Opinion
NO. 03-14-00535-CV
02-02-2016
David Young, Appellant v. Trails End Homeowners Association, Inc.; TLS Properties, Ltd.; TLS Operating Company, LLC; Van Keene; and Rick Durapau, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-10-003864, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDINGMEMORANDUM OPINION
Appellant David Young sued Trails End Homeowners Association, Inc. (the HOA), TLS Properties, Ltd., TLS Operating Company, LLC, Van Keene, and Rick Durapau (collectively, the Defendants) in November 2010, alleging various causes of action arising from a dispute over the ownership of certain property near Lake Travis. The HOA filed a counterclaim that asked the trial court to determine the ownership of the property. Following a bench trial, the court rendered a final judgment denying all relief to Young and granting all relief requested by the Defendants, which included declaring the ownership of several properties, permanently enjoining Young from obstructing a public right-of-way or trespassing onto the HOA's property, and awarding the HOA attorneys' fees. In four issues on appeal, Young challenges the sufficiency of the evidence supporting the trial court's judgment. We will affirm.
BACKGROUND
The facts recited herein are taken from the trial court's findings of fact and conclusions of law.
Several properties are involved in this dispute. Young owns Lot 52, which was depicted by a 1947 plat of the Trails End Subdivision in Travis County (the Subdivision). Other relevant properties include Lot 139 and Lot 140, which are depicted by a plat of the Subdivision from 1962, and a 1.4777-acre tract of land adjoining Lot 139 (the 1.4-acre tract) and a public right-of-way called West Darleen Drive, both of which are depicted by a land survey from 2014. In 1998, TLS Properties acquired ownership of Lots 139 and 140 and the 1.4-acre tract. TLS Properties used these properties as preserved areas or parklands or leased these properties to the HOA for similar uses. In 2008, the HOA acquired ownership of Lot 139 and the 1.4-acre tract from TLS Properties.
At trial, Young asserted that he owned, in addition to Lot 52, a parcel of land extending from the side lines of Lot 52 "to the center of Big Sandy Creek" (the Extended Property). Young contended that Lots 139 and 140 encroached upon the Extended Property. Young sued the Defendants, alleging causes of action for "removal of cloud on title and/or suit to quiet title," trespass to try title, business disparagement, interference with prospective contractual relationship, trespass, and conversion. Young sought declaratory relief, damages, including exemplary damages, and attorneys' fees. The Defendants responded that Young failed to establish his ownership of the Extended Property, that the Extended Property did not conflict with Lots 139 or 140, and that Young failed to present any evidence regarding his tort claims. The Defendants also alleged that Young had obstructed the HOA members' travel across a portion of their property and West Darleen Drive, a public right-of-way. The HOA brought a counterclaim against Young for trespass to try title and sought declaratory and permanent injunctive relief and attorneys' fees.
Following a bench trial, at which Young represented himself, the trial court ruled against Young on all of his causes of action and ordered that Young take nothing on his claims. The court also declared that the HOA owned Lot 139 and the 1.4-acre tract and that West Darleen Drive was a public right-of-way. The court permanently enjoined Young from obstructing West Darleen Drive and from trespassing onto or interfering with the HOA's access to or use of Lot 139 and the 1.4-acre tract. The court also awarded the HOA attorneys' fees. The court later issued findings of fact and conclusions of law. This appeal followed.
DISCUSSION
Young, who is now represented by counsel, raises four issues on appeal. In his first issue, Young contends that the 1962 plat was illegal because it was a "re-plat" of property without the approval of Young's predecessor-in-interest. In his second issue, Young argues that the "1962 re-plat of the disputed property, as well as any successors-in-interest, transferred nothing," because "one cannot sell what one does not own" and the Extended Property had already been transferred to Young's predecessor-in-interest. In his third issue, Young contends that "the trial judgment [should] be reversed for both legal and factual insufficiency" because "[t]he trial evidence by both parties did not show actual and visible possession as an element of adverse possession." Finally, in his fourth issue, Young asserts that the trial court "made multiple erroneous findings of fact and conclusions of law" that were unsupported by the evidence.
Having stated the issues presented, we must first attempt to determine how they apply to the trial court's judgment, which was broad in scope, before we proceed to our analysis. Young's brief does not specify how his complaints relate to any particular cause of action that was before the trial court. The trial court ruled on various claims and counterclaims, and Young does not explain which aspects of the trial court's judgment he is appealing through his four issues. Morever, although he challenges specific findings of fact and conclusions of law made by the trial court, he does not explain the significance of his challenges or relate them to any element of any particular cause of action. In essence, Young's appeal and the four issues he presents appear to relate only to his trespass to try title claim, and we construe Young's appeal to complain only that the evidence is legally and factually insufficient to support the trial court's determination that the disputed property belongs to the HOA and not to him. Based on this construction, we proceed with our review of the sufficiency of the evidence on this claim.
Young's brief does not mention his causes of action for business disparagement, interference with prospective contractual relationship, trespass, or conversion, nor does he specifically challenge the injunctive relief and attorneys' fees granted to the Defendants. We therefore conclude that he has waived any appeal of the trial court's rulings on those issues. See Tex. R. App. P. 38.1(i) (appellant's brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and to record).
In reviewing legal sufficiency, we consider all of the evidence in the light most favorable to the judgment, crediting favorable evidence if a reasonable factfinder could do so and disregarding contrary evidence unless a reasonable factfinder could not. See Texas Dep't of Pub. Safety v. G.B.E., 459 S.W.3d 622, 624 (Tex. App.—Austin 2014, pet. denied) (citing City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005)). Evidence is legally insufficient only when the record reveals: (1) a complete absence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite as a matter of law. Id. When reviewing factual sufficiency, we examine all of the evidence and set aside a determination only if it is so contrary to the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).
At trial, the Defendants offered, and the trial court admitted into evidence, the following documents, among others:
• the 1962 platThe Defendants also called an expert land surveyor who opined that there is no conflict between Lots 52, 139, 140, and the 1.4-acre tract.
• a 1998 special warranty deed conveying certain properties, including Lots 139 and 140, to TLS Properties and TLS Operating Company
• a 1998 special warranty deed conveying TLS Operating Company's interest in these properties to TLS Properties
• a 2005 lease of Lots 139 and 140 to the HOA by TLS Properties
• a 2008 deed conveying Lot 139 from TLS Properties to the HOA
• a 2008 quitclaim deed quitclaiming TLS Properties' interest in the "portion of the underwater land identified" in a particular document to the HOA (the Defendants identify this property as the 1.4-acre tract)
• a 2005 survey of Lots 139 and 140
• a 2014 survey of the disputed property within the Subdivision
• Travis County Appraisal District maps of the Subdivision
• photographs allegedly showing the obstructions Young had made to West Darleen Drive
Young offered, and the trial court admitted into evidence, the following:
In addition, Young offered the expert testimony of James Griffith along with Griffith's report. The trial court sustained an objection to this evidence, and Young has not challenged this ruling on appeal.
• the 1947 plat
• a letter from Jim Roberts, the president of the HOA, and a cancelled check to Young
• a 1955 deed conveying Lot 52 from T.L. Smith to Sylvia A. Trundle
Young explained the significance of these documents to the trial court as follows: "This is a letter that was prepared by the president of the HOA in order to defeat an adverse possession claim on the bottom of my Lot 152 [sic], the property lines that are now in dispute. The HOA used my lawyers and my money and we defeated a claim that supported my lot lines."
Young asserted at trial that he had acquired Lot 52 from Trundle's successor-in-interest.
"A trespass to try title action is the method for determining title to real property in Texas." McCammon v. Ischy, No. 03-06-00707-CV, 2010 WL 1930149, at *3 (Tex. App.—Austin May 12, 2010, pet. denied) (mem. op.). "It has long been the rule in this State that in a trespass to try title suit, the plaintiff must recover upon the strength of his own title." Hejl v. Wirth, 343 S.W.2d 226, 226 (Tex. 1961); see McCammon, 2010 WL 1930149, at *3 ("A plaintiff may prevail only on the superiority of his title, not on the weakness of the defendant's title."); Kilpatrick v. McKenzie, 230 S.W.3d 207, 213 (Tex. App.—Houston [14th Dist.] 2006, no pet.) ("Under well-established Texas law, it was incumbent upon the McKenzies to prevail based upon the strength of their own title to the Property and not on the weaknesses of Kilpatrick's title."). Therefore, Young could only prevail "(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, or (4) by proving prior possession, and that the possession has not been abandoned." Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex. 1994); see Kilpatrick, 230 S.W.3d at 213. If the plaintiff in a trespass to try title suit fails to establish title, the effect of the trial court's take-nothing judgment against him is to vest title in the defendants. See Hejl, 343 S.W.2d at 226 ("If the plaintiff under the circumstances fails to establish his title, the effect of a judgment of take nothing against him is to vest title in the defendant."); McCammon, 2010 WL 1930149, at *3 ("If the plaintiff fails to establish his title, the effect of a take nothing judgment against him is to vest title in the defendant.").
The only evidence in the record before us that Young owns Lot 52 or the Extended Property is his own testimony. "In actions where title to property is the ultimate issue for determination, proof of such title must be shown by the instruments of title themselves." Ramsey v. Jones Enters., 810 S.W.2d 902, 905 (Tex. App.—Beaumont 1991, writ denied); see Murphy v. Tribune Oil Corp., 656 S.W.2d 587, 589 (Tex. App.—Fort Worth 1983, writ dism'd) ("Where title to real property is directly in issue, proof of title must be made by written instruments."); see also City of Mission v. Popplewell, 294 S.W.2d 712, 717 (Tex. 1956) ("Parol evidence in the form of opinions and conclusions without documentary basis is inadmissible to establish such title, and even if admitted without objection is of no probative force."). It was Young's burden to provide the trial court with evidence of his title to the Extended Property. The record, however, contains no competent evidence that Young owns the Extended Property. In addition, the record contains no competent evidence that the Extended Property conflicts with any property claimed by any defendant. Thus, Young failed to meet his burden of proving his own title or that the property he allegedly owns conflicts with the Defendants' property.
In his appellate brief, Young asks this Court to take judicial notice of various facts and documents that were not admitted into evidence at trial. In essence, Young seeks judicial notice from this Court of documents that purport to establish his chain of title to Lot 52 and the Extended Property. It is true that an appellate court may take judicial notice of evidence for the first time on appeal. See Office of Pub. Util. Counsel v. Public Util. Comm'n, 878 S.W.2d 598, 600 (Tex. 1994) (per curiam) ("A court of appeals has the power to take judicial notice for the first time on appeal."). However, "appellate courts are reluctant to take judicial notice of matters which go to the merits of a dispute." SEI Bus. Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838, 841 (Tex. App.—Dallas 1991, no writ). Here, the documents Young asks us to notice not only go to the merits of the dispute, they also constitute a considerable portion of the evidence Young references in his brief. We cannot allow Young, now represented by counsel, to try in this Court the case that he should have presented to the trial court. To do so would transform this Court from one of appellate jurisdiction to one of original jurisdiction. "The Court of Appeals is not a trier of fact." Id. This is true even though Young represented himself at trial. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978) ("Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel."). --------
Juxtaposed against the lack of evidence supplied by Young is documentary evidence supplied by the Defendants indicating ownership of Lot 139, Lot 140, and the 1.4-acre tract. In addition, the Defendants offered the testimony of an expert witness who testified that Lot 52 and the Extended Property do not conflict with any of the Defendants' properties. In light of this evidence supporting the Defendants' claims to the disputed property and the complete lack of competent evidence supporting Young's claim, we cannot conclude, as Young suggests, that the evidence is legally or factually insufficient to support the trial court's judgment. See Hejl, 343 S.W.2d at 226 (stating take-nothing judgment against plaintiff in trespass to try title suit vests title in defendant); McCammon, 2010 WL 1930149, at *3 (same).
CONCLUSION
We affirm the trial court's judgment.
/s/_________
Scott K. Field, Justice Before Chief Justice Rose, Justices Pemberton and Field Affirmed Filed: February 2, 2016