Conner v. Johnson, No. 2-03-316-CV (TX 10/28/2004), 2-03-316-CV.
| Decision Date | 28 October 2004 |
| Docket Number | No. 2-03-316-CV.,2-03-316-CV. |
| Parties | JANICE TURNER CONNER, Appellant v. JASON LAURENCE JOHNSON, Appellee. |
| Court | Texas Supreme Court |
Appeal from the 271st District Court of Jack County.
Panel A: LIVINGSTON, DAUPHINOT, and McCOY, JJ.
Appellant Janice Turner Conner sued her nephew, appellee Jason Laurence Johnson, in trespass to try title, to quiet title, and to establish an easement concerning land that her mother, Lora Lee Turner, had allegedly given to her by a parol agreement in 1984. Janice bought the small house located on part of the land but not the land itself. She contends Lora Lee gave her the plot on which the house is located, as well as the ten acres adjacent to it. Over the years, Janice made improvements to the house, built a barn and corral, and mended fencing around the part she claimed. Later in 1998 Lora Lee executed a warranty deed of all her land to her grandson Jason, the appellee, that included the same land that Lora Lee had allegedly already given to Janice. A jury determined that Lora Lee had not made a parol gift of the property to Janice, and the trial court entered judgment in Jason's favor.
In this appeal we must determine whether the trial court erred in excluding Janice's testimony regarding the alleged parol gift and whether the trial court properly awarded Jason his attorney's fees. We reform the judgment to delete the award of attorney's fees and affirm the judgment as reformed.
In 1964 Lora Lee and her mother Lucille Gowdy, Janice's grandmother, sold a small house located on the land to J.D. and Margaret Slack. They also leased the Slacks a seventy by seventy foot plot of land on which the house was situated and ten acres contiguous to the plot of land. Janice bought the small house located on the seventy by seventy foot plot of land from the Slacks in 1981 for $10,000, and received a bill of sale.2 Janice claims that in 1984 Lora Lee gave her the plot and the contiguous ten acres by a parol gift. Janice has used or occupied the small house, the small plot it sits on, and the contested ten acres since 1984. Under a grazing lease with Gowdy and then Lora Lee, she has also run cattle on the 1100 acres formerly owned by Lora Lee, which includes the 10 acres adjacent to the house.
Jason is Janice's nephew and he claims all 1100 acres, including the plot of land the small house is on and the adjacent ten acres. Jason's claims are under a deed Lora Lee executed in 1998 that purportedly conveyed all 1100 acres in eleven tracts to him. The contested plot and acreage are within Tract 5 of the legal description in the deed under which Jason claims.
Initially, Janice sued for trespass to try title and to remove a cloud on her title caused by the deed to Jason. She based her trespass to try title case on Lora Lee's alleged 1984 parol gift; she based her removal action on Lora Lee's alleged incompetency at the time Lora Lee signed the deed to Jason in 1998. Janice also asked the trial court to declare her rights to the contested land under the declaratory judgments act. Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 1997).
Jason filed a motion for summary judgment on both claims. The trial court granted Jason's motion on the action to remove a cloud based on Janice's failure to bring that action within the statute of limitations, but denied his motion on Janice's trespass to try title claim. After a trial to a jury on the sole remaining issue—did Lora Lee make a valid parol gift of the house, plot, and land to Janice—the jury unanimously answered, "No." Accordingly, the trial court entered a judgment against Janice and awarded Jason his attorney's fees. Janice timely filed this appeal.
Janice challenges the trial court's refusal to let her testify about what Lora Lee said to her, which Janice contends qualifies as a valid parol gift. She also challenges the trial court's award of attorney's fees to Jason.
A gift of realty or an agreement for the sale of real property must be in writing. Tex. Bus. & Com. Code Ann. § 26.01 (Vernon 2002); Tex. Prop. Code Ann. § 5.021 (Vernon 2004). To prove a parol gift and remove the requirement of a writing, one must show three elements: donative intent of a present gift; delivery of the property; and acceptance of the property. Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191, 192 (1951). In other words, to be effective it must appear there was (1) a present gift, (2) possession under the gift, taken and held by the donee with the consent of the donor, and (3) permanent and valuable improvements made on the premises by the donee, in reliance upon the gift, with the consent or knowledge of the donor. See Whitten v. Dethloff, 214 S.W.2d 480, 484 (Tex. Civ. App.-Fort Worth 1948, no writ).
A trespass to try title suit is brought to determine title and possession to real property. Tex. Prop. Code Ann. § 22.001 (Vernon 2000); Tex. R. Civ. P. 783; Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004). Once a defendant pleads "not guilty" in a trespass to try title action, the plaintiff has the burden to establish, by a preponderance of the evidence, among others, superior title to a common source, by adverse possession or by prior possession coupled with proof that possession has not been abandoned. United Sav. Ass'n v. Villanueva, 878 S.W.2d 619, 622 (Tex. App.-Corpus Christi 1994, no writ). The plaintiff must present a prima facie case of title if the parties' titles are traced to a common source. Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610, 612 (1960). Then, at that point, the defendant must come forward and show a superior title from the common source. Id.
To show donative intent, one must show that the donor has relinquished all dominion and control over the property. Oadra v. Stegall, 871 S.W.2d 882, 890 (Tex. App.-Houston [14th Dist.] 1994, no writ). Further, the proponent of the gift must present clear and convincing evidence of the gift. Hayes v. Rinehart, 65 S.W.3d 286, 289 (Tex. App.-Eastland 2001, no pet.). The possession that relieves a parol donee from the requirements of the statute of frauds must evidence a right of control that relates to the status of an owner or must be a possession that in itself shows it is intended as a delivery under the parol gift. Pickett v. Keene, 47 S.W.3d 67, 76 (Tex. App.-Corpus Christi 2001, pet. dism'd).
Further, a presumption of gift arises if a parent delivers possession, conveys title, or purchases property in the name of a child. Richardson v. Laney, 911 S.W.2d 489, 492 (Tex. App.-Texarkana 1995, no writ); Woodworth v. Cortez, 660 S.W.2d 561, 564 (Tex. App.-San Antonio 1983, writ ref'd n.r.e.). However, this is a rebuttable presumption that the opponent must show by clear and convincing evidence at trial. Richardson, 911 S.W.2d at 492.
On appeal, Janice challenges only the jury's failure to find in her favor regarding her trespass to title claim; she has abandoned her claim to quiet title that was based on her challenge of Lora Lee's 1998 deed to Jason. The parties have not contested Janice's acceptance of the property—her possession of the property she is claiming—nor have they contested the existence of valuable and permanent improvements she made to the property with the consent or notice of the donor. Thus, the only contested issue that was submitted to the jury was in regard to the first and most important prong of a parol gift: donative intent of a present gift. Thus, we too focus only on the evidence to support donative intent; that is, a present intent by the donor to make a present gift. See Hayes v. Rinehart, 65 S.W.3d 286, 289 (Tex. App.-Eastland 2001, no pet.); Dorman v. Arnold, 932 S.W.2d 225, 228-29 (Tex. App.-Texarkana 1996, no writ).
On appeal Janice challenges the trial court's ruling excluding her testimony regarding Lora Lee's statements to her that she contends prove the parol gift. She says the trial court's failure to allow this testimony was error and resulted in an incorrect judgment.
A trial court's rulings in admitting or excluding evidence are reviewable under an abuse of discretion standard. Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527-28 (Tex. 2000). An appellate court must uphold the trial court's evidentiary ruling if there is any legitimate basis in the record for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). To obtain a reversal based upon an erroneous ruling on the admissibility of evidence, a party must show that there was error, that a substantial right of the party's was affected, and that the error probably caused rendition of an improper judgment. Tex. R. App. P. 44.1(a); Tex. R. Evid. 103(a); Owens-Corning Fiberglas Corp., 972 S.W.2d at 43; Tex. Workers' Comp. Comm'n v. Wausau Underwriters Ins., 127 S.W.3d 50, 56 (Tex. App.-Houston [1st Dist.] 2003, no pet.); Bracewell v. Bracewell, 31 S.W.3d 610, 614 (Tex. App.-Houston [1st Dist.] 1999, pet. denied). Reversible error does not usually occur in connection with evidentiary rulings unless the whole case turns on the particular evidence admitted or excluded. Tex. Dep't. of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000); In re K.M.B., 91 S.W.3d 18, 29 (Tex. App.-Fort Worth 2002, no pet.). We examine the entire record in making this determination of harm. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001) (op. on reh'g). The complaining party need not show that but for the erroneous exclusion of the evidence a different result would have occurred, but only that an improper judgment probably resulted. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995).
Because Janice has possessed the property since the 1984 alleged parol agreement, the gift presumption applies, and it was incumbent upon Jason to rebut the presumption; the deed he produced was sufficient to...
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