John M. Faircloth and Helen Bowen v. Arturo Marroquin and Leticia Maroquin--Appeal from 216th Judicial District Court of Bandera County

MEMORANDUM OPINION
No. 04-07-00758-CV
John M. FAIRCLOTH and Helen Bowen,
Appellants
v.
Arturo MARROQUIN and Leticia Marroquin,
Appellees
From the 216th Judicial District Court, Bandera County, Texas
Trial Court No. CVOC-05-435
Honorable Stephen B. Ables, Judge Presiding

ON APPELLEES' MOTION FOR REHEARING

 

Opinion by: Sandee Bryan Marion, Justice

 

Sitting: Catherine Stone, Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: May 14, 2008

 

APPELLEES' MOTION FOR REHEARING DENIED; REVERSED AND REMANDED

John M. Faircloth and Helen Bowen appeal from a summary judgment in favor of Arturo and Leticia Marroquin. Faircloth and Bowen claimed, by adverse possession, title to a lakeside parcel of land in Bandera County against the interests of the Marroquins, who hold record title. In an opinion dated April 9, 2008, we reversed and remanded the cause because we concluded the trial court erred in holding no genuine issues of material fact existed in this dispute. The Marroquins filed a motion for rehearing. To clarify our discussion on the issue of whether the trial court properly rendered summary judgment in favor of the Marroquins, we vacate our earlier judgment, withdraw our earlier opinion, and issue this opinion and judgment in their place. Concluding our original analysis was correct, we overrule the Marroquins' motion for rehearing.

BACKGROUND

The Marroquins purchased a lakeside lot on Medina Lake (Lot 45) in June 1972. They paid the purchase price in cash and recorded their deed in Bandera County. The Marroquins have never lived on the property, do not regularly maintain the property, and have visited only infrequently since their purchase. The Marroquins have paid the property taxes on Lot 45 since 1972. Faircloth and Bowen purchased two adjacent lots (Lot 46 and 47) in March 1987. They have resided on those two lots since the time of purchase. Faircloth and Bowen claim they have treated Lot 45 as their own since at least 1990, including building a fence around the property to keep others off the land, mowing and landscaping the property, and storing vehicles and boats on the land.

On October 26, 2005, the Marroquins' attorney wrote a letter to Faircloth and Bowen demanding they remove the fence, remove their personal belongings, and stop using the property. In response, on November 2, 2005, Faircloth and Bowen asserted ownership of Lot 45 by operation of the ten-year adverse possession statute. On November 16, 2005, Faircloth and Bowen sued for declaratory judgment in favor of their claims of ownership of Lot 45, as well as an island in Medina Lake across from Lots 46 and 47, of which the Marroquins also asserted ownership.

The Marroquins moved for a partial traditional summary judgment, asserting no genuine issues of material fact existed with respect to ownership of Lot 45. The motion stated the Marroquins had owned Lot 45 since 1972 and had paid taxes on the property at all times since their purchase. The motion asserted Faircloth's and Bowen's claim under adverse possession was precluded by express statements made by Faircloth's and Bowen's attorney in a letter dated October 11, 2002, in a previous dispute over the ownership of the island property. The letter read, in part, "At most, Dr. & Mrs. Marroquin own a small portion of the [i]sland, based on their ownership of Lot 45 . . . ." The Marroquins asserted in their motion for summary judgment that this admission precluded Faircloth's and Bowen's claim of ownership. The trial court rendered a partial summary judgment in favor of the Marroquins, declaring them sole owners of Lot 45. The parties settled their dispute regarding the island and the trial court rendered final judgment.

ANALYSIS

Under traditional summary judgment standards, a defendant moving for summary judgment has the burden of establishing as a matter of law that no genuine issue of material fact exists as to one or more essential elements of the plaintiff's cause of action. Tex. R. Civ. P. 166a (c); Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989); Nixon v. Mr. Prop. Mgmt Co., 690 S.W.2d 546, 548-49 (Tex. 1985). If the defendant meets this burden, the plaintiff must then raise a genuine issue of material fact on that element. See Haynes v. Beceiro, 219 S.W.3d 24, 27 (Tex. App.--San Antonio 2006, pet. denied). Evidence favorable to the non-movant will be taken as true, and every reasonable inference and any doubts will be resolved in the non-movant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

"'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 Ann. 16.021(1) (Vernon 2002) (emphasis added). The Marroquins contend the October 11, 2002 letter, written by Faircloth's and Bowen's attorney, admits the Marroquins' ownership of Lot 45. According to the Marroquins, the admission is fatal to Faircloth's and Bowen's claim for adverse possession because the admission frustrates the requirement that adverse possession claims be inconsistent and hostile to the Marroquins' claim of ownership. Therefore, the Marroquins moved for summary judgment on the basis that, because Faircloth and Bowen were thus thwarted from asserting ownership under the adverse possession statute due to their prior admission, no genuine issues of material fact existed regarding ownership of Lot 45.

Whether an adverse claimant's conduct or statement constitutes the acknowledgment of title in another is a question of fact. Kinder Morgan North Texas Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 439 (Tex. App.--Texarkana 2006, no pet.). Also, statements made prior to judicial proceedings that are inconsistent with declarant's present position are extra-judicial admissions or quasi-admissions that are admissible--but not conclusive--against the declarant. Esteve Cotton Co. v. Hancock, 539 S.W.2d 145, 157 (Tex. Civ. App.--Amarillo 1976, writ ref'd n.r.e.). The contrary statements are merely part of the evidence and their weight and probative force are matters for the trier of fact. Id. Citing Esteve, the Austin Court of Appeals concluded that a letter written by a declarant to a bank prior to an underlying lawsuit, in which declarant admitted to limited personal liability for her former husband's debt, was "only evidence of appellant's liability; it [could not] serve as conclusive proof of liability." Catherman v. First State Bank of Smithville, 796 S.W.2d 299, 302 (Tex. App.--Austin 1990, no writ.). "An extra-judicial admission, therefore, is not a proper basis for summary judgment." Id.

Here, the attorney's statement that "[a]t most, Dr. & Mrs. Marroquin own a small portion of the Island, based on their ownership of Lot 45 . . . ." was made several years before the underlying lawsuit commenced. Although this statement may be admissible at trial on the issue of adverse possession, it does not, in a summary judgment proceeding, constitute conclusive evidence that Faircloth and Bowen acknowledged the Marroquins' ownership of Lot 45. Therefore, we conclude summary judgment on this basis was improper.

On rehearing, the Marroquins assert this court did not address another possible basis for summary judgment, which is their contention that the legal description of the contested property contained in Faircloth and Bowen's petition differed from the legal description of Lot 45 contained in the deed. Faircloth and Bowen filed a supplemental petition clarifying the legal description of the property seven days before the summary judgment hearing. The legal description in the supplemental petition correctly identified Lot 45. Therefore, we conclude summary judgment on this basis was improper.CONCLUSION

We reverse the trial court's judgment and remand for further proceedings consistent with this opinion.

Sandee Bryan Marion, Justice