Dyer v. Cotton

• Decision Date: 18 November 2010
• Docket Number: No. 01–09–00228–CV.,01–09–00228–CV.
• Citation: 333 S.W.3d 703
• Parties: J. Eddie DYER, Appellant,v.Ronald COTTON, Appellee.
• Court: Texas Court of Appeals

333 S.W.3d 703

J. Eddie DYER, Appellant,

v.Ronald COTTON, Appellee.

No. 01–09–00228–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Nov. 18, 2010.

Stephen G. Hunt, Bond, Hunt, French & Company, PLLC, Houston, TX, for Appellant.Mark E. Roberts, Roberts & Castro, Houston, TX, for Appellee.Panel consists of Justices KEYES, HIGLEY, and BLAND.

OPINION

JANE BLAND, Justice.

In this trespass to try title suit, Eddie Dyer sued Ronald Cotton, claiming that, in addition to procuring an undivided 1/7th interest to farmland in Grimes County by conveyance, he also had acquired title to the remaining 6/7th interest by adverse possession. A jury disagreed, finding that Dyer had not adversely possessed the property, and the trial court signed a take-nothing judgment against Dyer. On appeal, Dyer contends that no legally or factually sufficient evidence supports the jury's finding that Dyer had failed to acquire title to the farmland by adverse possession. He further contends that the trial court erred by (1) including a jury instruction requiring Dyer to establish ouster of his other co-tenants to prove adverse possession; (2) allowing evidence of other adverse possession and property dispute lawsuits in which Dyer was involved; and (3) allowing the testimony of a witness whom Cotton did not properly disclose during discovery and whose testimony violated the parol evidence rule. We conclude that sufficient evidence supports the jury's verdict and that the trial court did not abuse its discretion in its jury instructions or evidentiary rulings. We therefore affirm.

Background

Carrie Venters owned 46.646 acres of farmland in Grimes County. When she died intestate in 1958, the property passed to her seven children in equal, undivided interests under the laws of succession. A house stood within a thirty-two-acre wooded area on part of the property. Another approximately eleven-acre portion was cleared and used for grazing and farming. The property also had a tank pond, which a nearby church periodically used for baptisms. An old, three-strand, barbed-wire fence surrounded the property.

During his lifetime, Carrie Venters' son, Lee “Snap” Venters, used the property for growing hay and grazing cattle. Snap repaired the old fence when it broke through. He also harvested timber from the property. His siblings occasionally visited the property to hunt and fish.

During the 1970s, Snap became acquainted with Dyer when Dyer bought a tract of land next to the Venters property. Snap allowed Dyer's cattle to graze on the property and let Dyer gather hay from the property. According to Snap's daughter, Brenda Miller, Snap “and Mr. Dyer were friends; and if he needed to go buy something, Mr. Dyer would help him with it; and he would pay him back.” It was not unusual for Snap's children to see Dyer's cattle running together with Snap's cattle on the property. When part of the fence came down, Snap and Dyer worked together to repair it. In the early 1990s, Snap and Dyer traded some property, which allowed Dyer to build a road through the property so that he could drive to his house from the main road. Later, when Snap became ill and could not check on his cattle as often as he used to, Dyer tended to them and fed them.

Meanwhile, Angeline Keel, Snap's sister and a co-tenant, died intestate in 1981. Her undivided 1/7th interest in the property passed to her daughter, Carrie Young. Young sold her interest to individuals outside the Venters family, Roy Godwin and Jack Baker. In 1986, Godwin conveyed his portion of the interest to Baker, so that Baker held the entire 1/7th undivided interest.

After Snap's death in 1994, Dyer bought Baker's interest in the property. Despite the fact that Baker held only a fractional interest, however, the special warranty deed he executed purported to convey the entire Venters property to Dyer. Baker testified that, before the conveyance, he informed Dyer that he did not own a fee interest in the property and was therefore selling only what he owned—what had been Carrie Young's undivided 1/7th interest. The special warranty deed from Baker to Dyer stated “That we, JACK W. BAKER and wife, JACQUELYN V. BAKER ... do Grant, Sell and Convey unto EDDIE DYER ... all of the following described real property in Grimes County, Texas, to-wit: [description of the Venters property].” The deed expressly reserves a mineral interest in Baker, but does not mention that he held only a 1/7th interest in the surface estate. Over twelve years later—shortly before trial—Baker learned of the mistake in the deed.

Also after Snap's death, Dyer called and wrote Miller asking if he could purchase the interest in the property she had inherited from her father. In turn, Miller's sister, Myrtle Hatchett, then called Dyer to introduce herself, and Dyer asked if he could buy her interest. Hatchett responded to Dyer's inquiry to her that she couldn't because it was undivided land.

Throughout this period, the Venters heirs continued to visit the property, but as they advanced in years, they did not visit as often as in the past. Snap's sister, Birdetta Edwards, visited to gather firewood from the property and fish in the tank pond about four or five times a year. On one of those visits, Edwards installed locks on the gate, but she found them cut off on her next visit. On later visits, she found the old fence had been replaced with a four-strand barbed wire fence and that someone had removed the gate. She crawled through the fence to enter the property. Dyer never forbid her to go on the property, or told her that she was a trespasser. She never saw a “no trespassing” sign on the property.

Miller heard from her Aunt Birdetta that Dyer had stopped people from entering the property, but she visited about twice a year without a problem. Dyer never communicated with Edwards regarding the gates to the property, nor did he tell Ruby Hunter, another of Snap's sisters, that she could not cut timber on the property. Miller disagreed with Dyer that the land had physically changed since her father had owned a part of it. Dyer never indicated to her that he claimed the entire property as his own to the exclusion of the other individual interests. Hatchett agreed with Miller and Edwards on the property's appearance. She observed that the land always had been used for growing hay and cattle grazing. Hatchett and her son walked around the property once or twice a year since Snap's death, and they never had trouble entering it. The gate had a chain and a lock hanging on it, but it was unlocked when she visited, and she freely entered. Hatchett, like her sister, stated that it never looked as though Dyer was attempting to claim the property as his own, and none of the Venters heirs were concerned about this possibility.

Birdetta assumed responsibility for paying the family's taxes on the property. Dyer acknowledged that he paid taxes on a fractional undivided interest and understood that the other co-tenants paid the remainder of the taxes owed on the property.

In 2005, Ronald Cotton approached the Venters heirs concerning his interest in buying the property. He visited the property with Edwards several times. Cotton did not see any “no trespassing” signs, and they had no trouble entering the property. They slipped through the fence and walked the property while Edwards pointed out the barn, the pond, the old homestead, and the wooded area. Edwards informed Cotton that Dyer held an interest in the property, and that they were able to convey only their 6/7th interest to him.

Before buying the property, Cotton visited it with a surveyor. As they examined an area near Dyer's barn that adjoined the Venters farmland, Dyer's wife noticed them and told them that they could not survey the property. In a separate incident, Dyer's wife confronted a different set of surveyors, who left when she called the sheriff's department. Dyer's daughter photographed yet another group of surveyors Cotton hired that walked in the hayfield on the property. Cotton ultimately demonstrated to the sheriff's department that he had permission to enter the property, and he completed the survey.

In connection with the proposed purchase, Cotton consulted Bonnie Armstrong, the owner of Navasota Abstract and Title Company and Grimes County Title, to conduct a title search and provide title insurance. Armstrong informed Cotton that, due to the deed from Baker, Dyer owned a 1/7th interest in the property. Although nothing indicated to Armstrong that Dyer owned more than that interest or was attempting to gain title to the entire property through adverse possession, she included an exception in the title insurance policy relating to Dyer's claim. She warned that Dyer might assert a possessory claim to the 6/7th interest. Cotton nevertheless purchased the 6/7th interest from the Venters heirs.

At trial, Dyer contended that he was entitled to claim title under the ten-year adverse possession statute because he started possessing and continuously using the property in 1994. The jury found that Dyer did not adversely possess the Venters estate, and the trial court entered judgment on the jury's verdict.

Discussion

I. Adverse possessionA. Standards of review

Dyer contends that he established adverse possession as a matter of law, and that no evidence or factually insufficient evidence supports the jury's finding that Dyer did not adversely possess the property. Because Dyer attacks the evidentiary sufficiency of an adverse jury finding on which he had the burden of proof, he must demonstrate that the evidence conclusively establishes, as a matter of law, all facts in support of the issue, or, alternatively, that the jury's adverse finding is against the great weight and preponderance of the evidence. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Harris County v. Vernagallo, 181 S.W.3d 17, 29 (Tex.App.-Houston [14th...