Bauer v. Jasso

• Decision Date: 15 May 1997
• Docket Number: No. 13-95-442-CV,13-95-442-CV
• Parties: Carl BAUER, Appellant, v. Javier JASSO and Nelda Jasso, Appellees.
• Court: Texas Court of Appeals

Page 552

946 S.W.2d 552

Carl BAUER, Appellant, v. Javier JASSO and Nelda Jasso, Appellees.

No. 13-95-442-CV.

Court of Appeals of Texas Corpus Christi.

May 15, 1997.

Moises V. Vela, Vela & Vela, Harlingen, Larry Warner, Brownsville, for Appellant.

Andrew K. Rozell, Harlingen, Tom Fleming, Fleming, Hewitt & Olvera, Brownsville, Barry Evan Jones, Weslaco, for Appellees.

Before FEDERICO G. HINOJOSA, Jr., YANEZ and RODRIGUEZ, JJ.

OPINION

RODRIGUEZ, Justice.

This is an appeal from the granting of a summary judgment in a real estate trespass case. We reverse and remand.

Appellees Javier and Nelda Jasso ("Jasso") filed suit against Appellant Carl Bauer ("Bauer") for trespass and for a temporary restraining order prohibiting Bauer from entering onto property claimed to be owned by Jasso. ¹ Bauer filed a general denial and also asserted the affirmative defense of title by deed and adverse possession.

Jasso is the record owner of Lot 15, Block 1, Colonia Antigua, a subdivision out of Block 24, Rancho Santa Maria Subdivision, La Feria Grant, Cameron County, Texas. Bauer is the record owner of property adjoining and contiguous to Jasso's property. Jasso asserted there is a drainage ditch across Lot 15, Block 1, that Bauer has used for cultivation of various crops and that such act constitutes trespass onto his property.

The trial court granted Jasso's motion for summary judgment attacking Bauer's affirmative defense of adverse possession. Jasso claimed Bauer's statements in his deposition that he did not intend on taking or stealing Jasso's land are inconsistent with the requirement of § 16.021(1) of the Texas Civil Practice and Remedies Code that defines adverse possession as requiring both actual and visible appropriation of real property and a claim of right inconsistent with and hostile to the claim of another person.

MOTION TO DISMISS

Before reaching the merits of Bauer's point of error, we must address Jasso's motion to dismiss for failure to prosecute claiming Bauer breached the parties' mediated settlement agreement and failed to comply with required filing deadlines under the rules of appellate procedure. ²

This Court referred the parties to mediation, which was conducted on February 1, 1996. As a result of that mediation, all parties agreed to and executed a settlement agreement. The relevant terms of the agreement were that Bauer (1) would dismiss his appeal and (2) pay Jasso the sum of $2500. On April 17, 1996, Jasso's counsel informed Bauer that due to Bauer's failure to deliver the $2500 in full, Jasso considered the settlement agreement breached. He further informed Bauer that he would no longer abide by the terms of the mediated settlement.

In Bauer's response to the motion to dismiss he claimed he deposited $1500 with Jasso's attorney and was attempting to procure the balance of the funds. Bauer additionally asserted that the sum Jasso was to be paid by virtue of the settlement exceeds the value of the land in question and that Jasso prevented him from having a survey of the land completed, as required by the settlement agreement. Bauer stated he was ready, willing and able to pay the full $2500.

Generally, courts of appeals dismiss appeals for want of prosecution when an appellant fails to file a brief within the time prescribed and gives no reasonable explanation for the failure, TEX.R.APP. P. 74(l)(1); Celotex Corp., Inc. v. Gracy Meadow Owners Assoc., 847 S.W.2d 384, 385 n. 1 (Tex.App.--Austin 1993, writ denied); or fails to comply with or respond to a court order, TEX.R.APP. P. 60(a)(1); Griffin v. Office of the Attorney General, 926 S.W.2d 648, 649 (Tex.App.--San Antonio 1996, no writ).

In this case, Bauer timely perfected the appeal, filed the transcript and filed his brief. We cannot say he has failed to diligently prosecute his appeal or meet any appellate deadlines. We have found no authority, nor has Jasso provided us with any, where the failure to comply with the terms of a mediated settlement agreement constituted a valid basis to dismiss an appeal for want of prosecution. This is most likely so because enforcement of a disputed settlement agreement, even if reached while the action is on appeal, must be determined in a breach of contract cause of action under normal rules of pleading and evidence. Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658-59 (Tex.1996).

In Mantas, an original proceeding, the real party-in-interest had revoked a settlement agreement reached during court-ordered mediation. Mantas, as the non-revoking party, sought enforcement of the agreement in the court of appeals. The court of appeals denied enforcement, holding that the proper remedy was to file a breach of contract action in the trial court. Id. If Jasso wants to enforce a specific term of the settlement agreement, he must do the same.

The Motion to Dismiss is DENIED.

THE SUMMARY JUDGMENT

The standard of review in summary judgment cases is whether the summary judgment proof establishes there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). We must accept the truth of all evidence favorable to Bauer and indulge every reasonable inference on his behalf. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Celestino v. Mid-American Indem. Ins. Co., 883 S.W.2d 310, 312 (Tex.App.--Corpus Christi 1994, writ denied).

Where a plaintiff moves for summary judgment in an action in which the defendant has pleaded an affirmative defense, he is entitled to summary judgment if he demonstrates that there is no material factual issue upon the elements of his claim, unless the defendant shows there is a disputed fact issue regarding the affirmative defense. Kaplan v. Bernard Lumber Co., 710 S.W.2d 737, 739 (Tex.App.--Corpus Christi 1986, no writ).

The transcript does not contain a response to the motion for summary judgment. If a nonmovant fails to file a response, the only issue it may raise on appeal is that the movant has failed to carry its burden of proof. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). Additionally, the only defect a nonmovant may raise for the first time on appeal is the legal insufficiency of the summary judgment proof to support the specific grounds stated in the motion. Duckett v. Board of Trustees, City of Houston Firemen's Relief & Retirement Fund, 832 S.W.2d 438, 440 (Tex.App.--Houston [1st Dist.] 1992, writ denied).

However, the record does contain Bauer's file-stamped "Controverting Affidavit to Defendant's [sic] Motion for Summary Judgment." The affidavit is sworn to and contains a certificate of service showing it was served upon Jasso's counsel. We consider this affidavit to be in the nature of a response to Jasso's motion and therefore do not limit Bauer's ability to raise issues other than the legal sufficiency of Jasso's summary judgment evidence.

Bauer's sole point of error contains three separate complaints and his brief sets out cases in toto, rather than concisely stating a point and providing supporting authority. As such, Bauer's point of error is technically not properly briefed. TEX.R.APP. P. 74(d). Nevertheless, "it has long been the policy of this Court to indulge a liberal construction of the briefing rules in favor of the sufficiency of the brief, and to give effect thereto if we ... can determine with some degree of certainty the nature of the complaint raised by the point." Rio Delta Land Co. v. Johnson, 566 S.W.2d 710, 713 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.), see also Champion v. Wright, 740 S.W.2d 848, 850-51 (Tex.App.--San Antonio 1987, writ denied).

The crux of Bauer's point of error is that the trial court erred in granting summary judgment because Jasso did not establish his entitlement to summary judgment with respect to Bauer's affirmative defense of adverse possession. Bauer complains the trial court impermissibly shifted the burden of proof to him to establish his affirmative defense instead of requiring Jasso to prove all the elements of his cause of action as a matter of law. We agree.

The summary judgment in this case stated that

Defendant Carl Bauer has not established his claim of adverse possession of all or any part of Lot 15, Block 1, Colonia Antigua, a subdivision out of Block 24, Rancho de Santa Maria Subdivision, La Feria Grant, Cameron County, Texas.

As reflected by the language used in the judgment, the trial court improperly required Bauer to prove his affirmative defense before trial.

The court further erred in granting summary judgment because Bauer's affidavit created a fact question with respect to his intent to adversely possess the property in question. Jasso's motion for summary judgment was premised on the argument that Bauer's deposition and answers to interrogatories and admissions showed an intent inconsistent with adverse possession. Summary judgment should not be granted when the cause of action depends on proof of facts not ordinarily subject to absolute verification or denial, e.g., intent, reliance, reasonable care, or uncertainty. Villacana v. Campbell, 929 S.W.2d 69, 73 (Tex.App.--Corpus Christi 1996, writ denied); Wofford v. Blomquist, 865 S.W.2d 612, 614 (Tex.App.--Corpus Christi 1993, writ denied).

Additionally, even if it was proper to consider statements regarding intent as dispositive summary judgment proof, we find that Bauer's affidavit directly controverts any deposition statements regarding lack of intent to adversely possess. In his affidavit Bauer makes the following statements:

The property in question herein was purchased and has been possessed by myself as well as my wife, since the year of 1969.

I have possessed, used, cultivated and enjoyed such property exclusively with my wife, since that date until the present date.

At the time that Plaintiff purchased the property he contends he owns, the small tract of land in dispute...