Flowers, Perry J. v. Sun NLF Limited Partnership ( 2002 )

                                                            COURT OF APPEALS

                                                    EIGHTH DISTRICT OF TEXAS

                                                               EL PASO, TEXAS

PERRY J. FLOWERS,                                          )

                                                                              )     No.  08-00-00418-CV

Appellant,                          )

                                                                              )                 Appeal from the

v.                                                                           )

                                                                              )     44th District Court

SUN NLF LIMITED PARTNERSHIP,                 )

                                                                              )     of Dallas County, Texas

Appellee.                           )

                                                                              )     (TC# 00-05728-B)

                                                                              )

O P I N I O N

Appellant Perry J. Flowers (AFlowers@) appeals from the trial court=s granting of summary judgment for Appellee Sun NLF Limited Partnership (ASun NLF@) and contends that the existence of material fact issues preclude the summary judgment.  We affirm.

PROCEDURAL BACKGROUND

Alleging Sun NLF breached an oral agreement, Flowers filed a petition in the County Court at Law of Dallas County (Cause No. 00-98-12077-B) on December 9, 1998. He asserted in the petition that Sun NLF had given him the right of first-refusal to purchase the property at the intersection of Wheatland and Lancaster roads in the City of Dallas (Aproperty@), and sought to recover in quantum meruit the value of services performed to maintain the property or 15 percent of the sale price. Almost three months later on February 23, 1999, he filed suit in the trial court below and claimed ownership of the property (description attached same as one for Cause No. 00-98-12077-B) through adverse possession.

Sun NLF filed its motion for a regular summary judgment on February 10, 2000, and Flowers filed his response on March 8, 2000.  The trial court signed the order granting the summary judgment only on Flowers=s adverse possession claim on March 10, 2000.  Thereafter, the trial court severed the portion of the case that the summary judgment had been granted on from the other causes of action.^[1]

SUMMARY OF THE EVIDENCE^[2]

On June 27, 1977, Flowers agreed to lease from James F. Mason a tract of land in Dallas County described on the signed written lease agreement as approximately 151 acres on the north side of LBJ Freeway (I-635/20) at Lancaster Road (S.H. 342)(northwest corner).  In his petition in the county court at law (98-12077-B), Flowers alleged that Mason and he also entered into an oral contract in 1978, where Flowers would manage the property and also be given right of first refusal to purchase the property.

At the time of the lease, Flowers said in his deposition that he and his father had been using the land to hunt, and he wanted to put horses and cattle on it, as did Mason for purposes of tax exemption.  The property had a rundown shack with trash around it and a few isolated pieces of fencing.  Mason and he discussed putting the property in a working condition, and Flowers said he removed the trash from the property and put up fences for the cattle, even if it was not required from him.  Later on, Mason asked Flowers to also clean the house to avoid condemnation from the city.  Although Mason was supposed to pay Flowers for the fence and clean-up of the trash and the house, Mason never compensated him.  Flowers did not pay the property taxes or insurance premiums and was ignorant of the party responsible for those payments.

Flowers began to feel he owned the land in 1979, because the city was sending him notices on the property and he had not yet been paid for all the improvements.  Flowers said he never bluntly or specifically told Mason he was asserting ownership to the property or sent a letter and instead told Mason verbally that he would not leave the property until he had been paid.  At least around 1980, he would not have taken possession of the property, if he had been paid.  Mason stated in his affidavit that Flowers never tried to keep him or his agents away from the property nor did Flowers notify him of his adverse ownership interest. Mason also denied that he had given to Flowers a right of first refusal to purchase the property or a 15 percent commission on the property=s sales price.  Flowers admitted in his deposition that he and Mason had not agreed upon a specific percentage for the commission but that he had thought 15 percent was a fair price when he pleaded to that figure in the petition:

A:         I=m not sure what the percentage was, but I thought about 15 or 20 percent, so I put the lowest of my figures on there, which was 15.

Mason sold various parcels of the property from 1980 to 1986. Flowers was aware of transactions over the property, since a Mercantile Bank agent came to inspect the property on a note held against it.  Flowers did nothing to prevent Mercantile Bank from inspecting the property, because other parcels of land were mingled with his and he was only concerned with the land surrounding his immediate homeplace.  He also did not stop Pilot company from building a truck stop on the corner of Lancaster and LBJ around 1994.  Proximate to that time, he stopped maintaining one of the tracts at Wheatland and Lancaster and left it to the person claiming that tract, because it was too much trouble to keep mowing it.  Parts of the property had been leased to sign companies for billboards since 1977, and Flowers asked his attorney to investigate the situation about three to four months before his deposition on October 13, 1999.

Sun NLF obtained the property on September 6, 1994, and Flowers did not contest the company=s ownership.  Flowers and Sun NLF arranged for Flowers to continue maintaining and occupying the land without paying rent until Sun NLF sold the land.  Flowers stated that he agreed, because Sun NLF promised to pay him a commission if the property was sold.  Flowers also offered to purchase the property from Sun NLF in letters written on March 21, 1996, January 24, 1997, July 9, 1997, and February 4, 1998. On February 20, 1998, Flowers also wrote to inform Sun NLF of damage caused by fuel spillage from an eighteen-wheeler truck. 

On November 11, 1998, Sun NLF wrote to Flowers to confirm that he had a month-to-month lease since 1994, with no written lease or rent being assessed, and also informed Flowers that the company was expecting to sell the property shortly.  Two months later, on January 26, 1999, Sun NLF terminated the lease with a notice of thirty days.

DISCUSSION

Sun NLF asserted in the motion for summary judgment that Flowers did not establish the element of hostile claim, because Flowers had permissive use of the property.

Summary Judgment Standard of Review

In reviewing a traditional summary judgment, the moving party has the burden of establishing that no material fact issue exists and it is entitled to judgment as a matter of law.  Tex.R.Civ.P. 166a(c);  M.D. Anderson Hosp. and Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000).  In determining whether a disputed material fact issue precludes summary judgment, the court must take evidence favorable to the non‑movant as true and indulge every reasonable inference in favor of non‑movant.  Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548‑49 (Tex. 1985).  Because the granting of summary judgment is a question of law, we review the trial court=s decision de novo.  Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).  If the trial court does not provide findings or grounds for summary judgment, as here, we may affirm the judgment on appeal if any of the theories advanced are meritorious.  State Farm Fire & Cas. Co. v. S.S. & G.W., 858 S.W.2d 374, 380 (Tex. 1993); American Eagle Ins. Co. v. Nettleton, 932 S.W.2d 169, 174 (Tex.App.--El Paso 1996, writ denied).

Elements of Adverse Possession

Adverse possession is statutorily defined as Aan 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.@  Tex.Civ.Prac.&Rem.Code Ann. ' 16.021(1)(Vernon 1986).  To establish title by adverse possession, a party must show possession, use, a hostile claim, exclusive domination, and appropriation within the statutory time limit, or ten years in this case.  Tex.Civ.Prac. &Rem.Code Ann. ' 16.026(a)(Vernon Supp. 2002); Wright v. Wallace, 700 S.W.2d 269, 270 (Tex.App.‑‑Corpus Christi 1985, writ ref=d n.r.e.).  The possession must have been for a long enough period of time to cut off the true owner=s right of recovery as well as visible, Acontinuous . . . notorious, distinct and hostile [i.e., adverse], and of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.@  Heard v. State, 146 Tex. 139, 204 S.W.2d 344, 347-48 (1947).  Even if  a claimant lived continuously on the property for longer than the statutory ten‑year period, the usage of the land must constitute an actual and visible appropriation of the land such that the true owner is given notice of a hostile claim. Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, 785‑87 (1954).

The evidence is undisputed that Flowers entered the property in 1977 with then-owner Mason=s permission under a lease agreement.  In order to assert adverse possession of the land, the adverse claimant who begins entry upon the disputed land with the permission of the record owner must give notice of the hostile nature of the possession.  Wright, 700 S.W.2d at 271.

There is no evidence of when Flowers=s adverse possession of the land began. Flowers testified that he orally communicated to Mason after a fire occurred on the property:

A:         I don=t know if I told him I was taking it for myself. . . .  I wrote him a letter to inform him that there was a fire and that the fence that I had put up and the trees and things on the place had burned real bad and the place was a mess.

                                                              .               .               .

Q:        Did you write him or pick up the phone and call him and say, Mr. Mason, this is now my property, it no longer belongs to you, Mr. Mason?

A:         I don=t think I told him that in those words.

Q:        What words did you use?

A:         I let him know that the property -- and I said -- I=m pretty -- I know -- I=m pretty sure I said our property, you know.  That our property has burned and there=s a lot of damage to it, and I asked him to get in touch with me.  And he did not return a letter nor did he return a call.

Q:        In fact, all the way up until today you never picked up the phone and called Mr. Mason and said I=m now claiming this as my property?

A:         I don=t know if I told him that.

Q:        Nor did you write him a letter saying, Mr. Mason, this is no longer your property, this is my property.  You=ve never done that all the way up until today.

A:         I don=t know if I=ve ever done that . . . .

                                                              .               .               .

A:         And I=m not sure that I told him to the effect I=m just taking the property and you=re out.  I don=t think I put it quite that bluntly.

But I think I did tell this man that I was not -- and I know I did that --that I=m not going anywhere because I feel this property is mine because I have money and time tied up in it and I=m not getting paid and I=m going to take the property.  And I=m pretty sure I said that basically in the same type of manner.

And I=m not talking about blind-siding and conniving or scheming.  I wanted my money.  I asked for my money.  I sent letters to whatever, and the proof was in the pudding.

Adverse possession could not have commenced in 1977, because Flower=s entry was permissive, nor does it appear that Flowers repudiated Mason=s title and commenced an open and notorious claim nor impart any constructive notice of such, even viewing the evidence in Flowers=s favor.  Flowers=s only hostile act was to tell Mason that he would remain on the property until he had been paid for the improvements made with Mason=s agreement, such as putting up a fence and repairing an existing shed and barn.  Flowers did not pay the property taxes and insurance premiums or attempt to exclude buyers of the property, such as the Mercantile Bank agent, the Pilot company, and the claimant of a tract at the corner of Lancaster and Wheatland. Until a few months before his deposition, Flowers did not inquire into the active rental of portions of the property to sign companies for billboards since 1977.  In fact, when he learned that Sun NLF had acquired the property, he recognized Sun NLF=s ownership of the property by agreeing to be a tenant without paying rent and also offering to purchase parts of the property four times from 1996 through 1998. There is no evidence that Flowers asserted a hostile, adverse claim against Mason and Sun NLF during his possession of the property, and Flowers has failed to present rebutting evidence. Summary judgment was proper, and we overrule his sole issue.

The judgment of the trial court is affirmed.

August 22, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)

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^[1] Although unclear in the record, it appears that Flowers=s breach of contract and adverse possession causes of action were consolidated, and summary judgment was not granted on the breach of contract claims.

^[2] Since Flowers untimely filed his response two days before the order granting summary judgment for Sun NLF was signed on March 10, 2000, and there is no order in the record granting Flowers leave to file the response late, we must consider only the evidence from Sun NLF=s motion for summary judgment.  Tex.R.Civ.P. 166a(c); Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996).