In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-24-00264-CV
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WILLARD J. HALL JR., INDIVIUDALLY AND AS TRUSTEE OF THE WILLARD HALL JR. TRUST, Appellant
V.
AMERICOMMERCE HOLDINGS, LLC AND AMERICOMMERCE, LLC, Appellees
________________________________________________________________________
On Appeal from the 58th District Court Jefferson County, Texas
Trial Cause No. A204527
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MEMORANDUM OPINION
Appellant Willard J. Hall Jr., Individually and as Trustee of The Willard Hall Jr. Trust (collectively referred to as “Hall”) challenges the trial court’s Final Judgment awarding Appellees AmeriCommerce Holdings, LLC and AmeriCommerce, LLC (collectively “AmeriCommerce”) superior title to two sections of property that Hall contends he claimed by adverse possession. In issue
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one, Hall argues the trial court erred in granting a partial direct verdict awarding AmeriCommerce superior title to the 15-foot strip of property (hereafter referred to as “the strip”) because the evidence created a fact issue as to whether he adversely possessed the strip through the open and continuous placement of traffic cones. In issue two, Hall complains that the jury’s finding that he did not adversely possess the fenced area for a period over ten years is against the great weight and preponderance of the evidence. In issue three, Hall argues the trial court erred in denying his Plea to the Jurisdiction based on laches because AmeriCommerce’s predecessors delayed in asserting its rights. In issue four, Hall contends the trial court erred in its findings, conclusions, and Final Judgment by awarding AmeriCommerce superior title to the strip and fenced area and by declaring Hall’s Correction Deed void. For the reasons explained below, we affirm the trial court’s judgment.
BACKGROUND
This case involves a dispute between neighboring property owners–Hall and AmeriCommerce–concerning two sections of property in downtown Beaumont, Texas. Hall owns 278 Pearl Street, the building on the left below. AmeriCommerce owns 268 Pearl Street, the building on the right below, as well as 296 Pearl Street, the empty lot on the left below.
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AmeriCommerce’s empty lot at 296 Pearl Street previously contained a building (hereafter referred to as “the Johns Building”) that was demolished in 2008.
The parties’ first dispute concerned a fenced area behind Hall’s and AmeriCommerce’s adjoining buildings, which is depicted below.
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After the demolition of the Johns Building, Hall installed the wooden fence with brick posts to protect the back of his property because thieves had stolen his air conditioning units. In the 1980s, Hall’s father installed the chain link fence located to the left of the wooden fence, and that fence contained barbed wire, a locked gate, and a “Private Property” sign. Prior to trial, the trial court granted AmeriCommerce temporary relief and allowed it to put air conditioning units inside the fenced area with the “Private Property” sign.
The parties’ second dispute concerned the strip adjoining 278 and 296 Pearl Street, which was formerly the site of an external stairwell that adjoined Hall’s
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building at 278 Pearl Street (hereafter referred to as “the Hall Building”) and the Johns Building. The strip is located in AmeriCommerce’s empty lot at 296 Pearl Street (hereafter referred to as “the empty lot”), and the survey below depicts the strip as the red line between the Hall Building and the empty lot. The red area on the survey depicts Hall’s fenced area’s encroachment on the empty lot. The empty lot continues behind the Hall Building and connects to AmeriCommerce’s building at 268 Pearl Street (hereafter referred to as “the AmeriCommerce Building”). The yellow area below depicts Hall’s fenced area’s encroachment on the AmeriCommerce Building.
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Below is a picture of the strip with the cones Hall placed there to put the world on notice that he was adversely possessing the strip.
In September 2019, AmeriCommerce filed suit against Hall and obtained a temporary restraining order ordering Hall to remove the cones on the strip and anything else he had placed outside the fenced area on the empty lot. AmeriCommerce’s causes of action included a declaratory judgment and trespass to
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try title, and AmeriCommerce sought a judgment awarding it superior title and denying Hall’s adverse possession claim. Hall filed an Answer generally denying AmeriCommerce’s allegations, asserting among other things, that as trustee of The Willard Hall Jr. Trust (“the Trust”) he adversely possessed some of the property, AmeriCommerce’s claims to possession or ownership were barred by the applicable statute of limitations, and the affirmative defense of laches. Hall filed a counterclaim and asserted that as trustee of the Trust he obtained ownership of the Hall Building by deed dated July 1, 2019, from himself and that a Correction Deed filed on August 22, 2019, includes a corrected legal description showing he acquired by adverse possession certain additional property–the strip and fenced area–adjacent to his building. Hall asserted that he had adversely possessed the property at issue for a period of more than ten years.
Hall alternatively pleaded that the Johns Building’s stairwell easement reverted to his ownership under color of title when the building was demolished. Hall filed a Trial Amendment asserting that his adverse possession counterclaim under color of title, which has a three-year statute of limitations, had been tried to jury without objection. Hall argued that he had perfected title by adverse possession by having used and enjoyed the strip for more than ten years.
Hall filed a Motion for Summary Judgment on his adverse possession claims based on limitations and color of title. The trial court denied Hall’s Motion for
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Summary Judgment. Hall filed a Plea to the Jurisdiction on laches. The trial court conducted a jury trial, during which the jury heard testimony from Edward Wayne Sturrock (“Sturrock”), the owner of AmeriCommerce, Hall, and David Brian Austin (“Austin”), the previous owner of the AmeriCommerce Building.
Sturrock testified that AmeriCommerce bought the AmeriCommerce Building from Austin on May 15, 2019. On September 10, 2019, AmeriCommerce purchased the empty lot that connected to the back of the AmeriCommerce Building from Stonefield Investment Fund II (“Stonefield”). Prior to purchasing the AmeriCommerce Building, Sturrock talked with Austin, reviewed Austin’s drawings and surveys, and conducted his own survey. Sturrock testified that “part of the property there’s an enclosed area in the back. There’s a fence that - - the hurricane fence there essentially sits on the property line that - - that is the backside of the building.” Sturrock explained that his property line goes right through somewhere where that brick column of the wooden fence is located as shown on Plaintiff’s Exhibit 8. Sturrock walked the property with Austin multiple times and discussed the location of the air conditioning units and the water, which were both inside the fenced area, and Austin stated that he owned the fenced area which had shared access. Sturrock testified that Austin said he had a key to the fenced area and could access it anytime they needed, and Austin mentioned the air conditioning units had been stolen before.
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After Sturrock began construction on the AmeriCommerce Building, he learned that Hall claimed ownership to the fenced area located on AmeriCommerce’s property and refused to allow AmeriCommerce access. Sturrock explained that he also purchased the empty lot where the Johns Building was demolished and paid the taxes for the empty lot, which is where the strip is located. Sturrock testified that it was “very clear that Mr. Hall did not pay taxes on the property.” Sturrock explained that Stonefield, the previous owner, did not pay the taxes or demolition lien on the empty lot, and Sturrock was successful in getting the City of Beaumont to waive the demolition lien so he could develop the property. Sturrock stated there “was no indication[]” that Hall claimed to own the strip located on the empty lot. Sturrock testified that if Hall had owned the strip on the empty lot, Hall “shouldn’t be sticking the city with the taxes of . . . that property.”
Sturrock testified that Hall did not maintain the Hall Building, which is in disrepair, and that “there’s all kinds of problems with things kind of falling down right where that wall is.” Sturrock explained that “[t]here were occasionally like cones” on the strip, and Sturrock stated that to him or anybody else the temporary cones were there to warn of something, which was “very clearly the falling debris that had piled up along the line of the wall[]” that “was potentially a safety concern.” Sturrock stated that when he didn’t see the cones, he assumed someone had taken them, the wind had blown them over, or something along those lines. Sturrock first
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learned that Hall was using the cones to claim ownership of the strip after he and Hall had the dispute about the fenced area during his construction on the AmeriCommerce Building. Sturrock testified that when he asked artificial intelligence (“AI”) what the cones would signify, AI stated, “that they’re a temporary barrier and that they could never mark something as permanent.” Sturrock explained a picture of the strip showed five temporary cones on the strip, and Sturrock believed the cones, in almost all circumstances, “mean caution, you know, that you should be careful and if you choose to walk through the very large gaps between the cones, that - - you know, that you may be in danger.” Sturrock thought the cones might indicate a “tripping hazard of some sort.”
Sturrock also took pictures of Hall spraying purple spray paint on the strip, and Sturrock believed it was “either [an] old wive[]s’ tale law or real law that nobody can currently find, purple could potentially demarcate private property[.]” Sturrock drew AmeriCommerce’s logo through the purple line to break the line if the law was real. Sturrock explained that after Hall continued to disrupt his construction efforts on the AmeriCommerce Building and refused access to the fenced area, Sturrock attempted to resolve the dispute by having his attorney send Hall a letter requesting immediate and permanent access to the fenced area, which Sturrock maintained that AmeriCommerce owned. Sturrock filed suit against Hall, and the trial court granted AmeriCommerce temporary relief allowing AmeriCommerce to access the fenced
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area and ordering Hall to remove the cones he placed on the strip. Sturrock explained he continued his construction efforts, including installing air conditioning units in the fenced area.
Sturrock testified that the fenced area is not exclusive because both AmeriCommerce and Hall have access, and so did Austin when he owned the property because the prior air conditioning units that were stolen were in the fenced area. Sturrock explained that access to the fenced area was necessary to maintain the AmeriCommerce Building, and that is why he purchased the empty lot because it joined his properties in the back allowing him to service his building. Sturrock disputes Hall’s adverse possession claim of the strip, which is part of Sturrock’s plan to build a parking lot or another building. Sturrock explained that in 2020, AmeriCommerce, LLC transferred ownership of the AmeriCommerce Building and the empty lot to AmeriCommerce Holdings, LLC, which is currently known as Pretzelbots 268, LLC.
Sturrock agreed that he did not personally speak with Hall about the fenced area prior to or right after purchasing the AmeriCommerce Building. Sturrock agreed that prior to the purchase, he observed the fenced area had a gate and no trespassing sign, but he understood that Austin owned the fenced area. Sturrock explained that he gave Austin approximately $200,000 in AmeriCommerce stock in exchange for the building. In addition to talking with Austin about the AmeriCommerce Building,
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Sturrock also reviewed the survey and printout from the Jefferson County Appraisal District, obtained a title policy, and validated that Austin paid the tax records. AmeriCommerce had a survey of the AmeriCommerce Building and a survey of the empty lot which included the AmeriCommerce Building.
Sturrock testified that Austin owned part of the fenced area, had shared access to the fenced area, and both Austin and Hall had consumed part of the empty lot when Stonefield owned it to work on their buildings. Sturrock explained that prior to AmeriCommerce purchasing the properties, Stonefield owned the majority of the fenced area that was located on the empty lot, and Austin owned a significant portion of the fenced area that is important to the operation of the AmeriCommerce Building. Sturrock testified that Hall only owns about two feet behind the Hall Building and that the gate of the fence that has a “Private Property” sign was on Austin’s property. Sturrock testified that the “Private Property” sign is on AmeriCommerce’s private property. Sturrock explained that the fenced area was just a backyard where the air conditioning units, electrical service, and other vital areas of the buildings were located. Sturrock testified that Hall used the fenced area for maintaining the Hall Building and had had a table in the area as well.
Sturrock knew that at some point Austin and Hall had “bad blood” in the middle of their agreement that changed their relationship, but he did not know at what times Austin had a key or access to the fenced area. Sturrock did observe that
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the gate was left unlocked multiple times, and he had his attorney send Hall a letter to be cordial and gain access to the shared fenced area Hall had locked. Sturrock testified that Austin had lost the key to the gate of the fenced area.
Concerning AmeriCommerce’s purchase of the empty lot, Sturrock explained that he had no knowledge of the dealings between Hall and Stonefield and did not know if Stonefield gave Hall permission to put up the fence. It was Sturrock’s understanding that Stonefield asserted its property line. Sturrock agreed that Hall had put the temporary cones on the strip prior to AmeriCommerce purchasing the empty lot in September 2019. Sturrock also agreed that Google Map pictures taken in December 2011, January 2012, June 2016, and May 2018, showed the cones were present, and Sturrock testified that he also observed rocks, glass, and other “kinds of stuff on the ground[]” in the Google Map pictures. Other than what Austin had reported to him, Sturrock did not have personal knowledge of the condition of the empty lot from 2008 until Sturrock started looking to purchase it in late 2018. Sturrock had no evidence that prior to 2018 the cones were not on the strip for a lengthy period.
Sturrock knew that the Johns Family had owned the empty lot where the Johns Building was demolished, and he agreed that Theodore R. Johns Sr. (Johns), an attorney, sent Hall a letter on April 2, 2008, asking Hall to refrain from placing any chattel, appendages, or other property upon the empty lot that would in effect
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encroach or adversely affect the boundary lines, access, or egress of said property or attempt to acquire to create any easements. Sturrock agreed that the Johns’s letter included the fenced area, and that if the evidence showed Hall put the fence up in April 2008, Hall would have done so in direct contradiction to the letter’s instructions. Sturrock was unsure if the cones would have met the language in the letter to affect the boundary line.
Two or three weeks before AmeriCommerce purchased the empty lot, Sturrock checked the deed records, and after June 2019, he knew that Hall had filed a deed transferring the Hall Building to the Trust. Sturrock also knew that Hall had filed a Correction Deed and self-described the property to include the fenced area and strip that Hall claimed ownership to, and that the Correction Deed was filed after the disputes occurred because Hall “was trying to - - to make his own case.” Although Sturrock knew about the Correction Deed, he did not think it was valid because he and Hall were already in the lawsuit.
Hall, an attorney, explained that he purchased the Hall Building from his mother in 2006. Hall testified that the Johns Building was demolished in 2008. Concerning the fenced area, Hall explained that he put up the wooden fence with the brick posts after the Johns Building was demolished to protect the back of his property because thieves had stolen his air conditioning units. After Hall put up the fence, he told Austin the fence was to protect both their properties and asked Austin
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to pay half of the cost. When Austin declined to pay, Hall stated that he told Austin that he was not going to allow Austin access to the fenced area, and he told Austin that Austin had an easement to the fire escape attached to Austin’s building if Austin maintained it. Hall testified that he told Austin that the fenced area belongs to Hall, Austin would be locked out, and Austin had ten years to kick Hall out or the fenced area would revert to Hall. Hall claimed that Austin never came into the fenced area, and Hall never gave Austin a key to the fence with barbed wire and a locked gate that Hall’s father put up in the 1980s. Hall told Austin he would have to ask permission to access the fenced area. After a 2008 hurricane blew the fence down and the cones on the strip away, Hall promptly rebuilt the fence and claimed that the “No Trespassing, Keep Out” sign on the fence remained throughout the period he claimed to adversely possess the property.
Hall explained that the trial court allowed Sturrock to put his air conditioning units inside the fenced area with the “Private Property” sign. Hall testified that he was seeking a declaration that the fenced area belonged to him by the law of adverse possession and intended to have Sturrock move his three air conditioning units. From 2008 to May 2019, Hall and his staff continuously used and maintained the fenced area, which had an umbrella and picnic table, but Hall claimed it became uninhabitable after Sturrock installed his air conditioning units. Hall testified that the Johns Family did not give him permission to put up the fence and he adversely
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possessed the portion of the fenced area in the empty lot that the Johns Family previously owned.
In July 2019, Hall transferred the Hall Building to the Trust, which his mother created, to pay back money he had borrowed from the Trust in 2017. In August 2019, Hall filed the Correction Deed, which was on file prior to AmeriCommerce purchasing the empty lot, and included the fenced area and strip he claimed to have acquired by adverse possession. Hall explained that AmeriCommerce bought the AmeriCommerce Building from Austin in 2019, and prior to that time, the building was empty, not well maintained, and occupied by vagrants at one point. The Correction Deed includes the Affidavit of Reverand William Roberts, who averred that from September 2008 until October 2018, Hall adversely possessed the fenced area and the strip by using fencing, keep out or no trespassing signs, and traffic cones. Hall testified that AmeriCommerce filed its suit more than ten years after he put up the fence and locked the gate.
Hall explained that after the Johns Building was demolished in 2008, the external stairwell between the Hall Building and the Johns Building was removed, causing him to lose access to the third floor of his building and install a trap door from the second to third floor. Hall testified that the strip is located where the stairwell had been, and he wanted the option to be able to install a new stairwell to access his third floor. Hall explained that the Hall Building had shared a wall with
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the demolished Johns Building and the stairwell was part of a party wall agreement. Hall testified that in 1919, the two buildings were sold and the Johns Family’s predecessors who bought the Johns Building received a deed that did not contain conveyance language; instead, the deed provided that the partition brick wall between the building and the stairway entrance “are to remain as they are now for the . . . common use as now used of both parties benefitted thereby, during the life of the building now standing on the property herein conveyed.” The deed further states, “TO HAVE AND TO HOLD the above[-]described premises, together with all and singular the rights and appurtenances thereto in anywise belonging [] unto” the Johns Family’s predecessors.
Hall testified that the deed his predecessors received for the Hall Building contained conveyance language that states, “together with all of the rights in the party wall agreement as to adjoining walls and stairway easement provided for in deed of even date herewith[,]” and the deed further states, “TO HAVE AND TO HOLD the above described premises, party wall rights and easements, together with all and singular the rights, privileges, powers, and appurtenances thereto in anywise belonging” unto the Johns Family’s predecessors. Hall claimed that the conveyance language in his predecessors’ deed conveyed the right to the stairwell and the easement to Hall and his predecessors back in 1919, and that when the Johns
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Building was torn down, the stairwell easement automatically reverted to Hall because he had no access to his third floor.
Hall stated that the strip was extremely necessary to access the third floor of his building, and he put the cones on the strip right where the stairwell was located after the Johns Building was demolished to put the world on notice that he was adversely possessing the strip. Hall’s evidence proving the cones were continuously on the strip include pictures showing the cones on the strip in 2008, 2011, 2012, 2016, 2018, and 2019. Hall testified that for a day or two the cones would occasionally be blown over by a storm, moved by skateboarders, or disappear, but that he would put the cones back in place and maintained the cones continuously from 2008. Hall testified that he also maintained the strip and used the strip to maintain his building and to “[q]uite frequently[]” load and unload items, which was “real quick, real easy, very necessary.” Hall never observed anybody disregard the cones, which were visible. Hall testified that he exclusively used the strip.
Hall testified that the back of the Hall Building was completely exposed after the Johns Building was demolished, and Hall told the Johns Family that he wanted to fence some of the property. Hall explained that the April 2008 letter Johns sent advised him not to put anything on the empty lot, but Hall fenced some of the empty lot, put cones on the strip, and told the Johns Family that they had ten years to kick
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him out. Hall claimed that neither the Johns Family nor Stonefield, which acquired the empty lot from the Johns Family, ever tried to kick him off the empty lot.
David Brian Austin, the prior owner of the AmeriCommerce Building, testified that Hall called and told him that Austin’s air conditioning unit had been stolen, and Hall asked if he could put up a fence and gate to protect Hall’s air conditioning unit and other items. Austin stated that Hall told him that Austin would have a key and access to the fenced area. Austin stated that Hall did not give him an invoice or ask him to pay for the fence or gate or tell Austin that he was taking Austin’s property and that Austin had ten years to kick him out. Hall only asked for Austin’s permission to put up the fence. Austin explained that he would remember if Hall said he was taking Austin’s property because he would have taken some kind of action. Austin understood that Hall was putting up a fence and that Austin would have access when needed, but he did not recall going back to his property because he did not need to. Austin did not remember if he got a key to the fence because he did not know if he ever saw Hall after the fence was built. Austin agreed that Hall fenced in part of his property and part of the empty lot.
At the close of evidence, AmeriCommerce moved for a partial directed verdict regarding title to the strip. Hall argued that the evidence raised a fact issue on whether his open and continuous placement of the cones for more than ten years put the prior owners–the Johns Family and Stonefield–of the empty lot on notice of his
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adverse possession claim. Hall also argued he established adverse possession of the strip by color of title under the three-year statute.
At the conclusion of the evidence and after both parties rested, the trial court granted AmeriCommerce’s Motion for Partial Directed Verdict on Hall’s adverse possession claim as to the strip as well as Hall’s claim for a stairway easement and/or a reversion of that easement to record title to the strip. Concerning Hall’s adverse possession claim, the trial judge stated that if he drove up and saw the cones Hall put out, it would not occur to him that Hall was trying to take it because there are cones out; rather, the trial judge would have thought it would keep him from hitting or parking next to the Hall Building. Concerning the stairway easement, the trial judge stated that it is “basically abandoned because nobody is using it, and it’s not granted because it’s not there. It’s just not there. I can’t give you an easement that’s not there. The building is gone.” The trial judge’s understanding of the 1919 deed to AmeriCommerce’s predecessor provided that the easement went away with the Johns Building. The trial court found that the evidence did not raise a fact issue on Hall’s adverse possession claim and that the language contained in the deeds and party wall agreements relating to a stairway easement affirmatively proved that Hall is not entitled to a stairway easement or a reversion of that easement in record title. The trial court denied Hall’s questions relating to adverse possession of the strip and the stairway easement and only submitted the issue over the fenced area to the jury.
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The jury found that Hall did not hold the fenced area in peaceable and adverse possession for a period of at least ten years before September 13, 2019. Following the trial, the trial court denied Hall’s Plea to the Jurisdiction, noting it had considered the pleadings, briefing, evidence, and arguments of counsel.
The trial court signed a Final Judgment incorporating the jury’s finding that Hall did not hold the fenced area in peaceable and adverse possession for a period of at least ten years before September 13, 2019. The trial court noted it had granted AmeriCommerce’s Motion for Partial Directed Verdict on Hall’s claimed adverse possession of the strip, claim of a stairway easement, and a reversion of that easement based on the language of certain deeds. Based on the jury’s finding and its partial directed verdict, the trial court awarded AmeriCommerce superior title to the strip and fenced area and stated that any claim by Hall, either individually or as Trustee, whether by adverse possession or easement, or reversion of an easement, is void and of no force and effect and is an improper cloud in AmeriCommerce’s title and is hereby removed from the following property–268 Pearl Street and 296 Pearl Street–as described in Exhibits “A” and “B[.]” The trial court found that the Correction Deed is an improper cloud on the title of AmeriCommerce’s title and is void and of no force and effect. The trial court ordered that AmeriCommerce is the record title owner of the property described in Exhibits “A” and “B[.]”
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The trial court issued Findings of Fact and Conclusions of Law based on the jury’s verdict. The trial court found that because the jury found that Hall, individually and as Trustee, did not own the disputed property by adverse possession, AmeriCommerce’s title to the same property is superior to Hall’s and superior to the Correction Deed. The trial court concluded that the Correction Deed is an improper cloud on AmeriCommerce’s title and is void and of no force and effect. Hall filed a Motion for New Trial, which was overruled by operation of law.
ANALYSIS
Directed Verdict
In issue one, Hall argues the trial court erred in granting a partial direct verdict awarding AmeriCommerce superior title to the strip because the evidence created a fact issue as to whether he adversely possessed the strip through the open and continuous placement of traffic cones. Hall alternatively argues that the strip, which was previously a shared easement, reverted back to Hall’s ownership under color of title when the Johns Building was demolished.
“We review a trial court’s grant of directed verdict de novo, using the legal sufficiency standard appellate courts apply to no-evidence summary judgments.” See City of Baytown v. Schrock, 645 S.W.3d 174, 178 (Tex. 2022) (citing City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)); Carias v. Owens, No. 09-21-00201- CV, 2022 WL 4102783, at *2 (Tex. App.—Beaumont Sept. 8, 2022, pet. denied)
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(mem. op.). A directed verdict is proper if the record reflects: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of the vital fact. City of Keller, 168 S.W.3d at 810. “The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” Id. at 827.
When no evidence supports a vital fact or the evidence fails to state a claim as a matter of law, a trial court properly grants a directed verdict. See City of Baytown, 645 S.W.3d at 178. We consider all the evidence in the light most favorable to the nonmovant and resolve all reasonable inferences arising from the evidence admitted at the trial in the nonmovant’s favor, disregarding evidence and inferences to the contrary. See id. We may consider any reason why the directed verdict should have been granted. See Gomer v. Davis, 419 S.W.3d 470, 476 (Tex. App.—Houston [1st Dist.] 2013, no pet.). “In reviewing a trial court’s granting of a directed verdict, we must determine whether there is more than a scintilla of evidence to raise a fact issue on each element of the plaintiff’s claim.” Rohrs v. Hartz, No. 09-19-00196-CV, 2021 WL 2677422, at *9 (Tex. App.—Beaumont June
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29, 2021, no pet.) (mem. op.) (citing Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004)).
A party seeking to establish title to land by adverse possession has the burden of pleading and proving every fact essential to his claim. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990). Adverse possession is defined as “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1). The possession must be actual, visible, continuous, notorious, distinct, hostile, and of such a character “as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.” Rhodes, 802 S.W.2d at 645 (citation omitted). Hall claimed adverse possession based on the three-year and ten-year statutes. See Tex. Civ. Prac. & Rem. Code Ann. §§ 16.024, 16.026.
“A person must bring suit not later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property. Id. § 16.026(a). To establish adverse possession, a person must prove by the preponderance of the evidence that the possession of the disputed property by the person, or by the person’s predecessors in interest, was (1) actual and visible; (2) adverse and hostile to the claim of the owner of record title; (3) open and notorious; (4) peaceable; (5) exclusive; and (6) involved continuous cultivation, use, or enjoyment for ten years.
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See Kazmir v. Benavides, 288 S.W.3d 557, 561 (Tex. App.—Houston [14th Dist.] 2009, no pet.). In determining whether a party has proved adverse possession, the court must consider the nature of the land and the use to which it was put. See Mohnke v. Greenwood, 915 S.W.2d 585, 593 (Tex. App.—Houston [14th Dist.] 1996, no writ).
The party claiming adverse possession must show he used the land for a purpose to which is adaptable, and in the same manner an ordinary owner would use the land. Kazmir, 288 S.W.3d at 561. “When a person in possession of land is shown to have used and enjoyed it as an owner of land usually does, the natural inference is that possession was taken and held for such person as owner and that is, therefore, inconsistent with and hostile to the claim of another.” Kinder Morgan North Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 440 (Tex. App.—Texarkana 2006, no pet.) (citation omitted). “It is well settled, that, where a party relies upon naked possession alone as the foundation of his adverse [possession] claim, it must be such an actual occupancy as the law recognizes as sufficient, if persisted in for a long enough period of time, to cut off the true owner’s right of recovery.” Rhodes, 802 S.W.2d at 645.
To establish his adverse possession claim, Hall must demonstrate that he actually and visibly appropriated the land for ten or more consecutive years, such that his use of the land gave the true owner of the land reasonable notice of his hostile claim. See id.; Masonic Bldg. Ass’n of Hous., Inc. v. McWhorter, 177 S.W.3d 465,
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472 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Hall’s possession of the land must “indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.” Rhodes, 802 S.W.2d at 645 (citation omitted).
Applying the law to the facts in this case, the trial court had no choice but to grant the partial directed verdict as a matter of law as there is no evidence–or insufficient evidence–upon which any reasonable juror could find that Hall adversely possessed the strip. The trial court found that the evidence presented did not raise a fact issue on Hall’s adverse possession claim. We hold that Hall’s placement of cones on the strip did not “indicate unmistakenly an assertion of a claim of exclusive ownership” that would provide reasonable notice to the true owner of Hall’s hostile claim of right. See id. Accordingly, we hold that the trial court did not err in granting a partial directed verdict awarding AmeriCommerce superior title of the strip because the placement of traffic cones is not sufficient to establish adverse possession.
We note that Hall alternatively argues that the strip was a previously shared or common easement that reverted to Hall’s ownership under color of title after the Johns Building was demolished. Hall claims he raised a fact issue as to whether he adversely possessed the strip under color of title for at least three years. Hall contends that there was sufficient evidence for the jury to determine whether there was a defect in the deeds conveying the strip to Hall and AmeriCommerce’s
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predecessors in interest that rendered it intrinsically unfair to deny him the continued easement by adverse possession after three years. Hall does not cite to any legal authority to support his alternative argument regarding color of title. We hold that Hall’s alternative argument is inadequately briefed. See Tex. R. App. P. 38.1(i). We overrule issue one.
Factual Sufficiency
In issue two, Hall complains that the jury’s finding that he did not adversely possess the fenced area behind 268 and 278 Pearl Street–the AmeriCommerce and Hall Buildings–for a period of at least ten years is against the great weight and preponderance of the evidence. Hall contends that the evidence shows he openly fenced the area and continuously and exclusively held and used the fenced area adversely or hostile to the claimed owner for a period of over ten years.
In a factual sufficiency review, we examine all the evidence, and we will set aside the judgment if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see also Unimex Logistics, LLC v. Tim Neff Towing, Inc., No. 09-16-00275-CV, 2018 WL 2339623, at *4 (Tex. App.—Beaumont May 24, 2018, no pet.) (mem. op.) (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)). The jury may believe one witness and disbelieve another, and the jury may resolve inconsistencies in any testimony. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).
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The jury heard conflicting evidence concerning whether Austin gave Hall permission to build the fence behind the AmeriCommerce Building. Hall testified that after he built the fence, he told Austin that he did so to protect both of their properties and asked Austin to pay half the cost. Hall testified that after Austin declined to pay, Hall told Austin he would be denied access to the fenced area. Austin testified that Hall called him and told him that Austin’s air conditioning unit had been stolen, and Hall asked for Austin’s permission to put up a fence and gate to protect his air conditioning unit and other items. Austin stated that Hall told him he would have a key and access to the fenced area, and Austin denied that Hall asked him to pay for the fence. Sturrock also testified that Austin owned a significant portion of the fenced area and had shared access to the backyard, and Sturrock noted that Hall and Austin had “bad blood” in the middle of their agreement and did not know at what time Austin had a key or access to the fenced area.
It was within the jury’s province to believe Austin’s and Sturrock’s testimony over Hall’s. See McGalliard, 722 S.W.2d at 697. Joint use of the fenced area does not prove adverse possession because “‘possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.’” Tran v. Macha, 213 S.W.3d 913, 914 (Tex. 2006) (emphasis in original) (quoting Rhodes, 802 S.W.2d at 645); see also Martin v. McDonnold, 247 S.W.3d 224, 236 (Tex. App.—El Paso 2006, no pet.). Austin’s permitting Hall to put up the
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fence shows Hall’s use was not hostile or exclusive and is not such adverse possession as will serve as notice of a claim of right. See Othen v. Rosier, 226 S.W.2d 622, 626-27 (Tex. 1950) (citations omitted). Such permissive use did not exclude Austin’s right to his property and is presumed to be with the consent of the owner and not adverse. See id. (citations omitted). Based on Austin’s and Sturrock’s testimony, the jury’s finding that Hall did not adversely possess the fenced area behind the AmeriCommerce Building was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain, 709 S.W.2d at 176.
The jury also found that Hall did not adversely possess the fenced area behind the Hall Building. The evidence shows that the wooden fenced area behind the Hall Building had an umbrella and picnic table and included part of the empty lot AmeriCommerce purchased from Stonefield. Sturrock explained that he had no knowledge of the dealings between Hall and Stonefield and did not know if Stonefield gave Hall permission to put up the fence, but Sturrock understood that Stonefield asserted its property line. Sturrock testified that the Johns Family previously owned the empty lot and that Johns told Hall in the April 2008 letter to refrain from placing any chattel, appendages, or other property upon the empty lot that would in effect encroach or adversely affect the boundary lines, access, or egress of said property or attempt to acquire to create any easements.
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Hall testified that the Johns Family did not give him permission to put up the fence and he adversely possessed the portion of the fenced area in the empty lot that the Johns Family previously owned. That said, Hall testified that after the demolition of the Johns Building completely exposed the Hall Building, he told the Johns Family that he wanted to fence some of the property. Hall testified he received the April 2008 letter after he told the Johns Family that he was thinking of putting a fence up because he was in “a bad way because he couldn’t access my third floor.” Hall testified that despite receiving the letter, he fenced a portion of the empty lot. Hall claimed he told the Johns Family that they had ten years to kick him out, and that both the Johns Family and Stonefield failed to kick him out.
The jury considered Hall’s testimony claiming that the Johns Family did not give him permission to put up the fence. The jury also considered Hall’s testimony that he put up the fence after the Johns Building was demolished to protect the back of his property, which was exposed, and not as a hostile claim of right to the Johns Family’s property. The jury heard Hall testify that he knew Judge Johns and his sons, who were colleagues in his generation of lawyers, “fairly well.” Hall claimed that he told the Johns Family the same thing he told Austin–that they had ten years to kick him out, and the jury chose to disbelieve Hall’s testimony as was their right. The jury could have also chosen to believe Sturrock’s testimony that he understood Stonefield asserted its property line.
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Based on the testimony, the jury could have reasonably concluded that Hall’s possession of the fenced area on the empty lot did not “indicate unmistakably an assertion of a claim of exclusive ownership” that would provide reasonable notice to the Johns Family of Hall’s hostile claim of right. See Rhodes, 802 S.W.2d at 645. We hold that the jury’s finding that Hall did not adversely possess the fenced area on the empty lot was supported by factually sufficient evidence. We overrule issue two.
Plea to the Jurisdiction
In issue three, Hall complains the trial court erred in denying his Plea to the Jurisdiction based on laches because AmeriCommerce’s predecessors delayed in asserting their rights.
Whether a court has subject matter jurisdiction is a question of law we review de novo. Tex. Dep’t. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); see Farmers Tex. Cnty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 240 (Tex. 2020) (citation omitted). A court may not decide a case unless it has subject matter jurisdiction. Miranda, 133 S.W.3d at 226. A plea to the jurisdiction challenges the trial court’s power to exercise subject matter jurisdiction. Id.; City of Waco v. Kirwan, 298 S.W.3d 618, 621-22 (Tex. 2009).
Laches is an equitable remedy that, on proper findings, prevents a party from prevailing on a claim because of a lapse of time resulting in a claim becoming stale.
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Bluebonnet Sav. Bank, F.S.B. v. Grayridge Apartment Homes, Inc., 907 S.W.2d 904, 912 (Tex. App.—Houston [1st Dist.] 1995, writ denied). To prevail on a defense of laches, Hall must show, among other things, that AmeriCommerce’s predecessors delayed in asserting their rights. See Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998). To do so, Hall has the burden of proving (1) an unreasonable delay in asserting a legal or equitable right, and (2) a good faith change of position by another to his detriment because of the delay. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 80 (Tex. 1989). Hall’s assertion as to AmeriCommerce’s predecessors in title is contingent upon a determination of whether AmeriCommerce’s predecessors failed to assert their rights to Hall’s alleged adverse possession claim, because it would not be equitable to invoke any such failure if Hall did not establish his adverse possession claim. Since Hall failed to establish his adverse possession claim, there is a material fact issue as to whether AmeriCommerce’s predecessors unreasonably delayed in asserting a legal or equitable right. Therefore, we hold that Hall failed to establish laches and that the trial court did not err in denying Hall’s Plea to the Jurisdiction because Hall did not establish that he owned the strip and fenced area through adverse possession. We overrule issue three.
Trial Court’s Findings, Conclusions, and Final Judgment In issue four, Hall argues the trial court erred in its findings, conclusions, and Final Judgment which awarded AmeriCommerce superior title to the strip and
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fenced area and declared Hall’s Corrected Deed void. We have already determined that the trial court did not err in granting a partial directed verdict awarding AmeriCommerce superior title to the strip and that the jury’s finding that Hall did not adversely possess the fenced area was supported by factually sufficient evidence. We conclude the trial court did not err in awarding AmeriCommerce superior title to the strip and fenced areas. Moreover, the trial court found that based on its granting of a partial directed verdict and the jury’s finding, Hall’s Correction Deed is an improper cloud on AmeriCommerce’s title and is void and of no force and effect. Hall’s filing the Correction Deed was a mere attempt to award himself the strip and fenced area based on a limitations defense he failed to establish at trial. We overrule issue four.
CONCLUSION
Having overruled all of Hall’s issues, we affirm the trial court’s judgment.
AFFIRMED.
JAY WRIGHT
Justice
Submitted on February 3, 2026 Opinion Delivered August 27, 2026
Before Golemon, C.J., Wright and Chambers, JJ.