appellees have not met this burden and it is Appellants= contention this burden cannot be met for

the reasons described below.

1. General Elements of Appellees= Claims

To prevail on any of their claims for Adverse Possession, Appellees must prove the

following general elements: (1) a visible appropriation and possession of the land, sufficient to

give notice to the record title holder that its possession is (2) peaceable, (3) under a claim of right

hostile to the title holder=s claim, and (4) that continues for the duration specified in the

applicable statute. Tex. Civ. Prac. & Rem. Code Ann. ' 16.021, 16.024, 16.025, and Tex. Civ.

Prac. & Rem. Code Ann. '16.026; see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 756

(Tex. 2003). Where, as is the case here, a cotenancy is involved, several additional elements

apply as discussed below.

2. Appellants Can Disprove Ouster and Repudiation, and Notice Thereof

In order to establish any of their claims of adverse possession, Appellees must establish

additional requirements because Appellants and Appellees are co-tenants. Appellants and

21 Appellees are co-tenants because they each share current, rather than future, ownership of the

290 acre tract in undivided interests. See 44 A.L.R.2d 595. Because the parties are co-tenants,

Appellees= entry upon the 290 acre tract was presumed permissive in nature, which negates the

requisite element of hostility. See, e.g., Killough v. Hinds, 338 S.W.2d 707, 709 (Tex. 1960).

After a permissive entry, Appellees can only prevail by showing two elements in addition

to those that would otherwise be required: (1) clear ouster of the co-tenants and repudiation of

the former permissive relationship so that a new, adverse, claim is created (see Tex-Wis Co. v.

Johnson, 534 S.W.2d 895, 899 (Tex. 1976); Todd v. Bruner, 365 S.W.2d 155, 159-160 (Tex.

1963); York v. Flowers, 872 S.W.2d 13, 15 (Tex. App.CSan Antonio 1994, pet. denied)), and (2)

the claimant must show that either actual or constructive notice of this repudiation has been

provided to the record owner, and the date on which this notice was provided. See Natural Gas

Pipeline Co. v. Pool, 124 S.W.3d 188, 194-195 (Tex. 2003).

3. No >clear ouster and repudiation=

Appellees have not effectuated the requisite >clear ouster and repudiation= of the

Appellants title. The ouster standard that applies to cotenants differs from the adverse

possession requirement courts impose between strangers because cotenants have rights to

ownership and use of the property a stranger would not have. BP Am. Prod. Co. v. Marshall,

342 S.W.3d 59, 70 (Tex. 2011). AOuster@ is defined as Aunequivocal, unmistakable, and hostile

acts the possessor took to disseize other cotenants.@ Id. Under Texas law, not even the fact that

one cotenant has possession of co-tenancy property and pays the taxes and insurance on the

property is adequate to establish ouster or repudiation. See Todd v. Bruner, 365 S.W.2d 155,

159-160 ; see also Amador v. Berrospe, 961 S.W.2d 205, 208-209 (Tex. App.CHouston [1st

22 Dist.] 1996, writ denied) (holding that a brother-in-law who owned 7/8 of property did not

acquire from co-tenant the other 1/8 by adverse possession by mere payment of taxes and

insurance on the property, because same did not constitute ouster or repudiation of title).

Appellees have plead an ouster was initiated on December 31, 1994, being the recording

date of the 1994 Deed. Appellants disagree with this date and refer instead to April 1, 2009,

being the date the Appellees executed an Oil, Gas, and Mineral Lease, as the first date of any

alleged ouster and repudiation. (CR 1:117-128).

4. 1994 Deed was not an Ouster

Texas courts have found Aouster@ by one cotenant where he purports to convey the entire

property to a third party who enters into possession under a recorded deed. Thedford v. Union

Oil Co. of California, 3 S.W.3d 609, 614 (Tex. App.CDallas 1999, pet. denied). Appellees argue

that the 1994 Deed constituted an ouster. (CR 2:430-431). However, the case at hand is

distinguishable from that of Thedford, because Irene Mika, herself, held two distinct interests in

two distinct capacities, and only conveyed one. Cf. id. Therefore, in order to prove the 1994

Deed constituted an ouster, the Appellees would have to prove that Irene Mika conveyed both

her individual interest and the trust interest. As discussed above, this did not occur and no ouster

is shown.

Furthermore, reasonable due diligence in an examination of the record would reveal that

Irene Mika held two distinct interests in the 290 acre tract in two distinct capacities. Therefore,

even when viewing the transaction from the viewpoint of the grantee in the 1994 Deed, it cannot

be said that Irene Mika purported to convey the interest of the Prosper A. Mika Trust. In other

23 words, the 1994 Deed did not constitute ouster, because Irene Mika did not purport to convey –

or convey - the Prosper A. Mika Trust=s interest in the 290 acre tract.

Appellees argue that the 1994 Deed was a constructive ouster of the individual

Appellants. (CR 2:430-431). There could be no constructive ouster by the 1994 Deed because the

Appellants/remaindermen were not in possession of the trust assets until the death of their

mother. The 1/10th undivided interest held by the Prosper A. Mika Trust in the 290 acre tract

was a life estate with a remainder interest. No ouster of the remaindermen could occur until their

interest became possessory. Irene Mika died on February 4, 2003. (CR 1:93). At that point in

time, Pamela Mika Wolf and Thomas Mika became vested with the full fee simple absolute title

to the 1/10th undivided interest in the 290 acre tract. (CR 1:70).

There are certain well-established rules concerning the property rights of a life tenant vis-

a-vis the remaindermen. A life tenant is entitled to exclusive possession and control of the

property comprising the life estate and the remaindermen are not entitled to possession thereof

until the life estate terminates. Moore v. Reed, 668 S.W.2d 847, 849 (Tex.App.CEl Paso 1984,

writ ref'd n.r.e.); Collins v. New, 558 S.W.2d 108, 112 (Tex. Civ. App.CCorpus Christi 1977).

Such a life tenant, in the absence of restrictions or limitations in the instrument creating

the life estate, is entitled to everything in the nature of revenue or income produced by the

property during such a tenancy. Hobson v. Shelton, 302 S.W.2d 268, 272; Bailey v. Bailey, 212

S.W.2d 189, 191 (Tex. Civ. App.CWaco 1948, writ ref'd); Medlin v. Medlin, 203 S.W.2d 635,

640 (Tex. Civ. App.CAmarillo 1947, writ ref'd); Enserch Exploration, 718 S.W.2d 308, 311.

However, the life tenant may not consume the corpus.

24 Indeed, in words similar to those used in the Prosper Mika Last Will & Testament (CR

1:70-79), that entitlement has been expressed as the right to receive Aeverything in the nature of

income, rents, revenues and benefits@ accruing during such a life tenancy. Murphy v. Slaton, 154

Tex. 35, 273 S.W.2d 588, 595 (1954); Enserch Exploration, Inc. v. Wimmer, 718 S.W.2d 308,

311 (Tex. App.BAmarillo 1986, writ. ref. n.r.e.). However, the right to receive income and profits

is subject to the qualification that, absent express direction in the instrument establishing the life

tenancy, such a tenant may not dispose of the corpus and may not commit waste. Blackwell v.

Blackwell, 86 Tex. 207, 24 S.W. 389, 390 (1893); Clift v. Clift, 72 Tex. 144, 10 S.W. 338, 340

(1888); Hamilton v. Hamilton, 42 S.W.2d 814, 817 (Tex. Civ. App.--Amarillo 1931, writ ref'd).

Limitations does not accrue against the remainderman's interest while the life tenant

remains alive. The remainderman does not have a possessory interest that would allow him to

institute a trespass to try title action seeking the ouster of the trespasser during the life tenancy.

State v. Beeson, 232 S.W.3d 265, 277 (Tex. App.BEastland, 2007 pet. dism=d); Backhus v.

Wisnoski, 14-09-00924, 2011 WL 6396497 (Tex. App.BHouston [14th Dist.] Dec. 8, 2011, pet.

denied).

In Hensley v. Conway, 29 S.W.2d 416, 417B18 (Tex. Civ. App.--Eastland 1930, no writ),

the court rejected the possibility of a remainderman's interest being subject to adverse possession

during the term of the life tenancy. The Court reasoned in Hensley that limitations does not

accrue against the remainderman's interest while the life tenant remains alive because the

remainderman does not have a possessory interest that would allow him to institute a trespass to

try title action seeking the ouster of the trespasser. Id; Strong v. Garrett, 224 S.W.2d 471, 475

(Tex. 1949).

25 Appellees have produced no evidence of ouster on or after February 4, 2003 with regard

to Pamela Mika Wolf or Thomas Mika except for the Murphy Lease. See infra. Appellees

adverse possession arguments fail in their entirety. Without ouster, the co-tenants interest

continues unabated and there is no adverse possession.

Appellees continue to argue that the 1994 Deed and the possession commencing in

February 1995 constitutes an ouster of the remaindermen. Appellees argue that the limitations

period for purposes of the adverse possession statutes begins to run in 1995.

As demonstrated by the cases cited above, ouster could not have begun before February

4, 2003 as to Appellants. Appellants were remaindermen under the Prosper A. Mika Trust and

were not in possession until February 4, 2003. Appellants dispute that limitations began to run

on February 4, 2003 as a consequence of the 1994 Deed. Appellants were not parties to the 1994

Deed and Appellants became co-tenants with the Appellees on February 4, 2003. Notice of any

purported ouster must be given to Appellants after they became co-tenants with the Appellees.

5. The short period of Appellees= possession did not constitute constructive ouster.

Under Texas law, a co-tenant may constructively establish the requisite ouster by an

extended period of long, uninterrupted exclusive possession, and only after which period the

requisite limitations period begins to run. Thedford, 3 S.W.3d at 612-14. To establish this

constructive ouster, the adverse co-tenant=s adverse possession must be Aso long-continued, open,

notorious, exclusive, and inconsistent with the existence of title in others, except the occupant,

that the law will raise the inference of notice to the cotenant out of possession.@ Id. at 612-14

(holding that adverse occupancy that lasted for Aat least seventy years@ constituted notice of

repudiation); cf. Amador, 961 S.W.2d 205, 209 (holding that payment of maintenance expenses,

26 insurance and taxes on property for fourteen years did not establish constructive ouster against

the other cotenant=s one-eighth interest).

In Mills v. Vinson, 342 S.W.2d. 33 (Tex. Civ. App. B 1960, writ ref=d n.r.e.) constructive

ouster was found where one cotenant went into possession of a tract of land in 1902, and

continued in possession until 1958, made improvements, paid all taxes, sold timber which grew

on the land for approximately 56 years, grazed cattle, used the land for growing crops, and

actually occupied the land for 56 years. Id. In Tex-Wis Co., 534 S.W.2d. @ 895, the court held

there was constructive ouster where (a) the adverse co-tenant possessed the land in a way that

was inconsistent with title in others, (b) farmed the land, (c) maintained fences, and (d) ran

livestock on the land for a continuous period of thirty-four years (twenty-four years in excess of

the ten-year statutory period at issue in that case). In Evans v. Covington, 795 S.W.2d. 806 (Tex.

App. BTexarkana 1990, no writ), the court found that an adverse co-tenant did not factually

prove constructive ouster, where the adverse co-tenant was only in actual possession of the land

from 1970 until the filing of the suit in 1987. The Evans case concerned a seventeen-year total

possession period. The teachings of these cases are that the limitations period begins to run only

after constructive ouster is established. The Evans jury was left to consider whether possession

for only seven years constituted constructive ouster. See. id. The jury found that this period of

possession was insufficient to establish a constructive ouster. Id.

Finally, the court in Spiller v. Woodard, 809 S.W.2d. 624, 629 (Tex. App. BHouston [1st

Dist] 1991, no writ) found that possession by one co-tenant from 1917 to the filing of the suit in

1985 was insufficient, because the period was interrupted by a 1953 easement granted by the

non-possessory co-tenants, and the continuous possession thereafter up until 1985 was

27 insufficient to establish constructive ouster. The court reasoned that the approximately thirty-two

year possession from 1953 to 1985 was insufficient for constructive ouster, because exclusive

possession, cultivation, and payment of taxes alone Ado not suffice to give notice of adverse

possession by a co-tenant.@ Id. (citing Horrocks v. Horrocks, 608 S.W.2d 733, 736 (Tex. Civ.

App.CDallas 1980, no writ)).

Turning to this case, for purposes of argument only the Appellees possession began no

earlier than December 31, 1994 (the effective date of the Deed granting them 9/10 undivided

interest in the 290 acre tract) (CR 1:84-92), and this suit was filed April 22, 2013. (CR 1:4-11).

The relevant period of possession continued for a period of approximately 18 years and 4

months. Because any constructive ouster must be established before the limitations period

begins to run, the following relevant periods of possession are to be considered in determining

whether the Appellees established a constructive ouster based upon the 1994 Deed: Ten-year: 8

years 4 months; Five-year: 13 years 4 months; and Three-year: 15 years 4 months.

Compared to the reported cases, all three of these relevant periods are insufficient to

provide constructive notice of ouster to the Plaintiffs under these facts. Constructive ouster is a

high bar to meet, and as the Todd court stated:

Insofar as the true owner of property is concerned, there is a vast difference between the notice of adverse claim conveyed by the presence of a stranger in possession and that of a cotenant in possession. It is not unusual for one tenant to have exclusive possession and make beneficial use of lands for rather long periods of time and ordinarily such use is with the acquiescence of the other cotenants. Todd, 365 S.W.2d at 159.

Because thirty-two years was insufficient to establish a constructive ouster in Spiller, 809

S.W.2d. at 624, the much shorter periods of eight, thirteen, and fifteen years conceivably alleged

28 by Appellees are also insufficient. Appellees cannot effectively argue that their possession,

maintenance and payment of taxes alone have constituted a constructive ouster.

6. The Murphy Lease was not an Ouster

In the alternative, the Appellees may attempt to argue that they initiated an ouster on

April 1, 2009, being the date the Appellees executed an Oil, Gas, and Mineral Lease with

Murphy Oil Company (hereinafter AMurphy Lease@). (CR 1:117-128). However, the signing of

an oil and gas lease, and the production of minerals is not, in and of itself, inconsistent with

continued recognition of a cotenancy relationship. See BP Am. Prod. Co, 342 S.W.3d at 70. This

is because each co-tenant retains the right to drill, explore, and produce from the land, owing

other cotenants an accounting for their portion of the minerals. See id. (citing Byrom v. Pendley,

717 S.W.2d 602, 605 (Tex. 1986)). In order to obtain title by adverse possession by production

of the minerals, a co-tenant must show unmistakable and hostile acts that would put other

cotenants on notice of her intent to oust them from the leasehold. See id. (citing Todd, 365

S.W.2d at 159B160). Therefore, the execution of the Murphy Lease and subsequent production

of minerals, if any, did not constitute an ouster of the Appellants. Additionally, execution and

recording of the Murphy Lease did not constitute an ouster, because language within the lease

itself acknowledged that the Appellees may not possess a 100% undivided interest in the 290

acre tract:

If this lease covers a less interest in the oil, gas, ...or other minerals in all or any part of said land than the entire and undivided fee simple estate (whether Lessor=s interest is herein specified or not), or no interest therein, then the royalties and other moneys...shall be paid only in the proportion which the interest therein, if any, covered by this lease, bears to the whole and undivided fee simple estate... (CR 1:119).

29 Therefore, the Appellees did not purport to convey the full undivided interest in and to

the mineral estate within the 290 acre tract. To the contrary, the Appellees= Murphy Lease only

purported to lease whatever ownership interest the Appellees owned in the 290 acre tract, Aif

any.@ The inclusion of a special warranty within the lease is further support for this contention.

(CR 1:127, &48). Therefore, the Appellees= Murphy Lease does not constitute a clear ouster and

repudiation by the Appellees.

The special warranty clause found in Paragraph 48 of the Murphy Lease provides as

follows: ALessor hereby warrants title to Lease premises against claims by, through or under

Lessor, but not otherwise[Y].@ The court in Dyer v. Cotton, 333 S.W.3d 703, n.2 (Tex.

App.CHouston [1st Dist.] 2010, no pet.) explained:

[u]nlike a general warranty deed, which expressly binds the grantor to defend against title defects created by himself and all prior titleholders, the grantor under a special warranty deed is bound to defend the title only against the claims and demands of the grantor and all persons claiming through him.@ Id. (emphasis supplied) (citing Munawar v. Cadle Co., 2 S.W.3d 12, 16 (Tex.App.CCorpus Christi 1999, no pet.)).

The court reasoned that, therefore, Athe recordation of the special warranty deed [by one-

cotenant] does not, by itself, provide notice to the [other] co-tenants of [the recording co-

tenant=s] adverse claim to the entire property.@ See id. The Murphy Lease, containing only a

special warranty, would not provide actual or constructive notice of an adverse claim to

7. Appellees acknowledged title in Appellants

Appellees= actions in leasing with a special warranty defeat a claim of ouster and

repudiation. Similarly, Appellees= actions after leasing to Murphy also defeat their claim of

ouster and repudiation. In January of 2012, Appellee Carleen J. Pawelek placed a telephone call

30 to Appellant Pamela Mika Wolf, acknowledging that the Appellees did not have clear title to the

290 acre tract; Appellee stated that the Appellees were seeking to obtain clear title, and

requesting that the Appellants sign a deed drafted by the Appellees= attorney so that the

Appellees could obtain clear title to the 290 acre tract. (CR 1:97). Additionally, Appellees sent

a letter to Appellants (hereinafter ADeed Request Letter@) (CR 1:96), acknowledging that

Appellees do not have Aclear title,@ and seeking to acquire the 1/10th undivided interest belonging

to the Appellants. The Deed Request Letter requested Appellants to execute a Special Warranty

Deed conveying their 1/10th undivided interest in and to the 290 acre tract to the Appellees. (CR

1:96).

In Texas, adverse possession does not exist if the claimant has acknowledged that another

person holds title to the land in question or has offered to purchase the land from the title holder

in such a way that it involves an admission of title. Wolgamot v. Corley, 523 S.W.2d 491, 495

(Tex. Civ. App.CWaco 1975, ref. n.r.e.). The Deed Request Letter both acknowledged

Appellants= title, and made an offer to acquire the land by Special Warranty Deed. (CR 1:96).

Under Texas law, acts that are consistent with, rather than repugnant to, recognition of

another=s title may thwart the adverse possessor=s claim. See Cleveland v. Hensley, 548 S.W.2d

473, 477 (Tex. Civ. App.CTexarkana 1977, no writ). The Appellees cannot purport to have

established Aclear ouster and repudiation@ during the same period they called one of the

Appellants to request a conveyance of Appellants= interest and during the same period they sent

Appellants the Deed Request Letter (CR 1:96) that (1) acknowledges Appellants= title, (2)

acknowledges that Appellees do not have Aclear title,@ and (3) requests Appellants convey their

interest by way of Special Warranty Deed. These actions are simply inconsistent with a claim of

31 ouster. The telephone call and the Deed Request Letter, however, were consistent with the

Appellants= understanding of the parties= continued co-tenancy relationship, consistent with the

Appellants= continued title to a 1/10 interest in the 290 acre tract, and were consistent with a

scenario where one co-tenant is seeking to obtain a 100% undivided interest in the land by

receiving deeds from the other owners of undivided interests. Again, however, the telephone call

and Deed Request Letter were inconsistent with a claim of >clear ouster and repudiation.=

8. No notice of ouster and repudiation

No notice, actual or constructive, of ouster or repudiation has been given to Appellants.

Notice of ouster or repudiation must be communicated to the non-possessory co-tenant either by

a declaration of the adverse claim or by acts of such unequivocal notoriety asserting the adverse

claim that the non-possessory co-tenant is presumed to have notice of the claim. Chapman v.

King Ranch, Inc., 41 S.W.3d 693, 698 (Tex. App.CCorpus Christi 2001, rev=d on other grounds,

118 S.W.3d 742 (Tex. 2003). The only actual communications Appellees had made to the

Appellants conveyed a message opposite of ouster. These communications are the January 2012

telephone call and the Deed Request Letter in which Appellants provided notice that Appellees

acknowledged Appellants title, and notice that they wished to acquire the interest by Special

Warranty Deed.

In the alternative, the Appellees contend that they somehow ousted or repudiated

Appellants because they paid the taxes on the 290 acre tract. (CR 2:427). The mere fact that one

cotenant has possession of co-tenancy property and pays the taxes on the property does not

provide adequate notice of repudiation to the other cotenants. Todd, 365 S.W.2d at 159-160.

Such notice may also be constructive when the adverse occupancy and claim of title to the

32 property is Aso long-continued, open, notorious, exclusive, and inconsistent with the existence of

title in others, except the occupant, that the law will raise the inference of notice to the cotenant

out of possession.@ Thedford, 3 S.W.3d at 612-14. However, as discussed above (see C. 5.,

supra) , a sufficient period of time has not passed for the Appellees to argue that their

possession, maintenance and payment of taxes alone have constituted constructive ouster.

9. Conclusion

Therefore, Appellees cannot establish Aclear ouster and repudiation,@ and cannot establish

notice of ouster and repudiation as required under their Three-Year, Five-Year and Ten-Year

Adverse Possession claims. As a result, Appellants are entitled to summary judgment on

Appellees= Three-Year, Five-Year and Ten-Year Adverse Possession affirmative defenses and

counterclaims. Appellants respectfully request this honorable Court to reverse and render.

D. APPELLANTS CAN DISPROVE ADVERSE POSSESSION: LIMITATIONS PERIOD

1. Appellants disprove Appellees’ Three-Year Adverse Possession

If the estoppel by deed doctrine does not apply, then Appellees must rely upon adverse

possession to claim title to 100% of the 290 acre tract. In each instance, Appellees cannot satisfy

all of the elements of the statutes.

A claimant under the three-year statute, in addition to establishing the general adverse

possession requirements for a period of three years, must prove that possession was under title or

color of title. Tex. Civ. Prac. & Rem. Code Ann. '16.024. Assuming that the execution of the

Appellees Oil and Gas Lease to Murphy, on April 1, 2009 constituted an ouster, an assumption

denied by Appellants and disproved by the evidence, the three year statute of limitation on

adverse possession would expire on April 1, 2012. Therefore, ignoring for a moment the actions

33 taken by Appellees that defeat their adverse possession claim entirely, and the reciprocal ousters

performed by Appellants which also defeat the Appellees= claims entirely, Appellees argue that

the three-year period had run, because the Oil and Gas Lease was executed on April 1, 2009, and

the Appellants filed their litigation after April 1, 2012.4 However, for the reasons stated below,

this claim must fail because Appellees simply do not have >title,= or >color of title= under the three

year statute. See Tex. Civ. Prac. & Rem. Code Ann. '16.024.

Appellees do not have >title.= >Title,= in this context, means a regular chain of transfers of

real property from or under the sovereignty of the soil. Tex. Civ. Prac. & Rem. Code Ann.

'16.021 provides that:

In this subchapter: (1) AAdverse possession@ means 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. (2) AColor of title@ means a consecutive chain of transfers to the person in possession that: (A) is not regular because of a muniment that is not properly recorded or is only in writing or because of a similar defect that does not want of intrinsic fairness or honesty; or (B) is based on a certificate of headright, land warrant, or land scrip. (3) APeaceable possession@ means possession of real property that is continuous and is not interrupted by an adverse suit to recover the property. (4) ATitle@ means a regular chain of transfers of real property from or under the sovereignty of the soil.

Additionally, the claimant must prove each link in a regular chain of transfers. Burnham

v. Hardy Oil Co., 108 Tex. 555, 195 S.W.1139, 1142 (1917). Appellees do not have a regular

chain of title. As discussed above, the 1994 Deed did not convey the interest owned by the

Prosper A. Mika Trust. See Rogers v. Ricane Enterprise, Inc., 884 S.W.2d 763, 768-9 (Tex.

1994) (holding that an instrument signed by the president of a company in his individual capacity

4 If the April 1, 2009 grant of the Murphy Lease is deemed an ouster, neither the 5 year nor the 10 year limitations periods can prevail.

34 did not purport to convey any interest belonging to company itself). As discussed above, the

Appellees acknowledged this fact in the Deed Request Letter conceding they do not have >clear

title= and requesting a Special Warranty Deed. Appellees do not have a deed conveying them the

interest attributable to the Prosper A. Mika Trust. Therefore, Appellants have conclusively

proven that Appellees simply do not have >title= within the meaning of Tex. Civ. Prac. & Rem.

Code Ann. '16.021(4).

Appellees do not have >color of title.= Additionally, Appellants can conclusively prove

that Appellees do not have >color of title.= Tex. Civ. Prac. & Rem. Code Ann. '16.021(2)

expressly limits >color of title= to a consecutive chain of transfers that is irregular because of a

Amuniment that is not properly recorded, or only in writing, or because of a similar defect that

does not want of intrinsic fairness or honesty,@ or Aa chain of transfers that is based on a

certificate of headright, land warrant, or land scrip.@ Appellees= only claim to title is the 1994

Deed, where Irene Mika did not purport to convey any interest of the Prosper A. Mika Trust.

The 1994 Deed does not fulfill the other statutory definitions for >color of title= either, because it

is properly recorded, and is in writing. Additionally, the 1994 Deed does not have an intrinsic

defect, and there is nothing intrinsically unfair or dishonest regarding a trustee refraining from

conveying interests which she holds in trust. O'Neil, 470 S.W.2d at 779 Finally, the 1994 Deed

is not a certificate of headright, a land warrant, or a land scrip. Therefore, the Appellees cannot

establish >color of title= under Tex. Civ. Prac. & Rem. Code Ann. '16.024.

Appellants have disproved as a matter of law at least one element of Appellees=

affirmative defense, being >title,= and/or >color of title.= As a result, Appellants are entitled to

judgment denying Appellees= claim for Three-Year Adverse Possession.

35 Further, assuming that the Murphy Lease is an ouster of Appellants and recognizing that

the Murphy Lease is a deed to the oil and gas in place, Murphy Exploration and Production

Company USA has not possessed the mineral estate for three years prior to April 22, 2013, the

filing date of the Original Petition. (CR 1:4-11). In Texas, it has long been recognized that an oil

and gas lease grants a fee simple determinable interest in the minerals to the Alessee,@ who is

actually a grantee. See W.T. Waggoner Estate v. Siegler Oil Co., 19 S.W.2d 27, 28-29 (Tex.

1929), Concord Oil Co. v. Pennzoil Exploration and Production Co., 966 S.W.2d 451, 460 (Tex.

1998); Cherokee Water Co. v. Forderhause, 641 S.W.2d 522, 525 (Tex. 1982).

On April 1, 2009, Appellees executed the Murphy Lease. (CR 1:117-128). Therefore, the

Murphy Lease severed the minerals and surface of the 290 acre tract as to the 9/10 undivided

interest owned by the Appellees. However, if the Appellees argue that the Murphy Lease covers

and includes 100% of the 290 acre tract, then by its very nature, Appellees also argue that the

Murphy Lease purported to sever the surface and mineral estates as to 100% of the 290 acre

tract.

In Texas, in order to mature title by limitations to a severed mineral estate, possession of

the surface is insufficient; actual possession of the minerals must occur. Natural Gas Pipeline

Co., 124 S.W.3d at 194-195 (citing Hunt Oil Co. v. Moore, 656 S.W.2d 634, 641 (Tex.

App.CTyler 1983, writ ref'd n.r.e.). In the case of oil and gas, actual possession of minerals

means drilling and production of oil or gas. Id. In other words, once the minerals have been

severed from the 290 acre tract, adverse possession of the 290 acre tract=s mineral estate can only

be perfected by production from the 290 acre tract. Id. Because Appellees granted Murphy a fee

simple determinable in the severed mineral estate, Murphy is a party in privity of estate with

36 Appellees, and in order to establish its case of adverse possession to the severed mineral estate in

the 290 acre tract, the Appellees must establish that Murphy has adversely possessed the mineral

estate in the 290 acre tract for the applicable limitations period.

Appellants refer to Exhibits N and O to Appellants/Plaintiffs Traditional and No-

Evidence Motion for Summary Judgment, the Form W-1(s), entitled AApplication for Permit to

Drill, Recomplete or Re-Enter,@ executed by Murphy. (CR 1:133-149). The trial court struck this

evidence, but they are relevant to the issue of adverse possession of the mineral estate under the

290 acre tract. Appellants request that the Court reverse the trial court’s ruling to strike the

exhibits and consider the W-1(s). The Texas Railroad Commission rules require that AOperations

of drilling, deepening, plugging back, or reentering shall not be commenced until the permit has

been granted by the commission and the waiting period, if any, has terminated, or authorization

has been granted pursuant to subsection (d) of this section.@ 16 Tex.Admin.Code, '' 3.5(b-d)

(2013). Exhibits N and O are executed by Murphy for the Whitfield Unit East and the Whitfield

Unit West. The 290 acre tract is located in both of these units. (CR 1:133-149). Exhibit N is

dated October 22, 2012, and was approved October 26, 2012. (CR 1:133, 139, App. E). Exhibit

O is dated November 22, 2011, and was approved on November 29, 2011 (CR 1:140, 145, App.

F).

Therefore, even if the Appellees argue that Murphy began drilling and production on the

earliest date the Texas Railroad Commission approved a Form W-1, Exhibit O, an assertion that

is highly unlikely and a point with which Appellants strongly disagree, it is of record that

Murphy did not begin actually possessing the mineral estate of the 290 acre tract by drilling and

production until, at the very earliest, November 29, 2011. Therefore, at the most, only one (1)

37 year, four (4) months, and twenty-four (24) days passed before Appellants filed this lawsuit on

April 22, 2013. There is no issue of material fact with regard to the failure of Murphy

Exploration and Production Company USA to ripen title to the mineral estate under the 290 acre

tract by satisfaction of the shortest limitations period.5

Further, Appellants contend that all limitations periods are tolled by reciprocal ouster.

Assuming, which is specifically denied by Appellants, Appellees did oust the Appellants on

April 1, 2009, several actions of Appellants constituted a reciprocal ouster, thereby cutting off

the Appellees= adverse possession period. In Texas, A[i]t is settled that an ouster [against an

adverse possessor] need not be complete. It is sufficient if it interrupts the exclusivity of the

holding by the adverse possessor.@ West End API Ltd. v. Rothpletz, 732 S.W.2d 371, 377 (Tex.

App.CDallas 1987, writ ref=d n.r.e.).

Once adverse possession commences, the holder of legal title may interrupt that

possession and prevent the possessor from maturing his claim, either by (1) filing suit or (2) by

ouster. An ouster need not be complete provided it interrupts the exclusivity of the holding by

the adverse possessor. It is equally well settled that Ato constitute an interruption of an

occupant's adverse possession, an entry by the owner ... must clearly indicate that the occupant's

possession is invalid and his right challenged. It must be open and notorious and bear on its face

an unequivocal intention to take possession. It cannot be accidental, casual, secret, or

permissive.@ Kirby Lumber Corp. v. Smith, 305 S.W.2d 829, 830 (Tex. Civ. App.--Beaumont

5 Appellants refer this honorable Court to CR 1:150-156 , a certified copy of that certain Assignment of Oil and Gas Leases dated effective May 21, 2013, by and between West 17th Resources, LLC, as Assignor, and Murphy Exploration & Production CompanyBUSA, as Assignee, conveying the Oil and Gas Leases executed by the Appellants, and acknowledged by both West 17th and Murphy. Murphy has already acknowledged the Appellants= title in and to the 290 acre tract, and has already resolved the current issue with the Appellants. Therefore, Murphy was not included as a party in this title case.

38 1957, writ dism'd). The conduct relied upon by an owner as constituting an interruption of the

adverse party's possession must be such that it would put an ordinary person on notice that he

actually has been ousted. American National Bank of Beaumont v. Wingate, 266 S.W.2d 934,

945 (Tex. Civ. App.CBeaumont 1953, writ ref'd n.r.e.); West End API Ltd. v. Rothpletz, 732

S.W.2d 371, 377 (Tex. App.BDallas,1987 writ ref=d n.r.e.).

The following actions by Appellants, each standing on its own, constituted an ouster of

Appellees, cutting off their limitations period, if any, to wit:

Appellants advised Appellees= attorney in a February 2012 telephone call that Appellants refused to convey their interest by Special Warranty Deed as requested in the Deed Request Letter. Appellants gave notice of their continued claim to ownership of their 1/10 undivided interest in the 290 acre tract. This constituted a reciprocal ouster. (CR 2:351-353).

Additionally, by refusing to execute the Special Warranty Deed, Appellants rejected the Appellees= request in the Deed Request Letter to convey their interest by Special Warranty Deed in February 2012. This gave notice that the Appellants continued to claim exclusive ownership of their 1/10 undivided interest in the 290 acre tract. (CR 1:351-353).

Pamela Mika Wolf executed an Oil and Gas Lease on January 5, 2013 to West 17 th, which is recorded in Volume 1095, Page 22 of the Official Records of Karnes County, Texas, covering and including her 1/20th undivided interest in the 290 acre tract. (CR 1:109-112).

Thomas Mika executed an Oil and Gas Lease on January 5, 2013 to West 17th, which is recorded in Volume 1095, Page 18 of the Official Records of Karnes County, Texas covering and including his 1/20th undivided interest in the 290 acre tract. (CR 1:113- 116).

Appellants= counsel sent a demand letter to Appellees= counsel on June 13, 2013, demanding that Appellees quit possession of Appellants 1/10 undivided interest in and to the 290 acre tract. (CR 1:96).

Appellants have conclusively disproved the requisite statutory limitations period for the

three-year limitations period, the five-year limitations period, or the ten-year limitations period.

39 As a result, Appellants are entitled to judgment on Appellees= affirmative defenses and

counterclaims for the three-year, five-year and ten-year adverse possession claims. In the

alternative, Appellants are entitled to a remand for determination of whether their acts of ouster

put Appellees on notice of Appellants claims to title.

2. Appellants disprove Appellees= Five-Year Adverse Possession

The Five Year Adverse Possession claim must be a >claim of property under a duly

registered deed.= A claimant under the five-year statute, in addition to establishing the general

adverse possession requirements for a period of five years, must prove the claimant (1) claims

the property under a duly registered deed, (2) pays the taxes on the property, and (3) cultivates,

uses, or enjoys the property. Tex. Civ. Prac. & Rem. Code Ann. '16.025(a). The adverse

possessor must meet all of these requirements throughout the entire five-year limitation period; a

claim for title by adverse possession fails if there is a gap in satisfying any of the requirements.

Pinchback v. Hockless, 158 S.W.2d 997, 998 (Tex. 1942).

Appellees are not in possession of the 290 acre tract >under a duly registered deed.= As

described above, the 1994 Deed does not purport to convey any of the interest attributable to the

Prosper A. Mika Trust, under which Irene Mika was acting as Trustee. The Appellees cannot

claim to have received the property under a duly registered deed, because there is no deed of

record from a trustee of the Prosper A. Mika Trust or its successors to Appellees, and Irene

Mika=s signature in her individual capacity is insufficient.

Appellants are entitled to judgment on Appellees= affirmative defense and counterclaim

under the Five-Year Adverse Possession statute. Appellants have disproved, as a matter of law,

at least one element of the affirmative defense, i.e. a claim under a duly registered deed.

40 3. Appellants disprove Appellees= Ten-Year Adverse Possession

Appellees do not have ten years of continuous, open, exclusive, adverse and notorious

possession of the 290 acre tract after notice of ouster. First, Appellants contend that no ouster

has occurred since February 4, 2003, the date upon which they became fully vested with the

surface and mineral estates. Second, if Appellees claim that their Along continued@ possession of

the surface is notice of ouster, then Appellants note that the so-called Along continued@

possession does not rise to the level of the long, continued possession documented in the

reported cases. A continuous period of ten years after an ouster has not expired in this case.

Finally, the acknowledgment of title in the January 2012 telephone call and the Deed Request

Letter negate the intent to adversely possess the 290 acre tract.

4. Appellees are Estopped from Claiming Adverse Possession

Appellees are estopped from claiming title by adverse possession. To prove the defense

of quasi-estoppel, a party must establish (1) the opponent acquiesced to a transaction or accepted

a benefit from a transaction, (2) the opponent=s present position is inconsistent with the position

it held earlier when it acquiesced to the transaction or accepted a benefit from the transaction,

and (3) it would be unconscionable to allow the opponent to maintain its present position, which

is to another=s disadvantage. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864

(Tex. 2000).

a. Appellees acquiesced or accepted a benefit

As a result of Appellees February 22, 2012 Letter (CR 1:96), and the phone call from

Carleen J. Pawelek (CR 2:351-353), the Appellants were reasonably lead to believe that the

Appellees were recognizing Appellants= title to the 1/10 undivided interest in and to the 290 acre

41 tract. As a result of this reasonable belief, Appellants did not immediately file suit, though they

had such a legal right. In addition, the Appellees accepted the benefits from this fact, because

they are now claiming that while Appellants were relying on the statements contained in

Appellees= earlier letter, Appellees were purportedly counting the clock on the limitations period.

As a result, Appellees have acquiesced to a transaction or accepted a benefit from a transaction.

The benefit being the unexercised right of Appellants to file suit in 2012, which they delayed due

to the reasonable belief that Appellees had recognized and acknowledged Appellants= title to the

1/10 undivided interest.

b. Inconsistent positions

Appellees= present position is inconsistent with its earlier position. In both the telephone

call from Carleen J. Pawelek, and the Deed Request Letter, the Appellees recognized Appellants=

record ownership in and to the 290 acre tract. (CR 1:96). However, in Appellees= pleadings in the

underlying litigation, they have claimed that Appellants never had ownership of the 290 acre

tract, and that, in fact, Appellees were counting down the clock on the applicable limitations

period, a point with which Appellants strongly disagree. Therefore, the Appellees= present

position is inconsistent with its earlier position.

c. Unconscionability

It would be unconscionable to allow Appellees to maintain their present position.

Appellants relied on the Appellees= earlier representation that they were seeking Special

Warranty Deeds, and that they were recognizing Plaintiff=s title to the 290 acre tract. Had the

Appellees sent a letter with the opposite tone, Appellants would have been on notice that the

Appellees were ousting and repudiating Appellants co-tenancy right to the 290 acre tract.

42 Appellants could have then immediately filed suit. However, Appellants relied on Appellees=

representations that they were recognizing Appellants title, and were seeking a conveyance of

Appellants’ undivided interest. First, Appellants contend that Appellees cannot establish the

requisite statutory limitations periods. Additionally, however, it would be unconscionable to

allow the Appellees to claim they have established the requisite statutory limitations periods.

IV. CONCLUSION

Appellants and Appellees are co-tenants in the 290 acre tract. The 1994 Deed did not

convey the undivided 1/10th interest held in trust. Appellees cannot use the estoppel by deed

doctrine to supply the missing grantor, the trust. Appellees ask this Court to read provisions into

the 1994 Deed that are not found within the four corners of the 1994 Deed. The undivided

1/10th interest was never conveyed to Appellees. Appellees had two years under Texas law to

correct the alleged oversight. Appellees are barred from doing so now. Appellees are also

barred from seeking reformation of the 1994 Deed. Appellants request this Court to reverse and

render the trial court’s use of the estoppel by deed doctrine in this case.

If Appellees cannot claim conveyance of the undivided 1/10th interest in the 290 acre

tract by the 1994 Deed, Appellees can only claim title to this undivided 1/10th interest by

adverse possession. Appellants and Appellees are co-tenants in the 290 acre tract by and through

the Will of Felix Mika and the 1994 Deed. The required elements of adverse possession of one

co-tenant against another include ouster and repudiation in addition to the elements of adverse

possession.

In addition, the limitation periods for adverse possession do not accrue against

remaindermen until they come into possession. Limitation periods against the life tenant are not

43 counted against the remaindermen. The Prosper A. Mika Trust created a life estate in Irene Mika

with the remainder to the Mika Appellants. Any claimed adverse possession during the life of

Irene Mika is not counted against the Appellants.

If Appellees cannot claim conveyance of the undivided 1/10th interest in the 290 acre

tract by the 1994 Deed, then Appellees cannot claim under the three year and five year adverse

possession statutes. Both the three year and five year adverse possession statutes require color of

title or a registered deed. Appellees have neither color of title nor a registered deed to this

undivided 1/10th interest.

While Texas courts do recognize constructive ouster and repudiation, the time periods

found in the reported cases are much longer than the conceivable time periods in this litigation.

Since Appellees went into possession on February 1, 1995, the period for a constructive ouster,

as stated in the reported cases, is only now apparent. The teachings of these cases is that the

requisite limitations period must run beyond the constructive ouster time period for title to ripen

in the adverse possessor. In this case, the teachings of those cases would be that title does not

ripen in Appellees until 2025.

Since February 2003 when the life estate ended, there has been no ouster of Appellants

from the 290 acre tract. The April 1, 2009 Oil & Gas Lease to Murphy by Appellees is not

considered an ouster. Murphy is in possession of the mineral estate, but Murphy has not

produced oil and/or gas from the 290 acre tract for a time period of three years, five years or ten

years before Appellants filed suit. Murphy has not adversely possessed Appellants undivided

1/10th interest in the 290 acre tract.

Appellants assert that the January 2012 telephone call from Appellees to Appellants and

44 Attorneys for Appellants, West 17th Resources, LLC Thomas Mika, Pamela Mika Wolf

46 LIST OF APPENDICES

Appendix A 1994 Deed Recorded in the Official Records of Karnes County, Texas

Appendix B Exhibit E-1 to Plaintiffs’ Motion for Summary Judgment: 1992 Warranty Deed Recorded in the Official Records of Hays County, Texas

Appendix C Exhibit I to Plaintiffs’ Motion for Summary Judgment: Certified copy of Oil and Gas Lease executed on January 5, 2013 from Pamela Mika Wolf to West 17th and recorded in Volume 1095, Page 18 of the Official Records of Karnes County, Texas

Appendix D Exhibit J to Plaintiffs’ Motion for Summary Judgment: Certified copy of Oil and Gas Lease executed on January 5, 2013 from Thomas Mika to West 17th and recorded in Volume 1095, Page 18 of the Official Records of Karnes County, Texas

Appendix E Exhibit N to Plaintiffs’ Motion for Summary Judgment: Certified copy of the Form W-1 for Murphy Exploration & Production Company USA Whitfield East Unit Well No. 1 H

Appendix F Exhibit O to Plaintiffs’ Motion for Summary Judgment: Certified copy of the Form W-1 for Murphy Exploration & Production Company USA Whitfield West Unit Well No. 1 H

Appendix G Exhibit P to Plaintiffs’ Motion for Summary Judgment: Certified copy of Assignment of Oil and Gas Lease dated May 21, 2013 by and between West 17th Resources, LLC and Murphy Exploration and Production Company