Kevin Frazier, on Behalf of Neal Frazier v. Richard Donovan

NO. 12-18-00015-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
KEVIN FRAZIER, ON BEHALF § APPEAL FROM THE 217TH
OF NEAL FRAZIER, DECEASED,
APPELLANT
V. § JUDICIAL DISTRICT COURT
RICHARD DONOVAN,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
Kevin Frazier, on behalf of Neal Frazier, deceased, appeals from an adverse judgment
rendered against Neal Frazier in his trespass to try title suit against Richard Donovan. In two
issues, Frazier contends the trial court was biased, and the judgment is erroneous because Neal
Frazier established title by adverse possession. We affirm.
BACKGROUND
In the 1930’s, Neal’s grandparents, Mary and Harrison Frazier, built a house for their
family. They mistakenly built it on property adjacent to theirs that was owned by other family
members, the Barnetts. After Mary’s death, Neal’s aunt lived in the home. Neal also lived in the
house at times. He was living there in 2011 when Donovan purchased both the Frazier tract and
the Barnett tract. At that time, a survey revealed that the Frazier house was located on the Barnett
tract. Donovan’s forcible entry and detainer action resulted in Neal’s removal from the property.
Neal filed suit against Donovan to establish title by adverse possession. The trial court
granted Donovan’s motion for summary judgment which Neal appealed. This court determined
that Donovan failed to show entitlement to summary judgment, reversed the judgment, and
remanded the cause to the trial court. 1 Upon remand, after a trial before the court, the trial court
rendered judgment that Neal take nothing. Neal passed away and his son, Kevin, filed a suggestion
of death and a notice of appeal.
JUDICIAL BIAS
In his first issue, Frazier asserts that the trial court was socio-economically biased against
Neal. Although unclear, he seems to argue that the court committed prejudicial error by hearing
the case three times and deciding the case against Neal three times. He asserts that a judge who
has personal knowledge of disputed facts may be influenced by that knowledge.
Applicable Law
Parties have a right to a fair and impartial trial presided over by a neutral and detached
judge. Markowitz v. Markowitz, 118 S.W.3d 82, 86 (Tex. App.−Houston [14th Dist.] 2003, pet.
denied) (op. on reh’g). To reverse a judgment on the ground of improper conduct or comments of
the judge, we must find (1) that judicial impropriety was in fact committed and (2) probable
prejudice to the complaining party. Id. A judge must recuse in any proceeding in which the judge
has personal knowledge of disputed evidentiary facts concerning the proceeding. TEX. R. CIV. P.
18b(b)(3).
Analysis
Frazier has not shown that this complaint was raised in the trial court or ruled on. See TEX.
R. APP. P. 33.1. Further, Frazier asserts no specific words or actions on the part of the judge that
he contends constitute a show of bias. The mere fact that the judge presided over three separate
hearings on the issue of Neal’s entitlement to possession or title to the property does not indicate
that the judge has personal knowledge. Frazier must show that the alleged bias arose from an
extrajudicial source and not from actions during the pendency of the trial court proceedings, unless
these actions during proceedings indicate a high degree of favoritism or antagonism that renders
fair judgment impossible. Sommers v. Concepcion, 20 S.W.3d 27, 41 (Tex. App.−Houston [14th
Dist.] 2000, pet. denied). Generally, no bias is shown when the allegations are based solely on
judicial rulings. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (per curiam).
Additionally, an appellant must present the appellate court with a record that shows the
error about which the appellant complains. Fiesta Mart, Inc. v. Hall, 886 S.W.2d 440, 442 (Tex.
1
Frazier v. Donovan, 420 S.W.3d 463 (Tex. App.−Tyler 2014, no pet.).
2
App.−Houston [1st Dist.] 1994, no writ). No reporter’s record was filed in this appeal. When no
reporter’s record of an evidentiary hearing is filed, we must presume that the evidence supports
the trial court’s decision. See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.
1987). The record before us does not demonstrate bias by the trial court. Frazier has shown neither
commission of a judicial impropriety nor probable prejudice. See Markowitz, 118 S.W.3d at 86.
We overrule Frazier’s first issue.
ADVERSE POSSESSION
In his second issue, Frazier asserts that the evidence conclusively establishes that Mary and
Harrison Frazier acquired title to the property by 1945. Therefore, their heirs, including Neal
Frazier, now own the property. He further argues that, although Donovan purchased the interest
the Barnetts had in the land in 2011, by that time, title had passed by adverse possession to the
Frazier heirs or to Neal Frazier alone. Accordingly, he asserts, Donovan does not own any interest
in the property and the trial court erred in finding in Donovan’s favor.
Standard of Review
Findings of fact in a case tried to the court have the same force and dignity as a jury’s
answers to jury questions. Jamestown Partners, L.P. v. City of Fort Worth, 83 S.W.3d 376, 383
(Tex. App.−Fort Worth 2002, pet. denied). A trial court’s findings of fact are reviewable by the
same standards that are applied in reviewing evidence supporting a jury’s answer. Id. When a
party attacks the legal sufficiency of an adverse finding on which he had the burden of proof, he
must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in
support of his proposed disposition. Dow Chem. Co., 46 S.W.3d at 241.
Applicable Law
Adverse possession means an actual and visible appropriation of real property, commenced
and continued under a claim of right that is inconsistent with and hostile to the claim of another
person. TEX. CIV. PRAC. & REM. CODE ANN. § 16.021(1) (West 2002). To prevail on a claim of
adverse possession, a claimant must establish, by a preponderance of the evidence, (1) the actual
and visible possession of the disputed property; (2) that is adverse and hostile to the claim of the
owner of record title; (3) that is open and notorious; (4) that is peaceable; (5) that is exclusive; and
(6) involves continuous cultivation, use, or enjoyment throughout the statutory period. Anderton
v. Lane, 439 S.W.3d 514, 517 (Tex. App.—El Paso 2014, pet. denied). The statute provides for
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ten and twenty-five year limitations periods. TEX. CIV. PRAC. & REM. CODE ANN. §§ 16.026(a),
16.027. To satisfy a limitations period, peaceful and adverse possession does not need to continue
in the same person, but there must be privity of estate between each holder and his successor. Id.
§ 16.023. There must be an intention to claim the property as one’s own to the exclusion of all
others. Tran v. Macha, 213 S.W.3d 913, 915 (Tex. 2006) (per curiam). Mere occupancy of land
without any intention to appropriate it will not support the statute of limitations. Ellis v. Jansing,
620 S.W.2d 569, 571 (Tex. 1981). No matter how exclusive and hostile to the true owner the
possession may be in appearance, it cannot be adverse unless accompanied by intent on the part of
the occupant to make it so. Id. at 571-72.
Analysis
Frazier argues that the Frazier family acquired title to the property after exclusive use and
occupancy of the land under a claim of ownership for the requisite length of time. He asserts that
all members of the Frazier family regarded the home and the land around it as Frazier family
property.
Among the elements Frazier must show is that his claim is hostile to that of the Barnett
family. He must show the acts Neal performed on the land, and the use made of the land, were of
such a nature and character as to reasonably notify the Barnett family that a hostile claim was being
asserted to the property. See Masonic Bldg. Ass’n of Houston, Inc. v. McWhorter, 177 S.W.3d
465, 474 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
Although the appellate record does not include the reporter’s record, it does include the
trial court’s findings of fact and conclusions of law. The trial court found that the Fraziers built
the house on Barnett property by mistake and lived there with the consent of the Barnett family.
The court found that several members of the Frazier family lived in the house at times but no one
in the Frazier family ever claimed to own the house before Neal filed this lawsuit. After 2001,
Frazier family members leased the house to hunters for two hunting seasons. The trial court also
found that Neal never exercised exclusive dominion and control over the land on which the home
was built; he lived in the house sporadically from 1997 until May 2012, when he moved out; Neal’s
possession of the property was never exclusive for ten years or for twenty-five years; the Barnett
family had no notice that Neal claimed the property as his; and there is no evidence that any Frazier
family members made any claim to own the property at any time.
4
Accordingly, the trial court found that Neal did not prove that his possession was
continuous for either limitations period, that it was exclusive, or that it was hostile. Further, even
if Mary and Harrison Frazier lived in the house continuously for the statutory limitations period,
the court found that there was no evidence that they claimed the property as their own to the
exclusion of the Barnetts. See Tran, 213 S.W.3d at 915. In the absence of a reporter’s record, the
trial court’s findings of fact are conclusive. Campos v. Campos, 388 S.W.3d 755, 758 (Tex.
App.−El Paso 2012, no pet.). Frazier has not shown that the evidence establishes as a matter of
law all vital facts in support of his assertion of title by adverse possession. See Dow Chem. Co.,
46 S.W.3d at 241. We overrule Frazier’s second issue.
DISPOSITION
Because Frazier has not shown any trial court error, we affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered March 5, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 5, 2019
NO. 12-18-00015-CV
KEVIN FRAZIER, ON BEHALF OF NEAL FRAZIER, DECEASED,
Appellant
V.
RICHARD DONOVAN,
Appellee
Appeal from the 217th District Court
of Angelina County, Texas (Tr.Ct.No. CV-01477-12-06)
THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, KEVIN FRAZIER, on behalf of NEAL FRAZIER, deceased, and that
the decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.