Hardaway v. Lou Eda Korth Stubbs Nixon

• Decision Date: 22 November 2017
• Docket Number: No. 04-16-00252-CV,04-16-00252-CV
• Citation: 544 S.W.3d 402
• Parties: Jean Eckford HARDAWAY, et al., Appellants v. Lou Eda Korth Stubbs NIXON, et al., Appellees
• Court: Texas Court of Appeals

544 S.W.3d 402

Jean Eckford HARDAWAY, et al., Appellants

v.Lou Eda Korth Stubbs NIXON, et al., Appellees

No. 04-16-00252-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: November 22, 2017

APPELLANT ATTORNEY: Stella G. Marks, 19601 Chalina Drive, Walnut, CA 91789.

APPELLEE ATTORNEY: Reagan Marble, Dykema Cox Smith, 112 E. Pecan Street, Suite 1800, San Antonio, TX 78205, Jose I. Maldonado Jr., 602 E. Calton Road, 2nd Floor, Laredo, TX 78041, Baldemar Garcia, Jr., Person, Whitworth, Borchers & Morales, L.L.P., 602 E. Calton Rd. 2nd Floor, P.O. Drawer 6668, Laredo, TX 78041, Keith Franklin, Person, Whitworth, Borchers & Morales, LLP, 602 East Calton Road, Laredo, TX 78041, Michael D. Jones, Jones Gill L.L.P., 6363 Woodway, Suite 1100, Houston, TX 77057, Melanie Lynn Fry, Dykema Cox Smith, 112 East Pecan Street, Suite 1800, San Antonio, TX 78205, Ricardo E. Morales, Person, Whitworth, Borchers & Morales, L.L.P., 602 E Calton Rd, Laredo, TX 78041-3693.

Sitting: Marialyn Barnard, Justice, Rebeca C. Martinez, Justice, Irene Rios, Justice

OPINION

Opinion by: Marialyn Barnard, Justice

This is an appeal from a summary judgment in favor of appellees ("the Korth heirs") regarding ownership of 147.5 acres of real property in Karnes County. The Korth heirs moved for summary judgment, asserting among other things that they acquired ownership of the entire 147.5 acres through constructive ouster and ensuing adverse possession. The trial court granted the Korth heirs' motion for summary judgment, which appellants ("the Eckford heirs") challenge on appeal. We reverse and remand the matter to the trial court.

BACKGROUND

In the late 1800s, Louis and Eliza Eckford owned, among other property, a 147.5-acre tract in Karnes County, Texas as community property. Ms. Eckford was appointed as guardian of the community estate in 1893. Mr. Eckford died intestate on November 10, 1896. Under the laws of intestacy, one-half of the real property, which was community property, passed to Ms. Eckford, and the other half of the real property passed to the couples' nine surviving children. See TEX. EST. CODE ANN . § 201.003 (West 2014) (containing current version of Texas intestacy laws).

Ms. Eckford conveyed portions of the property throughout her life, including a conveyance to Fritz Korth—the Korth heirs' predecessor in interest—in 1923. When Ms. Eckford died in 1925, her court-appointed administrator advised the trial court that "all of the real estate" belonging to the estate should be sold to pay claims and expenses. Ultimately, in 1939, the administrator purported to sell all of the property once owned by the Eckfords as community property, including the 147.5 acres that are at issue in this appeal, to Fritz Korth. Mr. Korth, his wife Eleanor, and their sons Romeo and Fred occupied the property until Mr. Korth’s death in 1948. Ms. Korth and her sons remained on the property until 1954 when Ms. Korth and Fred conveyed their interests to Romeo. Romeo and his wife Florence entered into a mineral lease with Texas Oil & Gas Corp. in 1978. Pursuant to the terms of that lease, Romeo and Florence leased their mineral rights in the entire 147.5 acres to Texas Oil & Gas Corp.¹ Romeo and Florence continued to use the property with their daughters—Lou Eda Korth Stubbs and Ellen Ann Korth Vickers—until Romeo and Florence passed away. Thereafter, according to their affidavits, Lou Eda, Ellen Ann, and their descendants continued to exercise possession of the property.

At some point before 2012, Burlington Resources Oil & Gas Company ("Burlington") and West 17th Resources, LLC ("West 17th") discovered information that led them to believe the heirs of Louis and Eliza Eckford owned an unleased one-half interest in the 147.5-acre tract possessed by the Korth heirs. In other words, they believed the Eckford heirs and the Korth heirs were cotenants with regard to the 147.5 acres. As a result, Burlington and West 17th sought out and entered in mineral leases with numerous Eckford heirs. In 2012, because some of the numerous Eckford heirs could not be located, Burlington instituted a receivership proceeding. In that proceeding, Burlington alleged the heirs of Louis Eckford, who died intestate, owned a one-half unleased interest in the 147.5 acres and asked the court to appoint a receiver to manage, enter into agreements, etc. on behalf of the unknown Eckford heirs with regard to the mineral lease. Burlington also entered in mineral leases with the Korth Heirs.²

The Korth heirs intervened in the receivership action—as did West 17th.³ In the intervention, the Korth heirs alleged sole ownership of the entire 147.5-acre tract. Ultimately, the Korth Heirs filed a motion for partial summary judgment in which they alleged full ownership of the property as a matter of law based on: (1) the doctrine of presumption of deed; (2) record ownership based on recorded deeds and other instruments; or alternatively, (3) actual or constructive ouster of the cotenants—the Eckford Heirs—and ensuing adverse possession under the three-, five-, ten-, and twenty-five year statutes of limitations in the Texas Property Code. After responses and replies were filed, and after hearing arguments from counsel, the trial court granted partial summary judgment in favor of the Korth Heirs. In its summary judgment order, the trial court specified the grounds upon which summary judgment was granted. The order states:

(1) The Korth Intervenor’s Motion for Summary Judgment on the grounds of presumption of deed conveying the interest of the heirs of LOUIS ECKFORD in the property to them is denied;

(2) The Korth Intervenor’s Motion for Summary Judgment on the grounds of that they are the record owners of the entire estate in the property is denied;

(3) The Korth Intervenor’s Motion for Summary Judgment that there has been a constructive ouster of the heirs of LOUIS ECKFORD from the property is granted;

(4) The Korth Intervenor’s Motion for Summary Judgment that the heirs of LOUIS ECKFORD are barred by limitations from maintaining an action for the recovery of the property is granted.

Thus, the trial court granted summary judgment in favor of the Korth Heirs with regard to ownership of the property based only on constructive ouster and subsequent adverse possession. The trial court specifically rejected the Korth Heirs' claims of ownership based on presumption of deed and record ownership.

After granting the partial motion for summary judgment and signing an agreed severance order, the trial court rendered a final judgment which decreed that title to the 147.5-acre tract "is vested and has been vested in the [Korth Heirs] and their predecessors-in-interest since at least January 1, 2008, and the [Korth Heirs] have good, indefeasible, and marketable title to the [147.5-acre tract], including the ownership interests claimed by the [Eckford Heirs] and West 17th in this cause, together with all improvements therein and thereon[.]" The trial court further decreed the Eckford Heirs and West 17th are barred by limitations from maintaining an action for recovery of the 147.5-acre tract and "are completely divested of any ownership interest in and to the [147.5-acre tract.]" Thereafter, the Eckford Heirs timely perfected this appeal.

ANALYSIS

On appeal, the Eckford Heirs challenge the trial court’s order granting summary judgment in favor of the Korth Heirs, arguing summary judgment was improper because the Korth Heirs failed to establish constructive ouster as a matter of law.

Standard of Review

We review a traditional summary judgment de novo. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015) ; Rodriguez v. Lockhart Contracting Servs., Inc., 499 S.W.3d 48, 52 (Tex. App.—San Antonio, 2016, no pet.). A traditional summary judgment motion is properly granted when the movant establishes there are no genuine issues of material fact and it is entitled to judgment as a matter of law. TEX. R. CIV. P . 166a(c) ; Cantey Hanger, 467 S.W.3d at 481 ; Rodriguez, 499 S.W.3d at 52. A movant meets this burden by either conclusively negating a single essential element of the plaintiff’s cause of action or establishing an affirmative defense. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508-09 (Tex. 2010). "When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor." Cantey Hanger, 467 S.W.3d at 481 (quoting Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) ).

When, as here, a summary judgment order specifies the ground or grounds upon which it was granted, appellate courts generally limited their consideration with regard to the propriety of the summary judgment to the ground or grounds upon which it was granted. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625-26 (Tex. 1996) (citing State Farm Fire & Cas., Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993) ; Delaney v. Univ. of Houston, 835 S.W.2d 56, 58 (Tex. 1992) ); Anderton v. City of Cedar Hill, 447 S.W.3d 84, 89 (Tex. App.—Dallas 2014, pet. denied). However, the supreme court has held a reviewing court should consider, in the interest of judicial economy, all grounds the trial court rules on and that are preserved for review. Cates, 927 S.W.2d at 626. As this court has recognized, a summary judgment movant preserves "other grounds" for appellate review by filing a cross-appeal or asserting a cross-point in its appellate brief, raising those grounds as an alternate basis for affirming summary judgment. Rodriguez, 499 S.W.3d at 63 ; see Cates , 927 S.W.2d at 626 ; Polk Mech. Co., LLC v. Jones , No. 04-08-00509-CV, 2009 WL 1900414, at *5 (Tex. App.—San Antonio July 1, 2009, pet. denied) (mem. op.); Crocker v. Am. Nat'l Gen. Ins. Co., 211 S.W.3d 928, 937 (Tex. App.—Dallas 2007, no pet.) ; see also Lamar Cnty. Appraisal Dist. v. Campbell Soup Co., 93 S.W.3d 642, 649 (Tex. App.—Texarkana 2002, no pet.) (holding that where ...