Volunteer Council of Denton State School, Inc. v. Berry

• Decision Date: 27 July 1990
• Docket Number: No. 05-89-00763-CV,05-89-00763-CV
• Parties: VOLUNTEER COUNCIL OF DENTON STATE SCHOOL, INC., Appellant, v. Murdine BERRY, Appellee.
• Court: Texas Court of Appeals

Page 230

795 S.W.2d 230

VOLUNTEER COUNCIL OF DENTON STATE SCHOOL, INC., Appellant, v. Murdine BERRY, Appellee.

No. 05-89-00763-CV.

Court of Appeals of Texas,

Dallas.

July 27, 1990.

Rehearing Denied Sept. 17, 1990.

Richard H. Kelsey, Denton, James W. Creech, Dallas, for appellant.

B. Prater Monning, III, Carol Wolfram, Dallas, for appellee.

Before HOWELL, LAGARDE and WHITTINGTON, JJ.

OPINION

LAGARDE, Justice.

Volunteer Council of Denton State School, Inc. (Volunteer) appeals an instructed verdict awarding Murdine Berry (Berry) title and possession of eleven and one-half acres of land located in rural Dallas County, Texas. ¹ The trial court based its instructed verdict in this trespass to try title suit on a finding that Berry had established her unabandoned prior possession of the land as a matter of law, while Volunteer had failed to establish by competent proof any claim of title. Additionally, the trial court based its verdict on a finding that Berry had proved a prima facie case of limitations title under the ten-year statute, which was likewise unrebutted. Volunteer advances seven points of error. ² Points one through four and point six assert that, for various reasons, the trial court improperly granted the instructed verdict. Point five asserts that section 33.54 of the Texas Tax Code ³ precludes Berry's limitations claim as a matter of law. Point seven complains that the trial court erred in rendering its judgment based on prior unabandoned possession because Berry neither pleaded nor proved prior possession. By way of a cross-point, Berry asserts that the trial court abused its discretion in excluding her testimony as a discovery sanction. After examination of the applicable law and the evidence presented at trial, we affirm. Consequently, we do not address Berry's cross-point.

This case involves a dispute over title to an eleven and one-half-acre tract "smack in the middle" of an approximately seventy-eight-acre tract of land, known as "the Morney place." Berry, a descendant of Jim Morney, claims possession and title by limitations, and Volunteer claims record title derived through a tax deed dated July 6, 1976, and recorded July 29, 1976. In response to Berry's petition alleging trespass and damages, Volunteer pleaded "not guilty." Volunteer also filed a special plea in bar based on limitations pursuant to section 33.54 of the Tax Code. Consequently, we must address issues of the burden of proof in a trespass to try title case, adverse possession, and prior unabandoned possession.

PRIOR POSSESSION

Initially, we note that Volunteer complains that Berry may not assert a prior possession claim because Berry did not specifically plead this claim. We overrule this point of error because, in a trespass to try title case, it is not necessary to specifically plead prior possession. It is only necessary to specifically plead title by limitation. Walsh v. Austin, 590 S.W.2d 612, 614 (Tex.Civ.App.--Houston [1st Dist.] 1979, writ dism'd w.o.j.). Though some cases refer to prior possession as a presumption, the doctrine of prior possession is not actually a legal presumption. Instead, prior possession stands as an evidentiary rule which states that one in possession of the property is the presumptive owner unless the challenger proves a superior right. Id.; Phillips v. Wertz, 546 S.W.2d 902, 905 (Tex.Civ.App.--Dallas 1977, writ ref'd n.r.e.). Prior possession indicates ownership interest against one who has failed to establish a paper title to the property. Walsh, 590 S.W.2d at 614. The doctrine is an independent ground of recovery designed to maintain the public order by insuring that possession may continue absent a showing of better title. Phillips, 546 S.W.2d at 905. Prior possession, a form of adverse possession, does not require a claim of legal title, and possession alone will exclude one having no title. Id. at 906. Though a party fails to establish title by limitation, the court may still render judgment in that party's favor by reason of prior possession when the opponent fails to prove better title. Walsh, 590 S.W.2d at 614.

Berry, plaintiff at the trial level, filed her trespass to try title case against various defendants on July 16, 1985, specifically pleading title by limitation. The trial court directed a verdict in her favor, and awarded her title to eighty acres of land in Dallas County. ⁴ Only Volunteer appeals the judgment, contesting Berry's title to tract 3, an eleven and one-half acre section.

In any trespass to try title case, the plaintiff must recover on the strength of its own title, not a weakness in its opponent's claim. See Land v. Turner, 377 S.W.2d 181, 183 (Tex.1964); Rocha v. Campos, 574 S.W.2d 233, 235 (Tex.Civ.App.--Corpus Christi 1978, no writ). The plaintiff may recover on a trespass to try title claim through several methods of proof, one of which is a showing of prior and unabandoned possession. Land, 377 S.W.2d at 183. The possession must be actual, exclusive, and peaceable. ⁵ Id. at 186. Once the plaintiff shows the requisite possession, that showing furnishes prima facie evidence of ownership, and, unless the defendant rebuts this evidence, it counts as sufficient against a trespasser. Id. The prima facie showing actually shifts the burden of persuasion to the defendant to show that the plaintiff's prior possession claim is inferior to the defendant's. Rocha, 574 S.W.2d at 237. While adverse possession entails a factual inquiry, the court can decide the issue as a matter of law when the facts are undisputed and uncontradicted. See Rocha, 574 S.W.2d at 236 (boundary dispute); Harvey v. Peters, 227 S.W.2d 867, 872 (Tex.Civ.App.--Fort Worth 1950, no writ); compare 61 TEX.JUR.3d Quieting Title And Determining Adverse Claims § 65 (1988). For example, when the plaintiff establishes a prima facie case, the defendant must introduce evidence raising a material issue of fact if it wishes to avoid a summary judgment or a verdict directed in the plaintiff's favor. Walsh, 590 S.W.2d at 616.

In this case, the trial court instructed a verdict in Berry's favor on her claim of prior unabandoned possession, and Volunteer assigned several points to this perceived erroneous ruling. Essentially, Volunteer argues that Berry did not conclusively establish prior possession and that contested fact issues exist. On these two bases, Volunteer alleges that Berry did not prove her right to possession and title as a matter of law. ⁶ Volunteer states that because Berry failed to establish her right of possession as a matter of law, Volunteer should have had the verdict instructed in its favor. ⁷

In addressing these points of error, we are mindful of the standard of review for instructed verdicts. At the trial level, a party is entitled to an instructed verdict when reasonable persons may draw only one inference from the evidence. See Dabney v. Thomas, 596 S.W.2d 561, 562 (Tex.Civ.App.--Beaumont 1980, writ ref'd n.r.e.). The appellate court reviews the evidence presented at trial to determine whether it raises a fact issue on the material questions presented. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978). When making this determination, the appellate court considers all the evidence in the light most favorable to the party against whom the trial court instructed the verdict, and discards all contrary evidence and inferences. Id. If the appellate court concludes that reasonable minds can differ on the existence of controlling facts, then the jury, and not the court, must decide the issue. Id.

In reviewing the case at hand on the issue of prior possession, we will first examine the record to determine whether Berry established a prima facie case. If we conclude Berry established a prima facie case, then we must determine whether Volunteer presented evidence raising a material question of fact on the existence of this prima facie case. Because Volunteer bases its claim to the property on a tax deed, we will discuss the affirmative bar by limitations defense advanced by Volunteer when we discuss the validity of the tax deed as it pertains to material issues of fact.

Berry's Prior Possession Evidence

The record reflects that when Berry took the stand, Volunteer moved that the trial court limit her testimony, making it inadmissible against Volunteer as a sanction for failing to designate herself as a potential witness in response to Volunteer's interrogatories. The trial court granted Volunteer's request for a limitation of the evidence under rules 166b(2)(d) and 215(3) of the Texas Rules of Civil Procedure. ⁸ The record and the briefs of the parties discuss at length the propriety of limiting the admissibility of Berry's testimony. Volunteer asserts that the trial court limited the entirety of Berry's testimony. Berry disputes the correctness of the ruling, by way of a cross-point, and appears to argue that the limitation went both to her live and deposition testimony. We have examined the record and, because of its lack of clarity as to its limitation, we will set out our reasoning and conclusions in some detail. This analysis and examination is necessary so that we can determine what evidence was before the trial court at the time it directed the verdict in Berry's favor.

Our research has disclosed no instances of a named party being prevented from testifying as a fact witness under rule 215 discovery sanctions. However, case law repeatedly states that the failure to comply with a request for witness information results in an automatic loss of opportunity to offer that undisclosed witness's testimony. Galvin v. Gulf Oil Corp., 759 S.W.2d 167, 170 (Tex.App.--Dallas 1988, writ denied). These sanctions are designed to prevent trial by ambush and to promote fairness and a full knowledge of the issues. Gutierrez v. Dallas Indep. School Dist., 729 S.W.2d 691, 693 (Tex.1987). At least one court has disallowed an undesignated party to testify as an expert witness on his own behalf....