Phillips v. Willy (pdf) (Tex.App.- Houston [1st Dist.] Jan. 28, 2010)(Taft)
(real estate dispute, adverse possession, repudiation)
[T]he trial court did not err in granting Bing and Willy's traditional motion for summary
judgment and Bing's no-evidence motion for summary judgment because (1) Lonnie
failed to show he was entitled to judgment as a matter of law and failed to raise a fact
issue on the challenged elements of adverse possession and repudiation, and (2)
Bing and Willy showed their entitlement to judgment as a matter of law.
AFFIRM TC JUDGMENT: Opinion by Justice Tim Taft
Before Chief Justice Radack, Justices Taft and Sharp
01-07-00159-CV Lonnie Phillips, Jr., and Lance Phillips a/n/f v. Betty Willy, and The Executor of the Estate
of Kenneth Bing, Kimberlyrae Bing Thompson and Kenneth W. Bing, Jr.
Appeal from 23rd District Court of Brazoria County
Trial Court Judge: Hon. Ben Hardin
This appeal arises from a suit to clear title to a 50-acre tract of land. The parties, or their predecessors in
interest, have been in litigation over this land for more than 30 years. Appellants, Lonnie Phillips and Lance
Phillips, as next friend, ("appellants," collectively, "Lonnie" and "Lance," individually), appeal judgments
rendered against them upon separate motions for summary judgment filed by appellees Betty Willy ("Willy")
and Kimberly Rae Bing Thompson ("Bing"), the executor of the estate of Kenneth Bing, in an action filed by
appellants in 2000. (1) We determine whether the trial court erred in granting Willy's and Bing's motions for
summary judgment and denying appellants' motion for summary judgment. We affirm.
The parties on appeal are not in agreement as to the history of the land at issue. Because the trial court
rendered summary judgments, no findings of fact as to such history were made and, therefore, no binding
history has been established. However, based on documents that were either attached to various pleadings
or otherwise appear in the record on appeal--some of which were proper evidence before the trial court,
and some of which were not (2)--the following story emerges.
Gabel and Larnie Phillips purchased 50 acres of land in March 1914. The land was later seized by the State
for unpaid taxes and sold at a tax sale in 1932. In 1934, then-owners, J.F. Harris and J.S. Montgomery, sold
the land to John Phillips and Alexander Jackson.
Alexander Jackson had eight children, including Madora Jackson ("Madora"), who married Lonnie Phillips
("Lonnie, Sr."), son of Gabel Phillips, in 1919. Jackson died in 1944. The record does not establish whether
Jackson died intestate or what happened to his interest in the land.
In June 1962, Madora, Lonnie, Sr., and John Phillips, signed a contract for work to be done by Action
Construction Corporation ("Action") on a house on the land, granting the contractors a mechanic's lien on
the land. Action foreclosed on the lien, on the ground that Lonnie, Sr., Madora, and John had defaulted on
the contract, and then Action sold the 50 acres to Gulf Coast Investment Corporation in 1963. (3) In 1966,
Gulf Coast Investment Corporation sold the land to Anthony Willy ("Anthony") and Kenneth Bing
("Kenneth"), less 10 acres previously conveyed to Robert Phillips and his wife, Bernice Phillips on October
22, 1966. (4)
B. The 1969 litigation, 1974 settlement, and 1976 judgment
In 1969, Kenneth and Anthony filed a petition in the district court of Brazoria County for forcible entry and
detainer, claiming that Madora and "Melvin" Phillips (5) continued to stay on the land that Kenneth and
Anthony owned, despite repeated requests for them to leave. The petition was assigned cause number
51,593 and prayed that Madora and "Melvin" be found guilty of forcible entry and detainer, that the
premises be restored to Kenneth and Anthony by writ of possession or other legal writ, that Kenneth and
Anthony recover reasonable rents for the unauthorized use of the pasture and house on such properties by
Madora and "Melvin," and for attorney's fees.
Madora and Nelva Phillips filed a cross-claim to recover title and possession of the land, alleging that they
were owners in fee simple of the entire 50 acres. They also asserted that Kenneth's and Anthony's title was
based on a mechanic's lien contract which was the result of material representation and fraud and (1) that
Madora signed the contract with poor lighting, without a chance to read it, while she was functionally
illiterate, and when the contents were misrepresented to her, and (2) that her husband, Lonnie, Sr., signed
it when he could not read or write (except to sign his name) had suffered five strokes, was of feeble mind,
was dying with terminal cancer, was almost blind, and lacked the capacity to contract. (6) They also raised
the defense of usury.
On May 17, 1972, while the litigation was still pending, Madora Phillips, most of her children, one of Gabel's
children (Motley), and several other persons who are apparently Phillips' family members, signed a deed
purporting to convey the entire 50 acres to Lonnie Phillips, Jr. ("Lonnie"). The document did not include the
names or signatures of any of Alexander Jackson's eight children or their heirs, save Madora and her
progeny, nor was it signed by Robert Phillips, or his wife, Bernice, the persons to whom 10 acres of the 50
had already been conveyed according to the deed given to Anthony and Kenneth upon their purchase. (7)
The deed also did not contain the names or signatures of any of the heirs of "Johnny Phillips." (8) The May
19, 1972 deed made no reference to the 1963 mechanic's lien foreclosure on the land, the 1963 deed
conveying the land to Gulf Coast Investment Corporation after its purchase of the land, or the 1966 deed
conveying the land to Anthony and Kenneth after their purchase of the land. Instead, it referred back to the
1934 conveyance of the land to John Phillips and Alexander Jackson.
On November 11, 1974, after jury selection, the parties settled. The judgment reflected that the parties
were present and that Neil Caldwell was the attorney for "Defendants Madora Phillips, Melvin Phillips (sic),
and Lonnie Phillips." The "Defendant . . . Lonnie Phillips" represented by Caldwell was Lonnie Phillips, Jr.,
(9) who, according to the recitations in the judgment, was a defendant and cross-claimant in the litigation.
The parties agreed that Kenneth and Anthony would recover from Madora, "Melvin," and Lonnie the "title
and possession" of the 50 acres of land. The agreement did not require the issuance of any deed to
Anthony and Kenneth by any Phillips family member. (10) However, Anthony and Willy agreed to convey to
Lonnie, by special warranty deed, 10 acres of the land, to be taken from the southeast portion of the 50
acres and to include the "old homestead place." The parties agreed that Kenneth and Anthony would
survey the 10-acre tract and make copies of the survey available to the parties to the judgment. Judgment
was entered on May 19, 1976, in accordance with the parties' agreement. Caldwell signed the agreed
judgment on behalf of Madora, "Melvin," and Lonnie, approving the judgment "as to form and substance."
No appeal was taken from this judgment.
C. The 1987 action and the 1990 post-judgment order
In June 1987, Kenneth and Anthony filed a motion for post-judgment relief in Cause No. 51,593, asserting
that the surveys had been performed and that they had attempted to complete the judgment by executing a
special warranty deed to Lonnie but that Lonnie "fail[ed] and refused to cooperate." Kenneth and Anthony
prayed that the court approve the 10-acre tract taken from the southwest portion (to include the old
homestead) and order a special warranty deed be executed to effect the judgment of May 19, 1976.
Lonnie responded to the motion. The docket sheet indicates that a petition was filed in intervention for clear
title by a Jerome L. Ferrer. At a hearing held on November 23, 1987, at which Lonnie and his counsel
appeared, the court gave Lonnie until December 23, 1987, to file objections and a brief in support thereof,
allowing Kenneth and Anthony to file a response brief within 30 days of Lonnie's filing. Lonnie filed a brief
on December 14, 1987, Kenneth and Anthony filed their brief on February 23, 1988, and Lonnie filed a
supplemental answer and response to plaintiffs' brief on February 29, 1988. The next entry appearing on
the docket sheet was a motion to withdraw as counsel on December 1989. A notice of submission was filed
on January 29, 1989, as well as a certificate of Lonnie's last known address. Lonnie's attorney was allowed
to withdraw on January 29, 1990.
On March 22, 1990, the trial court entered an order granting post-judgment relief, finding that:
(1) judgment was entered on May 19, 1976, holding that Kenneth and Anthony recover the 50 acres; and
(2) that the judgment also provided that Lonnie Phillips, Jr. was to receive a 10-acre tract out of the 50
acres, to include the homestead;
and ordering, adjudging, and decreeing that:
(1) a particular 10-acre tract, whose boundaries were specifically described in the order, was identified as
the 10-acre tract set aside to Lonnie Phillips, Jr. in the May 19, 1976 judgment; and that
(2) the balance of the 50-acre tract recovered by Kenneth Bing and Anthony Willy in the May 19, 1976
judgment, was a particular 40.695 acre tract, whose boundaries were specifically described in the order.
The order denied any further relief requested by either party.
D. The 2000 action
1. The petition
In May 2000, appellants filed a petition in the 23rd District Court of Brazoria County, "pursuant to Civil
Practice and Remedies Code §§ 16.025 and 16.026," (11)
against Betty Willy, alleged to be the widow and heir of Anthony Willy, Kimberly Rae Bing Thompson,
alleged to be the executor of the estate of Kenneth Bing, and Kenneth Bing, Jr., also alleged to be an
executor of the estate of Kenneth Bing. The action was given the cause number 11869BH00. Lonnie was
declared to be the plaintiff with the actual cause of action, with Lance added "for the sole purpose of
proceeding in this action, in the event his father is unable to proceed with or continue with the litigation
process due to age and health concerns." The amended petition was filed November 2000. It sought to
quiet title in the 50 acres of land, claiming that Lonnie had remained in peaceable and adverse possession
of the land under color of title since May 1972 and that his predecessors in interest had held the land in
adverse possession since 1914. It further alleged that Lonnie and his predecessor held the land all under a
claim of right, in good faith, and under duly recorded deeds purporting to convey the land, i.e., the 1914
deed to Gabel and Larnie Phillips, the 1934 deed to John Phillips and Alexander Jackson, and the 1972
deed to Lonnie. The petition also claimed that Lonnie had continuously cultivated, used, or enjoyed the
premises and had paid taxes on the entire 50 acres since at least 1972. The petition acknowledged that
there was a judgment relating to the property signed in May 1976 and that the defendants claimed right,
title, estate or interest in the premises that was adverse to Lonnie. But it charged that the claim or right was
a result of fraud, improper foreclosure procedures, and litigation in a court without jurisdiction, and that
therefore the defendants had no right, title or interest in the property. It further claimed that, after the
judgment, Lonnie and his family had repudiated the judgment and Kenneth's and Anthony's rights and that
such repudiation was made known to Kenneth and Anthony by Lonnie's actions in response to the 1987
motion for post-judgment relief.
The petition also claimed that the date of the rendition of the adverse judgment preceded the petition by
more than 25 years, (12) that Lonnie and his precedessors had openly exercised dominion and control and
asserted claim to the real property (paying taxes before they became delinquent for more than 25 years
before the commencement of the action), and that the "persons holding the apparent record title to the
land" had not. Lonnie also claimed to have possessed, cultivated, and used the property in actual, open,
notorious, exclusive, hostile, and adverse possession since the date of the order granting post-judgment
relief to Anthony and Kenneth and that such date preceded the commencement of the current action by
more than ten years. (13) Lonnie prayed for judgment for the title of the property at issue, removing the
cloud on his title.
2. Appellants' motion for summary judgment
On January 10, 2003, appellants filed a motion for summary judgment against Bing and Willy, asserting that
there were no disputed issues of material fact and that they were entitled to judgment as a matter of law.
Appellants cited the 10- and 25-year statutes of limitations provisions of the Texas Civil Practice and
Remedies Code (14) for actions to recover real property held in peaceable and adverse possession.
Appellants argued that under section 16.029 of that same code, (15) they had established prima facie
evidence that title had passed to Lonnie, and therefore, Bing and Willy were precluded from bringing an
action for recovery of the land. Appellants asserted that Lonnie or his family had been in possession of the
land for at least 25 years, that Lonnie had been in adverse possession of the land, under color of title,
since May 1972, and that Lonnie had paid taxes since the entry of judgment in November 1974 (16) that
had given title or color of title to Anthony and Kenneth. Appellants contended that the persons who held the
apparent record title to the land had not exercised dominion or paid taxes at any time or for one or more
years during the 25 years preceding the commencement of appellants' action, and that, therefore, under
Texas Civil Practice and Remedies Code section 16.030, (17) Lonnie had full title to the land. Attached as
evidence to the summary judgment motion was (1) an "Affidavit of Use and Possession" signed by Lonnie,
(2) an almost identical affidavit signed by Lance, (3) copies of tax receipts to Lonnie Phillips purporting to
be for the land in question for various years from 1974 to 1994, (4) an affidavit from Lonnie attesting that
the receipts were true and correct copies and that he personally paid the taxes on the land, and (5) an
almost identical affidavit signed by Lance. Appellants prayed that the trial court enter judgment awarding
appellants title to the land.
Willy filed a response to appellants' motion for summary judgment, on January 27, 2003. In it, she stated
that the 1976 judgment was an agreed judgment which had divided the 50 acres of land so as to award a
10-acre portion of the tract to Lonnie, and that the 1990 order had divided the property in accordance with
the earlier judgment. Willy argued that appellant had been a party to both actions, but had appealed
neither and that Anthony and Kenneth had continued to exercise control over the property by attempting to
sell it. Willy asserted that the first judgment had made the parties tenants in common and that the
subsequent order had made them tenants at sufferance and therefore Lonnie was required to show actual
notice of repudiation of the tenancy. Willy contended that because appellants had not shown in their motion
for summary judgment that Lonnie had given actual notice as required by law, summary judgment should be
denied. Attached as evidence to Willy's response was a copy of the May 19, 1976 judgment, the May 22,
1990 post-judgment order, and a copy of a 1978 fax and contract between Anthony and Kenneth and
Fossel Realty to sell part of the property.
Bing also filed a response, on January 27, 2003, that (1) requested a continuance, (2) asserted that the
appellants failed to provide summary-judgment evidence of their claims that Bing and Willy had no claim of
right due to fraud, improper foreclosure procedures, and litigation in a court without jurisdiction, and (3)
argued that the affidavits attached as summary-judgment evidence to appellant's motion were defective, did
not provide competent summary-judgment evidence, and should not be considered. Bing also asserted that
appellants had not offered any competent summary-judgment evidence that established a chain of title to
the property or proved that the defendants had not exercised dominion over the property.
In a March 26, 2003, reply to the responses, appellants asserted that: (1) the 1976 judgment was a void
judgment because various parties that he asserted were necessary were not joined and the judgment was
signed two years after the settlement was reached; (2) the 1990 order was entered without notice to
Lonnie, not in a timely fashion, and was based on a dormant and void judgment; (3) Bing and Willy never
possessed title or color of title because the Phillipses had never executed a deed to them as Lonnie
claimed was required by the 1976 judgment; and (4) repudiation was not required, and if required, could be
inferred, or, alternatively, was established by Lonnie's briefs and pleadings in response to the 1987 action.
(18) Lonnie also claimed that he had his name reentered on the tax rolls "after this suit," (19) grazed the
land beyond the 10-acre home place, allowed a friend to place a trailer on the land, and fenced off the
disputed acres. Appellants also disputed Bing's arguments that the affidavits were defective and argued
that neither defendant had raised a fact issue regarding his possession of the property. Attached as
evidence are some portions of affidavits of heirship, a copy of the docket sheet of the 1969 case that
included the 1987 post-judgment action, a copy of the 1976 judgment, a copy of portions of the 1990
post-judgment order, and a 1990 letter from Anthony and Kenneth's lawyer providing the order to the court,
explaining that it did not require the exchange of deeds. (20)
3. Willy's motion for summary judgment
On February 25, 2003, before the trial court ruled on appellants' motion for summary judgment, Willy filed a
motion for summary judgment. In it, she argued that, because of the previous judgment and post-judgment
order, the parties had been tenants in common or tenants at sufferance, requiring Lonnie to show actual
notice of repudiation of the tenancy in order to establish adverse possession. She also asserted that
appellants "ha[d] not, and [could] not show actual notice [of repudiation] to support their claim of adverse
possession" and therefore, the claim should be "denied and dismissed." The motion stated that attached as
evidence were copies of the 1976 judgment, the 1990 order, and the 1978 fax and contract to sell the
property. However, it does not appear that the documents were actually attached to the motion and only
one document, the 1990 order, was later mailed in to be filed in support of the motion for summary
4. Bing's motion for summary judgment
On March 17, 2003, while both appellants' and Willy's motions for summary judgment were still pending,
Bing filed a motion for traditional and no-evidence summary judgment. Under her traditional grounds, Bing
asserted that: (1) there was no notice of repudiation, therefore limitations did not begin to run, and
appellants' claim failed; and (2) res judicata barred appellants' claims, which Bing asserted had already
been litigated in the prior action, attaching as evidence, copies of the 1976 judgment and the 1990 order.
(21) In the "no-evidence" portion of her motion for summary judgment, Bing asserted that there was no
evidence that Lonnie had given actual notice of repudiation.
5. Appellants' responses to Willy's and Bing's motions for summary judgment
Appellant filed a response to both motions on April 4, 2003, asserting that he was not a tenant at
sufferance, and, therefore no notice of repudiation was required. Appellants specifically asserted that it was
undisputed that after the 1974 judgment, Lonnie had "entered the premises and fenced it off" and the issue
of tenancy at sufferance was "nullified." Appellants averred that there were exceptions to the repudiation
requirement, that Lonnie's possession of the property constituted constructive notice of repudiation, and
that his briefs and pleadings in the 1987 action constituted repudiation. Appellants also contended that
Lonnie had exercised dominion and control, had re-entered his name on the tax rolls "after this suit," and
had grazed land beyond the "ten acre home." Appellants also argued that res judicata did not apply
because (1) the court in the prior suit was not one of proper jurisdiction, (2) the parties were not identical,
and (3) the suits did not involve the same cause of action. Appellants attached as "additional summary
judgment evidence" (22) (1) an amended affidavit of use and possession signed by Lonnie, (2) an affidavit
from Lonnie regarding the payment of taxes, and (3) an affidavit by Lonnie stating that the 1976 judgment
was not a consent judgment and that he was not provided notice of the 1990 judgment, though he had
Appellants also filed a supplemental response to Bing's motion for summary judgment on October 15, 2003.
In response to Bing's res judicata argument, appellants asserted that res judicata did not apply because:
(1) the first cause of action was not litigated, but settled; (2) the parties were not the same and Lonnie was
not a party to the first action; and (3) the causes of action were not the same. In response to the
repudiation argument, appellants asserted that repudiation was not necessary when a party has taken
open, hostile, and notorious possession and acted in a manner contrary to a tenant at sufferance. Lonnie
also argued that he was not a party to the original action and could not have consented to the judgment,
that repudiation was not necessary after partition when one takes possession after the partition, and that
there was no claim by the titleholder after 1987, not even in the will and inventory of Kenneth Bing.
Appellants attached as evidence copies of the petition in the 1969 action, the docket sheets in the 1969
and 1987 actions, a copy of the will and inventory of Kenneth Bing and other documents related thereto.
6. The trial court's rulings on the motions for summary judgment
On April 8, 2003, the trial court held a hearing on Willy's and appellants' motions for summary judgment,
and, by letter on April 14, 2003, the court indicated that it was intending to deny appellants' motion and
grant Willy's motion. (23)
Appellants then filed a motion for rehearing, with attachments, and later a supplemental motion for hearing
with more attachments, asking the court to reconsider its ruling on Willy's and appellant's motions for
summary judgment. (24) The trial court held a hearing on May 7, 2003, at which appellant offered additional
evidence, namely, a copy of the 1969 petition, a copy of Madora and Nelva's supplemental answer to that
petition, and a copy of the 1987 motion for post-judgment relief.
On May 12, 2003, the trial court entered a written order granting summary judgment to Willy and denying
summary judgment to appellants. The trial court also "ordered, adjudged, and decreed" that Willy have her
undivided interest in the 40.695 acres, in accordance with the original 1976 judgement, pursuant to the
boundaries established in the 1990 order, and that Lonnie have his undivided interest in the 10 acres
pursuant to the boundaries established for it in the same order. Appellants appealed the grant of this
summary judgment, and the denial of their summary judgment, to this Court, but the appeal was dismissed
as interlocutory because appellants' cause of action against Kenneth Bing, Jr. was still pending. (25)
On October 28, 2003, the trial court granted Bing's motion for summary judgment, noted that it had
previously denied appellants' motion for summary judgment, and stated that it was again denying
appellant's motion. The trial court also "ordered, adjudged, and decreed" that Bing have her undivided
interest in the 40.695 acres, (26) in accordance with the original 1976 judgement, pursuant to the
boundaries established in the 1990 order, and that Lonnie have his undivided interest in the 10 acres
pursuant to the boundaries established for it in the same order.
In November 2006, both Bing and Willy filed motions to sever the causes of action by appellants against
them. The trial court signed an order severing appellants' causes of action against Willy and Bing into
cause number 41452 on January 23, 2007, and appellants filed their notice of appeal on February 22,
Standard of Review
In nine points of error, appellants contend that the trial court erroneously granted Willy's and Bing's motions
for summary judgment and erroneously denied appellants' motion for summary judgment.
We review a trial court's decision to grant or to deny a motion for summary judgment de novo. See Tex.
Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192, 199 (Tex. 2007) (citing rule for
review of grant of summary judgment and reviewing denied cross-motion for summary judgment under
same standard). Although a denial of summary judgment is not normally reviewable, we may review such a
denial when both parties move for summary judgment and the trial court grants one motion and denies the
other. Id. at 192 (citing Holmes v. Morales, 924 S.W.2d 920, 922 (Tex. 1996)). In our review of such
cross-motions, we review the summary judgment evidence presented by each party, determine all questions
presented, and render the judgment that the trial court should have rendered. Id. (citing Comm'r Court v.
Agan, 940 S.W.2d 77, 81 (Tex. 1997)).
Under the traditional summary-judgment standard, the movant has the burden to show that no genuine
issues of material fact exist and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether there is a disputed
material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as
true, and every reasonable inference must be indulged in favor of the non-movant and any doubts resolved
in its favor. Nixon, 690 S.W.2d at 548-49. A defendant moving for summary judgment must conclusively
negate at least one essential element of each of the plaintiff's causes of action or conclusively establish
each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). If
the trial court's order granting summary judgment does not specify the grounds upon which judgment was
rendered, we must affirm the summary judgment if any ground in the summary judgment motion is
meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
A no-evidence motion for summary judgment is essentially a directed verdict granted before trial, to which
we apply a legal-sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51
(Tex. 2003). In general, a party seeking a no-evidence summary judgment must assert that no evidence
exists as to one or more of the essential elements of the non-movant's claims on which the non-movant
would have the burden of proof at trial. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994
S.W.2d 830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.). Once the movant specifies the elements on
which there is no evidence, the burden shifts to the non-movant to raise a fact issue on the challenged
elements. Tex. R. Civ. P. 166a(i). A no-evidence summary judgment will be sustained on appeal when (1)
there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered by the non-movant to prove a vital fact, (3) the evidence
offered by the non-movant to prove a vital fact is no more than a scintilla, or (4) the non-movant's evidence
conclusively establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at 751.
Appellants raise: (1) one point of error regarding the trial court's denial of appellant's motion for summary
judgment (point of error number 2); (28) (2) two points of error complaining only of the trial court's grant of
Willy's motion for summary judgment (points of error numbers 3 and 4); (29) (3) two points of error
complaining only of trial court's grant of Bing's motion for summary judgment (points of error numbers 8 and
9); (30) and (4) four points of error pertaining to the trial court's grants of both Bing's and Willy's motions
for summary judgment (points of error 1, 5, 6, and 7). (31)
Most of appellants' various points of error are grounded in the following underlying contentions:
(1) Appellants are not bound by either the 1976 judgment or the 1990 post-judgment order (which
appellants collaterally attack); therefore
(2) No tenancy in common or at sufferance was ever established; and therefore
(3) Appellants were not required to prove notice of repudiation in order to establish that the necessary
statute of limitations has run, permitting appellants to claim the land by adverse possession; and
(4) If repudiation was required, it was proven, along with all other required elements of adverse possession.
We will consider these contentions in the context of the issues before us, the law applicable to such issues,
and the appropriate standards of review.
A. Adverse Possession
Under the applicable adverse possession statutes, a person must bring suit not later than 10 years (Section
16.026) or 25 years (Section 16.027) "after the day the cause of action accrues to recover real property
held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property." Tex.
Civ. Prac. & Rem. Code Ann. §§ 16.026(a), 16.027 (Vernon 2002). If an action for the recovery of real
property is barred by the statute of limitations, the person who holds the property in peaceable and adverse
possession has full title, precluding all claims. Id. at § 16.030(a). Any ouster by the record title holder after
the limitations period comes too late. Sterling v. Tarvin, 456 S.W.2d 529, 533 (Tex. Civ. App.--Fort Worth
1970, writ ref'd n.r.e.).
"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 Ann. § 16.021(3). "Adverse possession"
is defined as "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." Terrill v. Tuckness, 985
S.W.2d 97, 107 (Tex. App.--San Antonio 1998, no pet.) (quoting Tex. Civ. Prac. & Rem. Code Ann. §
16.021(1)). Possession must be "actual, visible, continuous, notorious, distinct, hostile, and of such as [sic]
character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant." Id. at
107-08 (quoting Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990)).
The character of use required to establish adverse possession varies with the nature of the land and with
its adaptability to a particular use. Mohnke v. Greenwood, 915 S.W.2d 585, 593 (Tex. App.--Houston [14th
Dist.] 1996, no writ); Vaughan v. Anderson, 495 S.W.2d 327, 332 (Tex. Civ. App.--Texarkana 1973, writ
ref'd n.r.e.). The adverse possession claimant need only use the land for some purpose to which it is
adaptable, and in the same manner an ordinary owner would use the property. Fuentes v. Garcia, 696
S.W.2d 482, 485 (Tex. App.--San Antonio 1985, writ ref'd n.r.e.). Whether adverse possession has been
established is ordinarily a question of fact. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985).
An adverse possession claim requires proof of the following elements: (1) peaceable possession; (2) actual
possession of the disputed property; (3) under a claim of right; (4) consistently and continuously for the
duration of the statutory period that is adverse and hostile to the claim of the owner. Glover v. Union Pac.
R.R. Co., 187 S.W.3d 201, 213 (Tex. App.--Texarkana 2006, pet. denied) (citing Natural Gas Pipeline Co.
v. Pool, 124 S.W.3d 188, 193-94 (Tex. 2003)). The limitations period begins to run on the date the adverse
possessor actually and visibly appropriates the claimed land. Waddy v. City of Houston, 834 S.W.2d 97,
103 (Tex. App.--Houston [1st Dist.] 1992, writ denied).
1. Peaceable Possession
According to the 1974 judgment, Lonnie was a cross-plaintiff, along with Madora and Nelva, in an action to
quiet title in the land. Lonnie's claim to title of the land was resolved by the 1976 consent judgment, agreed
to by the parties, including Lonnie, (32) recognizing title for Anthony and Kenneth, predecessors in interest
to Bing and Willy, in 40 acres of the 50-acre tract and title for Lonnie in 10 acres of the tract, which included
the portion containing the old homestead. Any claims of adverse possession of the land by Lonnie or his
family prior to May 19, 1976, were therefore extinguished by this acknowledgment of Anthony and
Kenneth's title. Additionally, the entry of this judgment interrupted any running of limitations as the holding
of this land could not be "peaceable."
2. Actual Possession
In order for Lonnie to satisfy this element, he must have been seen on the land in order to give notice to
appellees that he was claiming a right to the entire 50 acres. Perkins v. McGehee, 133 S.W.3d 287, 292
(Tex. App.--Fort Worth 2004, no pet.). Certain acts can demonstrate actual and visible appropriation of real
property, including grazing cattle, building fences, and occupation of land. Parker v. McGinnes, 842 S.W.2d
357, 360 (Tex. App.--Houston [1st Dist.] 1992, writ denied); Wall v. Carrell, 894 S.W.2d 788, 800 (Tex.
App.--Tyler 1994, writ denied); Mohnke v. Greenwood, 915 S.W.2d 585, 593-94 (Tex. App.--Houston [14th
Dist.] 1996, no writ).
Lonnie asserts that he had been in adverse possession of the property since 1974, either through his
predecessors in interest or individually. In support of this, Lonnie claims that he paid taxes on the property
annually, grazed cattle on the land, had family reunions on the land, and that he spends some weekends
on the land.
The Supreme Court held in Rhodes v. Cahill that it was "well settled that, where a party relies on naked
possession alone as the foundation for his adverse claim, it must be such an actual occupancy as the law
recognizes as sufficient, if persisted in for a long enough period of time, to cut off the true owner's right of
recovery." Rhodes, 802 S.W.2d at 64. There, Cahill, the adverse claimant, lived on a 177-acre tract that
was bought in 1933. Id. at 644. Adjoining that tract was a smaller 15-acre tract, referred to by the Court as
the "cedar tracts," that was not separated from the 177-acre tract. A fence encircled the two combined
tracts, and there was no interior fence or other boundary separating the two tracts. Id. Cahill did not live on
the tract for which he was attempting to obtain by adverse possession. Id. at 645.
The Court noted that "neither . . . isolated commercial sale of cedar nor selective clearing for grazing
purposes is sufficient to show adverse possession . . . as a matter of law." Secondly, even though the
Cahills paid property taxes for 23 years on the "cedar tract," " this was insufficient to establish adverse
possession as a matter of law." Id. at 645-46. Additionally, Cahill asserted that goats and cattle were grazed
on the cedar tracts and they "occasionally repaired the fence, added net wire and additionally barbed wire
to it, and replaced some of the fence posts." Id. at 646. The Supreme Court held that neither the fence nor
the grazing established adverse possession as a matter of law, unless the cedar tracts were "designedly
enclosed for the Cahill's use." Id. The court noted that, under the applicable case law, there are two kinds
of fences: "casual fences" and fences that "designedly enclose" an area. 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." Id. 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 136, 142-43 (Tex. 1971). 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).
Lonnie asserts in his affidavit that "the property is fenced and has been fenced continuously for at least the
last 50 years." However, Lonnie claimed in a pleading entitled "Plaintiff's Opposition to Defendant's Motion
for Summary Judgment" that he fenced the property off after the 1974 judgment. Aside from the statement
in that pleading, the record does not indicate who built the fence or for what purpose. Therefore, Lonnie
has not established proof of a designedly enclosed fence. See McDonnold, 465 S.W.2d at 141 (holding
where purpose of fence could not be determined, fence was "casual" rather than designedly enclosed even
though claimant maintained the fence.) See also Mohnke, 915 S.W.2d at 593 (holding where there was no
testimony as to purpose of fence's construction, claimants' evidence regarding use of property failed to
establish that fence was designed enclosure).
Lonnie's other claims of occupancy also fail to establish actual and visible appropriation of real property.
Sporadic, irregular, and occasional use of land does not satisfy the adverse possession statutes. Harlow v.
Giles, 132 S.W.3d 641, 646 (Tex. App.--Eastland 2004, no writ). In addition, "[e]vidence of only occasional
visits on property is insufficient to establish an adverse claim." Wall, 894 S.W.2d at 800. Therefore,
appellant's weekend visits to the property and the holding of an occasional family reunion do not constitute
actual and visible appropriation of the property.
3. Claim of Right
For purposes of adverse possession, a "'claim of right' means that the entry of the claimant must be with
the intent to claim the land as his own, to hold it for himself and such must continue to be the nature of his
possession." Myers v. Wright, 224 S.W.3d 466, 469 (Tex. App.--Dallas 2007, no pet.). Further, "[t]he
intention of the claimant to hold it for himself must be manifested by open and visible acts or declarations
showing purpose." DeArman v. Surls, 618 S.W.2d 88 (Tex. Civ. App.--Tyler 1981, writ ref'd n.r.e.).
In Orsborn v. Deep Rock Oil Company, the Texas Supreme Court held that "[n]o matter how exclusive and
hostile to the true owner the possession may be in appearance, it cannot be adverse unless accompanied
by the intent on the part of the occupant to make it so. The naked possession unaccompanied with any
claim of right will never constitute a bar." 267 S.W.2d 781, 787 (Tex. 1954). Rather, the court held that the
claim of right "must be manifested by declaration or by open or visible act." Id. The claimant's testimony that
"he and his father always claimed the disputed tract" was held not to constitute evidence that would support
a claim of adverse possession. Id. at 787-88. This testimony was dismissed as merely being about a mental
process or the expression of a mere opinion or conclusion. Id. at 787.
Similarly, appellant's assertion that "this property has been the family homestead of my family for more than
50 years" is the expression of an opinion or conclusion. Appellant states that his family has "continued to
reside on the property for more than 50 years," but, this claim, as discussed above, does not provide
adequate external circumstances to support that claim of right. See Tran v. Macha, 213 S.W.3d 913, 914
(Tex. 2006) (holding "there must be adverse possession, not just adverse beliefs.").
Furthermore, Lonnie's payment of taxes was not a visible appropriation of the property as required by the
adverse possession statutes. The payment of taxes is some evidence of adverse possession, but it is
insufficient to establish adverse possession as a matter of law. Templeton v. Dreiss, 961 S.W.2d 645, 670
(Tex. App.--San Antonio 1998, pet. denied); Dellana v. Walker, 866 S.W.2d 355, 361 (Tex. App.--Austin
1993, pet. denied).
4. Consistent and Continuous Hostile Claim
The term hostile in the context of adverse possession refers to whether the claim is inconsistent with the
rights of the true owner. The MBA v. McWhorter, 177 S.W.3d 465, 472 (Tex. App.--Houston [1st Dist.] 2005,
no pet.). "The test for hostility is whether the acts performed by this claimant on the land and the use made
of the land were of such a nature and character as to reasonably notify the true owner of the land that a
hostile claim was being asserted to the property." Id. In applying the hostile element to a situation where
grazing is the chief evidence of consistent and continuous hostility, the Supreme Court in Orsborn held:
It is settled that limitation title cannot be acquired by grazing unenclosed land . . . When the use relied upon
to support the statute is grazing, there must be also at the same time sufficient enclosure, such as to give
evidence that the land was designedly enclosed and to show the assertion of claim hostile to the true
owner. The ordinary case for the acquisition of title by adverse possession, when the use is grazing, is one
in which the person claiming title under the statute has built a fence or fences enclosing the land and has
maintained the enclosure and continuously used the land for grazing during the statutory period. Such
construction of fences and use of the land for grazing afford evidence of a hostile claim.
Orsborn, 267 S.W.2d at 785 (citations omitted).
As previously noted, appellant has failed to demonstrate the purpose for which fencing was erected,
therefore, the fence is a "casual fence." Such a fence does not afford evidence of a hostile claim.
In light of our examination of the six adverse possession factors, we hold that appellant did not establish
adverse possession as a matter of law.
Appellant also claims that the trial court erred in determining that repudiation was necessary in order for
him to claim adverse possession. A party that holds over after an adverse judgment has been rendered
against it is merely a permissive tenant or a tenant at sufferance. Tex-Wis Co. v. Johnson, 534 S.W.2d 895,
899 (Tex. 1976). Phillips has remained on the estate notwithstanding the 1976 judgment; therefore, he is a
tenant at sufferance. Before a tenant at sufferance can adversely possess the property, the tenant must
repudiate the tenancy. Id. Actual notice of repudiation is not required. Id. Constructive notice of repudiation
may be established by (1) long-continued possession under claim of ownership and (2) non-assertion of
claim by the titleholder. Id. at 901. "Constructive notice will be presumed where the adverse occupancy and
claim of title has been long continued, open, notorious, exclusive, and inconsistent with the existence of title
in others." Loeffler v. Lytle Indep. Sch. Dist., 211 S.W.3d 331, 341 (Tex. App.--San Antonio 2006, pet.
In determining whether possession of the claimed land is exclusive, all evidence must be considered. La.
Pac. Corp. v. Holmes, 94 S.W.3d 834, 838 (Tex. App.--San Antonio 2002, pet. denied). While repudiation is
often a fact question, when the pertinent facts are undisputed, repudiation may be established as a matter
of law. King Ranch, Inc., 118 S.W.3d at 756. The Texas Supreme Court has stated that the number of years
required to establish sufficient long-continued use can vary and should be determined on a case-by-case
basis. Tex-Wis Co., 534 S.W.2d at 902. In the instant case, the last judgment prohibiting Phillips from
entering the property was granted on May 22, 1990. The summary judgment claim was initiated in May
In Amador v. Berrospe, 961 S.W.2d 205 (Tex. App.--Houston [1st Dist.] 1996, writ denied), a party claimed
adverse possession against his cotenant. This court held that to do so, the claimant must prove the
additional element of "repudiation of title or ouster by the cotenant" claimant. Id. at 208. In Amador, the
claimant "maintained, insured, and paid taxes on the property for fourteen years" after the event that
created the co-tenancy occurred, just as he had done prior to that event. Id. at 209. However, since his
actions post-occurrence were in conformity with his actions pre-occurrence, those actions could not have
put his cotenant on notice of an adverse claim. Id. Thus, this court found the adverse possession claim to
be without merit as a matter of law.
Similarly, in Poenisch v. Quarnstrom, 361 S.W.2d 367 (Tex. 1962), the Texas Supreme Court found no
evidence of repudiation sufficient to start the running of the statute of limitations. The court pointed out that
it takes more to show repudiation than "possession and payment of taxes on the property" which do not
constitute the assertion of an adverse right. Id. at 369; see also Todd v. Brunner, 365 S.W.2d 155, 160
(Tex. 1963) ("Possession, coupled with payment of taxes, is not notice to cotenant of repudiation . . . cutting
of timber is not . . . notice of repudiation").
Finally, in Witcher v. Bennett, 120 S.W.3d 922 (Tex. App.--Texarkana 2003), the court held that the grazing
of livestock, building and maintenance of fences, fertilization, harvesting of hay, construction of a pond, and
the payment of taxes for two years and nine months did not constitute long-continued possession. Id. at 926.
In light of these cases, Lonnie's acts of grazing cattle and paying taxes are not sufficient notice of
repudiation. Moreover, Lonnie's affidavit states that he has been grazing cattle and paying taxes on the
property for the last 50 years and going out to the homeplace for a few weekends a month. These actions
are in conformity with his actions prior to the 1976 order and cannot establish repudiation. Poenisch, 361
S.W.2d at 369.
C. Failure to Award Reimbursement
Lonnie next argues that the trial court failed to reimburse him for taxes, repairs, maintenance, and
insurance premiums paid. However, this request for relief is not found in Lonnie's first amended petition or
in his motion for summary judgment. "[A] trial court cannot grant summary judgment for a reason that the
movant does not present to the trial court in writing. Also . . . issues an appellate court may review are
those the movant actually presented to the trial court." Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623,
625 (Tex. 1996). Thus, the complaint is not properly before this court for review. See Tex. R. App. P. 33.1
(setting forth grounds for preservation of issues for appellate review).
For the foregoing reasons, we hold that appellants failed to meet their summary judgment burden by
establishing that no genuine issue of material fact exists and that they were entitled to judgment as a matter
of law. See Tex. R. Civ. P. 166a(c). Moreover, we hold that the trial court did not err in granting Bing and
Willy's traditional motion for summary judgment and Bing's no-evidence motion for summary judgment
because (1) Lonnie failed to show he was entitled to judgment as a matter of law and failed to raise a fact
issue on the challenged elements of adverse possession and repudiation, and (2) Bing and Willy showed
their entitlement to judgment as a matter of law. Therefore, we overrule appellants' nine points of error.
We affirm the judgment of the trial court.
Tim Taft (33)
Panel consists of Chief Justice Radack and Justices Sharp and Taft.
1. Appellants' brief styles this case so as to include Kenneth W. Bing, Jr., as an appellee.
Texas Rule of Appellate Procedure 3.1(c) defines an appellee as "a party adverse to an appellant." Tex. R. App. P. 3.1(c).
Unlike an appellant, who must file a notice of appeal and identify himself or herself, an appellee need not be definitively
identified until the appellant's brief is filed. See Gray v. Allen, 41 S.W.3d 330, 331 n.2 (Tex. App.--Fort Worth 2001, no pet.). An
appellee, however, must be a party to the trial court's final judgment and must be someone against whom the appellant
raises issues or points of error in the appellant's brief. See id. Kenneth W. Bing, Jr. is not a party to the trial court's final
summary judgments and so cannot be an appellee.
2. In our discussion of the summary judgments, we will detail what evidence the trial court had properly before it in making
its decisions, and we will limit our review to such evidence.
3. Action had assigned the note to Gulf Coast Investment Corporation in September 1962.
4. This portion of the land's history is taken from appellants' first amended petition in the underlying action, filed in 2000.
There is no documentation in the record, apart from pleadings, to confirm these facts, but they are consistent with pleadings
filed by appellees at the trial court level and by pleadings filed by Kenneth and Anthony in prior litigation regarding this land.
Appellants also claimed that the sale of the property to Gulf Coast Investment Corporation, and the later sale to Anthony and
Kenneth, attorneys who represented Action Construction Corporation, were "a series of fraudulent transactions." Appellants
asserted that Anthony and Kenneth were "aware of or part of a conspiracy of fraud regarding the land and were not bonafide
purchasers." However, no evidence appears in the record regarding these accusations and no finding was made by any
factfinder regarding such accusations.
5. The petition named "Melvin Phillips" as a defendant, but the answer and cross-claim was made by "Nelva" Phillips. Nelva
Phillips was one of the sons of Lonnie Phillips.
6. It appears that some portion of the Defendants' First Amended Answer, from which this information is taken, is missing,
as the final page begins in the middle of a word that does not appear on the preceding portion of the document, but we have
gleaned what we can from it.
7. A "Robert Phillips" was listed in the body of the purported deed, but the signature line for Robert Phillips is blank. There is
no mention of Bernice Phillips in the document.
8. Johnny Phillips died intestate in 1965, leaving two heirs, Mamie Phillips and Johnny Phillips. Jr.
9. Lonnie Phillips, Sr. died in April 1963, before the inception of the 1969 litigation. In a sworn affidavit filed in support of his
summary judgment in the 2000 litigation, Lonnie (Jr.) attested to the fact that Caldwell represented him in the 1969 litigation.
However, he denied entering into a consent judgment, stating that the judge had told him during a recess that "all parties
necessary had not signed;" that "he had to obtain signatures" from certain relatives; and that "[his] attorney, Neil Caldwell,"
had told him that if those relatives did not sign, the action would have to "start all over." Lonnie asserted that he had "never
signed a judgment, never took the witness stand, and the only person questioned at all was [his] mother, Madora."
10. Paragraphs that would have required Lonnie to obtain title for the property from apparent heirs of Alexander Jackson "to
whatever extent is possible under the circumstances" and then to convey any and all of his interest "that he may have or
obtain" in and to the land to Kenneth and Anthony were struck out.
11. See Tex.Civ. Prac. & Rem. Code Ann. §§ 16.025, 16.026 (Vernon 2002) (providing for five- and 10-year statute of
limitations, respectively, for actions to recover property held in peaceable and adverse possession under certain conditions).
12. Lonnie utilized the date of the agreement, November 13, 1974, in this calculation, rather than the date of the actual
signing of the judgment, which was May 19, 1976.
13. The petition apparently calculates this time frame as commencing in 1987 ("since the entry of the judgment . . . in 1987").
However, the order was actually signed May 22, 1990.
14. See Tex. Civ. Prac. & Rem. Code Ann. §§ 16.026, 16.027 (Vernon 2002).
15. See Tex.Civ. Prac. & Rem. Code Ann. § 16.029 (Vernon 2002) (discussing prima facie evidence that title has passed
from person holding apparent record title to opposing party).
16. This apparently refers to the judgment entered on May 19, 1976.
17. Texas Civil Practice and Remedies Code section 16.030(a) provides that "[i]f an action for the recovery of real property is
barred under this chapter, the person who holds the property in peaceable and adverse possession has full title, precluding
all claims." Tex. Civ. Prac. & Rem. Code Ann. § 16.030 (Vernon 2002).
18. None of these pleadings or briefs appears in the record on appeal.
19. The reply does not specify which suit, but the documents on appeal suggest that this action was done in 1974.
20. These documents were filed less than 21 days before the April 8 hearing on appellant's motion. The record does not
reflect any request, or grant, of leave of court to file these documents as summary judgment evidence. See Tex. R. Civ. P.
21. Bing also attached as evidence a copy of the 1978 fax and contract regarding the listing of the land for sale, but this
exhibit is not referred-to in her motion for summary judgment.
22. These documents were filed less than seven days before the hearing on Willy's motion for summary judgment and less
than 21 days before the hearing on appellants' motion for summary judgment. The record does not reflect any request, or
grant, of leave of court to file these late-filed documents as summary judgment evidence. See Tex. R. Civ. P. 166a(c).
23. Bing's counsel was present for this hearing, but because it had been less than 21 days from appellants' receipt of Bing's
motion for summary judgment, and appellants raised an objection on this basis, the trial court did not hear Bing's motion.
See Tex. R. Civ. P. 166a(c).
24. Appellants also filed a motion objecting to the assigned judge that was denied as untimely.
25. See Phillips v. Willy, No. 01-03-00711-CV, 2004 WL 911795, at *2 (Tex. App. --Houston [1st Dist.], April 29, 2004, no pet.)
26. This is the same property awarded to Willy.
27. Appellants filed their February 22, 2007 notice of appeal in the original cause number (11869BH00), but this court
deemed it to have been filed in the severed cause number (41452). See Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997)
("We have repeatedly held that a court of appeals has jurisdiction over any appeal in which the appellant files an instrument
in a bona fide attempt to invoke the appellate court's jurisdiction."); City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418
(Tex. 1992) (holding that notice of appeal reciting correct style but incorrect cause number--one that was totally unrelated to
cause from which appeal was desired--was bona fide attempt to invoke appellate jurisdiction, when no confusion could have
arisen due to erroneous cause number).
28. Point of error number two reads, "The Court erred in failing to grant Appellant's [sic] motion for summary judgment."
29. Point of error number three reads, "The Court erred in granting Appellees' [sic], Willy [sic], Motion for Summary Judgment
under the theory of consent or agreed judgment by a party, as Appellant was not a party to the original proceeding.
Point of error number four reads, "The Court erred in granting Appellee's [sic], Willy [sic], Motion for Summary Judgment
because the requisite consent and other contingencies to judgment was lacking to be a valid judgment."
30. Point of error number eight reads, "The trial court erred in granting Summary Judgment for Appellee, Bing [,] on the theory
of res judicata."
Point of error number nine reads, "The trial court erred in granting Appellee's [Bing's] No Evidence Motion for Summary
31. Point of error number one reads, "The Court Erred in Premising the Grant of Summary Judgment to Appellees on a Void
Transfer of Land through a number of procedural errors."
Point of error number five reads, "The Court erred in determining that repudiation was necessary in order for Appellant to
claim adverse possession."
Point of error number six reads, "The Court erred in determining that there had been no repudiation, if it deemed the same
Point of error number seven reads, "The trial court committed an abuse of discretion in failing to consider equitable
principles in relation to the Appellant's claims of adverse possession."
32. The fact that the judgment was signed by Lonnie's attorney, rather than Lonnie personally, does not make the judgment
void, as alleged by appellant. Presumably, Lonnie's attorney was acting as an agent of Lonnie and was authorized to sign
the judgment on his behalf.
33. Justice Tim Taft, who retired from the First Court of Appeals effective June 1, 2009, continues to sit by assignment for the
disposition of this case, which was submitted on June 23, 2009.