Elijah Nelson and Carol Nelson v. Go Green LLC

Affirmed and Memorandum Opinion filed August 23, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00571-CV
ELIJAH NELSON AND CAROL NELSON, Appellants
V.
GO GREEN, LLC, Appellee
On Appeal from the 419th District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-15-005387
MEMORANDUM OPINION
In this action to quiet title, appellants Elijah and Carol Nelson challenge the
no-evidence summary-judgment rendered against them on their defense of
limitations under the ten-year adverse-possession statute. They additionally argue
that the trial court excluded critical evidence; that they were denied discovery or that
the opposing party or their own counsel spoliated evidence; and that they were given
inadequate notice of the summary-judgment hearing. Because the record does not
support these arguments, we affirm.
I. BACKGROUND
Go Green, LLC purchased a tract of land at 6200 Hudson Street in Austin,
Texas from the owner of record. After Go Green recorded its general warranty deed,
Carol Nelson and her son Elijah Nelson recorded an “affidavit of adverse
possession” claiming ownership of the same property. Go Green then filed suit
against the Nelsons to quiet title.
Elijah, acting pro se, answered the suit and alleged that the ten-year limitations
period barred the suit. A retained attorney then entered an appearance on behalf of
both Elijah and Carol before withdrawing from the case. Elijah filed an amended
answer, purportedly on behalf of his mother as well as himself, but the amended
answer is signed only by Elijah. He alleged that he and his mother had held the land
in adverse possession since 1995 and again asserted the ten-year statute of
limitations.
Go Green filed a no-evidence motion for partial summary judgment on the
Nelsons’ limitations defense. Only Elijah responded.1 After the trial court granted
the motion, Elijah moved for reconsideration, asserting that he did not receive the
motion in a timely manner and that his former attorney, who had withdrawn more
than six months earlier, had refused either to return or to file evidence in his
possession. The trial court denied the motion.
1
Elijah’s response to Go Green’s no-evidence motion for partial summary judgment is
titled, “Defendants’ Response to Plaintiffs’ No Evidence Motion for Summary Judgment and
Cross-Motion for Summary Judgment,” but the record does not show that the cross-motion was
ever set for hearing or ruled upon.
2
Having prevailed on its challenge to the Nelsons’ adverse-possession defense,
Go Green moved for traditional summary judgment on the ground that it has title to
the property and that its title is affected by the affidavit of adverse possession that
the Nelsons had filed in the property records. Again, only Elijah responded.
The trial court granted the motion and decreed that the Nelsons’ claim to the
property is void.
II. ISSUES PRESENTED
In four issues, the Nelsons argue that (1) the trial court erroneously excluded
critical evidence; (2) the trial court erred in granting Go Green’s no-evidence motion
for partial summary judgment, (3) the trial court erred “in excluding objections for
time for additional discovery held by Appellee[s’] Attorney”; and (4) Go Green
failed to give proper notice of the summary-judgment hearing.
III. ALLEGED EXCLUSION OF EVIDENCE
In the Nelsons’ first issue, they contend that the trial court did not consider a
text message2 and an affidavit, both of which were part of Elijah’s response to Go
Green’s traditional motion for final summary judgment on their suit to quiet title.
The record contains no objection to this evidence, no motion to strike it, and no
ruling excluding it.
2
The only text message in the record is a print-out of an image of a text message that reads
in its entirety, “Hi Ms Nelson, thank you for speaking to me Saturday about the Hudson property.
I hope your family is doing better after the hospital visit. When it’s convenient for you I’d be
interested in continuing our conversation. Best, Dan Loe.” The print-out also contains an excerpt
from an unidentified source identifying Daniel Loe as one of Go Green’s two principals.
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The Nelsons additionally refer on appeal to their own answers to
interrogatories, answers to requests for admission, and responses to requests for
production. None of this material was offered as summary-judgment evidence.3
Because the record fails to show that any evidence was excluded, the Nelsons’
first issue presents nothing for our review. We overrule the first issue.
IV. THE PARTIAL SUMMARY JUDGMENT ON LIMITATIONS
In the Nelsons’ second issue, they argue that the trial court erred in granting
Go Green’s no-evidence motion for partial summary judgment on the question of
whether the action to quiet title is time-barred.
A movant for no-evidence summary judgment must identify each essential
element of the claim or defense for which the movant contends there is no evidence.
TEX. R. CIV. P. 166a(i). To defeat a no-evidence motion for summary judgment, the
respondent must present evidence raising a genuine issue of material fact as to each
element contested in the motion. Timpte Ind., Inc. v. Gish, 286 S.W.3d 306, 310
(Tex. 2009). We review the summary-judgment evidence in the light most favorable
to the non-movant, crediting favorable evidence if reasonable jurors could and
disregarding contrary evidence unless reasonable jurors could not. City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
As their defense to Go Green’s action to quiet title, the Nelsons relied on the
ten-year statute of limitations, which provides that “[a] person must bring suit not
later than 10 years after the day the cause of action accrues to recover real property
3
Moreover, a party generally cannot rely on its own answers to interrogatories or its
responses to requests for admission. See Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000) (per
curiam) (answers to interrogatories); Ramirez v. Coca-Cola Refreshments USA, Inc., 2013 WL
5761315, at *3 (Tex. App.—Houston [1st Dist.] Oct. 22, 2013, no pet.) (mem. op.) (denials of
requested admissions).
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held in peaceable and adverse possession by another who cultivates, uses, or enjoys
the property.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.026(a) (West 2002).
“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.” Id. § 16.021(1). “Peaceable possession”
means “possession of real property that is continuous and is not interrupted by an
adverse suit to recover the property.” Id. § 16.021(3). To prevail on this defense, a
person claiming to adversely possess property must prove that the person actually
and visibly possessed the property, and the possession (a) was adverse and hostile to
the claim of the owner of record title; (b) was open and notorious; (c) was peaceable;
(d) was exclusive; and (e) involved continuous cultivation, use, or enjoyment for
over ten years. Kazmir v. Benavides, 288 S.W.3d 557, 561 (Tex. App.—Houston
[14th Dist.] 2009, no pet.). In Go Green’s motion for partial summary judgment, it
challenged the existence of evidence to support each of these elements.
Carol did not respond to the motion. Elijah responded, but his evidence
consisted solely of three printouts purporting to be images of Hudson Street as
captured by “Google Maps.” The first print-out identifies the image’s copyright date
as 2016 and appears to be an aerial view of Hudson Street, and in particular, 6402
Hudson Street. Handwritten annotations point to “Stables & Barns” and
“Driveway.” The second print-out identifies April 2015 as the date on which the
image was captured. Handwritten annotations identify it as “6402 Street View” and
state that “[a]ll fences & structures created by Defendants Nelsons.” The third image
also identifies the “image capture” date as April 2015. It has been hand-labeled
“6404 Street View” with an arrow pointing to “6402.”
At best, the images show a fence and structures on the property three months
before Go Green purchased it. The images do not raise a genuine issue of material
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fact about whether the Nelsons peaceably possessed the property, or consistently and
continuously cultivated, used, or enjoyed the property for ten years, or that the
Nelsons’ alleged use of the property was adverse and hostile to the claim of the
owner of record title; or that the Nelsons’ alleged use of the property was exclusive
throughout that time.
Because neither Carol nor Elijah produced evidence sufficient to raise a
genuine issue of material fact as to each challenged element of their limitations
defense, the trial court did not err in granting partial summary judgment against them
on this issue. See TEX. R. CIV. P. 166a(i). We overrule the second issue.
V. DISCOVERY AND ALLEGED SPOLIATION OF EVIDENCE
The Nelsons phrase their third issue, “Did the trial court err in excluding
objections for time for additional discovery held by Appellee[s’] Attorney?” The
Nelsons’ intended meaning is not clear from the statement of the issue or from the
arguments that follow it.
If the Nelsons mean that they were entitled to a continuance of the summary-
judgment hearing so that they could conduct additional discovery, then this argument
is not supported by the record. A respondent to a no-evidence motion for summary
judgment who has not had an adequate opportunity for discovery must file either an
affidavit explaining the need for further discovery or a verified motion for
continuance. Muller v. Stewart Title Guar. Co., 525 S.W.3d 859, 866 (Tex. App.—
Houston [14th Dist.] 2017, no pet.). There is no such material in the record.
The Nelsons also represent that their attorney withdrew without entering their
discovery responses into the record, but responses to discovery requests need not be
filed. See TEX. R. CIV. P. 191.4. They additionally state that their former attorney
“did not return the information given to him as evidence.” They devote much of this
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section of their appellate brief to case law concerning spoliation, and state that Go
Green “negligently or intentionally spoliated evidence; filing a motion for no
evidence [summary judgment] as if [it] never had any knowledge of the deed, photos
of the property or other evidence.” Spoliation does not appear to have been
mentioned in any document filed in the trial court.
As best we can glean from the Nelsons’ briefing, the Nelsons’ appellate
argument is that (1) they gave original documents and photographs to their own
attorney to use in responding to Go Green’s discovery requests; (2) their attorney
served Go Green with the discovery responses but withdrew from the case without
returning the original material or copies of it to the Nelsons; (3) because Go Green
filed a motion for no-evidence summary judgment after allegedly receiving the
Nelsons’ discovery responses, the Nelsons conclude that Go Green destroyed the
Nelsons’ discovery responses or somehow withheld them from the Nelsons; and
(4) the Nelsons were entitled to discover their own discovery responses from Go
Green’s counsel.
These arguments appear to be rooted in a dispute between the Nelsons and
their former counsel. The record shows that their attorney moved to withdraw in
September 2016, and that Go Green did not file its no-evidence motion for summary
judgment until nearly six months later. The Nelsons did not move to compel
discovery responses from Go Green, and the record contains no evidence or
allegations of spoliation. Moreover, the rule governing no-evidence motions for
summary judgment provides that the movant has no burden to produce evidence;
that burden is borne by the respondents. See TEX. R. CIV. P. 166a(i). Because the
Nelsons failed to meet that burden, we overrule this issue.
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VI. NOTICE OF THE HEARING
In their final issue, Carol and Elijah contend that Go Green failed to give
proper notice of the hearing on the no-evidence motion for partial summary
judgment on limitations. They contend that they “received notice only several days
before” the hearing.
A party who receives late notice of a hearing must preserve the complaint in
the trial court by bringing the inadequate notice to the trial court’s attention by
objecting to the hearing going forward or by moving for a continuance. See Low v.
Henry, 221 S.W.3d 609, 618 (Tex. 2007). Elijah asserts on appeal that he “objected
in open court” that he had not had adequate time to gather information, but we have
no reporter’s record of the summary-judgment hearing, and the clerk’s record does
not show that the Nelsons objected to the hearing or sought a continuance.
We overrule the Nelsons’ fourth issue.
VII. CONCLUSION
Having overruled the issues presented, we affirm the trial court’s judgment.
/s/ Tracy Christopher
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Jamison.
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