Larry Johns v. Carl R. Grantom and Leigh Ann Grantom

Affirmed and Majority Memorandum Opinion and Concurring
Memorandum Opinion filed July 6, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00266-CV
LARRY JOHNS, Appellant
V.
CARL R. GRANTOM AND LEIGH ANN GRANTOM, Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2018-42908
MAJORITY MEMORANDUM OPINION
Plaintiff-Appellant Larry Johns appeals the trial court’s take-nothing
judgment dismissing his trespass to try title suit based on his claim of adverse
possession. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The relevant adjacent properties, Lots 5 and 6, including the disputed tract in
between them, sit on the eastern bank of Lake Houston in the Shorewood
subdivision, with street access and mailing addresses on West Shorewood Loop,
Huffman, Harris County, Texas. Johns has been the record owner of Lot 5 since
August 29, 2002, with his deed recorded September 19, 2002. Johns gained title
through a warranty deed from either the estate of his grandmother or her heirs.
According to appellant, prior to owning the property he had visited this property,
once owned by his grandparents, as a child. Other than the chain-link fence
surrounding the property, when he acquired the lot and up to the time of the
litigation, the property remained unimproved, in the same condition as it was when
he was a child.
Lot 5 is adjacent to and north of Lot 6. Defendants-Appellees Paul and
Leigh Ann Grantom bought Lots 6 and 7 by deed dated March 27, 2013. Lots 6
and 7 together make up the Grantom’s single contiguous residential property.
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When the Grantoms first acquired the property it included a house, a well house,
and a small storage building, a swimming pool, a dock, and a boat launch.
Lots 6 and 7 contained several fences when the Grantoms first moved to the
property in late 2013. Leigh Ann testified that the entirety of Lot 6 and Lot 7 was
“encased” in chain-link fences at that time.
According to Leigh Ann, the fence on the north side of Lot 6—the one near
Lot 5—was attached to the eastern-side, street-facing fence across the front of the
Grantom lots. Mr. Grantom described it as “droopy” and “bent” with crushed chain
links and looking as if it had never been maintained.
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Shortly after purchasing the lot in 2013, the Grantoms erected a wooden
privacy fence just inside, and generally parallel to the chain-link fence on the north
side of Lot 6, extending from the front of the property (near the garage) roughly
halfway across the northern section of the property.
Johns asserts that he owned that chain link fence on the North side of Lot 6.
Though he did not know who constructed the fence, Johns testified that it was in
place when he first obtained Lot 5, and that it was constructed of the same material
as the fences surrounding his property. He testified it had always been there, since
he was 7 or 8 years old (in the 1970s), and that he believed that the purpose of the
fence was to keep livestock out or keep children off the property; he also testified
that it was a boundary indicator.
When the Grantoms bought their land in 2013, the seller provided them a
survey of the property; they did not obtain one themselves. The survey showed no
encroachment on the property.
Planning to make some renovations, in 2017, the Grantoms obtained a land
survey (Defendents Ex. 2 shown above) that showed the chain-link fence between
lots 5 and 6 running east to west beginning at the northeast corner of Grantoms’
Lot 6 and extending to the shore of Lake Houston, 260 feet away. While the survey
shows the chain-link fence beginning almost exactly on the property line at the east
end next to the road, the property line and fence line diverge, ultimately creating a
seven-to-eight-foot gap at the shoreside end of the property—separating about
1,029 square feet of land between the fence and the property line from the rest of
Lot 6. This portion of land within Lot 6, including and north of the previously
existing chain-link fence and south of Lot 5, is the land disputed in this lawsuit. 1 0F
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Johns subsequently obtained his own land survey. The result was consistent with the
Grantoms’ 2017 survey.
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Just to make certain, the Grantoms commissioned a second survey in 2018 which
also showed that the true property line was north of the chain link fence (although
the 2018 survey showed that a substantial portion of the chain link fence was
missing.).
Events prompting the lawsuit
The events precipitating the lawsuit occurred in 2018, when the Grantoms,
acting on the land survey, began to remove the chain-link fence. Johns promptly
intervened. He verbally confronted either the Grantoms or their fence building
contractor, claiming he owned the property and his conduct ultimately prompted
Mrs. Grantom to call the police. Johns also sent a cease and desist letter. (Though
the letter failed to provide Johns contact information, Mrs. Grantom acknowledged
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receiving a version of the letter left in their mailbox). By June 2018, Johns filed
his trespass to try title suit, based on his claim of adverse possession. In response to
Johns’ lawsuit, the Grantoms filed a counterclaim seeking a declaratory judgment
defining the parties’ property rights. The case went to trial, the court heard
testimony only from the litigants, Johns, and Paul and Leigh Ann Grantom.
Evidence of use of the disputed property
In July 2017, the bulkhead that protected the edge of the Grantoms’ property
from erosion into Lake Houston was crumbling at the northwest corner of Lot 6 in
the disputed zone. The waves from the lake and the roots of a nearby oak tree
threatened to erode the boat launch on Lot 6. The Grantoms took down the
western-most portion of the chain-link fence and replaced the bulkhead all the way
to the platted property line. They then replaced that portion of the fence where it
had stood before taking it down for repairing the bulkhead.
Johns was asked some questions about his use of this disputed zone, near the
Grantoms’ boat launch, and he explained as follows:
Q. All right. And did you ever repair that condition, repair the
washing?
A. We constantly put -- I’m sorry, sir, what?
Q. I said did you do any --
A. I’m sorry.
Q. Did you do anything to repair the washout?
A. Which time, sir?
Q. Did you ever repair the washout?
A. We patched that a number of times, sir.
Q. So you did repair it?
A. Yes, sir, we back-filled the hole a number of times through the
years.
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Q. When was the last time you did?
A. Sir, I couldn’t even tell you the last time.
The Grantoms explained that in 2017, a month after doing the repairs around
the bulkhead, a tree fell from the north side onto the fence, damaging a portion of
the fence. The Grantoms pushed the tree off the fence but did not repair the fence.
They testified that Johns did not repair the fence either. Johns denied that a tree
from his yard ever fell on the fence.
At the close of trial, the trial court took the case under advisement, and then
issued a take nothing judgment against Johns on March 9, 2021. At appellant’s
request, we abated the appeal so that the trial court could issue findings of fact and
conclusions of law. These findings include the following:
3. . . .Defendant’s Exhibit 5. . .shows that at the street side, the said
chain link fence is not connected to the chain link fence running
across the front of the Johns’ lot; defendants testified that it was
connected to the chain link fence running across the front of the
Grantoms Property, which lead [sic] them to believe it was their fence
after the February 2017 survey.
5. The said chain link fence was severely dilapidated and in need of
complete replacement.. . .Defendants’ Exhibit 3 [Feb. 16, 2018
Survey] also shows a large portion of the said chain link fence
missing, caused by a fallen tree on Johns’ Lot. After Johns’ tree fell
and knocked down said large portion of the said chain link fence,
Johns did nothing to replace the missing portion.
6. The said chain link fence was not a visible appropriation and
possession of the Disputed Property. Further it existed before Johns
acquired Johns’ Lot, and before Johns took possession of the Disputed
Property; and is no evidence or legally insufficient evidence showing
that the said chain link fence “designedly enclosed” the Disputed
property.
8. As far back as property tax records exist, Johns and his predecessor
owners of Johns’ Lot (being only Lot 5) never paid taxes on the
disputed property, which was included with the tax account for Lot 6
of the Grantoms’ property, the taxes for which the Grantoms have
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paid since they acquired the Grantoms’ Property in 2013.
9. Johns lot has been and remains vacant; Johns does not frequent
Johns’ Lot or regularly mow or tend to it.
11. There is no evidence or legally insufficient evidence that Plaintiff
or the predecessor owners of Plaintiff’s Lot occupied or use [sic] the
Disputed Property.
12. There is no evidence or legally insufficient evidence that Plaintiff
or the predecessor owners of Plaintiff’s Lot ever used, cultivated or
enjoyed the Disputed Property.
13. There is no evidence or legally insufficient evidence as to the
purpose of construction of the Fence.
Conclusion 2: The Fence cannot support a claim of adverse
possession.
Conclusion 3: The fence was not a visible appropriation; it was a
slight encroachment; and did not give defendants sufficient notice of
an adverse claim.
II. ISSUES AND ANALYSIS
Johns challenges the trial court’s judgment, rejecting his claim of ownership
of the disputed property based on his adverse possession claim, for legal and
factual insufficiency.
Standard of Review and Legal Standards
We review the trial court’s decision for legal sufficiency of the evidence by
the same standards applied in reviewing the evidence supporting a jury’s finding.
Wood v. Kennedy, 473 S.W.3d 329, 334 (Tex. App.—Houston [14th Dist.] 2014,
no pet.). A party attacking legal sufficiency relative to an adverse finding on which
it had the burden of proof must show that the evidence establishes all vital facts in
support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001)
(per curiam). We review the entire record to determine whether the contrary
proposition is established as a matter of law only if there is no evidence to support
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the judgment. See id. Anything more than a scintilla of evidence is legally
sufficient to support the judgment. See City of Keller v. Wilson, 168 S.W.3d 802,
822 (Tex. 2005). The final test for legal sufficiency is whether the evidence would
enable reasonable and fair-minded people to reach the verdict under review. Id. at
827.
When reviewing the factual sufficiency of the evidence, we examine the
entire record, considering all the evidence both in favor of and contrary to the
finding. Vast Constr., LLC v. CTC Contractors, LLC, 526 S.W.3d 709, 723 (Tex.
App.—Houston [14th Dist.] 2017, no pet.). When a party attacks the factual
sufficiency of an adverse finding on an issue on which it had the burden of proof,
the party must show on appeal that the adverse finding is against the great weight
and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237,
242 (Tex. 2001) (per curiam).
In conducting a legal and factual sufficiency review, we remain mindful that
the trial court, as fact finder, is the sole judge of the credibility of the witnesses and
the weight to be given their testimony. City of Keller, 168 S.W.3d at 819;
O.C.T.G., L.L.P., 525 S.W.3d at 831. The trial court’s findings of fact have the
same force and dignity as a jury verdict. Anderson v. City of Seven Points, 806
S.W.2d 791, 794 (Tex. 1991). We review the trial court’s findings using the same
standards of review applicable to a jury verdict. See MBM Fin. Corp. v. Woodlands
Operating Co., 292 S.W.3d 660, 663 n.3 (Tex. 2009). Unchallenged findings of
fact are binding on this court “unless the contrary is established as a matter of law,
or if there is no evidence to support the finding.” McGalliard v. Kuhlmann, 722
S.W.2d 694, 696 (Tex. 1986). In an appeal from a nonjury trial, a sufficiency
challenge must be directed at a specific finding, rather than the judgment as a
whole. Levy v. Leach, No. 14-19-00843-CV, 2021 WL 4165199, at *4 (Tex.
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App.—Houston [14th Dist.] Sept. 14, 2021, no pet.); see Zagorski v. Zagorski, 116
S.W.3d 309, 319 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
To prevail on the ten-year limitations period in section 16.026 of the Civil
Practice and Remedies Code, a person claiming adverse possession of property
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. Kazmir v.
Benevides, 288 S.W.3d 557, 561 (Tex. App. – Houston [14th Dist.] 2009, no pet.);
see also Gutierrez v. Lorenz, No. 14-18-00608-CV, 2020 WL 1951606, at *3 (Tex.
App.—Houston [14th Dist.] Apr. 23, 2020, no pet.) (mem. op.). “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); see also Nat. Gas
Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 198 (Tex. 2003) (holding that “a
record titleholder’s ignorance of what it owns does not affect the running of
limitations”). ).
The claimant must submit undisputed and conclusive evidence of probative
force on each essential element of adverse possession, and inferences are never
indulged in his favor. Bywaters, 686 S.W.2d at 595. 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 unmistakably an assertion of a
claim of exclusive ownership in the occupant.” Rhodes v. Cahill, 802 S.W.2d 643,
645 (Tex. 1990). However, the character of use required to establish adverse
possession varies with the nature of the land and its adaptability to particular uses.
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Kazmir, 288 S.W.3d at 561. An adverse possession claimant need only use the land
for some purpose to which it is adaptable, in the same manner an ordinary owner
would use the property. Id.Analysis
Johns specifically attacks the trial court’s finding that the fence (1) “was a
‘casual fence’” and (2) “was not a visible appropriation; it was a slight
encroachment; and did not give Defendants sufficient notice of an adverse claim.”
Although Johns challenges no other specific findings by the trial court,
reading all sections of his brief together, we liberally construe his argument to be
that the evidence conclusively establishes all vital facts in support of his adverse
possession claim, including facts vital to the last element—Johns’ possession of
the disputed property involved continuous cultivation, use, or enjoyment for ten
years. See Castillo v. Luna, 640 S.W.3d 256, 264 (Tex. App.—Houston [14th
Dist.] 2021, pet. filed)(explaining evidence of existence of fence that demarcates
adverse claim, while supportive of other elements of adverse possession, was not
evidence of continuous “cultivation, use, or enjoyment” of disputed property for
10 years); see also, e.g., Pool v. Ford Motor Co., 715 S.W.2d 629, 633 (Tex. 1986)
(“It is our practice to liberally construe the points of error in order to obtain a just,
fair and equitable adjudication of the rights of the litigants. We look not only at the
wording of the points of error, but to the argument under each point to determine
as best we can the intent of the party.”).
The existence of the chain-link fence, whether casual or designedly enclosed,
does not provide evidence of continuous cultivation, use, and enjoyment of
disputed property for ten years.
In Texas the law of adverse possession has historically recognized two kinds
of fences: “casual fences” and fences that “designedly enclose” an area. Castillo v.
Luna, 640 S.W.3d at 262–63. The law developed in the backdrop of property
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owners with livestock where unenclosed land is regarded as commons for grazing
livestock. Id. at 263. Thus, the use of unenclosed land for grazing livestock does
not, of itself, constitute adverse possession. McDonnold v. Weinacht, 465 S.W.2d
136, 141 (Tex. 1971). On the other hand, land shown to be enclosed by a fence
that was erected for the purpose of enclosing the area, e.g., to secure livestock, is
considered designedly enclosed, and could support establishing the elements of
notice and intent in achieving title by adverse possession. The Supreme Court
explained:
If the fence existed before the claimant took possession of the land
and the claimant fails to demonstrate the purpose for which it was
erected, then the fence is a “casual fence.” Orsborn v. Deep Rock Oil
Corp., 153 Tex. at 288–89, 267 S.W.2d at 786. Repairing or
maintaining a casual fence, even for the express purpose of keeping
the claimant’s animals within the enclosed area, generally does not
change a casual fence into a designed enclosure. McDonnold v.
Weinacht, 465 S.W.2d at 142–43. A claimant may so change the
character of a casual fence that it becomes a designed enclosure, and
evidence of such a substantial modification is sufficient to support a
jury finding of adverse possession. Butler v. Hanson, 432 S.W.2d 559(Tex. Civ. App.—El Paso), aff’d, 455 S.W.2d 942 (Tex.1970).
However, we have neither been cited to nor found a case that
establishes whether or when modification requires a finding of
adverse possession as a matter of law.
Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex. 1990).
Over the past several decades, some courts have questioned whether the
distinction between a casual fence and a designedly enclosing fence applies to
boundary disputes in established residential neighborhoods. Not long ago our
sister court weighed in on the question, and construing language from the 2006
Supreme Court’s decision in Tran, reasoned that the distinction was “unnecessary
in residential neighborhood disputes.” KB Tex. Investments, LLC v. Spiller, No.
01-16-00068-CV, 2017 WL 372164, at *8 (Tex. App.—Houston [1st Dist.] Jan.
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26, 2017, no pet.). Over the intervening years, our court has at least twice
considered and declined to accept or reject the reasoning in Spiller, by finding
application of the historical distinction immaterial to the outcome. Castillo v. Luna,
640 S.W.3d 256, 264 (Tex. App.—Houston [14th Dist.] 2021, pet. filed); Levy v.
Leach, No. 14-19-00843-CV, 2021 WL 4165199, at *8 (Tex. App.—Houston
[14th Dist.] Sept. 14, 2021, no pet.). Today, we continue along that path.
If the historical distinction in Rhodes is necessary, then the trial court did not
err in finding that the chain-link fence is a “casual fence” because Johns failed to
establish the purpose of the preexisting chain link fence. Rhodes v. Cahill, 802
S.W.2d 643, 646 (Tex. 1990) (sub. op. on denial of reh’g) (“If the fence existed
before the claimant took possession of the land and the claimant fails to
demonstrate the purpose for which it was erected, then the fence is a ‘casual
fence.’”) citing Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 288–89, 267
S.W.2d 781, 786 (1954).
There is no evidence that Johns “designedly enclosed” the disputed area.
Johns admitted neither erecting nor maintaining the fence; he provided only his
speculation as to his belief as to the purpose the fence. It is unclear who erected the
fence, or why they built it, and accepting the Grantoms’ testimony, Johns does not
show the chain link fence was ever his fence; it was just as likely (if not more
likely) that a prior owner of the Grantoms’ Lot 6 built the fence, considering that it
was attached to the fencing running across the east side of the Grantoms’ Lots 6
and 7. There is insufficient evidence that Johns or his predecessors ever altered,
repaired, or maintained the fence. On this record, if the historical distinction is
necessary, the trial court properly determined the fence to be a casual fence.
If the historical distinction is, as Johns contends, unnecessary, then the
fence’s existence still does not affect our reasoning, as it does not supply evidence
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of use, cultivation, and enjoyment. According to Spiller, we need not look at the
enclosed status of the property and instead are forced to “ask[] about the origin and
use of an improvement, to answer the same question of notice and intent.” See
Castillo, 640 S.W.3d at 264. For the reasons this court explained in Castillo, the
fence itself was not evidence on the separate, last adverse possession element of
the disputed land’s use. See id. (explaining that claimant must show cultivation,
use, or enjoyment of that strip of land, not merely use of the improvement or the
adjoining land as a whole). Similarly, evidence of Johns’ use, cultivation, and
enjoyment of Lot 5 is not evidence of use, cultivation, and enjoyment of the
disputed property. See id; see also Tran, 213 S.W.3d at 915 (considering actual
use of driveway strip). 2 1F
The record lacks any proof of Johns’ use or enjoyment of the disputed
property and lacks sufficient proof of Johns’ cultivation of the disputed property.
At best, some testimony was elicited that Johns “repair[ed] the washout” on the
shoreside near the boat launch, a place which arguably would have been on
disputed property. Johns however failed to provide any detail about when, how
often, and what contributed to “repairing the washout”.
Johns failed to show that the evidence conclusively establishes each element
of his claim for adverse possession over the disputed property. Viewing the
evidence in the light most favorable to the trial court’s finding, we conclude that
2
Affording Johns the benefit of evidence of use of Lot 5 as also evidence of his use of
the disputed property would only provide evidence relevant to the consideration of the last
element, not overwhelming or even supportive evidence on the element. That is, in light of Johns’
use of his own property (Lot 5), which Mrs. Grantom described as appearing “abandoned”, the
infrequency of Johns visits to the property, lack of improvements, cultivation or maintenance,
having been “red-tagged” for not mowing the lawn, and non-payment of taxes, we cannot
conclude the trial court’s judgment reversible for factual or legal insufficiency. See Phillips v.
Willy, No. 01-07-00159-CV, 2010 WL 337001, at *9 (Tex. App.—Houston [1st Dist.] Jan. 28,
2010, pet. denied)(weekend visits to property and occasional family reunion did not constitute
appropriation of the property).
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reasonable and fair-minded people could not have found that Johns intended to
claim the disputed land and exclude others or that he continuously used, cultivated,
or enjoyed the disputed property for the requisite period. See City of Keller, 168
S.W.3d at 827. And viewing the evidence in a neutral light, the court’s finding is
not so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust. See Maritime Overseas Corp., 971 S.W.2d at 407. Thus, we conclude
both legally and factually sufficient evidence supports the trial court’s judgment.
We therefore overrule Johns’ sole issue.
III. CONCLUSION
Having overrule appellant’s sole issue, we affirm the trial court’s judgment.
/s/ Randy Wilson
Justice
Panel consists of Justice Spain, Justice Poissant and Justice Wilson. (Spain, J.,
concurring).
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