Opinion issued January 31,=20
2008
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-06-01100-CV
EDGAR =
RAMIREZ=20
RESTREPO AND GERARDO CAMPO RAMIREZ,=20
Appellants
V.
INGRID =
X.=20
GUTIERREZ, Appellee
On =
Appeal from the=20
11th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2006-43023
MEMORANDUM=20
OPINION
<=
/SPAN>Appellee,=20
Ingrid X. Gutierrez, sued appellants, Edgar Ramirez Restrepo and =
Gerardo=20
Campo Ramirez, for trespass to try title. In what we construe as =
one=20
issue, appellants contend that the trial court erred by granting =
summary=20
judgment in favor of appellee because a genuine issue of material =
fact=20
precludes summary judgment.
<=
/SPAN>We=20
affirm.
Facts =
and=20
Procedural History
<=
/SPAN> This=20
suit concerns property located at 2411 Elysian Street in Houston, =
Texas=20
(=E2=80=9Cthe property=E2=80=9D). In 1995, the property was =
conveyed by general warranty=20
deed to Jose Manual Ramirez =
(=E2=80=9CJose=E2=80=9D). ![3DFootnote](3D"")
In 2001, Jose conveyed the property by =
=E2=80=9Cassumption=20
warranty deed=E2=80=9D to =E2=80=9CRosa Elvira Gutierrez =
[(=E2=80=9CRosa=E2=80=9D)],
as Trustee for the use and benefit of =
[appellee] .=20
. . until she attains the age of 18.=E2=80=9D The deed recites as =
consideration=20
the following: =E2=80=9CTen and No/100 Dollars ($10.00) and other =
valuable=20
consideration, and the assumption and promise to pay according to =
its=20
terms one certain promissory note in the original principal sum of =
$38,000=20
payable to Washington Mutual Bank.=E2=80=9D
<=
/SPAN>On=20
December 12, 2005, Rosa, as trustee, conveyed the property by =
general=20
warranty deed to appellee. The deed does not mention =
consideration. The=20
deed recites that
[t]he purpose of this deed is to convey =
legal=20
title to the aforesaid property to the beneficiary of the trust=20
established by a Warranty Deed executed on October 9, 2001 by =
[Jose],=20
Grantor, and [Rosa], Grantee as Trustee for [appellee], to =
terminate upon=20
[appellee] attaining age 18. This deed merges legal and equitable =
title in=20
[appellee] and by disposing of all property in the trust created =
by the=20
October 9, 2001 Warranty Deed, the Trust created thereby is=20
extinguished.
This deed was also recorded on December =
12, 2005.=20
<=
/SPAN>Appellants=20
have apparently continued to occupy the property as the tenants of =
Jose.=20
According to appellants, appellee failed to pay the promissory =
note to=20
Washington Mutual Bank that is referenced in the 2001 transfer of =
the=20
property from Jose to Rosa, as trustee. Appellants contend that =
they have,=20
themselves, paid the note to Washington Mutual and that they =
therefore=20
have superior title to the property. Appellants recorded a lien on =
the=20
property on April 11, 2006, but its stated purpose was that Jose =
owed=20
appellants $10,000 for having refurbished the =
property.
<=
/SPAN>On=20
July 13, 2006, appellee filed a suit in trespass to try title, =
contending=20
that she is the recorded fee simple owner of the property and that =
appellants are unlawfully occupying the premises. Appellants =
answered with=20
a general denial.
<=
/SPAN>On=20
October 10, 2006, appellee moved for summary judgment on the =
grounds that=20
she has superior title to the property as a matter of law and that =
no=20
genuine issue of material fact exists. Appellee attached as =
evidentiary=20
support the copies of the deeds demonstrating a chain of title =
from Jose=20
to her.
<=
/SPAN>On=20
November 6, 2006, appellants responded that summary judgment was =
improper=20
because they have made payments on the note to Washington Mutual =
that were=20
actually owed to Washington Mutual by Rosa or appellee under the =
2001=20
=E2=80=9Cassumption warranty deed.=E2=80=9D As evidentiary =
support, appellants attached=20
copies of the deeds; emails in Spanish containing portions of =
electronic=20
banking records; appellants=E2=80=99 =E2=80=9CClaim of =
Lien=E2=80=9D on the=20
property;
and a =E2=80=9CLimited Power of =
Attorney,=E2=80=9D wherein Jose=20
purported to grant to appellant Edgar Ramirez Restrepo =
=E2=80=9C[r]eal estate=20
powers specific to [the subject property]=E2=80=9D and =
=E2=80=9Call other banking rights=20
to Washington Mutual [account number].=E2=80=9D
<=
/SPAN>On=20
November 8, 2006, the trial court granted summary judgment in =
favor of=20
appellee, awarding her title to the property. In addition, the =
trial court=20
declared appellants=E2=80=99 Claim of Lien void and unenforceable =
against=20
appellee.
Summary=20
Judgment
<=
/SPAN>In=20
what we construe as one issue, appellants contend that the trial =
court=20
erred by granting summary judgment in favor of appellee because a =
genuine=20
issue of material fact regarding who has superior title to the =
property=20
precludes summary judgment.
A. Standard=20
of Review and Applicable Legal Principles
<=
/SPAN>We=20
review a trial court=E2=80=99s granting of a traditional summary =
judgment de=20
novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 =
(Tex.=20
1994). A summary judgment under Rule of Civil Procedure 166a(c) is =
properly granted only when a movant establishes that there are no =
genuine=20
issues of material fact and that she is entitled to judgment as a =
matter=20
of law. Tex. R. Civ.=20
P.=20
166a(c); Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546, 548 =
(Tex.=20
1985). In deciding whether there is a disputed material =
fact=20
precluding summary judgment, evidence favorable to the non-movant =
will be=20
taken as true and every reasonable inference must be indulged in =
favor of=20
the non-movant. Id. at 548=E2=80=9349.
<=
/SPAN>We=20
cannot consider any ground for reversal that was not expressly =
presented=20
to the trial court by written motion, answer, or other response to =
the=20
motion for summary judgment. City of Houston v. Clear Creek =
Basin=20
Auth., 589 S.W.2d 671, 677 (Tex. 1979); Diversified, Inc. =
v.=20
Hall, 23 S.W.3d 403, 406 (Tex. App.=E2=80=94Houston [1st =
Dist.] 2000, pet.=20
denied). When a trial court does not state the basis for its =
decision in=20
its summary judgment order, as in this case, we must uphold the =
order if=20
any of the theories advanced is meritorious. State Farm Fire =
& Cas.=20
Co. v. S.S. & G.W., 858 S.W.2d 374, 380 (Tex.=20
1993).
<=
/SPAN>=E2=80=9CA=20
trespass to try title action is the method of determining title to =
lands,=20
tenements, or other real property.=E2=80=9D Tex. Prop. Code Ann. =
=C2=A7 22.001(a)=20
(Vernon 2004). To prevail in a trespass-to-try-title action, a =
plaintiff=20
must usually (1) prove a regular chain of conveyances from the =
sovereign,=20
(2) establish superior title out of a common source, (3) prove =
title by=20
limitations, or (4) prove title by prior possession coupled with =
proof=20
that possession was not abandoned. Martin v. Amerman, 133 =
S.W.3d=20
262, 265 (Tex. 2004); Hall, 23 S.W.3d at=20
406.
&nbs=
p;A=20
defendant in a trespass-to-try-title action =E2=80=9Cmay file only =
the plea of=20
=E2=80=98not guilty,=E2=80=99 which shall state in substance that =
he is not guilty of the=20
injury complained of in the petition filed by the plaintiff =
against him,=20
except that if he claims an allowance for improvements, he shall =
state the=20
facts entitling him to that same.=E2=80=9D Tex. R. Civ. P. 788. =
=E2=80=9CWhen a=20
defendant pleads =E2=80=98not guilty,=E2=80=99 the defendant =
admits possession of the=20
subject property and claims a better title.=E2=80=9D Wells v. =
Kansas Univ.=20
Endowment Ass=E2=80=99n, 825 S.W.2d 483, 486 (Tex. =
App.=E2=80=94Houston [1st Dist.]=20
1992, writ denied). The plaintiff then has the burden to establish =
superior title in herself by a preponderance of the evidence. =
Id.=20
The plaintiff is required to prevail on the superiority of her =
title,=20
not on the weakness of a defendant=E2=80=99s title. Martin, =
133 S.W.3d at=20
265. If the plaintiff fails in her burden, the defendant is =
entitled to judgment without proving any right of title. =
Wells, 825=20
S.W.2d at 486.
B. Analysis<=
/SPAN>
<=
/SPAN>Appellants=20
contend that the trial court erred by granting summary judgment in =
favor=20
of appellee because a genuine issue of material fact regarding who =
has the=20
superior right to title in the property precludes summary=20
judgment.
<=
/SPAN> The=20
record shows that appellee appended as evidentiary support to her =
motion=20
for summary judgment copies of the deeds showing the chain of =
title from=20
Jose to appellee. This evidence shows that appellee met her burden =
to=20
establish that appellee has superior title emanating from a common =
source=E2=80=94that of Jose. See Tex. R. Civ. P. 798 =
(providing=20
that =E2=80=9C[i]t shall not be necessary for the plaintiff to =
deraign title=20
beyond a common source=E2=80=9D); Martin, 133 S.W.3d at 265 =
(stating that=20
party may prevail in trespass-to-try-title action by establishing =
superior=20
title from common source).
<=
/SPAN>Appellants=20
are tenants of Jose and do not dispute the validity of =
appellee=E2=80=99s chain of=20
title or contend that legal title to the property was conveyed to=20
appellants at any point. Rather, liberally construing =
appellants=E2=80=99 brief as=20
we must, appellants seem to contend that there is a genuine issue =
of=20
material fact regarding appellee=E2=80=99s title to the property =
because=20
appellants made payments to Washington Mutual on the note that is=20
referenced in the conveyance between Jose and Rosa. =
Appellants=E2=80=99 evidence=20
consists of copies of the same deeds that appellee presented, =
which make=20
no mention of appellants; emails containing portions of electronic =
banking=20
records that lack the identity of any specific account holder; and =
a=20
=E2=80=9CClaim of Lien=E2=80=9D on the property that does not =
purport to be related in any=20
way to payments to Washington Mutual. Appellants also appended a =
=E2=80=9CLimited=20
Power of Attorney,=E2=80=9D wherein Jose purported to grant to =
appellant Edgar=20
Ramirez Restrepo =E2=80=9C[r]eal estate powers specific to [the =
subject property]=E2=80=9D=20
and =E2=80=9Call other banking rights to Washington Mutual =
[account number].=E2=80=9D=20
However, appellants do not show that this document in any way =
vests legal=20
title to the property in appellants.
<=
/SPAN>Hence,=20
nothing in the record before us demonstrates that appellants met =
their=20
burden to show that a genuine issue of material fact exists =
concerning=20
appellee=E2=80=99s superior right to title in the property. The =
record fails to=20
show that appellants are anything more than tenants of the former =
legal=20
title holder, Jose. Because=20
the trial court did not state the basis for its decision in its =
summary=20
judgment order and the record shows that appellee=E2=80=99s theory =
is meritorious,=20
we must uphold the trial court=E2=80=99s order. State Farm Fire =
& Cas.=20
Co., 858 S.W.2d at 380.
&nbs=
p;Accordingly,=20
we overrule appellants=E2=80=99 sole =
issue.
Conclusion
&nbs=
p;We=20
affirm the judgment of the trial court.
&nbs=
p; =
; =
&=
nbsp; &n=
bsp; Laura=20
Carter Higley
&nbs=
p; =
; =
&=
nbsp; &n=
bsp; Justice
Panel =
consists of=20
Justices Nuchia, Hanks, and Higley. |