Opinion
NUMBER 13-14-00623-CV
01-07-2016
G.W. KOLSTAD AND WILLIAM FRASER, Appellants, v. MARY JUNE OWEN MERRELL, Appellee.
On appeal from the 156th District Court of Live Oak County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes and Longoria
Memorandum Opinion by Justice Garza
This is an appeal from a summary judgment rendered in a dispute regarding mineral rights to certain real property situated in Live Oak County. Appellants G.W. Kolstad and William Fraser, plaintiffs in the suit below, contend that the trial court erred in granting judgment in favor of appellee Mary June Owen Merrell on res judicata grounds. We affirm.
I. BACKGROUND
In 1989, Charles R. Merrell filed a trespass to try title suit with respect to three tracts of land in Live Oak County, totaling 367.95 acres, alleging that he had obtained title to the tracts through adverse possession. The suit alleged adverse possession of the entire estate, including both mineral and surface rights. Among the 141 defendants named in the 1989 suit were Doris Fraser and appellant G.W. Kolstad. Doris Fraser and Kolstad answered Merrell's suit. However, on May 12, 1993, a trial was held at which neither Kolstad nor Doris Fraser appeared. The trial court subsequently rendered judgment awarding the property at issue to Charles Merrell (the "1993 judgment"). The judgment contained findings establishing Merrell's entitlement to the property—defined in the judgment as including both surface and mineral rights—under the five-year, ten-year, and twenty-five-year adverse possession limitation periods.See TEX. CIV. PRAC. & REM. CODE ANN. §§ 16.025-16.029 (West, Westlaw through 2015 R.S.). No appeal or bill of review was filed.
Charles Merrell's wife Margie L. Merrell was also a named plaintiff in the 1989 suit. However, Margie Merrell died during the pendency of the suit and Charles Merrell continued as the sole plaintiff.
Specifically, the 1993 judgment stated as follows:
(1) Merrell "has been in actual, open, peaceable[,] notorious, exclusive, hostile and adverse possession of the Property, claiming under Deed dated October 31, 1975, and duly registered and recorded in Vol. 265, Page 436 of the Deed Records of Live Oak County, Texas," and has "continuously cultivated, used or enjoyed these premises and paid the taxes on the Property as they became due" for more than five years preceding the commencement of the action, see TEX. CIV. PRAC. & REM. CODE ANN. § 16.025(a) (West, Westlaw through 2015 R.S.);
(2) Merrell "has been in actual, open, peaceable, notorious, exclusive, hostile and adverse possession of the Property" and has "cultivated, fenced, used and enjoyed these premises continuously" for more than ten years preceding the commencement of the action, see id. § 16.026 (West, Westlaw through 2015 R.S.);
(3) Merrell and his predecessorsininterest "have been in actual, open, peaceable, notorious, exclusive, and adverse possession of the Property" and have held the Property under claim of right, in good faith and under duly recorded deed purporting to convey the Property" for more than twentyfive years preceding the commencement of the action, see id. § 16.028(a) (West, Westlaw through 2015 R.S.);
(4) Merrell and his predecessorsininterest "have been in actual, open, peaceable, notorious, exclusive, and adverse possession of the Property" and Merrell "has been and now is cultivating, using and enjoying these premises continuously" for more than twentyfive years preceding the commencement of the action, see id. § 16.027 (West, Westlaw through 2015 R.S.); and
(5) Merrell and his predecessorsininterest "have openly exercised dominion over and asserted claim to the Property, paying taxes on these premises annually before such taxes become delinquent," and "[t]he persons holding the apparent record title to the Property, or portions thereof, have not exercised dominion over the property and have not paid taxes on the property at any time or for one or more years" during the twentyfive years preceding the commencement of the action. See id. § 16.029 (West, Westlaw through 2015 R.S.).
Twenty years later, in 2013, Kolstad and William Fraser, successor-in-interest to Doris Fraser, filed suit against Mary June Owen Merrell, successor-in-interest to Charles Merrell. The suit alleged causes of action for trespass to try title and suit to quiet title, and it sought declaratory relief as well as damages and attorney's fees. Kolstad and Fraser alleged in particular that they are entitled to "any and all monetary compensation delivered to [Merrell]" by virtue of a mineral lease she executed with Killam Oil Co., Ltd., with respect to the subject property. The petition asserted that the 1993 judgment did not divest Kolstad and Fraser of the mineral rights to the property at issue because the mineral interest had been separated from the surface interest in a previous conveyance in 1970. Specifically, they alleged:
Merrell notes that the 2013 suit came three years after the discovery of the Eagle Ford Shale mineral deposits in South Texas, which underlies the property at issue.
By Warranty Deed dated June 10, 1970, recorded in Volume 227, Page 208 of the Deed Records, Hannah Keeney and Annie Kolstad, as Grantors, conveyed the surface only to Tracts 191, 192, and 193, Block 16, Live Bee Land Subdivision No.4, to Maurice M. Chapman, as Grantee, and specifically reserved all minerals. After this Warranty Deed in 1970, 100% of the surface was vested in Maurice M. Chapman, and a 2/3 of 1/2 mineral interest was vested in Hannah Keeney and a 1/3 of 1/2 mineral interest was vested in Annie Kolstad.Kolstad and Fraser asserted that, "when a mineral interest has been separated from the surface ownership, no interest in the minerals can be acquired; for the mineral owner has an estate that is distinct from the surface fee" and therefore, the 1993 judgment did not divest them of the mineral rights to the property at issue. The petition further asserted that "the previous litigation could not have divested [Kolstad and Fraser] of their mineral interest in the land because the mineral interest has been separated from the surface ownership before [Merrell] adversely possessed the subject land."
Merrell answered the suit, generally denying the factual allegations and asserting affirmative defenses including res judicata. Merrell later filed a motion for traditional summary judgment on res judicata grounds. The motion claimed that the 1993 judgment "covered the same Property covered in this suit; was between the same parties or their privies; and this suit covers the same claims raised, or claims that could have been raised, in the prior suit." In support of the motion, Merrell attached, among other evidence, a certified copy of the 1993 judgment. Kolstad and Fraser filed a response to the motion in which they argued, as they did in their petition, that the 1993 adverse possession judgment did not apply to the mineral rights of the property at issue. Merrell filed a reply to the response. The trial court granted Merrell's summary judgment motion and this appeal followed.
II. DISCUSSION
A. Standard of Review
We review summary judgments de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004); Nalle Plastics Family L.P. v. Porter, Rogers, Dahlman & Gordon, P.C., 406 S.W.3d 186, 199 (Tex. App.—Corpus Christi 2013, pet. denied). We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Joe, 145 S.W.3d at 157.
In advancing a traditional motion for summary judgment, the movant has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Joe, 145 S.W.3d at 157. A defendant moving for summary judgment on an affirmative defense such as res judicata must conclusively prove the elements of that defense. Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000); see Rico v. Judson Lofts, Ltd., 404 S.W.3d 762, 765 (Tex. App.—San Antonio 2013, pet. denied) ("A defendant's motion for summary judgment based on an affirmative defense must not be granted if the defendant fails to conclusively establish each element of its affirmative defense."). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
B. Applicable Law
A party relying on the affirmative defense of res judicata must prove: (1) a prior final determination on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were or could have been raised in the first action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); see TEX. R. CIV. P. 94 (identifying res judicata as an affirmative defense).
"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." TEX. CIV. PRAC. & REM. CODE ANN. § 16.021(1) (West, Westlaw through 2015 R.S.).
C. Waiver
In her appellate brief, Merrell contends that Kolstad and Fraser waived all of their appellate issues because: (1) the issues presented for review were not raised in the trial court; (2) the issues are not "stated concisely" in their brief, see TEX. R. APP. P. 38.1(f); (3) there was no succinct, clear and accurate statement of the arguments on their issues in the body of the brief, see TEX. R. APP. P. 38.1(i); (4) they did not support their arguments with references to authority and to the record, see id.; and (5) they did not object to the "sufficiency of Merrell's summary judgment evidence."
In the "Issues Presented for Review" section of their appellate brief, Kolstad and Fraser present the following unenumerated list of questions:
Does the conveyance of mineral rights by record title owner negate the element of exclusivity prerequisite to a claim for adverse possession?Merrell is correct that Kolstad and Fraser did not explicitly present these specific questions to the trial court in response to Merrell's summary judgment motion; and she is correct that the argument presented by Kolstad and Fraser in their brief does not correspond to the listed questions. In fact, some of the questions—including the one inquiring as to whether "improper application of res judicata" may "deprive a party from an adequate remedy at law"—are not addressed at all in the brief. Nevertheless, Kolstad and Fraser did explicitly argue to the trial court and on appeal that Merrell is not entitled to judgment as a matter of law on the basis of res judicata, and the argument made within their appellate brief as to this broader issue was supported with references to authority and to the record. See TEX. R. APP. P. 38.1(i).
Does the conveyance of mineral rights by record title owner constitute the exercise [of] dominion over property?
Does the execution of a mineral lease constitute the exercise of dominion?
Does ambiguity in a judgment preclude res judicata?
Does ambiguity in a judgment create a genuine issue of material fact precluding summary judgment based upon res judicata?
Does res judicata allow a prevailing party to define an ambiguous judgment to include relief contrary to substantive law?
Does prior litigation between parties serve as a bar to claims outside the scope of the prior judgment?
Can an incorrect finding of fact or conclusion of law result in a void judgment immune from subsequent challenges?
Can the improper application of res judicata deprive a party from an adequate remedy at law?
We agree that the statement of issues presented is not concise as required by the rules. See TEX. R. APP. P. 38.1(f). However, because the crux of the appeal—i.e., whether the trial court erred in granting summary judgment—is apparent from our review of the brief as a whole, we do not find that Kolstad and Fraser waived that broader issue. We will therefore consider the specific questions listed above only insofar as they have been preserved and are necessary to determine the broader question of whether summary judgment was appropriate. See TEX. R. APP. P. 33.1.
Merrell additionally argues that Kolstad and Fraser did not object to the "sufficiency of Merrell's summary judgment evidence; thus, the elements of res judicata were proved as a matter of law . . . ." We disagree that one follows from the other. Kolstad and Fraser do not attack the "sufficiency" of Merrell's summary judgment evidence, but they do argue that Merrell failed to establish the elements of res judicata as a matter of law. We believe the broad issue of whether the trial court erred in granting summary judgment has not been waived. We proceed to consider the merits of that issue.
D. Analysis
In support of her summary judgment motion, Merrell produced evidence showing that (1) the 1993 judgment was a final judgment on the merits rendered by a court of competent jurisdiction, (2) the parties to the instant case are either identical to or in privity with the parties in the earlier case, and (3) the claims made by Kolstad and Fraser in the instant case are the same as the claims made in the earlier case. See Travelers Ins. Co., 315 S.W.3d at 862. As to the third element in particular, Merrell produced a copy of Kolstad and Fraser's answer to the earlier suit, which stated:
In answer to Paragraph II of Plaintiff's Original Petition, these answering Defendants deny that Plaintiffs were and are now seized and possessed of all interest in Tracts 191, 192, 193 and the portion of the old abandoned roadway appurtenant thereto as set forth in said Petition as being a portion of Tract III, deny that Plaintiffs own the same in fee simple and affirmatively allege that these answering Defendants are the owners of one-half (1/2) of the oil and gas mineral estate and ores underlying said Tracts 191, 192, 193 and the appurtenant portions of the abandoned roadway adjacent thereto, being out of Block No. 16 of the Live Bee Land Subdivision No. 4 as per plat thereof recorded in Volume 1, page 24 of the Plat Records of Live Oak County, Texas, by virtue of a reservation of the same by these answering Defendants' predecessors in interest recorded in the records of Live Oak County, Texas, as set forth on Exhibit "A" attached hereto, with G. W. Kolstad being the owner of an undivided one-third of one-half (1/3 of 1/2) and Doris Fraser being the owner of an undivided two-thirds of one-half (2/3 of 1/2) thereof.
In the instant case, Kolstad and Fraser make the same argument—i.e., that they are collectively entitled to a one-half interest in the mineral estate because of a reservation of the mineral estate made by their predecessors in a prior conveyance. Specifically, they contend that, by a 1970 warranty deed, their predecessors conveyed the surface rights to Merrell's predecessors but reserved the mineral rights. They further contend that, because there was no proof that Merrell's predecessors conducted any drilling or production activities on the property, they could not have adversely possessed the mineral estate. See Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 192-93 (Tex. 2003) ("A mineral estate, even when severed from the surface estate, may be adversely possessed under the various statutes of limitations. Once severance occurs, possession of the surface alone will not constitute adverse possession of minerals. Generally, courts across the country including Texas courts have said that in order to mature title by limitations to a mineral estate, actual possession of the minerals must occur. In the case of oil and gas, that means drilling and production of oil or gas.").
The 1970 warranty deed does not appear in the summary judgment record. It is not clear whether the 1970 warranty deed was part of the record before the trial court in the earlier suit. --------
We conclude that Merrell has established all of the elements necessary for res judicata to apply. The trial court, as a district court, had subject matter jurisdiction to render the 1993 judgment under the Texas Constitution. See TEX. CONST. art. 5, § 8. There is no dispute that the parties to the 1993 judgment are identical or in privity to the parties to the instant case. See Travelers Ins. Co., 315 S.W.3d at 862. And, as set forth above, Kolstad and Fraser make the same claims in this case as their predecessors did in the earlier case. See id. As evidenced by the 1993 judgment, the trial court in the earlier case implicitly rejected that argument by determining that Merrell's predecessor was entitled to the entire property at issue, including both surface and mineral rights.
Kolstad and Fraser argue without reference to authority that "[f]or the doctrine of res judicata to apply in a subsequent proceeding, the original judgment must not be void nor contain fundamental error," and they appear to contend that the 1993 judgment was fundamentally erroneous because it contained a finding of fact stating that Merrell's predecessor adversely possessed both the mineral and surface interests in the subject property. But that was an issue of fact that the earlier trial court was called upon to decide, and the general "policy of the law" is to "give finality to the judgments of the courts." Browning v. Prostok, 165 S.W.3d 336, 345 (Tex. 2005). This remains the policy even when subsequent events cast doubt on the propriety of the judgment. As the Texas Supreme Court noted:
The mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.Id. (quoting United States v. Throckmorton, 98 U.S. 61, 68-69 (1878)). There is no suggestion made here that the 1993 judgment was procured by fraudulent means; but the point remains. Even if Kolstad and Fraser are correct in their assertions that their predecessors reserved the mineral rights to the subject property and Merrell's predecessors did not adversely possess the mineral estate—and that the 1993 judgment was therefore incorrect on the merits—that would not create a fact issue as to any of the res judicata elements, which is the sole issue this Court is now called upon to consider.
For the foregoing reasons, we conclude that Merrell conclusively established through her summary judgment motion and attached evidence that she was entitled to judgment as a matter of law on the basis of res judicata. We therefore overrule Kolstad and Fraser's issues.
III. CONCLUSION
The trial court's judgment is affirmed.
DORI CONTRERAS GARZA,
Justice Delivered and filed the 7th day of January, 2016.