Cullins Sr. v. Foster
| Decision Date | 28 July 2005 |
| Docket Number | No. 14-03-00870-CV.,14-03-00870-CV. |
| Citation | 171 S.W.3d 521 |
| Parties | Ross M. CULLINS, Sr., and Dandy Ruth Cullins, Appellants/Cross Appellees, v. Jonathan B. FOSTER, Appellee/Cross Appellant. |
| Court | Texas Supreme Court |
Lawrence S. Rothenberg, Houston, TX, for appellants.
Christopher L. Ashby and Michael O. Whitmire, Houston, TX, for appellee.
Panel consists of Justices YATES, EDELMAN, and GUZMAN.
This case involves a boundary dispute between appellants/cross-appellees, Ross M. Cullins, Sr., and Dandy Ruth Cullins, and appellee/cross-appellant, Jonathan B. Foster. The Cullinses sued Foster, asserting claims for adverse possession, mistake, and trespass. Foster counterclaimed, asserting claims for trespass to try title, trespass, conversion, and violation of Texas Natural Resources Code section 151.051.1
The trial court granted two partial summary judgments resolving all liability issues against the Cullinses and in favor of Foster. Following a jury trial on Foster's damages and attorney's fees, the trial court rendered judgment on the jury's damages verdict, but increased the jury's award of attorney's fees.
Determining Foster did conclusively prove he had title to the disputed parcel of land by the time of trial, we affirm the judgment to the extent it granted Foster possession of, and title to, the disputed parcel. We also affirm the judgment against the Cullinses on all their claims.
Determining Foster did not conclusively prove he had title to the disputed parcel of land at the time the Cullinses committed the allegedly injurious acts giving rise to Foster's remaining claims, we reverse the judgment as to those claims. We also reverse that part of the judgment awarding Foster attorney's fees. We sever these claims and remand them to the trial court.2
In November 1995, the Cullinses purchased approximately one acre of land from Billie Selena Sepulvado Foster (Billie Foster), Foster's stepmother. According to the legal description attached to the deed, the property has boundaries of approximately 186 feet on the north and south, and approximately 233 feet on the east and west.3 At the time of the sale, Billie Foster owned the property immediately to the east. A chain link fence ran parallel and to the east of the property the Cullinses purchased, cutting across the Cullinses' property at the southeast corner. The fence apparently connected with fences to the north and south of the purchased property. The Cullinses claim that, at the time of sale, they believed they were purchasing all of the property contained within the fences.
In December 1995, Ross Cullins was digging postholes to straighten the fence line at the southeast corner. After Foster informed Cullins that Cullins did not own the property, he ceased digging. In 1996, the Cullinses asked Billie Foster to execute a corrected deed, which would have extended the Cullinses' eastern boundary to the fence line. She declined to do so.
The land between the Cullinses' eastern boundary and the fence (i.e., the "disputed property") contained a grove of pine trees, cultivated by Foster's father. From 1995 until 2002, the Cullinses used the area and placed a barbecue and trailer for their lawn mower there. In 2002, the Cullinses began removing the pine trees, a process which continued from about April 21 until May 16. On May 16, 2002, Foster destroyed part of the fence; and on May 24, 2002, allegedly staked out a new line.
On May 28, 2002, the Cullinses sued Foster, asserting multiple causes of action, including a claim to the property by adverse possession, mistake, and trespass. They sought unspecified actual and consequential damages and declaratory and injunctive relief. Foster counterclaimed, alleging trespass to try title, trespass, conversion, and a claim under Texas Natural Resources Code section 151.0514 and sought judgment for title to, and possession of, the disputed area, monetary damages, attorney's fees, and injunctive relief.
On June 5, 2002, Billie Foster executed a warranty deed granting Foster the tract of land immediately east of the Cullinses' property. The deed had an "effective" date of April 29, 1996.5
At her deposition, Billie Foster testified she sold Foster the property in November 1995 for $6,000. Billie Foster also recalled that the payments were due on a monthly basis, but did not recall how much Foster paid or how many months he paid. She recalled the purchase price had been paid in full around April 1996. She did not have a written agreement with Foster to sell the property until the first part of 2002.
When deposed, Foster testified he paid "around $250.00 a month" for the property until it was paid off. He could not recall the purchase price or how many payments he made. He testified he made payments until he In his affidavit, Foster attested,
Foster moved for summary judgment on his counterclaims and against the Cullinses on their claims. Regarding the Cullinses' adverse possession claim, he argued the Cullinses had not paid property taxes and did not obtain the property under a duly registered deed. Regarding the claim of mistake, he argued the cause of action did not apply to unilateral mistake and was barred by limitations. Regarding trespass and declaratory judgment, he argued he conclusively proved the Cullinses had no right to the disputed area via deed or adverse possession. In relation to his counterclaims, Foster complained about the Cullinses' use of the land and their cutting the trees. He also asserted his ownership of the property by virtue of the June 5, 2002 deed. In support of his motion, Foster provided the following documents: (1) the November 6, 1995 warranty deed from Billie Foster to the Cullinses with the attached legal description; (2) a November 2, 1995 survey showing the fence line in relation to the area described by metes and bounds in the November 6, 1995 warranty deed; (3) a letter reflecting the Cullinses' 1996 request that Billie Foster execute a correction deed which would have included the property extending to the fence; (4) a letter indicating Billie Foster declined to execute a correction deed without additional consideration; (5) the June 5, 2002 deed; and (6) deposition testimony and affidavits relating to the sale and transfer of the property described in the June 5, 2002 deed.
The Cullinses responded to Foster's summary judgment motion and also moved for partial summary judgment against Foster on his counterclaims. They alleged that the June 5, 2002, deed was ineffective to vest ownership in Foster at the time of their injurious actions on the property. Foster responded, in part, that he had obtained equitable title to the disputed property when he completed all payments to Billie Foster.
The trial court granted summary judgment in favor of Foster "on all defensive issues" against the Cullinses and on Foster's counterclaims of trespass, trespass to try title, conversion, and violation of Texas Natural Resources Code section 151.051.6 The damages and attorney's fees questions were then submitted to a jury. A non-unanimous jury found the following damages: loss of the trees' market value at the mill, $1,000; cost of cure, $4,700; loss of the trees' intrinsic value, $0.00; loss of past rental value of the land, $0.00. The jury found $5,000 to be a reasonable attorney's fee through trial of the case, but found zero fees for an appeal to the court of appeals, a petition to the supreme court, or grant of the petition.
Foster filed a request for attorney's fees and a motion for judgment notwithstanding the verdict (JNOV). The trial court rendered judgment on the damages verdict7 and awarded Foster the following attorney's fees: $15,000 through trial; an additional $5,000 if the case were appealed to the court of appeals; and an additional $5,000 if a petition for review were filed in the supreme court.
The Cullinses filed a motion for new trial. Foster filed a motion for new trial and motion to modify the judgment. The motions were overruled by operation of law. Both parties appeal.
In their first issue, the Cullinses argue the trial court erred in granting summary judgment against them on all their claims because Foster did not move for summary judgment on their claim of adverse possession under the ten-year statute. See TEX. CIV. PRAC. & REM.CODE ANN. § 16.026 (Vernon 2004). Foster argues (1) the Cullinses did not plead a claim under the ten-year statute, (2) he addressed the ten-year statute in his reply to the Cullinses' response to his summary judgment motion, and (3) the Cullinses' claim fails for the reasons set forth in his reply.
A summary judgment movant's attempt to address claims in a reply to the non-movant's response is insufficient to comport with the requirements of Rule 166a(c). Guest v. Cochran, 993 S.W.2d 397, 402-03 (Tex.App.-Houston [14th Dist.] 1999, no pet.); see TEX.R. CIV. P. 166a(c). Accordingly, we consider whether the Cullinses pleaded a claim under the ten-year statute.
Foster did not specially except to the Cullinses' pleadings; therefore, we construe the pleadings liberally in favor of the Cullinses and uphold their petition as to a cause of action reasonably inferred from what is stated even if an element of the claim is not specifically alleged. Gillespie v. Scherr, 987 S.W.2d 129, 132 (Tex.App.-Houston [14th Dist.] 1998, pet. denied) (citing Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993)). The Cullinses' adverse possession claim reads as follows:
Altern...
To continue reading
Request your trial
-
Houle v. Jose Luis Casillas, Casco Invs. Inc.
...affidavits for a summary judgment in his favor upon all or any part thereof."); see generally Cullins v. Foster , 171 S.W.3d 521, 530 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (recognizing that a plaintiff moving for summary judgment must conclusively prove all essential elements o......
-
Phila. Indem. Ins. Co. v. White
...comply with a contract’ is not a positive finding that [the] party ‘complied with a contract.’ ”); Cullins v. Foster, 171 S.W.3d 521, 536–37 (Tex.App.–Houston [14th Dist.] 2005, pet. denied) (“If the jury makes a negative finding in answer to a question, it means the party with the burden o......
-
Givens v. Ward
...the mutual mistake was, or in the exercise of reasonable diligence should have been, discovered"); Cullins v. Foster, 171 S.W.3d 521, 531 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) Accordingly, the parties have advanced competing evidence and interpretations of that evidence regardin......
-
Veterans Land Bd. v. Lesley
...governs a suit for reformation of a deed. Brown v. Havard, 593 S.W.2d 939, 943 (Tex.1980); Cullins v. Foster, 171 S.W.3d 521, 531 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). The Lesley Appellees acknowledged in their motion for summary judgment that their suit for reformation was tim......