Rosalind Johnson v. German Guerra ( 2021 )

Affirmed in Part, Reversed and Remanded in Part, and Memorandum
Opinion filed October 21, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00260-CV
ROSALIND JOHNSON, Appellant
V.
GERMAN GUERRA, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 18-CV-0891
MEMORANDUM OPINION
This is a dispute over ownership of property. Rosalind Johnson sued German
Guerra for adverse possession and trespass, and Guerra countersued Johnson for
trespass. After the parties filed competing motions for summary judgment, the trial
court rendered summary judgment in favor of Guerra. Concluding that Johnson’s
summary judgment evidence created genuine issues of material fact on her adverse
possession claim and the trial court granted more relief than requested, we affirm
the trial court’s judgment in part, reverse in part, and remand for further
proceedings.
Background
In 1973, two parcels of land were split into north and south lots and divided
between two sisters.
• The North Lot. The north lot was sold to the City of Galveston in a
tax sale in 1998. The city conveyed the north lot to Bruce Kintgen in
2001, who along with his wife Vicky Jo Kintgen, conveyed it to
Galveston Housing Finance Corporation in 2006. Galveston Housing
Finance Corporation conveyed the north lot to Guerra in 2018.
• The South Lot. Johnson and her brother inherited the south lot in
1999, and Johnson’s brother conveyed his interest in the south lot to
Johnson in 2000.
The dispute in this case involves a garage apartment. The garage apartment
is located on the north lot, but Johnson and her predecessors purportedly believed
it was on the south lot. Galveston County tax records between 1989 and 2018
indicate that the garage apartment was part of the south lot, but a handwritten note
on a 2018 property appraisal information sheet indicates that the garage apartment
was the “same building assessed” on the north lot. Johnson asserts that the garage
apartment has been included with the south lot in the tax records since 1987 and
she has paid taxes on the garage apartment since the time she inherited the
property. She also contends that she rented the garage apartment to tenants until
2009 or 2010 and she was using the garage apartment for storage at the time
Guerra purchased the north lot.
Guerra surveyed the property and discovered that the garage apartment was
on the north lot. He then began to make improvements to the garage apartment and
moved into it. One water meter had regulated water use at both the garage
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apartment and a house on the south lot since 1973. Johnson had a new water meter
installed after Guerra took over the garage apartment.
We have included the following vertical timeline for clarity:
1973—Property was partitioned into north and south lots and conveyed
respectively to Luebirda Wilson and Mary Brown.
1985—Annie Dean Mack Wilson inherited south lot.
1991—Ruthie Simmons inherited south lot.
1998—North lot was sold in tax sale to City of Galveston.
1999—Rosalind Johnson and Reginald Simmons inherited south lot.
2000—Simmons conveyed his interest in south lot to Johnson.
2001—City of Galveston conveyed north lot to Bruce Kintgen.
2006—Bruce and Vicky Jo Kintgen conveyed north lot to Galveston
Housing Finance Corporation.
2018—Galveston Housing Finance Corporation conveyed north lot to
German Guerra.
Johnson sued Guerra and sought a declaratory judgment that the garage
apartment was part of the south lot or alternatively that Johnson had acquired the
garage apartment through adverse possession.1 Johnson also brought a claim for
trespass and related damages, and Guerra brought a counterclaim for trespass and
related damages.2 Johnson moved for partial summary judgment on her adverse
possession claim and Guerra’s counterclaim for trespass. Guerra filed a competing
motion for summary judgment on Johnson’s adverse possession claim but did not
move for summary judgment on his trespass counterclaim. Guerra argued that real
property owned by governmental entities cannot be adversely possessed and thus
the applicable ten-year period for adverse possession was interrupted by Galveston
1
The adverse possession claim is in substance a claim for trespass to try title by adverse
possession. See, e.g., Brumley v. McDuff, 616 S.W.3d 826, 834 (Tex. 2021).
2
Johnson alleged that if she owned the garage apartment, she was entitled to damages
against Guerra for trespassing on the property.
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Housing Finance Corporation’s ownership of the property. The trial court denied
Johnson’s motion for summary judgment and granted Guerra’s. In the order
granting Guerra’s motion, the trial court stated, “This order disposes of all issues in
this cause.”
Discussion
Guerra moved for summary judgment on one ground—that Johnson could
not establish adverse possession because the garage apartment was owned by a
governmental entity—Galveston Housing Finance Corporation—during a portion
of the applicable ten-year period required for Johnson to establish adverse
possession. According to Johnson, Galveston Housing Finance Corporation is not a
governmental entity, but even if it were, her predecessors adversely possessed the
garage apartment prior to the tax sale, the garage apartment was not part of the tax
sale, and Galveston Housing Finance Corporation’s ownership did not interrupt the
applicable period for adverse possession.
We review summary judgments de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review the
evidence presented in the motion and response in the light most favorable to the
party against whom the summary judgment was rendered, crediting evidence
favorable to that party if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. Id. The party moving for traditional
summary judgment bears the burden of showing no genuine issue of material fact
exists and he is entitled to judgment as a matter of law. Id. (citing Tex. R. Civ. P.
166(a)(c)). The evidence raises a genuine issue of fact if reasonable and
fair-minded jurors could differ in their conclusions in light of all of the summary
judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755
(Tex. 2007). Summary judgment for a defendant is proper only when the defendant
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negates at least one element of each of the plaintiff’s theories of recovery or pleads
and conclusively establishes each element of an affirmative defense. Hilburn v.
Storage Tr. Props., LP, 586 S.W.3d 501, 506 (Tex. App.—Houston [14th Dist.]
2019, no pet.).
Guerra moved for summary judgment on the grounds that Galveston
Housing Finance Corporation is a governmental entity and Johnson could not
present evidence of continuous use of the garage apartment during the applicable
ten-year period required for adverse possession. We first address Guerra’s
challenge to Johnson’s summary judgment evidence. We then discuss the
applicable limitations statute and the merits of Johnson’s challenges to the
summary judgment.
I. Challenge to Summary Judgment Evidence Waived
As an initial matter, Guerra challenges an unsworn declaration by Johnson
filed in support of her response to Guerra’s motion for summary judgment. Guerra
contends the declaration is defective because it does not include a jurat or a
statement that the declaration is true under penalty of perjury. See Tex. Civ. Prac.
& Rem. Code § 132.001(c) (requiring unsworn declaration to “be . . . in writing
and . . . subscribed by the person making the declaration as true under penalty of
perjury”), (d) (requiring jurat to be included with unsworn declaration in
substantially correct form). The absence of this language and a jurat are defects in
form that must be raised in the trial court. ACI Design Build Contractors Inc. v.
Loadholt, 605 S.W.3d 515, 517–18 (Tex. App.—Austin 2020, pet. denied) (citing
In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003) (involving defective affidavit)).
Guerra did not object to the declaration on this basis in the trial court. Accordingly,
he waived this complaint on appeal. See id.
5II. Limitations Period for Adverse Possession
We turn to the applicable limitations period for adverse possession.
“Adverse possession” means “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.” Tex. Civ. Prac. & Rem. Code § 16.021(1).
The parties agree that the ten-year limitations period for adverse possession applies
in this case. Under that section of the statute, to recover real property held in
peaceable and adverse possession, “[a] person must bring suit not later than ten
years after the day the cause of action accrues.” Id. § 16.026(a). If an action for the
recovery of real property is barred by the ten-year limitations period, the person
who holds the property in peaceable and adverse possession has full title,
precluding all claims. Id. § 16.030(a). To prevail on the ten-year limitations period
in section 16.026, a person claiming possession of property adversely must prove
that the person actually and visibly possessed the disputed property, and the
possession: (a) was adverse and hostile to the claim of the record title owner;
(b) was open and notorious; (c) was peaceable; (d) was exclusive; and (e) involved
continuous cultivation, use, or enjoyment for ten years. Levy v. Leach, No. 14-19-
00843-CV, 2021 WL 4165199, at *4 (Tex. App.—Houston [14th Dist.] Sept. 14,
2021, no pet. h.) (mem. op.); Kazmir v. Benavides, 288 S.W.3d 557, 561 (Tex.
App.—Houston [14th Dist.] 2009, no pet.).
“Visible appropriation” is required; mistaken beliefs about ownership do not
transfer title until someone acts on them. Tran v. Macha, 213 S.W.3d 913, 914
(Tex. 2006) (per curiam); Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985).
Peaceable possession means “possession of real property that is continuous and is
not interrupted by an adverse suit to recover the property.” Tex. Civ. Prac. & Rem.
Code § 16.021(3). The “possession must be of such character as to indicate
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unmistakably an assertion of a claim of exclusive ownership in the occupant.”
Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990).
III. Governmental Entity Status
We address Johnson’s second issue first, in which she contends that the trial
court erred in granting summary judgment on the basis that Galveston Housing
Finance Corporation is a governmental entity. Guerra argues that the government
is exempt from adverse possession and the statute of limitations for adverse
possession was tolled during the time Galveston Housing Finance Corporation
owned the garage apartment, thus precluding a finding in Johnson’s favor on her
adverse possession claim.
Johnson first argues Guerra did not establish as a matter of law that
Galveston Housing Finance Corporation is a governmental entity. We disagree.
The legislature authorized local governments to create housing finance
corporations to “benefit . . . the people of the state” by “improv[ing] public health
and welfare, and promot[ing] the economy.” Tex. Loc. Gov’t Code § 394.002(c),
(d). The legislature expressly described a housing finance corporation “as a public
instrumentality and nonprofit corporation, [that] performs an essential
governmental function on behalf of and for the benefit of the general public, the
local government, and this state.” Id. § 394.002(c)(3). In this connection, a housing
finance corporation is an arm of the local government meant “to finance the cost of
residential ownership and development that will provide decent, safe, and sanitary
housing at affordable prices for residents.” Id. § 394.002(a). We conclude that
Galveston Housing Finance Corporation is a governmental entity as described by
the statute.
Johnson contends, however, that even if Galveston Housing Finance
Corporation is a governmental entity, real property owned by a governmental
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entity must also be dedicated to public use to be exempt from adverse possession.
She cites section 16.030 of the Civil Practice and Remedies Code, which states, “A
person may not acquire through adverse possession any right or title to real
property dedicated to public use.” Tex. Civ. Prac. & Rem. Code § 16.030(b).
While we agree that section 16.030 precludes adverse possession of property
dedicated to public use, we do not agree that the statute overrides the longstanding
general rule that the State’s interest in real property cannot be divested by adverse
possession.3 See, e.g., Odessa Tex. Sheriff’s Posse, Inc. v. Ector Cty., 215 S.W.3d
458, 465 (Tex. App.—Eastland 2006, pet. denied) (“[G]overnmental entities . . .
cannot be divested of their rights in real property by . . . adverse possession.”); City
of Port Isabel v. Missouri Pac. R. Co., 729 S.W.2d 939, 945 (Tex. App.—Corpus
Christi 1987, writ ref’d n.r.e.) (“[A]dverse possession does not run against the
State.”); Capitol Rod & Gun Club v. Lower Colorado River Auth., 622 S.W.2d
887, 896 (Tex. App.—Austin 1981, writ ref’d n.r.e.) (“[T]he State’s interest in real
property cannot be divested by . . . adverse possession.”); Jackson v. Nacogdoches
Cty., 188 S.W.2d 237, 238 (Tex. Civ. App.—Dallas 1945, no writ) (“It is settled
law in this State that title to State lands cannot be acquired by adverse
possession.”). Johnson’s argument is without merit.
Johnson also argues that the City of Galveston and Galveston Housing
Finance Corporation are not immune from damages arising from their purchase of
the real property at issue in this case. But the City of Galveston and Galveston
Housing Finance Corporation are not parties in this case. This argument has no
bearing on the question of whether Galveston Housing Finance Corporation’s
ownership of real property tolled the applicable limitations period for adverse
3
Section 16.030, on its face, is not limited to real property owned by a governmental
entity but applies more generally to real property dedicated to public use regardless of the owner.
Tex. Civ. Prac. & Rem. Code § 16.030(b).
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possession here.
We conclude that the trial court did not err in granting summary judgment
on the basis that Galveston Housing Finance Corporation is a governmental entity
because Guerra established as a matter of law that it is. Guerra also established as a
matter of law that the State’s interest in real property cannot be divested by adverse
possession. We overrule Johnson’s second issue. However, our holding on this
issue does not end our inquiry because we must also address Johnson’s argument
that her predecessors adversely possessed the garage apartment prior to the tax
sale, the garage apartment was not sold in the tax sale, and as a result, no
governmental entity ever owned the garage apartment.
IV. Fact Questions Regarding Continuous Use of Property
Johnson contends in her first issue that there are genuine issues of material
fact regarding whether her predecessors adversely possessed the garage apartment
prior to the tax sale and whether the garage apartment was sold in the tax sale.
According to Johnson, her predecessors adversely possessed the garage apartment
from 1973 to 1983, the garage apartment was not included in the tax sale in 1998,
and thus it was never acquired by the City of Galveston or Galveston Housing
Finance Corporation. Guerra argues that the City of Galveston purchased the
garage apartment in the tax sale, the tax sale interrupted any adverse possession by
Johnson’s predecessors, and the applicable period for adverse possession is
between 1998, the date of the tax sale, and 2018, when Guerra purchase the north
lot. Guerra asserts that Johnson cannot show continuous or exclusive adverse
possession during the time Galveston Housing Finance Corporation owned the
north lot from 2006 to 2018.
Whether a person has acquired title to property by ten years of adverse
possession typically presents a fact question. Bywaters, 686 S.W.2d at 595; Levy,
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2021 WL 4165199, at *5. To establish continuous adverse possession by her
predecessors, Johnson would be required to show that her predecessors’ possession
and claim (1) met the requirements of the statute, (2) were continuous and without
interruption, and (3) were passed or transferred to her by agreement, gift, devise, or
inheritance. See Rinn v. Mind Props. LLC, No. 14-19-00643-CV, 2021 WL
4314452, at *3 (Tex. App.—Houston [14th Dist.] Sept. 23, 2021, no pet. h.) (mem.
op.).
Johnson presented evidence in her declaration and in a partition agreement
that the subject property was partitioned into the north and south lots in 1973 and
divided between Johnson’s great grandmother Mary Brown and great aunt
Luebirda Wilson. The south lot was conveyed to Brown. Johnson declared that
Brown lived in a house on the south lot and rented the garage apartment to tenants.
Annie Dean Mack Wilson inherited the south lot in in 1985 as shown in an heirship
affidavit filed in the Galveston County real property records. Ruthie Simmons
inherited the south lot in 1991 as shown in an affidavit of heirship also filed in the
Galveston County real property records. Johnson and Reginald Simmons inherited
the south lot in 1999 as also shown in an affidavit of heirship filed in the Galveston
County real property records. Simmons conveyed his share in the south lot to
Johnson in 2000 as shown by warranty deed. Johnson submitted certified copies of
the partition agreement, affidavits of heirship, and applicable deeds.
Guerra presented the sheriff’s tax sale deed and the trustee’s deed in support
of his motion for summary judgment. But Johnson presented evidence that the tax
sale of the north lot in 1998 did not include the garage apartment. She submitted
tax records dating back to 1989 indicating that the garage apartment was part of the
south lot. Her mother, Ruthie Simmons, was listed on the tax records as the owner
of the garage apartment. Additional tax records from 1993 through 2018 show that
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Simmons and subsequently Johnson continuously owned the garage apartment as
part of the south lot. In 2018, a handwritten note was placed in the tax records
stating that the garage apartment is the “same building assessed on [the north lot].”
According to Johnson, the note indicates the taxing authority treated the garage
apartment as part of the south lot until 2018. Johnson moreover declared that a
combined water meter had been used for both the building on the south lot and the
garage apartment until Guerra moved into the garage apartment. This amounts to
conflicting evidence regarding whether the tax sale included the garage apartment.
The evidence raises fact questions regarding whether Johnson’s predecessors
continuously possessed the garage apartment from 1973 until 1983. First, the
property was partitioned in 1973, and there is evidence that Johnson’s grandmother
rented the garage apartment to tenants and passed away in 1985, when Annie Dean
Mack Wilson inherited the south lot. Tax records also show that Brown and her
descendants continuously owned the garage apartment from 1989 through 2018.
Johnson declared that she rented the garage apartment to tenants until 2009 or 2010
and was using the garage apartment for storage at the time Guerra purchased the
north lot, in addition to the fact that a combined water meter was used for the
house on the south lot and the garage apartment. This evidence presents a fact
question as to whether the garage apartment was included in the tax sale.
We conclude that Guerra has not shown on this record as a matter of law that
Johnson and her predecessors did not continuously possess the garage apartment
for ten years as required to establish adverse possession. Specifically, there are fact
questions regarding whether Johnson’s predecessors had adversely possessed the
garage apartment prior to the tax sale and whether the garage apartment was
included in the tax sale. As there are fact questions regarding this issue, we sustain
Johnson’s first issue. See Kazmir, 288 S.W.3d at 561 (“Whether adverse
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possession has been established is ordinarily a question of fact.”). We sustain
Johnson’s first issue.
V. Summary Judgment Improper as to Trespass Claims
We finally address the breadth of the trial court’s final summary judgment
disposing of all issues in the case. In her opening brief, Johnson contends that
Guerra moved for summary judgment on the singular question of whether
Galveston Housing Finance Corporation’s status as a governmental entity defeated
her adverse possession claim. In her reply brief, Johnson asserts that “the trial
court’s judgment exceeded the relief requested in” Guerra’s motion for summary
judgment. Ordinarily, we do not consider arguments raised for the first time in a
reply brief, but construing Johnson’s brief liberally, we conclude that the issue was
fairly included in her opening brief because she emphasized the fact that Guerra’s
motion was based on a singular question challenging her adverse possession claim.
See Williams v. City of Austin, No. 14-18-00262-CV, 2019 WL 3227513, at *5 n.8
(Tex. App.—Houston [14th Dist.] July 18, 2019, pet. denied) (mem. op.)
(considering issue raised for first time in reply brief “in the interest of justice”)
(citing Collins v. D.R. Horton-Tex. Ltd., 574 S.W.3d 39, 44 (Tex. App.—Houston
[14th Dist.] 2018, pet. denied)); see also Perry v. Cohen, 272 S.W.3d 585, 587
(Tex. 2008) (requiring courts of appeals to construe appellate briefs “reasonably,
yet liberally, so that the right to appellate review is not lost by waiver”) (citing
Tex. R. App. P. 38.1(f) (requiring appellate courts to consider every subsidiary
question that is fairly included in the statement of an issue or point)).
Guerra did not move for summary judgment on his trespass counterclaim or,
for that matter, on Johnson’s trespass claim. Summary judgments may only be
granted upon grounds expressly asserted in the summary judgment motion. G & H
Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (citing Tex. R. Civ. P.
12
166a(c)); see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341
(Tex. 1993) (holding that a motion for summary judgment must expressly present
grounds on which it is made). “When a trial court grants more relief than requested
and, therefore, makes an otherwise partial summary judgment final, that judgment,
although erroneous, is final and appealable.” Magee, 347 S.W.3d at 298.
Because Guerra did not request affirmative relief or ask for a nonsuit on his
trespass claim, it was reversible error for the trial court to render final summary
judgment on all claims. See id.; see also Sweet Water Well Serv., LLC v. W.
Houston Airport Corp., No. 14-18-00596-CV, 2020 WL 5048356, at *3 (Tex.
App.—Houston [14th Dist.] Aug. 27, 2020, no pet.) (mem. op.). Such error can be
harmless when a claim that was omitted from a motion for summary judgment is
precluded as a matter of law by other grounds raised in the case. Sweet Water Well
Serv., 2020 WL 5048356, at *3. But the harmless error exception applies under
very limited circumstances. See id.; see also PAS, Inc. v. Engel, 350 S.W.3d 602,
610 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (“The application of an
exception requires ‘a very tight fit’ between what was proved or disproved in the
motion and what elements must be proved or disproved for the unaddressed
claim.”). If the omitted claim shares a common element or is derivative to a claim
on which summary judgment was properly granted, then the error is harmless.
Magee, 347 S.W.3d at 296–98; Sweet Water Well Serv., 2020 WL 5048356, at *3.
Here, Guerra was granted final judgment on his affirmative claim for
trespass against Johnson even though Guerra did not file a motion for summary
judgment on that claim. Guerra asserted that Johnson’s adverse possession claim
failed as a matter of law, but he did not address his affirmative claim for damages
against Johnson. Thus, the trial court’s error was not harmless. See Magee, 347
S.W.3d at 297–98; see also Sweet Water Well Serv., 2020 WL 5048356, at *3.
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Similarly, because the trial court’s summary judgment on Johnson’s adverse
possession claim was not properly granted, the summary judgment on both parties’
trespass claims was improper on that basis as well. Accordingly, we reverse the
trial court’s judgment as to the parties’ competing trespass claims.
Conclusion
Concluding that Galveston Housing Finance Corporation is a governmental
entity but that Johnson’s summary judgment evidence created genuine issues of
material fact on her adverse possession claim, we affirm in part and reverse in part
the trial court’s judgment on that claim. We also reverse the trial court’s summary
judgment as to both parties’ trespass claims. We remand the cause to the trial court
for further proceedings consistent with this opinion.
/s/ Frances Bourliot
Justice
Panel consists of Justices Wise, Bourliot, and Zimmerer.
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