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Melissa BENNER, as Administrator of the Estate of Ruth Marie Warren, Appellant v. Krystal S. ARMSTRONG and Jeffery Lee Armstrong, Appellees
Melissa Benner, as Administrator of the Estate of Ruth Warren, brought suit against Krystal and Jeffrey Armstrong to quiet title to 11.933 acres of real property. The trial court set aside the two challenged gift deeds but awarded the Armstrongs 9.9 acres after finding that they had pleaded and proved adverse possession. We reverse the trial court's judgment.
Ruth Warren was the owner of the 11.93 acres of real property that is the subject of this suit. Melissa Benner is one of Ruth's eight children, and Wily Henderson, Krystal Armstrong's stepfather, was also one of Ruth's children. Ruth died on April 20, 2011, and Wily Henderson predeceased her.
The 11.93 acres consists of four parcels referred to as:
Tract A – a 4 acre parcel of land
Tract B – a 7.4 acre parcel of land
Tract C – a 0.24 acre parcel of land
Tract D – a 0.293 acre parcel of land
Prior to her death, Ruth lived in her home on Tract C. Wily Henderson lived on Tract D with his wife Judy Henderson, Krystal's mother. Judy continued living in the home on Tract D after Wily's death. Krystal and her husband Jeffrey lived for many years on land near the 11.93 acres and used a portion of the 11.93 acres to graze animals.
In two gift deeds recorded in the real property records of McLennan County on June 17, 2010, the entire 11.93 acres were conveyed to Krystal and Jeffrey Armstrong. In 2010, after the gift deeds were executed, Jeffrey and Krystal moved a manufactured home onto Tract A. The gift deeds are identified as P-1 and P-2 in the record. P-1 grants a portion of the 11.93 acres to Krystal and Jeffrey and also grants an easement. P-2 grants a portion of the 11.93 acres to Krystal and Jeffrey. In each gift deed, Ruth Warren, Judy Henderson, and William Warren are identified as the grantors.1 The gift deeds are dated May 27, 2010, and appear to be signed by Ruth Warren, Judy Henderson, and William Warren. They appear to be notarized by Rachel Yose.
Yose testified at trial that Krystal asked her to notarize an easement for William so that she could move a mobile home onto the property. Yose said that she spoke to William on the phone, and he said he was signing an easement. Krystal then brought the document to her and she notarized it. She said she notarized a single piece of paper and that there were no other signatures on the document. Yose testified that she never notarized any documents for Ruth or Judy. Yose testified at trial that the first time she actually saw the documents identified as P-1 and P-2 was in 2018. She stated that she did not know that her notary stamp and signature appeared six times on those documents. Yose said that the signatures are not hers and that Krystal had access to her notary stamp and also had the ability to forge her signature.
Krystal testified at trial that P-1 and P-2 were not signed in the presence of a notary. Krystal stated that she is unsure the date those documents were actually signed. The record shows that Ruth was in the hospital on May 27, 2010 and could not have signed the gift deeds on that date. Krystal acknowledged that there was a mistake in preparing the gift deeds and that they conveyed more than the parties intended. Krystal testified, however, that she owns all of the 11.93 acres based upon the gift deeds identified as P-1 and P-2.
Benner brought suit on September 21, 2012 to quiet title to the entire 11.93 acres. After a bench trial in December 2018, the trial court set aside the two gift deeds as invalid based upon mistake. However, the trial court further awarded Tract A and B to Krystal based upon adverse possession except for the “Benner Tract 2 ” that the trial court awarded to Melissa Benner. As a result, the trial court ultimately awarded to the Armstrongs 9.9 acres. The trial court found that Tract C and D are to be retained by the owners of record prior to the execution of the gift deeds. The trial court found that no property is awarded to Jeffrey Armstrong because he and Krystal divorced.
In five issues, Benner argues that the trial court erred in awarding the 9.9 acres from Tracts A and B to Krystal under each of the adverse possession statutes. The Texas Civil Practice and Remedies Code provides for adverse possession based upon periods of 3, 5, 10, and 25 years. See Tex. Civ. Prac. & Rem. Code Ann. § 16.024-16.028. The trial court's judgment was written generally and does not specify which statutory period it relied upon in awarding the property to Krystal. Benner addresses each statutory period in a separate issue on appeal. Krystal and Jeffrey only address Benner's third issue that relates to the 10-year period for adverse possession.
Adverse possession is “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” throughout the statutory period. Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1). The statute requires that such possession be “inconsistent with” and “hostile to” the claims of all others. Minh Thu Tran v. Macha, 213 S.W.3d 913, 914 (Tex. 2006), Moore v. Stone, 255 S.W.3d 284, 288 (Tex. App.—Waco 2008, pet. den'd). One seeking to establish title to land by virtue of the statute of limitations has 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), Moore v. Stone, 255 S.W.3d at 288. Inferences are never indulged in the adverse claimant's favor. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985); Moore v. Stone, 255 S.W.3d at 288.
The 3-year limitations period statute for adverse possession provides that a person must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the day the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.024. Additionally, the statute for the 5-year limitations period for adverse possession provides:
(a) A person must bring suit not later than five years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who:
(1) cultivates, uses, or enjoys the property;
(2) pays applicable taxes on the property; and
(3) claims the property under a duly registered deed.
Tex. Civ. Prac. & Rem. Code Ann. § 16.025. The gift deeds were filed in McLennan County on June 17, 2010, and Benner filed suit on September 21, 2012. Therefore, Appellees did not establish adverse possession under Section 16.024 (3 year) or under Section 16.025 (5 year). We sustain the first and second issues.
The 25-year limitations period statute for adverse possession in Section 16.028, provides in relevant part:
(a) A person ․ may not maintain an action for the recovery of real property held for 25 years before the commencement of the action in peaceable and adverse possession by another who holds the property in good faith and under a deed or other instrument purporting to convey the property that is recorded in the deed records of the county where any part of the real property is located.
Tex. Civ. Prac. & Rem. Code Ann. § 16.028 (a). Because the gift deeds were recorded in June 2010, and Benner brought suit in September 2012, Appellees do not establish adverse possession under § 16.028 (a). We sustain the fifth issue.
There is also another 25-year limitations period that provides:
A person, regardless of whether the person is or has been under a legal disability, must bring suit not later than 25 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property.
Tex. Civ. Prac. & Rem. Code Ann. § 16.027. The record shows that Krystal and Jeffrey moved onto the property near the 11.93 acres around 1991 and began using the 11.93 acres around that same time. The suit was filed September 21, 2012. Krystal and Jeffrey did not meet the 25-year requirement of Section 16.027. We sustain the fourth issue.
In the third issue, Benner argues that the trial court erred in awarding the property to Krystal under the 10-year adverse possession statute. The 10-year limitations period statute for adverse possession provides that:
(a) 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.
Tex. Civ. Prac. & Rem. Code Ann. § 16.026.
Krystal and Jeffrey did not move their home onto the 11.93 acres until 2010. Prior to that, they testified that they used the property to graze cattle and goats. The adverse claimant who relies upon grazing only as evidence of his adverse use and enjoyment must show as part of his case that the land in dispute was designedly enclosed. McDonnold v. Weinacht, 465 S.W.2d 136, 142 (Tex. 1971); Moore v. Stone, 255 S.W.3d at 288. If the fence existed before the claimant took possession of the land, and the claimant fails to demonstrate the purpose for which it was erected, then the fence is a “casual fence.” Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex. 1990); Moore v. Stone, 255 S.W.3d at 288. Repairing or maintaining a casual fence, even for the express purpose of keeping the claimant's animals within the enclosed area, generally does not change a casual fence into a designed enclosure. Moore v. Stone, 255 S.W.3d at 288.
Krystal testified that Jeffrey maintained the property and that there was “existing fencing and some are repaired fencing.” Krystal's testimony establishes that the fence was a casual fence and does not support a finding of adverse possession. Jeffrey testified, “We ran cattle on it ever since I got there, cattle and goats and chickens. We have used it for what it was meant to be used for.” Jeffrey further testified that he built a “pipe entrance and just fences in general just lots of fences because it's a lots of property to keep.” Jeffrey's testimony is not clear whether he built new fences where there had been no fences or merely replaced or repaired existing fences. Further, Jeffrey's testimony did not establish that the property was designedly enclosed to graze animals. The evidence does not establish adverse possession under the 10-year limitations period. See Moore v. Stone, 255 S.W.3d at 289. We sustain the third issue on appeal.
Krystal and Jeffrey bring a cross-point in which they argue that this Court can affirm, in part, the trial court's judgment by awarding the Krystal the property described in the legal description of the gift deed. Krystal and Jeffrey contend that the gift deed admitted as Exhibit P-1 granted four acres and an easement to four acres of the 11.93 acre tract and that there was no mutual mistake as to that deed. Krystal and Jeffrey argue that the gift deed, although not recordable, is enforceable against the parties to the deed.
Krystal and Jeffrey contend that if they are satisfied with the relief granted by the trial court, but merely want to present an additional independent ground for affirming the trial court's judgment, no notice of appeal is required citing Dean v. Lafayette Place, 999 S.W.2d 814, 818 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Rule 25.1 (c) of the Texas Rules of Appellate Procedure provides that a “party who seeks to alter the trial court's judgment” must file a notice of appeal. Krystal and Jeffrey's requested relief would require this Court to alter the trial court's judgment. We do not have jurisdiction to consider the cross-point.
Having sustained Appellant's issues on appeal, we reverse the trial court's judgment and remand this appeal to the trial court for proceedings consistent with this opinion.
Does asking for the corner brownie out of an entire pan of brownies require a notice of appeal? The trial court's judgment awarded the appellees the entire pan of brownies. The Court's opinion concludes the appellees are not entitled to the entire pan of brownies. The appellees argue by cross-point that if they are not entitled to the entire pan of brownies, they are nevertheless entitled to the corner brownie. The Court holds that to award only the corner brownie to which the appellees claim to be entitled would require an alteration of the trial court's judgement and therefore the appellees had to file their own notice of appeal to preserve the issue for review. And, the argument continues, because they did not file a notice of appeal, we do not have jurisdiction to consider their claim to the corner brownie. I respectfully disagree.
This case is obviously not about brownies. It is about dirt. But the pan-of-brownies analogy is easier to wrap my head around. This case presents an interesting procedural issue that must be addressed before appellees' cross-point is summarily dismissed for failure to preserve the issue for appellate review by failing to file a notice of appeal. To hold that this Court does not have jurisdiction of appellees' cross-point, the Court focuses on one sentence from Texas Rule of Appellate Procedure 25.1(c). “A party who seeks to alter the trial court's judgment or other appealable order must file a notice of appeal.” Tex. R. App. P. 25.1(c). But there are more sentences in the rule that must be considered. Specifically, the rule also provides that “[t]he appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause.” Id.
The Houston First Court of Appeals addressed the issue in 1999, noting the limited decisions interpreting the rule. The Houston Court stated:
We agree with the reasoning of the Austin court. [First Gen. Realty Corp. v. Maryland Cas. Co., 981 S.W.2d 495, 503 (Tex. App.—Austin 1998, pet. ref'd]. If an appellee is satisfied with the relief granted by the trial court, but merely wants to present additional, independent grounds for affirming the trial court's judgment, no notice of appeal is required. The independent grounds for affirmance can be raised in a cross-point as long as the appellee is not requesting greater relief than that awarded by the trial court.
Dean v. Lafayette Place (Section One) Council of Co-Owners, Inc., 999 S.W.2d 814, 818 (Tex. App.--Hous. [1 Dist.] 1999, no pet.) (citation added).
Thirteen years later, the Supreme Court of Texas agreed with this statement of the Houston Court, stating:
The Whittingtons argue that a litigant is only attacking a judgment (and must only file a notice of appeal) if it seeks greater relief than awarded in the judgment. See Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 574 n.11 (Tex. App.—Austin 2007, pet. denied) (allowing cross-point that did not seek greater relief); Dean v. Lafayette Place (Section One) Council of Co-Owners, Inc., 999 S.W.2d 814, 818 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (“The independent grounds for affirmance can be raised in a cross-point as long as the appellee is not requesting greater relief than that awarded by the trial court.”). We agree. Here, the Whittingtons do not seek greater relief than the judgment provided. They only seek the same relief the judgment provided in the event that we rule for the City on its points of error. Accordingly, we address the Whittingtons' points of error.
City of Austin v. Whittington, 384 S.W.3d 766, 789 (Tex. 2012).
Moreover, four years later, in 2016, the Supreme Court of Texas held that a Court of Appeals erred in failing to address issues briefed by both parties for which a notice of appeal was not required. See Cardwell v. Whataburger Restaurants LLC, 484 S.W.3d 426 (Tex. 2016). After noting that Cardwell had not filed a notice of appeal but had argued alternate grounds in the Court of Appeals for why the trial court's judgment was correct, the Supreme Court stated, “As noted by the court of appeals, Cardwell's various arguments were briefed by both parties․ The court of appeals could not order arbitration without either addressing Cardwell's arguments or remanding the case to the trial court to address them.” Id. at 428.
As applied to my analogy, is the award of only the corner brownie rather than the entire pan of brownies, without the appellee having filed a notice of appeal, allowed by the rule? The rule, and cases interpreting it, hold that if the appellee is asking for the brownie and something else, like a glass of milk, a separate notice of appeal is required. But is the inverse also true? If the appellee is not asking for the whole brownie under an alternate theory, but is asking for only the corner piece, does the appellee have to still file a notice of appeal?
As applied to the facts of this case, having lost the argument on appeal that the trial judge was correct in awarding the appellees title to the entire tract, must the appellees have filed a notice of appeal to argue they are entitled to less than the entire tract on an alternate theory?
You must take the rule as you find it. Under the first sentence of 25.1(c), the appellees did not have to file a notice of appeal. The appellees did not seek to alter the trial court's judgment. They wanted the entirety of the trial court's judgment affirmed just as it was; no changes, no reduction in acreage, and no limitation on the use of any part of the property. They lost. Now what?
The appellees now want to argue a fallback position, a cross-point. They argue that, “if we are not entitled to all of the property, at the very least we established we are entitled to a piece of it.” The other sentence from the rule quoted above says this court cannot grant “more favorable relief than did the trial court․” If we were to sustain the cross-point, the resulting judgment in favor of the appellees would not grant more relief than did the trial court's judgment. Thus, I believe we have jurisdiction to address the cross-point on the merits.
However, having considered the merits of the cross-point, I have determined that it should be overruled. Consequently, I respectfully concur in the substance of this Court's judgment.1
1. William Warren is Ruth Warren's son. Why he, and not Wily Henderson or any of the other siblings were not identified as grantors is not material to the disposition of the issues before us in this appeal.
2. The “Benner Tract” is a 1.5 acre tract of land located within Tract B. The trial court found that the Benner tract had not been surveyed, but the parties understand and agree to the location of the Benner Tract.
1. It appears that the Court is dismissing the cross-point because they have concluded that the Court does not have jurisdiction of it. That is the proper holding if a notice of appeal is required. Because a notice of appeal is not required, and because the cross-point should be overruled on a review of the merits thereof, the result of the appeal is fundamentally the same.
JOHN E. NEILL, Justice
(Chief Justice Gray concurring)
Response sent, thank you
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Docket No: No. 10-19-00279-CV
Decided: March 17, 2021
Court: Court of Appeals of Texas, Waco.
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