Nac Tex Hotel Co., Inc. v. Stephen Greak, Individually, Dee Winston, Individually and E & G Investments, a General Partnership
12-14-00260-CV
Tex. App.Feb 9, 2015Background
- Property dispute over a .054-acre (2,352 sq. ft.) parcel adjacent to Plaintiff’s KFC property; Plaintiff (Nac Tex Hotel Co.) sued for trespass to try title on Oct. 22, 2012.
- Plaintiff claims title by adverse possession through predecessor Tem-Kil, which purchased and openly used/improved the land beginning in 1981; Plaintiff purchased in 1988 and continued use through suit filing.
- Alleged adverse acts: paving, landscaping, constructing a concrete bridge/drive across a creek, regular maintenance, and customer/delivery use for ingress/egress.
- Defendants (Winston, Greak, E&G Investments) are successors to the record owner (T&T Corp.); they contended adverse possession failed and asserted bad-faith filing and sought attorney’s fees.
- Jury found Plaintiff did not adversely possess for 10- or 25-year statutes, that Plaintiff filed suit in bad faith, and awarded attorney’s fees to Defendants; trial court entered judgment for Defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adverse possession (10-year and 25-year statutes) | Tem-Kil and Plaintiff had exclusive, open, continuous, hostile possession and improvements since 1981/1988, satisfying both statutes | Titleholder (or its agents) had access/inspection; Plaintiff failed to exclude owners and therefore possession was not exclusive/hostile | Jury found Plaintiff did not meet 10- or 25-year adverse-possession elements; judgment for Defendants |
| Required mental state for hostility | Hostility does not require knowledge of another’s title; only intent to claim the land (use, improve, maintain) is required | Plaintiff lacked requisite hostile intent; some testimony denied intent to take from prior owner | Court accepted jury finding against Plaintiff on adverse-possession (hostility/intent) |
| Payment of taxes / belief of paying taxes | Plaintiff’s representative believed the parcel was in its deed and that taxes were paid; actual tax payment not required to prove 10- or 25-year statutes | Failure to actually pay taxes undermines claim of claiming the land | Jury rejected Plaintiff’s adverse-possession claim despite testimony about belief of paying taxes |
| Bad-faith filing and attorney’s fees | Plaintiff acted in mistaken belief of ownership; mistake is not bad faith; Defendants didn’t file a counterclaim seeking possession as required for fee award under Civ. Prac. & Rem. Code §16.034(c) | Defendants argued Plaintiff sued in bad faith and sought fees; asserted statutory/ equitable bases for fee award | Jury found Plaintiff sued in bad faith and awarded attorney’s fees to Defendants; trial court entered judgment for Defendants |
Key Cases Cited
- Brooks v. Jones, 578 S.W.2d 669 (Tex. 1979) (adverse-possession principles regarding exclusivity and hostility)
- Calfee v. Duke, 544 S.W.2d 640 (Tex. 1976) (hostility does not require knowledge of another’s claim)
- Tran v. Macha, 213 S.W.3d 913 (Tex. 2006) (improvements/structures may support adverse possession)
- Butler v. Hanson, 455 S.W.2d 942 (Tex. 1970) (mistaken belief of ownership does not necessarily defeat adverse possession)
- W.T. Carter & Bro. v. Holmes, 113 S.W.2d 1225 (Tex. 1938) (exclusive possession and exclusions of record owners)
- Davis v. Carriker, 536 S.W.2d 246 (Tex. Civ. App.—Amarillo 1976) (adverse possession elements and exclusivity)
- King v. Inwood N. Assocs., 563 S.W.2d 309 (Tex. App.—Houston [1st Dist.] 1978) (belief of ownership does not defeat adverse-possession claim)
- Southwestern Lumber Co. of New Jersey v. Allison, 276 S.W. 418 (Tex. Comm’n App. 1925) (historic adverse-possession analysis)