Summary
recognizing the shifting burden in trespass-to-try-title suit
Summary of this case from Mellenbruch Family P'ship, LP v. KennemerOpinion
No. 01-02-01074-CV.
Opinion issued November 20, 2003.
Appeal from County Civil Court at Law No. 4, Harris County, Texas, Trial Court Cause No. 735,465-101.
Attorney(s) for Appellant: Jerry L. Schutza, 3555 Timmons, Suite 1400, Houston, TX 77027.
Attorney(s) for Appellee: Tom Whiteside John Wesley Wauson, Wauson Assoc., P.C., One Sugar Creek Center Blvd., Suite 880, Sugar Land, TX 77478.
Panel consists of Justices TAFT, JENNINGS, and HANKS.
MEMORANDUM OPINION
This dispute, which began as a condemnation proceeding, concerns title to 15.848 acres of real property and the right to the condemnation proceeds for that property. Appellant, AIC Management ("AIC"), appeals from a judgment, which made an interlocutory summary judgment order final, declaring appellee, Billie G. Baker, to be the owner of the disputed property. We determine (1) whether AIC preserved its objections to certain of Baker's summary judgment evidence; (2) whether the trial court erred in rendering summary judgment because Baker's motion did not attack the adverse-possession affirmative defense that AIC had pleaded; (3) whether, given AIC's objections that did not need to be preserved, Baker carried his summary judgment burden on his affirmative claims; and (4) whether the trial court erred in hearing and granting Baker's summary judgment motion while AIC did not have counsel. We affirm.
Standard of Review and Burden of Proof
Summary judgment under Rule of Civil Procedure 166a(c) is proper only when a movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. See Tex.R.Civ.P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Baker moved for summary judgment on his own claims for affirmative relief. Therefore, he had the burden of proving conclusively each element of his causes of action. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Baker carried this burden if he produced evidence that would suffice to support an instructed verdict at trial on his claims for affirmative relief. See Ortega-Carter v. Am. Int'l Adjustment Co., 834 S.W.2d 439, 441 (Tex.App.-Dallas 1992, writ denied).
In reviewing the granting of a motion for summary judgment, we consider as true all the evidence that favors the non-movant. MMP, Ltd., 710 S.W.2d at 60; Goldberg v. U.S. Shoe Corp., 775 S.W.2d 751, 752 (Tex.App.-Houston [1st Dist.] 1989, writ denied). We indulge every reasonable inference in favor of the non-movant and resolve all reasonable doubts in its favor. Cont'l Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex. 1988); Goldberg, 775 S.W.2d at 752.
Preliminary Matter: Objections to Summary Judgment Evidence
In part of issue two, AIC claims that some of Baker's summary judgment evidence was inadmissible or incompetent on various grounds. Before the trial court rendered partial summary judgment, however, AIC objected only to the date originally set for the oral hearing, but not to any of Baker's summary judgment evidence. It was not until after the trial court rendered summary judgment that AIC, in a motion to set aside that ruling, raised any objections to Baker's evidence. The record contains no ruling allowing AIC to raise these objections belatedly.
The non-movant waives defects in the form of summary judgment evidence by not timely objecting and obtaining a ruling. See Mathis v. Bocell, 982 S.W.2d 52, 59 (Tex.App.-Houston [1st Dist.] 1998, no pet.). However, the non-movant does not waive defects in the substance of summary judgment evidence by failing timely to object. See id. "A defect is substantive if the evidence is incompetent, and it is formal if the evidence is competent but inadmissible." Id. at 60.
Some of AIC's evidentiary objections that it raises for the first time on appeal concern defects of form; those objections are waived. However, a few of AIC's objections concern the substance of Baker's summary judgment evidence; those objections are not waived. We include within our discussion of the facts of this case, without discussing AIC's objections, the summary judgment evidence to which AIC either (1) waived its appellate objection for not having objected below or (2) does not object on appeal. If AIC did not need to preserve an appellate objection, we discuss the validity or the effect of the appellate objection within the opinion.
AIC's objections concerning form, which are waived, include the following:
Hearsay. See Texas Comm. Bank v. New, 3 S.W.3d 515, 517 (Tex. 1990); Rizkallah v. Conner, 952 S.W.2d 580, 589 n. 7 (Tex.App.-Houston [1st Dist.] 1997, no pet.).
Improper authentication. See Watts v. Hermann Hosp., 962 S.W.2d 102, 105 (Tex.App.-Houston [1st Dist.] 1997, no pet.).
The reliability of an expert or his designation as an expert. See Gutierrez v. Trevino, 2001 WL 273416 at *4 (Tex.App.-San Antonio Mar. 21, 2001, pet. denied) (not designated for publication) (holding that objections that summary judgment affiant was not qualified or reliable to give expert opinion on title to real property were waived for lack of their being ruled on by trial court); cf. Rizkallah, 952 S.W.2d at 586 (holding that objections to affiant's qualifications or competency are waived if not raised in summary judgment proceedings).
The personal knowledge of an affiant's testimony. See Rizkallah, 952 S.W.2d at 585; see also Tex.R.Civ.P. 166a(f). We note also that AIC is incorrect in its claim that Baker's affidavit did not recite that it was based on personal knowledge.
AIC's objections concerning substance, which are not waived, include the following:
The use of pleadings as proof of the veracity of the extrinsic facts alleged therein. See Hidalgo v. Surety Sav. Loan Assoc., 462 S.W.2d 540, 545 (Tex. 1971) (holding that sworn pleadings do not constitute summary judgment evidence); Timothy Patton, Summary Judgments in Texas § 6.01[2] at 6-4 to 6-5, 6-6 (2002) [hereinafter Patton] (noting that sworn pleadings are generally incompetent summary judgment evidence).
Conclusory factual statements in an affidavit. See Rizkallah, 952 S.W.2d at 587; see also Tex.R.Civ.P. 166a(c). In this regard, we construe AIC's objection that Baker's affidavit "fails to state the basis for . . . personal knowledge" to be an objection to the conclusory nature of the affidavit.
The relevancy of any evidence to prove an asserted matter. See McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex.App.-Houston [14th Dist.] 2003, pet. denied); see also Tex.R.Civ.P. 166a(f).
We overrule in part and sustain in part those portions of issue two relating to AIC's evidentiary objections.
Facts and Procedural Background
The following facts are viewed in the proper light for summary judgment.
A. The Original Property
The 15.848-acre tract of real property at issue in this appeal was originally part of a single 24.3806-acre piece of property. The 24.3806-acre property was described by survey as being "located in the T.S. Roberts Survey, Abstract No. 659, Harris County, Texas." Emma Crews, Valda Crews, and Eva Fay Gross (together, "the Crews family") and Andrew C. Brown, as trustee, were co-tenants and joint owners of the 24.3806-acre property.
B. The Partition of the Original Property into Tracts I and II
In 1984, the Crews Family and Brown partitioned the 24.3806-acre property by deed: 8.5107 acres ("Tract I") was deeded to the Crews family, and the remaining 15.8789 acres ("Tract II") was deeded to Brown. The Harris County Plat Map covering the original 24.3806-acre property within the T.S. Roberts Survey showed the partitioned tracts. In the plat map and the corresponding field notes, Tract I was described as the "8.511 acres" that were described in the "deed recorded under Harris County clerks file (H.C.C.F.) no. J659372." In the same documents, Tract II was described as the "15.848 acre" residue or remainder tract of the 24.3086-acre tract described "in [the] deed recorded" in "Harris County clerk's file (H.C.C.F.) no. M825630."
The acreage figures cited in this opinion for Tracts I and II come from the 1984 partition deed and from references in subsequent quitclaim deeds. We note that there is, both in the record and in the briefs, some discrepancy about, or perhaps "rounding off" of, the exact acreage of each tract. These discrepancies are not large (8.511 or 8.5107 acres for Tract I, and 15.848 or 15.8789 acres for Tract II), and they appear to have arisen from different acreage figures' having been used in deed instruments, plat maps, accompanying field notes, affidavits, or title reports. By stating specific acreage for the tracts within this opinion, we do not intend to adjudicate the tracts' acreage, and our discussion should thus not be considered law of the case concerning the exact acreage of each tract or of the total acreage of both tracts.
C. The History of Tract II
The ownership of each tract changed after the partition. First, Brown deeded Tract II to Baker and his then-wife by quitclaim deed in October 1986. Baker's former wife deeded her interest in Tract II to Baker by quitclaim deed in May 1989. Both deeds were recorded the same month that they were executed. Therefore, by May 1989, Tract II was held by Baker pursuant to quitclaim deed. The 1989 quitclaim deed described Tract II consistently with the tract's description in the 1984 partition deed.
D. The History of Tract I
The ownership of Tract I also changed, at least in part, but its history was more complex. In March 1989, the City of Houston ("the City") sued the Crews family for unpaid ad valorem taxes on six acres of land within the T.S. Roberts Survey. In its tax-suit petition, the City alleged that the six acres on which the Crews family owed taxes was "Tract 12, being 6.0 acres out of T.S. Roberts Survey Abstract 659 situated in Harris County, Texas, as shown in file number J659372." (Emphasis added.) The "file number J659372" referenced in the City's tax-suit petition corresponded to the Harris County clerk's file number for the deed that granted Tract I to the Crews Family. The "Tract 12" to which the City's tax-suit petition referred appears to have been a division of property within the Harris County Appraisal District's ("HCAD") tax rolls. Whatever the parameters of HCAD Tract 12, the City's tax-suit petition alleged that "Tract 12" lay within the property conveyed by the deed that granted Tract I to the Crews Family. However, Baker did not produce the judgment from the City's tax suit.
The summary judgment evidence of the 1989 tax suit is a copy of the city's original petition in that suit. Under its issue two on appeal, AIC claims for the first time that the tax-suit petition was "inadmissible" summary judgment evidence of title or of "who owns or does not own real property." We agree with AIC that even sworn pleadings are not summary judgment evidence of the truth of the extrinsic matters alleged within. See Hidalgo, 462 S.W.2d at 545; Patton § 6.01[2] at 6-5. However, we note that Baker generally did not use the tax-suit petition as evidence of the truth of the matters alleged. Rather, he used the tax-suit petition as evidence that the City had sued for a property tax deficiency, that the City had sued the Crews family in that suit, and that the City had alleged certain matters in that suit. These uses were not prohibited. Cf. Codgell v. Fort Worth Nat'l Bank, 544 S.W.2d 825, 830 (Tex.Civ.App.-Eastland 1976, writ ref'd n.r.e.) ("Appellant further argues that the summary judgments in favor of appellees must be reversed because there is no summary judgment evidence. He relies upon the rules announced in . . . Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex. 1971). The [case is] not controlling. Appellees do not rely upon the pleadings as proof of extrinsic facts. The pleadings merely shape the issues. The documents and orders relied upon by appellees were all a part of the trial court record in the cause being appealed. The court may properly consider the orders and motions which are a part of the record in the case."). To the extent that Baker may have relied on the tax-suit petition as proof of anything more, we agree that the petition was incompetent for those purposes. See Hidalgo, 462 S.W.2d at 545.
To satisfy the judgment obtained in the City's tax suit, a public auction was held, and the City bought the subject property in February 1991. The constable issued a quitclaim deed conveying the subject property to the City. However, the constable's deed identified the conveyed property only as "TR 12 AB 659 T S Roberts, situated in Harris County, Texas," without a metes-and-bounds description. Although the constable's deed's "TR 12" likely referred to the HCAD Tract 12 alleged in the City's petition, the referenced "TR 12" was described only as lying in the T.S. Roberts Survey, Abstract 659; in contrast, the City's 1989 petition had expressly alleged, by reference to the county clerk's file number for the deed that granted Tract I to the Crews Family, that HCAD Tract 12 lay within Tract I. Baker produced no competent summary judgment evidence expressly and conclusively showing that, at the time of judgment in the City's tax suit, HCAD's Tract 12 (or whatever land was sold by the 1991 constable's deed) fell exclusively within the bounds of Tract I.
The allegations in the tax-suit's petition are not proof of their veracity, and, in any event, a petition can generally be amended before judgment. See Hidalgo, 462 S.W.2d at 545 (holding that sworn pleadings do not constitute summary judgment evidence). Baker did not produce the tax-suit judgment. Baker did produce a plat map from HCAD, showing that a "Tract 12" fell within the physical bounds of Tract I. However, HCAD's plat map was dated August 2001, over 12 years after the City had filed its tax suit, over 10 years after the City had bought the land pursuant to the tax suit's judgment, and about four years after AIC had purchased the same land. Moreover, the 2001 property tax statement to AIC, part of Baker's own summary judgment evidence, showed taxation for "TRS. 12 12G" in "ABST 659 T S ROBERTS 6.0000 AC." (Emphasis added.) Taking all inferences in favor of the non-movant AIC, it appears that, in 2001, HCAD had designated two tracts ("Tract 12" and "Tract 12G") as together constituting six acres. Therefore, viewed in the proper light, HCAD Tract 12 in 2001 was likely not the same acreage as HCAD Tract 12 in 1989, 1991, or 1997, the pertinent dates for this suit. Baker's affidavit also states that no part of Tract II was ever sold to the City in the tax suit, was ever sold by the City, or was ever bought by AIC. However, those statements in Baker's affidavit are conclusory and are thus not readily controvertible, and AIC has objected to them on appeal. See Rizkallah, 952 S.W.2d at 587 (holding that factually conclusory summary judgment affidavit may be challenged for first time on appeal); see also Tex.R.Civ.P. 166a(c) ("A summary judgment may be based on uncontroverted testimonial evidence of an interested witness . . . if the evidence . . . could have been readily controverted."). A title report in Baker's summary judgment proof does recite that real-property records "reflect [that] the record owner[s]" of Tract I were AIC and the Crews family and that the record owner of Tract II was Baker, but that same report also states that "the legal descriptions provided in [the constable's] deeds [to AIC] are insufficient. [Title] Company must be provided with corrected deeds showing accurate legal descriptions." Similarly, an internal memorandum of title made by the City's legal department states that the record owners of Tract I were the Crews family and AIC, while the record owner of Tract II was Baker. However, the same memorandum also states,
[T]he six-acre tract referred to above [with reference to the City's tax suit] consists of a portion of the eight acres acquired by Emma Crews et al and Billie Baker. Note: Billie Baker was not made a party to the Tax Suit . . . and the above-stated Partition Deed divides the 24 acres into two tracts. . . .
* * *
Note: we have been informed that [AIC] is claiming title to the entire 24-acre tract pursuant to the tax foreclosure and has been paying taxes on said tract since then. However, according to the attachments and the original petition [in the City's tax suit], the property taken consists of only six (6.0000) acres, tracts 12 and 12G. Checking the tax records, there appears to be a large amount of taxes still unpaid and HCAD's records reflect tract 12C to be owned by [the City] by [the City's tax suit]. The City does not own this tract pursuant to said tax suit. I have discussed this problem with Jennie Cooper, customer service department, [HCAD] and sent her copies of supporting documents . . . and upon her review and investigation, she will try to correct and/or inform us of the correct information regarding the properties. . . . Note: A revised survey along with new metes and bounds has been ordered and upon receipt of said items a revised report will be prepared. . . .
(Emphasis added.)
In 1997, AIC bought the same property from the City at public auction. The constable issued a quitclaim deed, which again identified the land that AIC bought only as "TR 12 AB 659 T S Roberts, situated in Harris County, Texas," without further description.
E. The Lawsuits
In May 2000, in trial court cause number 735,465, the City sued to condemn the entire 24.3806 acres (Tract I plus Tract II) to expand a nearby airport, mistakenly naming only AIC as the sole defendant and owner. See Tex. Prop. Code Ann. §§ 21.012-.013 (Vernon 1984) (concerning procedure for instigating condemnation proceeding). During the pendency of that suit, the City apparently learned that other individuals — the three members of the Crews family or their heirs and Baker — might have ownership interests in parts of the 24.3806-acre property.
The City's original condemnation petition in cause number 735,465 does not appear in the record, but a joint motion of the parties sets out the pertinent facts alleged in that petition.
Accordingly, on October 2, 2000, having discovered that two tracts were involved, the City (1) initiated a new lawsuit, under trial court cause number 741,680 in a different court, to condemn Tract II ("the Tract II lawsuit") and (2) amended its petition in trial court cause number 735,465 to seek condemnation of only Tract I ("the Tract I lawsuit"). In each lawsuit, however, the City named both AIC and Baker as defendants and potential owners of, or adverse claimants on, both tracts.
In the Tract II lawsuit, Baker asserted third-party claims against AIC and its two general partners, claiming that Baker alone owned Tract II. See Tex. Prop. Code Ann. § 21.017(a) (Vernon 1984) (allowing party in condemnation suit to assert claim to the property). Baker asserted claims to quiet title and to remove cloud on title and sought damages and declaratory relief. AIC answered Baker's third-party claims with a general denial in the Tract II lawsuit and did not allege the affirmative defense of adverse possession. In the Tract I lawsuit, in contrast, AIC asserted a general denial, but also alleged third-party claims against Baker, claiming that AIC owned the entire 24.3806-acre property by adverse possession.
These claims were actually crossclaims because AIC had already been made a co-defendant with Baker in the Tract II lawsuit.
Again, these claims were actually crossclaims.
AIC pled two theories of adverse possession. First, that AIC had held the entire 24.3806-acre property in peaceable and adverse possession under title or color of title for more than three years. See Tex. Civ. Prac. Rem. Code Ann. § 16.024 (Vernon 2002). Second, that AIC had held the entire 24.3806-acre property in peaceable and adverse possession and had used or enjoyed the entire property, had paid taxes on the entire property, and had claimed the entire property under a duly registered deed for five years. See id. § 16.025(a) (Vernon 2002).
In each suit, the trial court appointed special commissioners, who, in July 2001, awarded damages of $259,518 for Tract I and $487,237 for Tract II. See Tex. Prop. Code Ann. §§ 21.014-.015 (Vernon 1984) (providing for appointment of special commissioners and hearing before them on property's value). Neither party objected to the commissioners' award in either suit, and the City eventually paid those sums into the registry of the court. In December 2001, the parties jointly moved to consolidate both causes. On January 4, 2002, the trial court consolidated the lawsuits under the cause number of the Tract I lawsuit.
On February 28, 2002, Baker moved for traditional summary judgment on the ground that he held sole title to Tract II and requested attorney's fees. On June 17, 2002, the trial court rendered partial summary judgment in Baker's favor, declaring Baker to be the sole owner of Tract II, declaring AIC's "claims of ownership in [Tract II] are void and/or unenforceable," and awarding $15,000 in attorney's fees to Baker. AIC moved to set aside the summary judgment order. The trial court denied that motion.
Baker styled this a "motion for declaratory judgment," but all agree that it was a motion for traditional summary judgment.
On June 11, 2002, upon Baker's motion, the trial court severed all claims brought by Baker, all claims concerning any interest in Tract II, and all condemnation funds held in the court's registry for Tract II and assigned trial court cause number 735,465-101 to those matters ("the severed cause"). After ancillary claims of various parties were resolved or non-suited, the trial court signed a final judgment in the severed cause. Among other things, the final judgment declared Baker to be the sole owner of Tract II. AIC moved for new trial, which motion was overruled by operation of law. AIC appeals.
Adverse Possession
In issue one, AIC contends that the trial court erred in rendering summary judgment on its "claim" for adverse possession of Tract II because Baker did not move for summary judgment on, or produce evidence to defeat, any element of adverse possession.
Adverse possession is an affirmative defense. See Horrocks v. Horrocks, 608 S.W.2d 733, 734 (Tex.Civ.App.-Dallas 1980, no writ). A plaintiff moving for summary judgment does not have the burden of disproving a non-movant defendant's affirmative defense. See Patton § 3.08[2] at 3-26 (collecting cases). This is because, once the movant-plaintiff has carried its burden of proving all elements of its affirmative claims conclusively, the non-movant defendant has the burden of asserting and raising fact issues on each element of its affirmative defense to avoid summary judgment. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Horrocks, 608 S.W.2d at 734.
AIC's issue one does not challenge the rendering of summary judgment on Baker's affirmative claims. That matter is decided below in our discussion of the remainder of AIC's issue two.
Assuming that AIC's adverse-possession affirmative defense that was pleaded in the Tract I lawsuit carried over into the consolidated suit, AIC did not respond to the summary judgment motion and so did not assert that defense below or offer any evidence in support. Baker thus did not have to address AIC's affirmative defense. See Walsh v. Austin, 590 S.W.2d 612, 615-16 (Tex.Civ.App.-Houston [1st Dist.] 1979, writ dism'd) (holding that plaintiff, as summary judgment movant in trespass-to-try-title suit, had burden only to prove prima facie case, upon which showing burden then shifted to defendant to produce defensive evidence raising material fact issue).
We overrule issue one.
The Summary Judgment Rendered on Baker's Claims for Affirmative Relief
We have already disposed of the evidentiary-admissibility portion of AIC's issue two. In the remainder of issue two, AIC claims that, taking into account its objections to Baker's summary judgment evidence that did not have to be preserved, Baker did not prove his entitlement to summary judgment as a matter of law.
AIC does not separately challenge the partial summary judgment order's award of attorney's fees to Baker, but challenges whether Baker proved as a matter of law that he had superior title to Tract II.
Baker sought to quiet title or to remove cloud on title, principally by having AIC's constable's deed construed and declared not to encompass Tract II. He did not expressly allege a trespass-to-try-title claim, and the parties' pleadings generally did not follow the procedural requisites of such a claim. See Tex.R.Civ.P. 783 (setting out requisites of petition in trespass-to-try-title suit); Tex.R.Civ.P. 788 (allowing for "not guilty" plea by defendant in trespass-to-try-title suit); Tex.R.Civ.P. 798 (requiring plaintiff to file certified copies of deeds used to show common source before trial and to notify opposing party of same). However, Baker's summary judgment motion stated that he and AIC "each claim[ed] an undivided fee simple interest in [Tract II]," that he had "superior title" to Tract II, and that AIC's constable's deed did not concern Tract II. Additionally, the partial summary judgment declared Baker to own Tract II and declared AIC's ownership claims to Tract II to be void or unenforceable.
A claim to quiet title or to remove cloud on title and a claim in trespass to try title are different causes of action. Fricks v. Hancock, 45 S.W.3d 322, 327 (Tex.App.-Corpus Christi 2001, no pet.); Katz v. Rodriguez, 563 S.W.2d 627, 629 (Tex.Civ.App.-Corpus Christi 1977, writ ref'd n.r.e.). A suit to quiet title is an equitable action. Id. The principal issue in a suit to quiet title is whether there is a cloud that equity will remove. Wright v. Matthews, 26 S.W.3d 575, 578 (Tex.App. Beaumont 2000, pet. denied). "Any deed, contract, or other instrument not void on its face that purports to convey any interest in or make any charge upon the land of a true owner, the invalidity of which would require proof, is a cloud upon the legal title of the owner." Id. The plaintiff in such a suit must prove and recover on the strength of his own title, not on the weakness of opponent's title, and he must allege right, title, or ownership in himself with sufficient certainty to enable the court to see that he has a right of ownership that warrants judicial interference. Fricks, 45 S.W.3d at 327; Wright, 26 S.W.3d at 578. The plaintiff need not trace his title either to the sovereign or to a common source with the defendant, unless he needs that proof to establish his superior equity and right to relief. Bell v. Ott, 606 S.W.2d 942, 952 (Tex.Civ.App.-Waco 1980, writ ref'd n.r.e.).
A trespass-to-try-title action "is the method of determining title to lands, tenements, or other real property." Tex. Prop. Code Ann. § 22.001(a) (Vernon 2000); see King Ranch, Inc. v. Chapman, 46 Tex. S.Ct. J. 1093, 1101 (Tex. Aug. 28, 2003) (stating that trespass-to-try-title action is "a procedure by which rival claims to title or right of possession may be adjudicated."). "Trespass to try title is statutory, and has specific pleading requirements." Fricks, 45 S.W.3d at 327. "To recover in a trespass to try title action, the plaintiff must recover upon the strength of his own title. The plaintiff may recover (1) by proving a regular chain of conveyances from the sovereign, (2) by proving a superior title out of a common source, (3) by proving title by limitations [ e.g., adverse possession], or (4) by proving prior possession, and that the possession has not been abandoned." Rogers v. Ricane Enterps., Inc., 884 S.W.2d 763, 768 (Tex. 1994) (citations omitted); see Tex.R.Civ.P. 798. Such a suit generally affords a remedy at law. Katz, 563 S.W.2d at 629. Nonetheless, "`[a]ny suit that involves a dispute over the title to land is, in effect, an action in trespass to try title, whatever its form and regardless of whether legal or equitable relief is sought.'" Bell v. State Dep't of Highways Pub. Transp., 945 S.W.2d 292, 294 (Tex.App.-Houston [1st Dist.] 1997, writ denied) (quoting Jordan v. Exxon Corp., 802 S.W.2d 880, 883 (Tex.App.-Texarkana 1991, no writ)).
From the summary judgment motion and order, Baker's claims resemble ones in trespass to try title; his pleadings, however, alleged equitable claims to quiet title and to remove cloud on title. Whatever the exact nature of Baker's claims, the result is the same. Both suits required Baker to prove superior title and to recover on the strength of his own title. See Fricks, 45 S.W.3d at 327. To the extent that his claims could be construed as ones in trespass to try title, Baker also had to prove, for example, superior title emanating from a common source. See Rogers, 884 S.W.2d at 768. Baker proved all of these things conclusively.
Baker first proved without dispute that, as of May 1989, he alone held Tract II pursuant to quitclaim deed and that the source of his quitclaim deed was Brown, a joint tenant with the Crews family in the original 24.3806-acre property that was divided by partition deed in 1984. Baker also conclusively proved that that same 24.3806-acre property (1) was the common source of both Tract I and Tract II and (2) contained somewhere within its bounds the property described in the 1991 and 1997 constables' deeds through which the City and AIC took title. Baker's undisputed evidence further showed that the quitclaim deeds that conveyed title to Tract II to him were recorded before the City's or AIC's constables' deeds were either executed or recorded. This showing that Baker's and AIC's deeds emanated from a common source and that those of Baker preceded those of the City or AIC — sufficed to prove conclusively Baker's prima facie case, either under the equitable claims to remove cloud on title and to quiet title or under a trespass-to-try-title claim. See Wells v. Kansas Univ. Endowment Ass'n, 825 S.W.2d 483, 486 (Tex.App.-Houston [1st Dist.] 1992, writ denied) (noting, in trespass-to-try-title suit, that "[w]hen a plaintiff establishes a prima facie case by proof of common source . . . and introduction of a deed from the [common-source] individual to the plaintiff, the defendant may rebut the plaintiff's case by proving a prior conveyance by the common source to another person. Generally, the older title emanating from a common source is a better title and therefore is superior to all others.") (citing Tex. Consol. Oils v. Bartels, 270 S.W.2d 708, 712 (Tex.Civ.App.-Eastland 1954, writ ref'd)); accord Diversified, Inc. v. Hall, 23 S.W.3d 403, 406 (Tex.App. Houston [1st Dist.] 2000, pet. denied) (same); United Sav. Ass'n of Tex. v. Villanueva, 878 S.W.2d 619, 622 (Tex.App.-Corpus Christi 1994, no writ) ("Generally, the older title emanating from a common source is better title and superior to others.").
Moreover, Baker's summary judgment evidence also conclusively showed that the 1991 and 1997 constables' deeds could not have conveyed any right to title in Tract II. Although Baker did not conclusively prove that the property sold to the City and then to AIC by the 1991 and 1997 constables' deeds (HCAD Tract 12) did not fall anywhere within Tract II, his evidence did conclusively show that the two constables' deeds were quitclaim deeds because they conveyed "all of the estate, right, title and interest" that the Crews family had (1991 deed) or that the City acquired from the Crews family (1997 deed) in the property being sold, without further warranty of title. See Hall, 23 S.W.3d at 407 (construing constable's deed with similar provisions to be quitclaim deed). "A quitclaim deed conveys any title, interest, or claim of the grantor, but it does not profess that the title is valid nor does it contain any warrant or covenants of title. It does not establish title in the person holding the deed, but merely passes whatever interest the grantor has in the property." Id. The purchaser of a quitclaim deed takes the deed "with notice of all defects in the title and equities of third persons." Woodward v. Ortiz, 237 S.W.2d 286, 291-92 (Tex. 1951). Therefore, even if HCAD Tract 12 (or whatever land the constables' quitclaim deeds conveyed) fell to some extent within Tract II, the City and AIC received only whatever estate, right, title, or interest that the Crews family had in that land. See id. And Baker proved conclusively that the Crews family, by virtue of the 1984 partition deed, had a fee interest only in Tract I, not in Tract II.
The Crews family had only an easement right on a portion of Tract II.
Therefore, we hold that Baker carried his summary judgment burden on his affirmative claims. Once Baker had made his prima facie case by conclusive summary judgment proof, it was AIC's burden to produce summary judgment evidence to rebut Baker's prima facie case or to raise a fact issue on each element of any affirmative defense, such as adverse possession or bona fide purchaser for value. See Walsh, 590 S.W.2d at 615-16 (discussing shifting summary judgment burden in trespass-to-try-title suit); see also Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001) (holding that bona fide-purchaser status is affirmative defense in title dispute); Wells, 825 S.W.2d at 486 (noting that later title can have priority over earlier title emanating from common source if holder of later title was bona fide purchaser for value, without notice of earlier interest); Horrocks, 608 S.W.2d at 734 (holding that adverse possession is affirmative defense). AIC did not do so.
We overrule the remainder of issue two.
Absence of Counsel
In issue three, AIC asserts that the trial court erred in considering and granting summary judgment while AIC lacked counsel.
AIC's issue states, "There was a question of fact as to ownership of the property. The trial court erred in granting the judgment because at the time the motion was considered, appellant AIC did not have counsel. The trial court erred by refusing to reconsider and set aside the judgment after AIC obtained counsel." However, virtually all of AIC's supporting argument concerns hearing and deciding Baker's summary judgment motion in the absence of counsel. The only mention that AIC makes of fact issues is, "Because AIC did not have counsel, it was unable to properly present its responses to the motion. . . . If AIC is allowed to present its responses to the motion, it is obvious that the motion could not have been granted. Where there is a question of fact a summary judgment cannot be granted." AIC's brief contains no argument explaining what the unresolved fact issues are, how those fact issues are material, or how they preclude summary judgment on Baker's claims. It thus appears that AIC's reference to questions of fact is offered only in support of its challenge to the court's ruling in the absence of counsel, not as a separate issue. In any event, we have already held that Baker carried his summary judgment burden on his affirmative claims.
AIC raised this ground in a motion to set aside, or to reconsider, the partial summary judgment order. We review a trial court's decision to grant or to deny a motion to reconsider a summary judgment ruling for an abuse of discretion. See Methodist Hosp. v. Corporate Communicators, 806 S.W.2d 879, 883 (Tex.App. Dallas 1991, writ denied). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).
When Baker moved for summary judgment on February 28, 2002, Wayne Paris was AIC's counsel, and he remained its counsel for approximately 49 days thereafter. Apparently because AIC was not paying his fees, Paris did not respond to the summary judgment motion, but he did move to reset the summary judgment hearing on March 26, 2002, for lack of sufficient notice. On April 9, 2002, Paris moved to withdraw as AIC's counsel, alleging that AIC had still not paid his fees. Paris's motion to withdraw stated that he had informed AIC that a summary judgment response was due and had also notified AIC of his motion to withdraw. The trial court allowed Paris to withdraw by order dated April 18, 2002, but required Baker to re-serve his motion for summary judgment on AIC. This ruling delayed the summary judgment hearing until May 15, 2002. Our record contains no reporter's record from the summary judgment hearing, but AIC's subsequent pleadings alleged that its corporate representative attended that hearing.
AIC claims in its brief, and by affidavit attached to its motion to set aside the partial summary judgment order, that its representative requested additional time to obtain counsel at the summary judgment hearing. However, we have no record of that hearing to determine exactly what, if anything, the court or the parties said in this regard.
After the summary judgment hearing, Jerry L. Schutza filed an appearance as AIC's counsel of record on May 31, 2002. However, Schutza did not file anything relating to Baker's summary judgment motion until July 3, 2002, about two weeks after the trial court had signed the partial summary judgment order on June 17, 2002. Schutza's July 3 filing was a motion to set aside the partial summary judgment order, in which motion he simultaneously provided summary judgment argument and evidence. The record contains no ruling by the trial court that it allowed AIC to file summary judgment responses or evidence late. Compare Stephens v. Dolcefino, 2003 WL 21357281 at *8 (Tex.App.-Houston [1st Dist.] June 12, 2003, no pet. h.) ("[A] trial judge may accept summary judgment evidence filed late, even after summary judgment, as long as he affirmatively indicates in the record that he accepted or considered it."). The trial court denied AIC's motion to set aside on July 11, 2002. After final judgment, Schutza moved for new trial on grounds similar to those raised in his motion to set aside. That motion was overruled by operation of law.
We hold that the trial court did not abuse its discretion in denying AIC's motion to set aside the partial summary judgment order on the ground that AIC did not have counsel for the summary judgment hearing. The trial court's rulings allowed AIC from April 9 through May 15 — 36 days — to secure new counsel, and an only slightly shorter time to respond to Baker's summary judgment motion, but AIC did neither of these things. Additionally, AIC's original counsel represented to the court that he had notified AIC that he was seeking to withdraw, that he had advised AIC that a summary judgment response was due, and that he was withdrawing because of AIC's failure to pay fees; AIC has not disputed these assertions. We thus hold that the trial court did not abuse its discretion in denying AIC's motion to set aside on the ground that AIC lacked counsel for the summary judgment hearing.
See Tex.R.Civ.P. 166a(c) ("Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response.").
We overrule issue three.
Conclusion
We affirm the judgment of the trial court.