*1 result of mistake or accident. According-
ly, alleging Simmons’s contention error
the trial court his overruling motion for
new trial is overruled.
Conclusion
Having overruled Simmons’s conten-
tions, we affirm the of the trial
court. Cole, MEAD, Amy
Susan and Don
Cole Trustees of MT Cole 4, Appellants,
Trust No.
RLMC, INC., Ronald L. McCutchin
Family Partnership, Ltd. Ronald a/k/a Family Partnership, Ltd.,
Appellees.
No. 2-06-092-CV. Texas, of Appeals
Court
Fort Worth.
April
Rehearing Rehearing En Banc
Overruled June *2 Thacker, Wood, Jane
R. William C. Wood, Sherry Shipman, L. Thacker & Denton, Weatherly PC, appellants. Vanderwoude, Boston, Talmage J. Brian P.C., Dallas, & Minick Sechrest Winstead appellees. CAYCE, C.J.; Panel DAUPHINOT A: WALKER, JJ. undisputedly OPINION what is property. significance This fence has to the Trustees’ DAUPHINOT, LEE Justice. ANN arguments. Mead, Cole, Appellants Amy Susan *3 Cole, Don of trustees the MT Cole Trust brought against The Trustees suit the (“Trustees”) 4,No. appeal the trial court’s trespass on a claim try McCutchins of to summary denial of motion judg- sought declaratory title judgment, and ment grant summary judgment and of in claiming property title to the on which the RLMC, favor Appellees of Inc. and Ronald wells were drilled. The Trustees contend L. Family McCutchin Partnership, Ltd. that acquired the Trust has title to the McCutchins”). (collectively “the In two property by possession, specifical- adverse appeal, argue issues on the Trustees that ly undisputedly the land north of what is (1) the implicitly trial court did not rule on property Trust and south of the fence line objections the McCutchins’ to the Trus- and undisputedly prop- what is McCutchin summary evidence, tees’ judgment but (the erty “disputed acreage”). rather on expressly objec- did not rule the tions, alleged The in their Trustees First and therefore all the of Trustees’ by evidence be Amended Petition and in their motion for should considered this (2) court on appeal; summary judgment that, and the trial court least ten by granting judgment erred summary to years, they have leased the acre- the of McCutchins the issue age to tenants who the land have used to possession by and the denying Trustees’ graze cattle, that the have main- tenants summary motion for judgment on the tained and worked on the separating fence same issue. Because we hold trial the disputed acreage from the McCutchin impliedly rule on the property from prevent escaping, to cattle objections genuine McCutchins’ and that a and that owned the Trust’s ten- exists, issue of material fact reverse the we continuously prop- ants have the judgment. trial court’s erty immediately fence south of the from They present. before 1950 to the further History and Facts Procedural although separat- claimed that a fence has The MT Cole Trust No. 4 owns several ed from acreage the County, thousand acres Denton Texas. separated property, McCutchin no fence In Lee bought Ronald McCutchin a disputed acreage from Trust’s (the property”) tract of land “McCutchin property until McCutchin had one built bordering Trust’s to property during pendency They of this lawsuit. north, conveyed and in also claim that Trust’s property Appellee to Ronald McCutch- contiguous form one in Family Partnership, Appellee Ltd. unit. RLMC, the general partner Inc. is of that partnership. summary judg- In their motion for own ment, the McCutchins claimed RLMC,
In
acting
general
disputed acreage has
been enclosed
never
partner
partnership,
of
into
entered
and that
livestock of
by the
gas
oil and
lease
Western Chief Oil
sporadic.
tenants
Trust’s
has been
Co.,
Gas
drilled
Western
granted
The trial court
the McCutchins’
two
wells on
covered
motion,
summary
and the Trus-
acreage
lease.
The
on which
wells are
appealed.
located was
a
line from tees
separated
of
movant’s cause
action
elements of the
of Review
Standard
A
as matter of law.7
defendant
defense
summary judgment
The
function
negates at least one es-
who
unmerito-
patently
to eliminate
practice is
is
cause
action
sential element
rious claims and untenable defenses.1
summary judgment on
to
entitled
rule is
summary judgment
purpose of
produces suffi-
Once the defendant
claim.8
summarily termi-
“provide
to
a method of
right
to establish
cient evidence
nating
clearly
appears
a case
it
summary
burden shifts
judgment,
only a
question
law is involved
compe-
come forward with
plaintiff
In a
there
issue
fact.”2
controverting
raising
genu-
tent
case,
ap-
the issue on
*4
regard
material fact with
ine issue of
sum-
is
the movant met the
peal whether
challenged by the defendant.9
the element
establishing
mary
judgment burden
no
of material fact ex-
genuine
that
issue
summary
parties move
When both
ists and that
movant
entitled
grants one
and the trial court
judgment
judgment
a
of law.3 The burden
as matter
other,
reviewing
motion
denies
movant,
doubts
proof
is on
all
summary
parties’
review both
court should
about the existence of a
issue
ques-
judgment
and determine all
evidence
mov-
against
material fact are
resolved
reviewing court
presented.10
tions
The
ant.4
that the trial
judgment
should render
reviewing
summary judgment,
When
have rendered.11
court should
take
true all
favorable to
we
Analysis
nonmovant,
indulge every
rea-
we
any
sonable inference and resolve
doubts
whether the trial
We first consider
that
in the nonmovant’s favor.5 Evidence
implicitly ruled
court
on McCutchins’
favors
not be
position
the movant’s
will
summary judg
objections to the Trustees’
it
considered unless
is uncontroverted.6
A
on
ruling
trial court’s
ment evidence.
imp
objection
express
be either
can
summary judgment
The
will be affirmed
argue that we
The McCutchins
only if
record
the mov-
establishes that
lied.12
Frazier v. Yu13
that
ant has
hold
conclusively proved
apply
all essential
should
Basin,
Penn,
412,
v.
252
7. Clear
589 S.W.2d
678.
1. Gulbenkian
151 Tex.
Creek
929,
(1952).
S.W.2d
931
DeSoto, Tex.,
8.
IHS Cedars Treatment Ctr. of
626,
Hamman,
618,
2. Gaines v.
163 Tex.
358
Mason,
794,
(Tex.
143 S.W.3d
798
Inc.
557,
(1962); Mackey
563
v. U.P. En
S.W.2d
2004).
Inc.,
446,
(Tex.
terprises,
935 S.W.2d
451-52
1996, writ).
App.-Tyler
Centeq Realty,
Siegler,
Inc. v.
899 S.W.2d
9.
166a(c);
195,
(Tex.1995).
Civ. P.
Sw. Elec. Power Co.
197
3.
Tex.R.
Grant,
211,
(Tex.2002); City
73 S.W.3d
215
Auth.,
Clear
Basin
589
Houston v.
Creek
Co.,
Operating
164
at 661.
10. Valence
S.W.3d
(Tex. 1979).
678
S.W.2d
Id.
Co.,
6. Great Am. Reserve Ins. San denied). pet. Co., (Tex. Plumbing Supply 1965). the trial impliedly signed judgment court ruled in favor of granting the McCutch- objections summary summary judgment to the Trustees’ ins’ motion and their Frazier, judgment objections summary evidence. In the defen- judg- the Trustees’ objected dant plaintiffs summary The objected ment evidence. Trustees’ judgment competent they evidence was not evi- had not been notified that the dence and moved to court plaintiffs strike trial had made a ruling objec- on the affidavits.14 The trial granted court and that under tions Rule 166a had motion summary right and entered a judgment to amend and alleged cure defendant; sheet, for the on its docket court defects. trial then rescinded its court plaintiff indicated that the not judgment. had The McCutchins next submit- any summary judgment submitted evi- proposed ted to the court a granting order dence.15 objections. The trial court’s order granting sign The court it stated it had re- signed but instead did not “competent” viewed all ruling objections. evidence.16 We contain a held that this record showed that trial Wrenn, inAs the mere fact that the trial implicitly objec- court had ruled granted summary the McCutchins’ *5 tions.17 judgment grounds provide motion does not Trustees, hand,
The argue on the other for us infer that the trial court necessar- that we apply ily objections.21 just should Wrenn v. GATX sustained the It is Logistics, Inc.18 and hold that the trial possible that the trial court considered the court impliedly did not rule on Appellees’ judgment Trustees’ summary evidence and objections. Wrenn, In that argued GATX concluded that not the evidence did raise a fact,22 the trial impliedly particular- court sustained their issue of material objections summary judgment ly light to Wrenn’s in rescinding of the trial court’s the distinguished objec- evidence. We be original judgment sustaining Frazier the nothing cause in tions, the signing proposed ruling record Wrenn dem the that implicitly granting objections, entering onstrated the trial court had of a objections, sustained GATX’s mention whereas final that does not record in Frazier supported objections. such an infere that We therefore hold we nce.19 noted may summary We that we cannot judg- “[w]hen consider the Trustees’ implied ruling determine what is to be ment evidence in review.23 our inferred, we cannot expect parties We next consider whether trial be able to do so.”20 court erred granting McCutchins’ case, Frazier,
In summary judgment this unlike for de motion record does not that trial A nying demonstrate the Trustees’ motion. claimant impliedly seeking ruled on the McCutchins’ to establish adverse possession objections. Here, trial court first a tract of land must show actual and visi- 14. Id. at 609. 19. Id. 498.
15.
Id.
Id.
Id. at 610.
id.
21. See
Id. at 611.
id.
See
(Tex.App.-Fort
18.
ble “designed enclo fences” or right and continued under claim either “casual to the if it with and is hostile a “casual fence” inconsistent A fence is sures.” A person.”24 claim of another claimant claiming adverse party existed before possession asserting adverse under possession land and took of the possession ten-year must limitation statute additional- not demonstrate the the claimant does cultivation, use, enjoyment of ly or show built.31 which the fence was purpose for peaceable “in brief, incorrectly In their McCutchins’ statutory possession” period.25 not have the Trustees could state cultivation, The claimant must show such adversely possessed use, enjoyment by preponderance by a tract enclosed unless the the evidence.26 are built the Coles. McCutchins that, possession pur for adverse correct A may use by a third a casual enclosure built poses, or other animals to establish adverse (neither true nor the party owner land; however, possession of a tract of claimant) party’s purpose for that own generally such a claimant must show if effect than same had never “has more “designedly the claimant the dis enclosed” Further, a casual come into existence.”32 puted tract.27 In their changed designed be to a fence cannot motion, the cited McCutchins Orsbom repair through mere or mainte enclosure Deep proposition Rock Oil Co. nance, if or maintenance repairs even such obvious, continuous, satisfy open, express purpose “for the were done posses notorious elements of adverse *6 claimant’s animals within the sion, keeping the requires Texas law more than occa may But a claimant enclosed area.”33 unless prop sional on support posses an erty nevertheless adverse by is enclosed a fence.”28 The “solid if of a fence when sion claim such McCutchins are correct that a claim that, through substan ant maintains that of cattle on the claimant shows fence, claimant requisite land true tial modification of the gave the owner claim, the “that changed notice of the claimant’s has so the fence’s character adverse disputed tract must more designed be enclosed it a enclosure.”34 bec[ame] disagree, than casual how fence.29 We
ever,
requires
Additionally, proof
“designed
of a
that Texas law
claimant
required
every
not
in
case.
claimed land with a
fence.”
enclosure” is
enclose
“solid
16.021(1)
§
24.
Civ. Prac. & Rem.Code Ann.
29. See id. at 785-86.
Tex
Cahill,
(Vernon 2002); see also Rhodes v.
802
643,
(Tex.1990) (possession must
S.W.2d
645
Rhodes,
An
requirement
applied
to the
of a
In
this
“de-
the same
signed
applies
enclosure”
claim-
although
factors to find that
the claimants
proves
non-grazing
ant
sufficient
use of
“designedly
disputed
had not
enclosed” the
disputed
“such
land
that the true
tract,
own-
the claimants had
their actions
er would have notice of
the hostile
acquired
through
title to the tract
adverse
Supreme
claim.”35 The Texas
Court and possession.39
case,
In that
we held that
this court
in
have further held that
some
(1)
evidence established
the dis-
instances, a
using
disputed
puted
constantly
tract had been
used
grazing may
land for
establish title to the
(2)
grazing;
disputed
contig-
tract was
through
land
possession
adverse
even uous to and fenced within the claimants’
when the land at issue
has
been de-
land,
unit;
operated
with both tracts
as a
Hanson,
signedly
In
enclosed.36 Butler
(3) the ranch
managers
the claimants’
Supreme
the Texas
Court
not require
predecessor-in-interest had
“rebuilt
“designed
evidence of a
enclosure” and
replaced water-gapped portions
distinguished
based
Orsbom
follow-
fence,
fence,
portions
modified
(1) Orsbom,
ing
only
facts:
in
occa-
always maintained the fence on behalf of’
sionally
land,
the disputed
(4)
predecessor;
rep-
the general
Butler,
in
testimony
whereas
there was
community
always
utation in the
had
been
constantly
land was
used
part
of the
(2) Orsbom,
for grazing;
in
the State of
claimants’ land and that the fence was the
Texas owned land between
land
owned boundary
parties’
between the
land.40 We
by the claimant and the land the claimant
said that this evidence was sufficient evi-
sought
acquire by
possession,
adverse
dence
“actual
and visible use
“skip
such
the claimant had to
property in dispute.”
land,
claim
unfenced tract” to
whereas
summary,
In
summary
to be entitled to
Butler,
in
question
the tracts in
were con-
judgment,
had
Trustees
(3)
unit;
tiguous and
operated as
establish,
pos-
usual
addition to
merely
claimant Orsbom
made use of a
elements,
“designed-
session
had
another,
Butler,
built
but in
*7
ly
disputed acreage,
enclosed” the
or that
claimant made modifications
the
to
fence
nongrazing
had made
use of
sufficient
that the court
to
found
be evidence that he
(4)
disputed acreage
the
such that
the
fence;
finally,
had made it his
and
in
of
Butler,
McCutchins would
had notice
the
trial
have
evidence at
established that
This
re-
Trustees’ hostile claim.
notice
general reputation
community
the
in the
quirement
by graz-
cannot
be established
property
by
bound
the fence
ing
by
but can
property.37
was the
alone
be established
claimant’s
facts
Butler,
of
together,
grazing
taken
actual
combination
and other non-
evidenced
activities,
as,
by
long
and visible use
the
land
the
disputed
applying
of
so
Perkins,
claimant.38
of
reasoning
Butler and
Perkins,
Perkins,
292; Hoppe
35.
at 292.
38. See
133 S.W.3d
Sauter,
(Tex.Civ.App.-
416 S.W.2d
n.r.e.).
'd
Texarkana
writ ref
Hanson,
36.
Butler
See
Perkins,
(Tex. 1970);
S.W.3d at
945-46
Perkins,
39.
Evidence repairs made needed to his tenant Requirement fence, cat- Paddack admitted that the and affidavit, occasionally stray onto managed In his tle Ronald McCutchin stat- had since he became disputed acreage ed not en- the McCutchin 1991, controverting tenant in closed and has never been enclosed. McCutchin’s statement, disputes McCutchin’s statement Cole’s affidavit this de- Paddack’s and after claim done the fence until spite McCutchin’s that the statement no work was Cole stated is uncontroverted. himself the wells were drilled. McCutchin re- adding made repairs stated that a fence line existed between included adding, stretching, rest placing posts, and the of the wire, he tying he claimed also stated that property, though he regularly checked disrepair the fence has been several himself has decades, allowing years. on the dis- over the puted acreage wander onto rest Regarding Evidence
the McCutchin from time time. Sufficient Property Use And Cole’s affidavit contradicts claims, from time to stated that stating that McCutchin’s Cole McCutchin *8 time, on the grazed knows have cattle knowledge that at his tenants personal from in his fence, disputed acreage. Don Cole stated from there been a least has knowledge, cattle posts, posts, and affidavit that his made wooden steel his have or tenants wire, disputed acre- owned McCutchin separating barbed the disputed acreage. Paddock the on the age proper- and the rest of McCutchin leasing began he continuously from established ty running and the east (not fine, disputed the property property to the McCutchin property fine west the that he uses in 1991 and acreage) cattle have wandered onto and when farming, and the McCutch- land for property, the rest of the McCutchin the leased the trial presented no other evidence to the cattle to the ins Trustees’ tenant returned or establishing the McCutchins and acreage/Trust property made disputed for disputed acreage the Paddock used to the fence as needed. Cole also repairs any grazing during or other all are purpose the livestock removed from Trust land statutory period. and disputed acreage. also from the He not, however, does state that the cattle McCutchin stated that has been he were disputed ever removed from the disputed acreage the year several times a acreage during period. the statutory from boy the time he awas small and he Further, knows that there has been Cole never a time stated that for the last years when twenty-five the or their he regularly Coles tenants has continuously occupied disputed continuously seen belonging acre- cattle to his age. disputed He stated that he tenants acreage, has never seen the on the and that any feeders, Coles or at all place becoming their tenants times since his familiar bales, hay anything property, family else with the his disputed has used the acreage disputed acreage ranching. that would for In contra- presence. every claimant’s McCutchin also stat- diction to Paddock’s claim that time ed that only got the Coles and their tenants tenant’s cattle Trustee’s onto the disputed acreage disputed ever property, requested used the when their Paddock would, time, complied cattle from time to wander removal the Trust property, onto the that request, and that Cole’s affidavit states that undisputedly only would then return to what tenant notified is McCutchins’ Cole or Trust land. McCutchin his property thus admits that tenant of cattle on McCutchin the Trustees’ cattle have at least when the occasion- cattle wandered onto undis- ally grazed puted disputed acreage. on the He property. McCutchin added time, McCutchin affidavit that at such disput- claims that the Trust’s tenant would ed property has never used for have the been non- cattle removed from the undis- activities, puted but Cole property affidavit McCutchin make re- pairs states that separating disputed has fence property been used for “ranching acreage activi- and the rest of the McCutchin affidavit, ties.” In property necessary. his stated as Paddock crossing he has observed cattle onto the at no Paddock also stated that time disputed acreage and sometimes rest any activity by since the fall of 1991 has property the McCutchin because the the Coles or their tenants constituted con- boundary (pre- line located at the occupation tinuous or notorious use and sumably boundary disput- between acreage. statement This ed acreage undisputed and the affidavit, directly contradicted Cole’s property, though he specify) does not family has, which he stated that his at all turn insufficient to cattle. He further stat- becoming times since his familiar with the ed that Trustees’ tenant’s cattle property, used have property, come onto McCutchin he ranching Cole purposes. tenant, notify would would who remove them. Additionally, McCutchin stated that We note the similarities between he knows that Trust is occa- the facts in this case and facts *9 sionally happens, cultivated and when that Perkins.
719 evidence, we considering After hold Conclusion by denying that the trial court did not err we hold that issue Because the Trustees’ motion fact remains as to whether the material conclusively the Trustees did not because acquired has title to the Trust every claim. establish element their we hold acreage by possession, adverse they Specifically, did not es- by granting trial court sum- erred disputed acreage tablish that the was “de- mary we reverse judgment. Accordingly, signedly enclosed” or that made actu- and remand this trial court’s al disputed acreage and visible use of the case a trial on the merits. for put sufficient to the McCutchins notice of their adverse claim. Because Trus- CAYCE, dissenting opinion. C.J. filed conclusively prove every tees not ele- possession, ment of adverse the trial court CAYCE, Justice, JOHN Chief correctly denied the Trustees’ motion. dissenting. however, err, The trial court did claim respectfully I dissent. The Coles’ for sum- granting McCutchins’ motion is on their disputed property based mary judgment. The sum- McCutchins’ acquired the contentions that the Coles mary judgment evidence did not conclu- possession be- property through sively disputed acreage establish that the designedly cause the was enclosed”, “designedly was that it not enclosed, continuously it was used continuously by Trustees used or for or non- grazing or their tenants Coles other grazing tenants non- ac- purposes, and Coles made that, grazing purposes, and under But- for the tual use of and visible reasoning, ler Trust had and Perkins statutory period. not made actual and visible use of the a claimant acreage statutory It well settled that when period. for the title, acquire limitation genu- is a consequently We hold there relies on that he “de- present ine fact to those he must respect issue of the land at issue.1 If signedly therefore hold that the trial enclosed” issues. We took pos- before the claimant granting court erred the McCutchins’ fence existed fails to of the land and summary judgment motion. session McGehee, Weinacht, 781, (1954)); See, Perkins e.g., S.W.2d 785 McDonnold (Tex. 1971) (citing (Tex.App.-Fort Worth 141-42 Orsb Corp., pet.). Deep Tex. orn v. Rock Oil *10 720 (cid:127) purpose Designed
demonstrate the for it which was No disput- Enclosure. The erected, property then fence is a “casual ed has never been enclosed Coles, Repairing maintaining fence.”2 or a casu- a fence built (empha- fence, al for the express purpose even of supplied) dilapidated sis An old keeping the claimant’s animals within along exists boundary northern of area, enclosed a showing without disputed property, but “has been substantially fence’s character was modi- disrepair in for several decades.” fied, change does not a into casual fence a (cid:127) Substantial No Modification of the designed enclosure.3 Northern Fence. Cole’s tenant’s ac-
An exception to the tivities connection with designed enclosure the old requirement has been if fence on the north of recognized disputed side prove can nongrazing property sufficient have been limited to “replac- use of ing the land such that adding posts, the true owner and as well as add- would of ing, tying have notice the hostile claim.4 stretching, and wire.” Examples nongrazing of such include use (cid:127) Actual, Continuous, No Visible Use. removing proper- brush and trees from the grazed The Coles have cattle on the 5ty; building farming, watering corrals or disputed time,9 property from time to cattle, ponds constructing or other neither nor but the Coles their ten- buildings property;6 on the cultivation and “any feeders, placed ants have ever of Only the land.7 nongrazing bales, stalls, hay corrals, barns, pens, and of grazing use the land is hostile anything or on the Disputed else others, however, excludes all a de- will Acreage that would evidence an ad- signed showing unnecessary.8 enclosure be presence,” verse claimant’s on, crops
The summary
planted
evidence estab-
have never
cultivat-
ed,
lishing
following
disputed
facts is
proper-
uncontrovert-
harvested the
ed:
ty-
Cahill,
643,
reputation
community
See
v.
802
646
Rhodes
S.W.2d
eral
in the
that the
(Tex.1990); born,
281,
claimant,
belonged
question
to the
153 Tex.
267
Ors
posses-
S.W.2d at
of
was sufficient evidence
Liverman,
359,
sion); Caver v.
143 Tex.
185
Rhodes,
646;
417,
(1945)
3. See
(holding
802 S.W.2d at
McDon
419
S.W.2d
con-
nold,
fence,
necting
existing
141-42.
an
of a new fence to
together
grazing
with a combination of
Perkins,
4. See
7. See Butler v. De La 812 S.W.2d land to elimi- other use of (Tex.App.-San Antonio writ de- proof designed nate the need for enclo- nied). sure). Hanson, Cf, e.g., used the Butler 9.Cole states that he has (Tex. 1970) (holding grazing 945-46 use for the of livestock and constant however, contiguous “ranching,” identify on tracts which were Cole unit, operated along any ranching than with evidence activities other existing gen- modifications fence and cattle. *11 These establish facts disputed property designedly Coles; nev- by the Coles
enclosed on the substantially
er modified the fence boundary disputed proper- of the
northern character; change
ty so as to the fence’s disputed property was not used tenants, Coles,
continuously by the such that the purpose McCutchins claim; and,
had notice of hostile have not made actual and visible Coles statu- disputed property
use of the
tory period years.10 Consequently, ten
I would hold that is no issue there respect fact with to these issues sum- McCutchins are entitled to I
mary as a matter of law.
would, therefore, affirm the trial court’s
judgment.
TARRANT RESTORATION Timothy Pletta, G.
Appellants,
TX ARLINGTON OAKS
APARTMENTS, LTD.,
Appellee.
No. 05-05-01411-CV. Texas, Appeals
Court
Dallas.
April
Rehearing Overruled June Rhodes, constantly disputed property was used for Compare S.W.2d at 645-46 (adverse possession contiguous question is not established were grazing, tracts paid property, unit, claimant taxes on operated sub- as a claimant made goats property, and cattle and on the fence, gener- and the stantial modifications occasionally repaired enclosing the community reputation was that al Butler, property), at 945—46 disputed property). owned (adverse possession established when