West End API, Ltd. v. Rothpletz

day opinion have this rendered our Houston, City County et al. v. Harris Association, al., Advertising Outdoor et (Tex.App. [14th —Houston 1987), reversing rendering Dist.] (the

ment trial cause No. 86-08560 de- action).

claratory judgment Because the

declaratory judgment improperly ren-

dered, we find that each of the temporary

injunctions based that declaratory improperly issued. There-

fore, injunctions temporary issued in

Cause Nos. 86-52872 and 87-00827 are

hereby dissolved. API, Alldeal,

WEST END LTD. and

Inc., N.V., Appellants,

John K. ROTHPLETZ and Max D.

Chapman, Appellees.

No. 05-86-00207-CV. Texas, of Appeals

Court

Dallas.

7,May 1987.

Rehearing Denied June Diamond, Mow, Jr., H. Allan B.

Robert Dallas, McKillip, appellants. for Emily Bennett, Jr., Adams, S. B. Michale Paul Dallas, appellees. WHITHAM, HOWELL and Before ' 1, JJ.

JAMES HOWELL, Justice. trespass try title

This is an action of concerning segment aban- a short of an way (the strip) right of doned railroad The through an industrial area Dallas. abutting are the owners on either parties appellants plaintiffs, side of the Alldeal, here, API, End Inc. Ltd. Jr., Justice, James, assignment. A. Honorable John retired, Waco, sitting by Appeals, Texas Court of (Owners)2 all It plain N.V. were at times owners of Owners’ are not property abutting the artfully east side of the enlighten drawn in that do defendants-appellees, appellants John K. complain- court whether Chapman, and Max D. Trustees insufficiency factual (Claimants) prior years, were the owners on west evidence. when Following trial, legal side. the court specify bench failed to or whether factual judgment being made, for In challenge point below entered Claimants. was the would error, of points legal three Owners contend insufficiency be treated as a “no or erred in holding the trial court that Claim- complaint. evidence” E.g., Chemical possession ants had exclusive Cleaning Cleaning Inc. v. Chemical & applicable, Service, that the of ouster Equipment Inc., doctrine was 462 S.W.2d 276 hostilely possessed (Tex.1970). However, and that the Claimants Pool Ford Mo- long enough to acquire by the title (Tex.1986), tor 632-33 We limitation. affirm. the supreme court overruled Chemical light Cleaning supporting argu- brought par- Owners suit 1984. Both complaint. ment to In party’s ascertain the conveyances ties relied on certain to estab- present case, analysis such is of little partial lish at least chain of title and each avail. party challenged opponents’ claim of by conveyance.3 argument points, title 1985 the In the under trial their Own- granted partial summary judgment court ers have asserted both no evidence establishing the of validity supported claim findings of the trial court’s and the by conveyance. “great weight Owners make no com- preponderance plaint ruling of this inasmuch as contrary were evidence” was to the partial beneficiaries thereof. The sum- arguments While appear Owners’ to raise mary judgment cast proof the burden of contentions, both only we need address the upon respect defendant Claimants with to legal sufficiency of because Own- possession. their claim of adverse After only prayed ers of have for a rendition hearing evidence, the trial court held judgment respect with recovery that Claimants had indeed carried that bur- circumstances, title to the Under the den and judgment rendered in their favor. hold that are limited we prayer: relief asked The points nature of Owners’ of error reasons, foregoing For has a bearing direct [Owners] outcome of this pray appeal; therefore, judg- Court REVERSE the quote we full text below, ment of the court render thereof: requisite exclusive that.... period. ... proving ^[1] The district possession [Claimants conclusively that met erred their] limitations [that] for the burden ruling trict clusions pellants, and remand the ment damages, uitable Court declaring title to attorneys’ for law on findings that full Strip Appellants’ right fees, and of fact and is vested case legal cost con- Dis- Ap- eq- ... ^[2] district court erred ruling court.

that the doctrine applicable. ouster was concerning Much has been written ... ^[3] district court erred in ruling distinction between factual insufficiency .. points legal insufficiency met their error [Claimants burden] proving conclusively legal insufficiency that [they] had hos- of error and tile points. Garwood, requi- generally, for the See Question site peri- Ap- limitations Evidence on of Insufficient od. (1952), Calvert, peal, Tex.L.Rev. 803 expressly pass 2. The names "Owners" and “Claimants" have We do reach employed though been recognize for convenience even cross-point urging partial Claimant's that the completely tire far less than erroneously summary was decided. descriptive. ambiguous “No Evi- insufficiency point complain Evidence” “Insufficient Error, only dence” Points Tex.L.Rev. 361 of “no party evidence” where the customary requested rendition). in the Cider It was cases reversal and insufficiency points present legal factual examined alleging particular finding insufficiency probative and find that a some evi supporting dence trary “great weight preponder- findings. trial court’s will, therefore, pointed Owners’ employ equiva- ance of evidence” or to be over ruled. A language. sufficiency lent represented stating commonly many years, For property had Owners’ there was “no evidence” to a par- improved story been a three brick indus- ruling. many possible There ticular building contig- its one of walls variations and distinctions that uous boundary with the tests, drawn between the two but there are railroad, of years after a number

two distinctions are stark and both non-use, quitclaim Jay- a issued deed to fundamental. son, abutting the owner the tract side of Claimants’ the —Claimants’ insufficiency Factual of er predecessor However, in title. the record power peculiar ror addressed to the only fairly clear that the railroad held appeals weigh the all court of to title to easement. an It is doubtful it could grant evidence and to new trials where the greater conveyed any have estate. Owners disparity the evidence and the between have asserted the title to reversion finding contrary weight of is so the partial summary judgment and the sus- unjust manifestly evidence as to be or to Nevertheless, following tained that claim. Estate, indicate prejudice. King’s In re deed, proceeded Jayson the to railroad’s 662, 660, (1952). 150 Tex. 244 661 S.W.2d conjunction use the with his abut- hand, legal insufficiency On the other abutting ting tract on the west. build- point requires appellate of error that the ing on side torn A claimants down. only look at the in support court composed lot was created that was disregard judgment; all evi must portion strip plus of Claimants’ complaining the party dence favor of abutting immediately premises. unless that evidence is uncontroverted. reviewing pursuant part After relied in the evidence to At the Claimants test, appellate agrees upon five-year if the statute limitations legally provides: to which sup the evidence is insufficient finding, port remedy the usual is to (a) bring must suit person A not later reverse and render favor com years day after than five cause plaining party. property National & Accident real action accrues to recover Life 905, 438 Blagg, Insurance S.W.2d held peaceable Alviar, (Tex.1969); 909 395 Garza v. another who: (Tex.1965). 821, S.W.2d 823 (1) cultivates, uses, enjoys prop- or erty; established than What can be better (2) applicable prop- taxes on the pays proposition has not that relief that been erty; and prayed granted? Owners have cannot be (3) duly property under a claims given anywhere no in their briefs indication registered deed. a new trial of the adverse desire They claim. ask that we Ann. 16.025 Tex.Civ.Prac. and Rem. Code § 5509). (Vernon 1986) render We are article judgment (formerly their favor. acquire mindful must to land under briefing rules be in order to statute, liberally necessary for year construed so to do substantial it was five (1) Nevertheless, ad- justice. prove limit to three elements: must Own Claimants (2) taxes; payment prayed. possession; ers to relief Texas Pru verse Cf. duly (3) claiming Dillard, under a deed deeds dential 158 Tex. Insurance Co. v. Heath, registered. 325 (1957) (treating 307 Jackson v. S.W.2d (Tex.Civ.App.—San Antonio years any 1978-1984 was exclusive of writ). possession by no Owners. reviewing error, a no evidence trial, undisputed

At it was this court must consider the evidence had asserted title the strip, Claimants at tending and inferences the trial least from the time of receipt of a disregard court’s all evidence warranty predecessor, deed from their Jay . Garza, contrary. and inferences to the son, which was recorded on June 823; Estate, King’s S.W.2d at In re Although may attempted the deed 662, 664, convey greater interest Jayson than actu owned, defect, ally if any, was not undisputed evidence was apparent from the face of the instrument. began improving Claimants imme Thus, recording of the deed was sufficient diately taking possession. after Claimants satisfy requirement the third of the test. removed railroad tracks from the necessary is not that the deed under graded paved “[I]t strip, painted stripes convey any which the claim is made title. asphalt, retaining wall, built a grantor may wholly began barren using in connection with title; vestige the deed therefore part abutting premises of their park as a pass title; no yet, semblance of if it de lot. eventually painted purports names of convey parking spaces scribes the land and tenants on the posted signs tested itself is the unauthorized cars good its face a deed, away. They presented would be towed Jackson, evi requirement”. meets the fact, were, dence that unauthorized cars 325 S.W.2d at 454-55 (quoting Rosebor away, including belonged towed cars which Cook, ough 364, 131, 108 Tex. 194 S.W. visiting building. to customers Owners’ (1917) (emphasis omitted)). undisputed evidence was also how- trial, undisputed At it was also that ever, 1972, early that as pipes drain paid strip Claimants had taxes on the com- building vents from Owner’s led onto the mencing year that, with the 1978 and such strip they where had outlets and that a Owners, taxes had all timely paid. been building door from that let out onto therefore, also satisfied require- the second strip. argue they that ment year of the five statute. We are strip draining, ventilating, used the reduced of whether Claim- exiting building, Claimants failed to ants proving satisfied their burden of that prove strip that their was they adversely possessed strip during disagree. exclusive. We years. those Reviewing only supporting the evidence posses To establish title disregarding the trial court’s sion, Claimants were burdened to show contrary, all evidence and inferences to the actually visibly had held real the evidence showed that in while property, right under a claim of inconsist paving strip, Claimants were the drains with, to, ent and hostile the claim of anoth building from Owner’s were extended so er. See Ann. Tex.Civ.Prac. & Rem.Code draining building that water from the ran 16.021(1)(Vernon 1986). § street, pavement under the and into the of an adverse claimant must exclusive Thus, running strip. rather than onto the owner, of the true any joint or common presented Claimants’ some evidence that possession by the claimant and the owner drainage strip there was no onto their from requisite defeats the quality of exclusive building after Owners’ Grubbs, ness. Rick v. Evidence also showed that from vents building strip paint onto the exhausted interpret point We glue one to manufacturing process assert used in a there was no However, building. from which the trial conducted in the one legitimately could have held that of Owners’ former tenants testified that strip by during complained after Claimants’ tenants Claimants glue particles falling parked on cars pressure flowing water from the had a “we buffer built on the bottom strip drain onto the was measured. Duke go directly straight so would down testified that water flowed from the drain against building go and not into the for two to five ap- minutes and covered addition, lot.” In a witness for proximately sixty-five percent that, claimants testified paint argue this evidence estab- vent was directed toward the south of lished used thus defeat- building Owners’ adjacent onto other prop- ing Claimant’s claim of exclusive use of the Owners, erty of rather than toward the lot. disagree. there was some evidence that Because personal Duke knowl- Owners did not use the for ventilation edge of the test conducted in the trial after 1977. court could have concluded once addition, presented some during year period the five between 1978 evidence that the opened door which onto and 1983 did water flow from the fire entering was never used for sprinkler Moreover, drain. Claimants’ wit- exiting the building. Owners’ A tenant of picture ness sprinkler viewed a of the fire building testified that never “we used test taken in which Duke testified to come in and out of the build- [the door] accurately portrayed how the ing, Ibut it had to knew be there for us to during flooded the test. Claimants’ wit- get building out of the in case of a fire.” ness testified that he had “never seen wa- ter like portrayed picture. that” in the testified, Claimants’ witnesses that one addition, test, Duke testified that the 1985 of his tenants “every day blocked the door during taken, pictures which the were years” for six and that because “Mr. Bra- performed Sunday, although on that was bumper right up den’s against went routine, arranged because “we to meet wall; it impossible open would have been Saturday.'... ... and there were sev- that door.” Claimants’ witness also testi- parked right up eral cars very close to this fied opened that the door which onto the liability drain and I did not want the strip was not installed until 1984 and that flowing rusty goopy water onto some- always thought” “we that the door on the body’s car....” The trial as the building which was there from 1977 until judge credibility sole of the witness- “opened inside.” Claimants es was free to disbelieve Duke’s testimony presented some evidence from which the suggestion and to believe Claimant’s that trial court could have concluded that the such a test never occurred. Owner’s first place during door in year period the five point of error is overruled. open was not constructed so as to onto the event, strip any and in opened. was not Similarly, interpret point three rely Owners further on evidence that the to assert that there nowas evidence from building equipped sprinkler was with a legitimately fire which the trial court could system during that was tested four times any possession strip have held that period allegedly during years in which Claimants Claimants 1978-1984 perfected Duke, any possession by limitations title. Thomas to was hostile Owners. argue that, Giller, a former employee of the Fire Prevention Owners their Texas, title, and Engineering predecessor Bureau of testified he testified that system inspected predecessor, Jayson that was warned Claimants’ not 1980, 1982, and Duke testified that to “interfere the fire exit door or with test, there,” performed anything he not the 1980 that he did else that we have out test, performed know who the 1979 because Giller testified that he would performed permitted parked strip that he to was not sure who cars door, regarding test. The block the fire exit failed to record is silent Claimants performed possession strip who Duke testi- show that their the 1983 test. was hostile, fied in testing sprinkler sys- permissive. the fire rather than dis We tem, opened agree. episode the main drain We first note that this did valve was Smith, Kirby Corp. not occur sive.” Lumber

not involve Claimants did during five-year pos- (Tex.Civ.App. their asserted S.W.2d —Beaumont dism’d). occurring during period allegedly The conduct relied session writ constituting also years, upon 1978-1984. record reflects an as an inter owner cross-examination, possession Giller conceded party’s that on ruption of the anyone never claimed to that he put ordinary that he an must such that would Jayson owned testified that actually he has been person on notice that 1972, he told Giller that he had leased the ousted. American National Bank of strip parking to restaurant for use a as Wingate, 266 Beaumont v. lot, objected Jayson’s that Giller never to (Tex.Civ.App. writ ref’d —Beaumont use n.r.e.). case, assuming present In the ar- gained exclu that Claimants once guendo addition, undisputed is enough for possession a substantial sive requested permission Claimants’ to Owners period an assertion of time during parking Claimants’ lot the reno- use assuming ownership further that Own pointed As building. of the Owners vation commenced a use of the ers thereafter out, significant component draining, ventilating, and exit property signed let- parties lot. building occasions, on sparse such agreement agreed to ter in which Owners put uses not sufficient to claimant were permit park tenants to anoth- Claimants’ they pos notice that been ousted from lot re- er owned Owners. letter session of the because these acts were quired remove trash debris clearly not of such manifest a nature repair any damage and to Accord- done. Claim a contention that the ingly, presented some evidence Claimants ants invalid. It follows that their was not of oust misapply court did not doctrine Owners, permissive as to but instead was point of error. er. overrule the second We any ownership by hostile to claim of Own- ers. overrule third error. We summary, Claimants recorded a war- 2, 1978, manifesting ranty deed on June complains Point two tri simple owners of themselves to be fee ruling al court erred in that the doctrine contesting claim disputed strip. Suit applicable. ouster are not directed brought any ownership until Novem- particular ruling specific or to was not 21, 1984, years later. place in the do well over five record. Neither ber explain rely agreement prior posses- what acts to consti Under an sors, comprehend already tute an ouster. We fail were applicable. at the time received now ouster is Once adverse deed, commences, legal veyance. recording their possession the or After holder promptly paid all taxes on the interrupted possession and Claimants title that in their deal- strip Early his fell due. possessor maturing from as prevent the made exten- claim, (1) filing (2) by ings the or by either suit They improvements. need valuable is that an ouster sive and ouster. It settled continuously possession and if inter exercised complete. not be It is sufficient it degree. holding by trol to an extensive rupts exclusivity possessor. adverse foregoing. of the Owners concede all their case on the contention equally well settled that base

It is against as possession was not exclusive interruption of an occu “to constitute an com- were never entry by an the Owners—that pant’s possession, from the use or pletely excluded clearly owner indicate that ... must They strip. present an alternative and his of the occupant’s possession is invalid re-entry and ouster. unspecific claim of right open and but challenged. must be It And, finally posses- that the unequivo contend notorious bear on its face an against by Claimants was hostile It cannot sion possession. cal intention to take to exclude accidental, Claimants failed casual, secret, permis- Owners—that be possibility permis- strip to the strip gore under the doc- in By cross-point, Rothpletz sive nature. trine. pre- has assigned served and trial court in error However, only appealed on granting partial summary judgment this in legal insufficiency a or “no evidence” basis. favor of majority’s West End. Since the appeal posture, With the in such we must opinion by stands silent matters raised disregard all evidence in favor Owners’ Rothpletz’s cross-point except in its foot- position unless Owners’ evidence is admit- three, my note I state view that the issues uncontroverted; ted or otherwise we must Rothpletz’s cross-point raised in have not conflicting resolve all inferences in favor of by been addressed this court and that those judgment. issues must addressed this court or hold that uncontroverted evi- Supreme take-nothing Court before conclusively dence does not show that judgment against could be rendered Roth- gained Claimants never posses- exclusive pletz. go I lengths to these out premises sion year period for a five Rothpletz’s cross-point I do not 2, 1978; of time after June neither does my want agree- concurrence be read as show that such once established ing that this court has considered and over- interrupted Owners; was ever nor does Rothpletz’s Thus, cross-point. my ruled conclusively posses- show that Claimants’ view, Rothpletz’s cross-point remains to be permissive sion was rather than hostile. disposed of in the this court or the event right Owners have not invoked the to the Supreme Court should hereafter decide to and we reviewed do not do so. reverse trial court’s Conse- It follows that the below must quently, opinion, purposes of this I be, assume, decide, but do not End West

AFFIRMED. was the record I owner reach the of whether WHITHAM, J., acquired strip by concurs. title pos- session. WHITHAM, Justice, concurring. prayer original In its its brief I concur I the result. refer End we West asks that reverse and appellants appel- as “West End” and the judgment declaring render that full “Rothpletz.” expressing lees my Before equitable vested adverse-possession views on issues ad- prayer End. In its in its brief for West recognize dressed I majority, must cross-appellees, appellant and End an acknowledged majority’s issue not in the asks that we the trial court’s reverse opinion. That issue is West End’s record stops point. ment and at that Nowhere ownership West End’s record pray we does West End that brief ownership applica- is based on render. Nowhere in that brief does West tion “strip gore doctrine.” The pray appel- End remand. When an gore provides doctrine that: appellant’s late court reverses and the brief appears grantor Where it has con- remand, ap- request contains no for a veyed adjoining him all land owned pellate appellant court assumes that narrow of land that has ceased fully developed ren- considers the case him, importance be of benefit or In- See Texas Prudential ders grantor presumption is in- Dillard, surance Co. v. tended to include such such con- (1957). Therefore, I veyance; clearly appears unless that, agree given majority with the West deed, by language, plain specific prayers in its End’s briefs this grantor strip. intended to reserve the points of error must treat West End’s three Cantley Production challenges legal sufficiency 135 Tex. as of the Gulf 339, 344, (1) By establishing Rothpletz’s exclu- partial (2) summary negating judgment, the trial sive Rothpletz’s by determined End from the that West End had record title ouster West its condition repair same to company will Rothpletz’s hos- (B) establishing strip and You property. mind, your use prior to my To strip. tile and de- agreed keep trash also exchange of letters between following up policed. cleaned bris Rothpletz constitutes End West estab- forth in this understandings value as set probative requisite evidence Our party possession, by either terminable Rothpletz’s exclusive letter are lishing than End and estab- notice. Other by West one week’s negating ouster extended, no possession. The above hostile mutual consideration lishing Rothpletz’s expected is consideration letters more than additional exchanged these parties mat- result of these of us as the Rothpletz asserted title to either years after five majority refers to ters. strip. While agreement” your agreement a “letter may indicate these letters You copy er- returning third to me a executing End’s disposing of West I am of possession, letter. concerning hostile ror on their face the letters opinion project. for a successful Best wishes End’s three each of West pertain to N. Market Street evi- more than a scintilla of constitute court’s support of all of the trial dence Rothpletz K. /s/ John possession. As used findings on adverse Rothpletz, By: John K. letters, adjoining parking know that the Trustee consists of N. Market Street lot to 1800 API, Ltd. Agreed: End West by Rothpletz record land owned Lavie /s/ Thus, in the let- reference disputed Lavie, By: Robert 1800 N. parking adjoining lot ters to a Managing Partner disputed includes the Market Street 14, 1984, letter, dated June The second the 1911 N. Market Street Know also that reads: Rothpletz from End West property. parking lot is West End’s Rothpletz: Dear Mr. letter, June The first dated duly executed find enclosed a Please fol- End reads as Rothpletz from to West 13, 1984. letter dated June copy your lows: you meeting with pleasure It was Temporary use of Re: and, discuss- I look forward to yesterday parking lot at 1800 future use you ing further N. Market Street parking lots. our both Dear Mr. Lavie: yours, Very truly at 1800 N. property owners Lavie /s/ parking adjoining Market Street and the Robert Lavie agree your lot have authorized me to Managing Partner temporary portion or a API, use all End Ltd. for West 1800 N. Market parking adjoins lot which on November filed this action End West continu- beginning 20th and Street June ap- dated in these letters 21, 1984. August. July and ing thru the months of filing this months before proximately five using our In consideration for action, End admitted during period, lot the above mentioned trading Rothpletz (1) strip: owned tenants, my understanding that for the parking lot End’s the use of West occupants of guests clients and (which in- parking lot Rothpletz’s use of your lot 1800 N. Market Street use work strip) while construction cludes the (which is direct- (2) at 1911 N. Market Street building; End’s performed on West Market). ly 1800 N. behind damage to Roth- repair any agreeing to and, (3) lot; by agreeing understanding a pletz’s parking my It is further cleaned Rothpletz’s parking lot keep large collector and other construc- trash Indeed, letter West End’s policed. lot placed on our materials will be tion park- our reference to “both lot, your cludes with any damage occurs to our and if ing lots.” court and contrary. The trial made inferences to written Garza v. Alviar, 821, findings (Tex.1965). of fact and conclusions of law. In S.W.2d findings of fact numbers thirteen and fif- Applying principles present these to the teen, the trial found that: case, considering evidence and years prior 13. For ten more than tending support inferences Rothpletz November and his findings court's of fact of its predecessors interest, among whom judgment disregarding all evidence and estate, privity there was under claim contrary, I inferences to the conclude that right, posses- and held used the the statements and admissions contained in peaceable,

sion if it that contin- proba- [sic] two letters are some evidence uous, exclusive, adverse, uninterrupted, Rothpletz pos- tive value that had exclusive notorious, open, actual, incon- visible session strip, that West End did not any sistent with and hostile to claim Rothpletz oust from the and that person. other Rothpletz had hostile interest ever ousted ther interest predecessors in interest from their exclu- strip as found 15. % Rothpletz established ^[*] End nor its above, ^[*] his and thereafter nei- quired ^[*] predecessors predecessors ^[*] or his ^[*] actions in court’s End’s admission sion. affirm the trial court’s Consequently, title to prerogatives signing short, strip by I two agree Rothpletz treat within the trial letters that we must West End’s as West posses- ac- sive, possion [sic]

The trial on to conclude court went

“Rothpletz pre- has full

cluding all claims.” present

Since the case was tried before jury,

the court without a the court sits as a trier of the as the law. He is facts as well REEVES, Appellant, Robert N. judge credibility witnesses weight given

and the testimony, to be v. findings and his entitled to the same FEDERAL AND IN- LOAN SAVINGS weight appeal as a conclusiveness CORPORATION, Appellee, SURANCE jury verdict. there is some evidence Where No. 05-86-01088-CV. probative of a character to substantial and findings support the trial court’s Texas, Appeals Court of ment, controlling upon they are a review- Dallas. be disturbed. Hood court and will not May Insurance Indemnity v. Texas 522, 523-26, 346-47 (1948); Raby, Richardson no (Tex.Civ.App. Tyler — writ). of West explained, As in this prayer

End’s for relief End’s

must treat each of West legal sufficiency

error as an attack on “legally insufficient” evidence. A point presenting a

point is a “no evidence” deciding question, law. appellate consider court must tending sup- and the inferences disregard

port finding all evidence

Case Details

Case Name: West End API, Ltd. v. Rothpletz

Court Name: Court of Appeals of Texas

Date Published: May 7, 1987

Citation: 732 S.W.2d 371

Docket Number: 05-86-00207-CV

Court Abbreviation: Tex. App.