Sand v. Winfree

• Decision Date: 04 August 2022
• Docket Number: 09-20-00173-CV
• Court: Texas Court of Appeals
• Parties: GENE DAVIS SAND & MATERIALS, INC., VIRGIL GENE DAVIS, CARY B. DEAN, AND JASON R. STEVENSON, Appellants v. WILLIAM EDWARD WINFREE, Appellee

GENE DAVIS SAND & MATERIALS, INC., VIRGIL GENE DAVIS, CARY B. DEAN, AND JASON R. STEVENSON, Appellants v. WILLIAM EDWARD WINFREE, Appellee

No. 09-20-00173-CV

Court of Appeals of Texas, Ninth District, Beaumont

August 4, 2022

Submitted on January 31, 2022.

On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B190053-C.

Before Golemon, C.J., Kreger and Johnson, JJ.

MEMORANDUM OPINION

CHARLES KREGER, Justice.

The appeal involves a title dispute between adjoining property owners over certain real property created by a property description that was altered from the original deed recorded in 1998, in a subsequent deed prepared in 2014.^[1] The trial court found the original deed prepared in 1998 to be the controlling deed and entered a judgment voiding the 2014 deed's property description to the extent it differed from the original property description contained in the 1998 deed; the trial court also awarded attorney's fees to Appellee as the prevailing party. In three issues, Gene Davis Sand & Materials Inc. Virgil Gene Davis, Cary B. Dean, and Jason R. Stevenson argue that the trial court erred in finding that William Edward Winfree is the legal owner of the disputed real property, in finding, as a matter of law, that Appellants' cross-claims challenging alleged errors in the original property description contained in the 1998 deed are barred by limitations, and in awarding attorney's fees in a suit to quiet title, as well as awarding attorney's fees and appellate attorney's fees that were not shown to be reasonable, necessary, equitable or just. We affirm in part and reverse and render in part.

Background

In 1998, Winfree owned a large 1600-acre tract of land in Orange County (the Parent Tract). At that time, Virgil Davis approached Winfree about his company, Gene Davis Sand &amp Materials, Inc., purchasing "approximately 50 acres" (the Property) out of Winfree's Parent Tract of land. Davis wanted to purchase the land to expand his sandpit business.^[2] As part of the 1998 earnest money contract, Davis and Winfree made a preliminary drawing of the Property to be purchased and hired George Anderson Surveying to prepare a metes and bounds property description and plat for use in the warranty deed. Ultimately, a warranty deed was prepared describing what the 1998 Deed called "53.21 acres, more or less." Winfree testified that Winfree and Davis also agreed that Winfree would retain an easement on the east side of the Property so he could access his other property. The northeast side of the Property abutted a pipeline right-of-way, which was labeled and noted in the survey plat attached to the 1998 Deed. According to Winfree, despite the notation on the earnest money contract plat indicating that the boundary of the Property would extend 25 feet into the cleared right-of-way, he believed the pipeline right-of-way served as a boundary on the northeast side of the Property, and the 53 acres would be southwest of the pipeline right-of-way. A Warranty Deed with Vendor's Lien was prepared and dated August 14, 1998 and recorded under Clerk's File No. 183529, Vol. 1089, Page 312 of the Official Public Records/Deed Records of Orange County, Texas.

In 2014, Dean and Stevenson approached Davis seeking to purchase the Property. In preparation for the purchase, the title company discovered problems with the property description in the 1998 Deed. It was discovered that the metes and bounds property description of the Property contained in the 1998 Deed did not return to the "point of beginning." According to Stevenson, Sabine Title Company corrected the problem, but the title company did not require anything from them to correct the problem. Dean testified that he discussed the issue with Sabine Title Company and the title company had him take some "paperwork" to the original surveyors who had prepared the property description in the 1998 Deed. Dean stated he did not discuss the paperwork with the surveyor or have any further conversations about the interactions between the survey company or the title company. Dean explained that after two months, the title company contacted him and told him "[e]verything's fine[,]" and to come in and sign the paperwork. Dean was not told how the title company corrected the problem or that the title company had created a new legal description for the Property. Dean stated that at no time in 2014 did they discuss the 2014 deeds^[3] or description error with Winfree. Stevenson testified that he first discussed the deed descriptions with Winfree in 2018, after they were approached by ExxonMobil seeking to purchase a pipeline right-of-way across or abutting the northeast boundary of the Property.

Mark Anderson testified that he owns a land surveying business, originally established by his father, and the business is 41 years old. Anderson stated that his father was a registered land surveyor, and after he passed away, he (Mark Anderson) hired another registered land surveyor to work at the company. According to Anderson, he has been "involved with everything in the day-to-day operation[s]" for 41 years. He stated that although he is not a registered surveyor, he is involved in every survey and "[e]verything goes through me." In 1998, his company was asked to complete the survey for the purchase of the Property by Davis from Winfree. He stated that the survey was "pretty routine" and that he believed Winfree dealt with his father in conducting the transaction, but he ran the surveying crew at the time of this job. Specifically, he recalled the boundary lines as following two existing roadways and a pipeline, stating:

I remember it being a pretty routine survey for us. I remember I was supposed to tie in a pipeline and a ~ which I, at the time, didn't realize it was Old Mansfield Ferry Road ~ and then Mansfield Ferry Road on the south side and the Old Mansfield Ferry Road on the east side and then the pipeline on the north side[.]

Anderson testified that the cleared right-of-way of the pipeline was considered a "landmark" and the boundary line would run along the southwest edge of the cleared pipeline right-of-way. He stated the boundary line would not be "north of the pipeline right-of-way[.]" Anderson testified that at some point he was made aware that the 1998 deed description did not close or return the point of beginning, acknowledging that mistakes can happen on occasion. He thus explained the process and how to correct it:

Well, it doesn't close. I'm not going to say it ~ obviously, it's not an often thing; but it does happen, a lot more often back in the old days when you didn't have computers as prevalent in our work. We have programs today that clearly tell you when it doesn't close when you write a legal ~ can I see that plat again? I think ~ I know the answer; but I want to make sure, not speculate.

But my dad did ~ as you can see, that's a hand-done drawing. It's a not done with AutoCAD. So, my dad would have wrote this legal description and then he would have done a hand-drawing and that's what this represents. So, back in those days ~ again, it wasn't often; but we do -- there are correction deeds, things that had to be done for surveys that didn't close.

In 2018, Winfree came to Anderson's office and asked Anderson about the legal descriptions in the 2014 Deeds that the title company prepared for Davis, Dean, and Stevenson. Anderson testified that Winfree brought to his attention that the 1998 description did not return to the point of beginning and Anderson confirmed the discrepancy. An exhibit was entered demonstrating a drawing prepared by Anderson's office comparing the legal description in the 1998 Deed to the legal description in the 2014 deeds. Anderson testified that the 2014 description did not match the 1998 description. According to Anderson, in the 1998 Deed, the southwest edge of the pipeline right-of-way is the northeast boundary of the Property. He stated the legal description in the 2014 Deeds clearly goes across the pipeline right-of-way. Anderson testified that he was part of the original crew that determined the property described and conveyed in the 1998 Deed and "I remember specifically that we were supposed to be on [the] south side of the pipeline." He confirmed that the change in the 2014 Deeds pushed the northern boundary across the pipeline right-of-way to the north side. According to Anderson, although Davis contends the 2014 Deeds made changes to the legal description of the west side of the Property only, the changes also affected the northeast side of the property and pushed the boundary to the north side of the pipeline right-of-way. Anderson testified that the metes and bounds description changes made to the 2014 Deeds attempted to transfer a different piece of property than what was described and conveyed to Davis in the 1998 Deed.

Jimmy Verrett testified that he is a registered professional land surveyor. Verrett stated that in 2018 he was asked by Dean and Stevenson to complete a survey based on the 2014 deed description. He stated that he studied the 1998 Deed and determined the metes and bounds description of the Property in the 1998 Deed did not return to the point of beginning. Verrett testified that both the 1998 Deed and the 2014 Deeds describe the same beginning point. He testified that the language in the 1998 Deed regarding the pipeline "could [or] should have" used more specific language to identify the particular location of the pipeline right-of-way. According to Verrett, in conducting his survey he could not find clear evidence of markers on the ground to represent the property described in both the 1998 Deed and the 2014 Deeds. He had to reestablish Winfree's boundary lines from the deeds when Winfree originally...