D.R. Beeler and Beverly Ann Beeler v. William Cruse Fuqua ( 2004 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-03-344 CV ____________________

D.R. BEELER AND BEVERLY ANN BEELER, Appellants

V.

WILLIAM CRUSE FUQUA, Appellee

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On Appeal from the 88th District Court Hardin County, Texas Trial Court Cause No. 41,569

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MEMORANDUM OPINION

In this trespass-to-try-title action, William Cruse Fuqua sued D.R. Beeler and Beverly Ann Beeler over property in Hardin County. The trial court determined Fuqua had record title to the property. A jury found the Beelers did not own the land through adverse possession. The Beelers appeal.

Indispensable Parties

The Beelers argue indispensable parties were not joined in the lawsuit. They say Fuqua admitted there were fourteen other persons or entities with an undivided interest in the land.

Rule 785 of the Texas Rules of Civil Procedure provides that the plaintiff in a trespass-to-try-title action "may join as a defendant with the person in possession, any other person who, as landlord, remainderman, reversioner or otherwise, may claim title to the premises, or any part thereof, adversely to the plaintiff." The trespass-to-try-title rules do not require the joinder of every person claiming ownership in the property. See Tex. R. Civ. P. 783-809. "If the plaintiff should have to ascertain and join every possible claimant to the land in addition to the particular defendant whose claim is troubling him, the process of justice would be greatly retarded." See Haines v. McLean, 154 Tex. 272, 276 S.W.2d 777, 785 (1955); see also Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699, 703 (Tex. 1951). Although appellants say the judgment did not divest them of only Fuqua's 1/6 undivided interest in the land, that, in effect, is what the following language in the judgment ordered:

It is offered [sic], adjudged and decreed that the plaintiff, William Cruse Fuqua, M.D. recover and from the defendants, D. R. Beeler and Beverly Ann Beeler, full title and possession of the land described as follows:

An undivided 1/6 ownership in and to Lots 3 thru 24 inclusive, except the 2.16 acres off of the north half of Block 8, W.W. Cruse Subdivision, Thomas A. Hughes Survey, Abstract 265, Hardin County, Texas.

The trial court did not adjudicate the 5/6 interest not owned by Fuqua.

Appellants did not ask for the joinder of any other parties. We hold there was no error in entering a final judgment for the 1/6 interest in the absence of other co-tenants.

Partial Summary Judgment

Appellants argue the trial judge should not have granted the partial summary judgment because the summary judgment evidence was not proper and did not establish superior title. Appellants say the title question should have been decided by a jury, not by summary judgment.

In a traditional summary judgment motion, the movant must show that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Tex. R. Civ. P. 166a(c). In reviewing a summary judgment, an appellate court takes as true all evidence favorable to the nonmovant and indulges every reasonable inference and resolves any doubts in the nonmovant's favor. Grant, 73 S.W.3d at 215.

Fuqua pleaded a trespass-to-try-title cause of action. In that cause of action, generally a plaintiff must prove (1) a regular chain of conveyances from the sovereign, (2) establish superior title out of a common source, (3) prove title by limitations, or (4) prove title by prior possession coupled with proof that possession was not abandoned. Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004). The plaintiff must recover, if at all, on the strength of his own title and not on the weakness of the defendant's. See Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex. 1994).

Fuqua's motion for summary judgment is based on proving record ownership of the property through a chain of conveyances from the sovereign coupled with orders from the probate court. He submits an attorney's affidavit and the accompanying abstract of title as proof. If the summary judgment evidence establishes record title as a matter of law and there is no genuine issue of material fact, summary judgment, rather than a jury trial, is proper on that issue.

The documents in the abstract show a chain of title from the 1863 governor's patent to David Johnson. Ultimately, the chain of title -- demonstrated by deeds, an affidavit of heirship, will probates and inventories -- establishes William Cruse Fuqua's 1/6 interest in the property. The chain of title can be proved by deeds, wills, and affidavits of heirship. See, e.g., Bacon v. Jordan, 763 S.W.2d 395, 397 (Tex. 1988) (deed, affidavit of heirship); Karsten v. Muhl, 624 S.W.2d 682 (Tex. App.--Houston [14^th Dist.] 1981, no writ) (will, deed). Here Fuqua showed conveyances through the years culminating in ownership in Fuqua and others, and proved the links in the chain of descent through deeds and probate judgments. The abstract of title establishes record title from the sovereign into Fuqua.

Appellants say Fuqua did not comply with the "best evidence" rule because he failed to produce the original documents in the abstract of title and did not properly prove up the instruments. See Tex. Prop. Code Ann. § 13.003 (Vernon 2004). With one exception noted below, the instruments numbered 1-15 in the abstract are either certified or authenticated and are part of the public records of Hardin County or Jefferson County. Rule 1005 of the Texas Rules of Evidence, in effect, exempts public records from the best evidence doctrine codified in Rules 1002, 1003, and 1004. See International Fidelity Ins. Co. v. State, 65 S.W.3d 724, 727 (Tex. App.--El Paso 2001, no pet.) (stating that "[p]ursuant to Rule 1005, a copy of a public record will be admissible in place of the original where the copy is certified in accordance with Rule 902" and holding that a certified copy of bail bond complied with best evidence rule); ESIS, Inc., Servicing Contractor v. Johnson, 908 S.W.2d 554, 561 (Tex. App.-- Fort Worth 1995, writ denied) ("A copy of a public record is considered authentic if a sponsoring witness vouches for its authenticity or if the document meets the certification requirements for self-authentication contained in Rule 902.") (citing Tex. R. Evid. 1005); see Tex. Prop. Code Ann. § 13.002 (Vernon 2004) (An instrument that is properly recorded in the proper county is notice to all persons of the existence of the instrument.). Rule 166a(c) provides that motions for summary judgments may be based on the pleadings and authenticated or certified public records on file at the time of the hearing or filed thereafter.

Appellants also fault the abstract because some of the documents are filed in Hardin County where the property is located, while others (numbers 9 - 13) are filed in Jefferson County. The Jefferson County documents are related to probate proceedings of Jefferson County residents whose estates included the property in question; the probate documents are properly filed in the county of residence. See Tex. Prob. Code Ann. § 6 (Vernon 2003).

Appellants say the attorney's affidavit is deficient. Although the affidavit authenticates documents 1-15 by stating they are true and correct copies and are on file in the Deed Records of Hardin County, some of the documents are filed in the Jefferson County clerk's office, and one is not certified. Appellants objected in their response to the summary judgment motion by saying the abstract of title evidence is "tainted," but the objection is not sufficiently specific to put the trial court on notice of the formal defect in the affidavit. See Tex. R. App. P. 33.1(a). Appellants also fault the attorney's affidavit because it covers only instruments 1-15 of the abstract of title, and not the rest of the instruments, numbers 16-24. Documents 16-24 are not necessary to establish the chain of conveyances; the chain of title is complete with exhibit 15. Further, no specific objection was made to the lack of any authentication of documents 16 - 24.

Appellants argue the expert testimony of the attorney compiling the abstract is insufficient to support the summary judgment. First, appellants say appellee's attorney violated Rule 5.04(c) of the Texas Disciplinary Rules of Professional Conduct, because his son was the attorney who signed the affidavit in support of the summary judgment. Rule 5.04(c) provides a "lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services." Tex. Disciplinary R. Prof'l Conduct 5.04(c), reprinted in Tex. Gov't Code Ann. tit. 2, subtit. G app. A (Vernon 1998) (Tex. State Bar R. art. X, § 5.04(c)). We fail to see the application of Rule 5.04(c) here. There is no evidence of a violation of the rule, even if it may be used to attack an affidavit. The fact that the son of appellee's attorney executed an affidavit regarding the abstract of title does not indicate improper interference with the exercise of appellee's attorney's professional judgment on behalf of his client. And there is no evidence of any pecuniary impropriety or lack of independence demonstrated by the relationship.

Appellants argue the attorney was not qualified to render an expert opinion on the chain of title and his opinion in the affidavit was conclusory. The affidavit recites the affiant is a licensed Texas attorney since 1981 and has experience in the study of titles. The affiant attorney states he examined the documents in the abstract and concludes title is vested in Fuqua.

The affidavit appears to be conclusory, because without any explanation of the records, the affidavit simply concludes record title is in Fuqua. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (Conclusory or speculative opinion testimony is not relevant evidence; it is incompetent and cannot support a judgment.). However, the affidavit is based on attached exhibits -- fifteen documents from the offices of the clerks of Hardin County and Jefferson County. The documents serve to establish the chain of conveyances, show record title in Fuqua, and support the attorney's conclusion in the affidavit. See Leyva v. Soltero, 966 S.W.2d 765, 768 (Tex. App.--El Paso 1998, no pet.). The documents provide a sufficient basis for the affiant's opinion. The trial judge had before him both the affidavit and the abstract on which the affidavit is based; it cannot be said the trial court was guided solely by a conclusory opinion in the affidavit.

Appellants also argue there are record discrepancies concerning the ownership of lot 8. But the controversy over lot 8 was resolved by an order clarifying that part of lot 8 was excluded from Fuqua's ownership.

We find record title was established as a matter of law, there was no material fact issue, and the trial court properly granted the partial summary judgment motion.

Trial Proceedings

Once the record title issue was resolved in the partial summary judgment, the case went to trial on the Beelers' adverse possession claim. The Beelers objected to the trial court's informing the jury record title was in Fuqua. They say such information is a comment on the weight of the evidence.

The very nature of an adverse possession claim is an "actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person." See Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1) (Vernon 2002). If the Beelers met the requirements of the applicable adverse possession statute with sufficient probative evidence, their claim of legal acquisition of the property would win out. Informing the jury at the beginning of trial that one party holds record title in a suit that pits the record title holder against one claiming title by adverse possession is not a comment on the weight of the evidence. The information merely defines the posture of the litigants. The information does not alter or comment on the burden the party claiming adverse possession must shoulder.

Appellants also claim the trial court erred in including in the jury charge an instruction informing the jury of record title in Fuqua. There was no objection to the jury instruction, and the issue was not preserved. See State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992); Morales v. Morales, 98 S.W.3d 343, 346 (Tex. App.--Corpus Christi 2003, pet. denied); Tex. R. Civ. P. 271-279. We need not address the instruction further.

The Beelers argue the case should be reversed based on cumulative error. We find no preserved error, cumulative or otherwise.

All of appellants' issues are overruled. The judgment is affirmed.

PER CURIAM

Submitted on April 15, 2004

Opinion Delivered August 26, 2004

Before McKeithen, C.J., Burgess and Gaultney, JJ.