Opinion
04-21-00451-CV
07-27-2022
Kody KOTHMANN, as Trustee of the Kody Kothmann 1992 Irrevocable Trust, Appellant v. Carl MENZIES and Steve Menzies, as Trustee of the Perry P. Menzies and Mary Louise Menzies Living Trust, Appellees
From the 452nd District Court, Menard County, Texas Trial Court No. 2020-05655 Honorable Robert Hoffman, Judge Presiding.
Sitting: Beth Watkins, Justice, Liza A. Rodriguez, Justice, Lori I. Valenzuela, Justice.
MEMORANDUM OPINION
Beth Watkins, Justice.
Appellant, Kody Kothmann, as trustee of the Kody Kothmann 1992 Irrevocable Trust ("Kothmann") appeals the trial court's orders denying his motion for summary judgment and granting the competing motion of appellees Carl Menzies and Steve Menzies, as trustee of the Perry P. Menzies and Mary Louise Menzies Living Trust ("appellees"). We affirm the trial court's summary judgment.
Background
This adverse possession dispute involves a tract of land in Menard County ("the disputed property"). The Kody Kothmann 1992 Irrevocable Trust, of which Kothmann is trustee, owns a tract that the parties refer to as Section 61. Kothmann's tract formerly belonged to his parents, Awbrey and LaVerne Kothmann, and before that to his maternal grandfather, Fritz Volkmann. The adjacent tract, Section 62, belongs to appellees. Like Section 61, Section 62 has belonged to the same family for several generations.
The Menzies family partitioned Section 62 in 1937. Appellee Carl Menzies owns the southern portion of Section 62, and the Perry P. Menzies and Mary Louise Menzies Living Trust, of which appellee Steve Menzies is trustee, owns the northern portion. Although appellees own different tracts of land, their interests are aligned for the purpose of this appeal.
The disputed property, which sits along the eastern edge of Section 61 and the western edge of Section 62, once belonged to the Texas General Land Office. After determining the land was "excess acreage" that should have been part of Section 61, the GLO deeded the disputed property to Section 61's then-owner, Volkmann, in 1952. However, the disputed property has been continuously enclosed within the fence surrounding the adjacent tract, Section 62, since the 1930s.
Kothmann's brief describes the disputed property as 45.2 acres, but both appellees' brief and their trial court petition describe it as 37.21 acres. The trial court's final judgment awards appellees a 37.176-acre tract of land. Kothmann does not contend that these acreage discrepancies are relevant to our analysis.
In 1960, Volkmann and Awbrey Kothmann sought to remove the length of fence that enclosed the disputed property and build a new fence on what they believed to be the true and correct boundary line between Sections 61 and 62. Volkmann also allegedly cut down some trees. Volkmann and Awbrey stopped construction when appellees' predecessor, Alex Menzies, confronted Volkmann and told him to vacate the property and desist his efforts to construct the new fence. Alex's son, appellee Carl Menzies, remembers Alex having "physically prevented" Volkmann from constructing the fence. Awbrey's recollection was similar:
I remember Alex Menzies telling all of us on that day to get off "his land" and stay off "his land." He said if we did not leave, there would be a fight. We all took this
threat very seriously and did in fact stop construction of the fence and left the property.
Volkmann and Awbrey "never again tried to construct a fence to" alter the enclosure of the disputed property.
Shortly after the confrontation over the fence, appellees' predecessors filed at least two lawsuits against Volkmann to quiet title to the disputed property. Appellees' predecessors alleged that they owned the disputed property by adverse possession and demanded Volkmann pay value for the trees removed and ten months' worth of rents. The 1960 lawsuits were dismissed for want of prosecution in 1979. The record does not show any clashes over the disputed property between 1979 and the filing of this lawsuit.
In 1992, Awbrey conveyed Section 61 to Kothmann, who in turn conveyed that tract to the Kody Kothmann 1992 Irrevocable Trust. In 2015, Awbrey entered into a written agreement with Steve Menzies to split the cost of a replacement fence "between their two properties located on the Menzies' west side and the Kothmann's [sic] east side." Their agreement provided that the new fence would be built "in its current location and along the same line as it presently exists." In a 2017 affidavit, Kothmann contended that this fence was constructed without his permission and that he considered it "a hostile, non peaceful, act of trespass with the sole intention to gain 'adverse possession' of" the disputed property.
On August 26, 2020, appellees filed this trespass to try title action, arguing they had acquired title to the disputed property by either adverse possession or acquiescence. The parties filed competing motions for summary judgment, and on July 9, 2021, the trial court signed an order denying Kothmann's motion, denying appellees' competing motion as to their acquiescence claim, and granting appellees' motion as to their adverse possession claim. After the trial court overruled Kothmann's motion for new trial by operation of law, it signed a November 15, 2021 final judgment that incorporated its summary judgment rulings and denied appellees' request for attorney's fees. Kothmann timely appealed.
Analysis
Standard of Review
When both sides move for summary judgment on the same issue and the trial court grants one motion and denies the other, we review all the summary judgment evidence, determine all questions presented, and render the judgment the trial court should have rendered. S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013). Here, both parties sought traditional summary judgment on appellees' claim that they had acquired title to the disputed property by adverse possession. Tex.R.Civ.P. 166a(c).
A traditional summary judgment movant must show it is entitled to judgment as a matter of law because there is no genuine issue of material fact to be resolved by a factfinder. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). A plaintiff who seeks traditional summary judgment on his own affirmative claim must conclusively prove all essential elements of that claim. Compass Bank v. Durant, 516 S.W.3d 557, 565 (Tex. App.-Fort Worth 2017, pet. denied). A defendant may establish he is entitled to traditional summary judgment on the plaintiff's claims by either "conclusively negat[ing] at least one of the essential elements of a cause of action or conclusively establish[ing] an affirmative defense[.]" Frost Nat'l Bank. v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). "Evidence is conclusive only if reasonable people could not differ in their conclusions, a matter that depends on the facts of each case." City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005) (internal citations omitted). If the movant conclusively shows it is entitled to judgment as a matter of law, the burden shifts to the nonmovant to identify evidence that raises a genuine issue of material fact to preclude summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018).
Because the resolution of adverse possession cases often relies heavily on facts, summary judgment motions brought by a purported adverse possessor are rarely granted. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985). However, summary judgment in favor of an adverse possession claimant is not unheard of. See Gutierrez v. Lorenz, No. 14-18-00608-CV, 2020 WL 1951606, at *1 (Tex. App.-Houston [14th Dist.] 2020, no pet.) (mem. op.).
Applicable Law
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); Brumley v. McDuff, 616 S.W.3d 826, 834 (Tex. 2021). The claimant's possession of the land "must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant." Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990) (internal quotation marks omitted); see also Satterwhite v. Rosser, 61 Tex. 166, 171 (1884). "Such an assertion may come in the form of a direct verbal assertion of a claim or be established by the character of the use of the property and surrounding circumstances." Davis v. Johnston, No. 03-10-00712-CV, 2012 WL 2499472, at *21 (Tex. App.- Austin June 28, 2012, no pet.) (mem. op.) (citing Orsborn v. Deep Rock Oil Corp., 267 S.W.2d 781, 787 (Tex. 1954)).
Appellees sought summary judgment under the ten-year limitations period, which applies to "real property held in peaceable and adverse possession by [a possessor] who cultivates, uses, or enjoys the property" for at least ten years. Tex. Civ. Prac. & Rem. Code Ann. § 16.026(a). Peaceable possession is defined as "possession of real property that is continuous and is not interrupted by an adverse suit to recover the property." Tex. Civ. Prac. & Rem. Ann. § 16.021(3).
Application
Evidentiary Issues
On appeal, Kothmann argues that the summary judgment affidavits of Carl Menzies and Steve Menzies are legally no evidence because they are conclusory. A conclusory affidavit expresses an inference or legal conclusion without providing the underlying supporting facts. See, e.g., Hilderbran v. Tex. Sw. Council, Inc., Boy Scouts of Am., No. 04-20-00112-CV, 2021 WL 2211353, at *5 (Tex. App.-San Antonio June 2, 2021, no pet.) (mem. op.); Trejo v. Laredo Nat'l Bank, 185 S.W.3d 43, 50 (Tex. App.-San Antonio 2005, no pet.). The challenged affidavits state that the affiants are members of the Menzies family who currently own portions of Section 62 and are familiar with Section 62 and the disputed property. The affidavits recite historical facts about the Menzies family, the ownership of Section 62, the Menzies family's use of Section 62 and the disputed property, the existence of the fence, and interactions between Volkmann, Awbrey, and members of the Menzies family. We see nothing in either affidavit that constitutes an unsupported inference or legal conclusion. Accordingly, we reject Kothmann's assertion that the affidavits are conclusory. See Hilderbran, 2021 WL 2211353, at *5.
Status of the Fence
In his first issue, Kothmann argues he was entitled to judgment as a matter of law and appellees were not because appellees did not conclusively show that the fence enclosing the disputed property is a "designed enclosure" as opposed to a "casual fence." Appellees respond that the status of the fence is irrelevant because the evidence conclusively shows that Kothmann's predecessors have been on notice of appellees' claim to the disputed property for more than ten years.
We need not decide whether the fence is a casual fence or a designed enclosure, because the casual fence doctrine applies only when the sole claim of a right to ownership is through grazing. McDonnold v. Weinacht, 465 S.W.2d 136, 142-43 (Tex. 1971). If there is another form of notice, such as a verbal assertion made by the adverse party of its claim to the property, the casual fence doctrine does not apply. See Orsborn, 267 S.W.2d at 785, 787; Davis, 2012 WL 2499472, at *21. Here, the parties presented undisputed evidence that: (1) their predecessors verbally asserted their claim to the disputed property directly to Kothmann's predecessors; and (2) Kothmann's predecessors subsequently took no action to interrupt appellees' predecessors' possession of the land. See Davis, 2012 WL 2499472, at *21; see also Tex. Civ. Prac. & Rem. Code §§ 16.021(1), (3).
As support for his motion for summary judgment, Kothmann presented an affidavit from his father, Awbrey, averring that when Awbrey and Volkmann tried to relocate the fence in 1960, Alex Menzies ordered them off "'his land'" and "said that if we did not leave, there would be a fight." Awbrey further averred that he "took this threat very seriously," left the property when Alex Menzies ordered him to do so, and "never again tried to construct a fence to enclose the property rightfully owned by the Volkmanns or Kothmanns." Kothmann's own affidavit, which both sides used as summary judgment evidence, recognizes that in the 1960 lawsuits, appellees' predecessors "claimed clear title to the Volkmann land solely by 'adverse possession.'" On these points, Awbrey's and Kothmann's affidavits are consistent with Carl Menzies's affidavit, which averred that Alex Menzies "physically prevented Mr. Volkmann from tearing down the fence, then sued Mr. Volkmann to prevent him from removing the fence." This evidence "can be viewed in only one light"-that appellees' predecessors unequivocally claimed ownership of the disputed property and notified Kothmann's predecessors of that claim in 1960. See City of Keller, 168 S.W.3d at 814-15. Accordingly, no reasonable factfinder could construe this undisputed evidence as anything other than "a claim of right that is inconsistent with and is hostile to the claim of" Kothmann and his predecessors. See Tex. Civ. Prac. & Rem. Code § 16.021(1); City of Keller, 168 S.W.3d at 815-16. Because the undisputed evidence shows notice that did not arise solely from the grazing use of the land, we conclude the casual fence doctrine does not govern this scenario. See Orsborn, 267 S.W.2d at 785, 787; Davis, 2012 WL 2499472, at *21.
Additionally, the uncontroverted evidence shows appellees and their predecessors have used and enjoyed the property for more than ten years. Tex. Civ. Prac. & Rem. Code § 16.026(a). In their affidavits, Carl Menzies and Steve Menzies averred that the Menzies family "have continuously ranched the land on our side of the fence as a single pasture, including the area in dispute" since 1937, "have always claimed the disputed acreage as our land," and "for at least 50 years . . . ha[ve] raised cattle, sheep, and goats on the entire pasture under our fence." Although Kothmann challenged the evidentiary value of these affidavits, he did not present any evidence to controvert their assertion that the Menzies family has raised animals on the land for at least fifty years. Tex.R.Civ.P. 166a(c); see Lujan, 555 S.W.3d at 84.
Kothmann argues that appellees' evidence of use points to nothing more than grazing on land that was open to the Menzies family and that "such grazing is not only commonplace but is a legal entitlement of any Texas landowner." Again, however, the authority Kothmann cites for this proposition holds only that grazing animals on land enclosed by a casual fence, without more, will not support an adverse possession claim. See, e.g., McDonnold, 465 S.W.2d at 141-42. Kothmann has not cited any authority holding that grazing is insufficient to support an adverse possession claim under section 16.026(a) where, as here, grazing commenced before and continued after the adverse possessors openly and unequivocally asserted a verbal claim of exclusive ownership. Cf. Fish v. Bannister, 759 S.W.2d 714, 720 (Tex. App.-San Antonio 1988, no writ) ("[A]ctive and total use of the pasture grazing capacity to the exclusion of all others, with the claimant's livestock continuously present and visible evidences the required notice of the hostile claim."). To the contrary, one of the opinions on which Kothmann relies explicitly notes that in that case, there was "no evidence in the record of any verbal claim of ownership of the land" by the adverse possessor. See Orsborn, 267 S.W.2d at 787.
The undisputed and uncontroverted evidence shows appellees' predecessors expressly notified Kothmann's predecessors of their adverse claim in 1960 and that either appellees or their predecessors have continuously possessed and used the disputed property since then. See Tex. Civ. Prac. & Rem. Code § 16.026(a). On this record, the trial court did not err by concluding that appellees' purported failure to establish a "designed enclosure" neither conclusively negated an essential element of their claim nor raised a genuine issue of material fact to preclude summary judgment. See Tex. R. Civ. P. 166a(c); City of Keller, 168 S.W.3d at 815-16. We overrule Kothmann's first issue.
1960 Lawsuits
In his second issue, Kothmann argues appellees were not entitled to judgment as a matter of law because the 1960 lawsuits negate, rather than prove, their adverse possession claim. He first contends that because the 1960 lawsuits ended in a dismissal for want of prosecution, they show appellees' predecessors abandoned their prior adverse possession claims. He reasons that those lawsuits are therefore "hardly the bold and hostile act [of dispossession] depicted" in appellees' motion for summary judgment. Appellees respond that because a dismissal for want of prosecution is not a determination on the merits, such a dismissal simply returns the parties to the positions they occupied before the lawsuit was filed.
We agree with appellees. See Koger Equity, Inc. v. Bexar Cty. Appraisal Review Bd., 123 S.W.3d 502, 505 (Tex. App.-San Antonio 2003, no pet.); Maldonado v. Puente, 694 S.W.2d 86, 92 (Tex. App.-San Antonio 1985, no writ). Here, the position of the parties before the 1960 lawsuits were filed was that appellees' predecessors possessed the disputed property and had unequivocally ordered Kothmann's predecessors off the land. Kothmann's own discovery responses-which appellees relied on as summary judgment evidence-asserted:
Plaintiffs [appellees] have unlawfully fenced the Property and dispossessed Defendant [Kothmann] of the Property. Plaintiff and/or Plaintiff's predecessors in title made threats against Defendant and/or Defendant's predecessors in title when lawful possession was attempted. Plaintiffs continue to unlawfully withhold possession from Defendant.
While Kothmann's discovery responses did not explicitly state how long appellees had "unlawfully with[e]ld possession from" him, it is undisputed that the "threats" he referred to occurred before the filing of the 1960 lawsuits. Cf. Kazmir v. Benavides, 288 S.W.3d 557, 561 (Tex. App.-Houston [14th Dist.] 2009, no pet.) ("The ten-year limitations period begins to run on the date the adverse possessor actually and visibly appropriates the claimed land."). Based on this record, we do not believe the dismissal of the 1960 lawsuits would allow reasonable and fair-minded people to reach different conclusions about whether appellees and their predecessors claimed, possessed, and used the disputed property for more than ten years before the 2020 filing of this lawsuit. Tex.R.Civ.P. 166a(c); First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017).
Kothmann next argues that during the 1960 lawsuits, appellees' predecessors judicially admitted that Kothmann's predecessor, Volkmann, possessed the disputed property at that time. A judicial admission is a clear, deliberate, and unequivocal assertion of fact that is not pleaded in the alternative. See, e.g., Lake Jackson Med. Spa, Ltd. v. Gaytan, 640 S.W.3d 830, 839 (Tex. 2022). Here, as noted above, Kothmann himself has asserted that appellees' predecessors "claimed clear title to the Volkmann land solely by 'adverse possession'" in the 1960 lawsuits. Even if we assume the 1960 petitions contained statements that appear to conflict with a claim of adverse possession, "[j]udicial admissions which determine an ultimate issue must be made of sterner stuff than merely conflicting allegations." Field v. AIM Mgmt. Grp., Inc., 845 S.W.2d 469, 472 (Tex. App.- Houston [14th Dist.] 1993, no writ). And, again, the undisputed evidence in this case shows that appellees' predecessors plainly and openly claimed ownership of the disputed property during an in-person confrontation with Kothmann's predecessors before the 1960 lawsuits were ever filed.
Finally, Kothmann contends there is a fact question about whether appellees' possession of the land was peaceable because the evidence shows appellees' predecessor threatened Volkmann and Awbrey with violence. However, the legislature's definition of "peaceable possession" requires only that a lawsuit not be brought against the adverse possessors. Tex. Civ. Prac. & Rem. § 16.021(3). There is no mention of force or threats of force in the statute. Id. Because "peaceable possession" is statutorily defined, we "do not look to the ordinary, or commonly understood, meaning" but must apply the legislature's definition. See, e.g., Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). Here, it is undisputed that appellees have had possession of the disputed property for more than ten years, and there is no evidence that either Kothmann or his predecessors ever filed "an adverse suit to recover the property." See Tex. Civ. Prac. & Rem. Code § 16.021(3). Both the 1960 lawsuits and the one presently before the court were initiated by appellees or their predecessors, not Kothmann or his predecessors, and are thereby compliant with the peaceable requirement. See id. Accordingly, the summary judgment evidence shows appellees' possession was "peaceable" for the requisite period of time as a matter of law. See id.; Entergy, 282 S.W.3d at 437.
We overrule Kothmann's second issue.
Conclusion
We affirm the trial court's judgment.