544 S.W.3d 402
Tex. App.2017Background
- Louis and Eliza Eckford owned a 147.5-acre Karnes County tract; upon Louis's death intestate, half passed to Eliza and half to their nine children.
- Eliza (guardian/owner) conveyed parts of the property; an administrator later purported to sell the entire former community estate (including the 147.5 acres) to Fritz Korth in 1939.
- Korth family members occupied and used the tract from 1939 onward; Romeo Korth leased minerals for the entire tract in 1978; Korth descendants continued possession thereafter.
- In ~2012 Burlington and West 17th discovered possible unleased one-half interests held by Eckford heirs; Burlington leased some Eckford heirs and sued, prompting a receivership.
- The Korth heirs intervened and moved for partial summary judgment claiming full title via presumption of deed, record title, or alternatively constructive ouster and adverse possession. The trial court denied the deed/record-title grounds but granted summary judgment only on constructive ouster and limitations, vesting title in the Korth heirs.
- The Eckford heirs appealed, arguing the Korth heirs failed to prove constructive ouster as a matter of law; the appellate court reversed and remanded.
Issues
| Issue | Plaintiff's Argument (Eckford) | Defendant's Argument (Korth) | Held |
|---|---|---|---|
| Whether Korth established constructive ouster of Eckford cotenants as a matter of law | Korth did not prove ouster; summary judgment improper | Long, continuous exclusive possession (since 1939) + nonassertion by Eckford = constructive ouster and adverse possession | Reversed: Korth failed to prove constructive ouster as a matter of law |
| Whether long-continued possession + nonassertion alone can establish ouster on summary judgment | Same as above | Such facts suffice to raise presumption of ouster (Tex-Wis authority) | Held: Presumption/inference insufficient on summary judgment; movant must prove more than possession/nonassertion |
| Whether trial court could rely on other grounds in Korth motion (presumption of deed, record title) after denying them | Korth argued alternative grounds in motion | Trial court denied those grounds but granted on ouster; Korth did not cross-appeal the denials | Appellate review limited to the grounds the trial court actually granted; alternative grounds not available absent cross-appeal |
| Whether a cotenant's possession is adverse without notice/repudiation to the other cotenant | Korth: possession was hostile/exclusive enough to constitute repudiation | Eckford: cotenant possession, without clear repudiation, is often acquiesced to and not hostile | Held: Against Korth on summary judgment — cotenant ouster requires unequivocal hostile acts or other proof of notice, not just long possession |
Key Cases Cited
- Tex-Wis Co. v. Johnson, 534 S.W.2d 895 (Tex. 1976) (long-continued, open, notorious possession may support an inference of constructive ouster)
- Chavez v. Kan. City S. Ry. Co., 520 S.W.3d 898 (Tex. 2017) (presumptions and jury-trial burdens cannot be used to shift movant's summary-judgment burden)
- BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59 (Tex. 2011) (elements of adverse possession and requirement that possession indicate exclusive ownership)
- Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910 (Tex. 1997) (a summary-judgment motion must expressly present the grounds on which it is made)
- Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015) (standard of review for traditional summary judgment)