Tom Hill Jr. and Marion Ann Hill v. Kevin Crowson, Shannon Crowson and Sanderson Farms Inc. ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00006-CV
TOM HILL, JR. AND MARION ANN HILL,
Appellants
v.
KEVIN CROWSON, SHANNON CROWSON,
AND SANDERSON FARMS, INC.,
Appellees
From the 87th District Court
Leon County, Texas
Trial Court No. 0-07-581
MEMORANDUM OPINION
Tom Hill, Jr. and his wife Marion own a 150-acre tract of land. They access this
property via a 1.0345-acre tract. They gave R.L. Crowson permission to use the 1.0345-
acre tract for access to his property. When R.L. conveyed his property to Kevin
Crowson and Shannon Crowson, the Hills granted them permission to use the 1.0345-
acre tract as well. Increased traffic across the tract, including Sanderson Farms, Inc.
trucks, prompted the Hills to withdraw permission, but the Crowsons and Sanderson
continued using the tract. The Hills sued for trespass. The Crowsons and Sanderson
filed a no-evidence motion for summary judgment, which the trial court granted. In
three issues, the Hills challenge the trial court’s: (1) failure to grant their motion for
continuance; (2) failure to rule on objections before granting the no-evidence motion;
and (3) granting of the no-evidence motion. We reverse and remand.
MOTION FOR CONTINUANCE
In issue one, the Hills maintain that the trial court erred by ruling on the no-
evidence motion without first granting their motion for continuance.
The Hills filed their summary-judgment response two days before the no-
evidence motion was to be heard on submission. The next day, the Crowsons and
Sanderson filed objections to the Hills’ summary-judgment evidence. The Hills filed a
motion for continuance seeking additional time to address and/or cure any defects in
their evidence. The trial court did not rule on this motion, but granted the no-evidence
motion about one month later.
“Rule of Civil Procedure 251 requires that a continuance motion be supported by
affidavit unless the motion is agreed to or a continuance is required by operation of
law.” Spigener v. Wallis, 80 S.W.3d 174, 182 (Tex. App.—Waco 2002, no pet.); TEX. R. CIV.
P. 251. The Hills’ motion for continuance was not supported by an affidavit and the
parties did not agree to a continuance. See Spigener, 80 S.W.3d at 182. Accordingly, the
trial court did not abuse its discretion by ruling on the no-evidence motion without
granting the Hill’s motion for continuance. We overrule issue one.
Hill v. Crowson Page 2
OBJECTIONS TO SUMMARY JUDGMENT EVIDENCE
The Hills’ second issue challenges the trial court’s decision to rule on objections
after the no-evidence motion had been granted.
The trial court signed a written order on the Crowsons’ and Sanderson’s
objections nearly one month after the no-evidence motion was granted and only a
couple of days after the Hills filed a notice of appeal. Thus, the Hills maintain that the
Crowsons and Sanderson waived their objections by failing to obtain a written ruling at
or before the granting of the no-evidence motion. Preservation, however, is not the
issue before us.
In Crocker v. Paulyne’s Nursing Home, 95 S.W.3d 416 (Tex. App.—Dallas 2002, no
pet.), Crocker argued that summary-judgment objections were waived because a
written order on the objections was not entered until after summary judgment was
granted. See Crocker, 95 S.W.3d at 420. The Dallas Court held that Crocker “confuse[d]
a party’s duty to preserve error with a trial court’s authority to rule on objections.” Id.
The issue was “not whether the Rembrandt Center (which obtained a favorable ruling
in the trial court) preserved its complaint for appellate review,” but “whether the trial
court’s order, which was reduced to writing eighty-nine days after the summary
judgment was signed, was effective.” Id. at 420-21. The Dallas Court recognized that “a
party must obtain a written ruling on its objections, ‘at, before, or very near the time the
trial court rules on the motion for summary judgment or risk waiver,’” but this
“indicates only that a trial court is not required to reduce to writing any rulings on
summary judgment evidence if it is not timely requested to do so.” Id. at 421 (citing
Hill v. Crowson Page 3
Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied)). The Court held, “[A] trial court may reduce its rulings on summary judgment
evidence to writing as long it retains plenary jurisdiction.” Id.
In this case, the trial court’s order on the summary-judgment objections states
that the objections were considered, along with the no-evidence motion, on the
submission date. The summary-judgment order, however, fails to identify specific
rulings on the objections. In light of Crocker, the trial court properly reduced its ruling
to writing even though the no-evidence motion had previously been granted. See
Crocker, 95 S.W.3d at 421. We overrule issue two.
NO-EVIDENCE SUMMARY JUDGMENT
In their third issue, the Hills argue that the trial court improperly granted the no-
evidence motion.
We review a no-evidence summary judgment under the same standard of review
as a directed verdict. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006).
“We review the evidence presented by the motion and response in the light most
favorable to the party against whom the summary judgment was rendered, crediting
evidence favorable to that party if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not.” Id. at 582. A no-evidence summary
judgment will be defeated if the non-movant produces some evidence “raising an issue
of material fact” on the elements challenged by the movant. Id.
To recover damages for trespass to real property, a plaintiff must prove that (1)
the plaintiff owns or has a lawful right to possess real property, (2) the defendant
Hill v. Crowson Page 4
entered the plaintiff’s land and the entry was physical, intentional, and voluntary, and
(3) the defendant’s trespass caused injury to the plaintiff. Wilen v. Falkenstein, 191
S.W.3d 791, 798 (Tex. App.—Fort Worth 2006, pet. denied). The Crowsons and
Sanderson challenged elements one and three.
The Hills maintain that their affidavits raise a fact issue as to element one. In
their affidavits, the Hills explained that their attorney contacted the owner of the 1.0345-
acre tract, they purchased the tract with cash in 1979, they received a deed, they have
been in exclusive possession of the tract for twenty-nine years, and no one has “ever
claimed the property or questioned our ownership or possession of the property.” They
have negotiated oil and gas leases, maintained a fence, constructed a gate, and paid ad
valorem taxes on the tract.
The Crowsons and Sanderson objected to the affidavits on grounds that (1) they
are conclusory as to ownership and possession; and (2) certified or sworn copies of
documents to which the affidavits refer are not attached to the affidavits. The trial court
sustained these objections. The Hills do not challenge the trial court’s rulings. 1
However, according to the record, the Crowsons and Sanderson did not appear
concerned with the Hills’ statements regarding actions taken to maintain the tract.
1 The Hills do contend that the trial court entered contradictory rulings by overruling an objection
that their affidavits violate the best evidence rule. Whether the affidavits attempt to establish the contents
of a document and whether they contain conclusory statements are distinct issues. See TEX. R. EVID. 1002
(“To prove the content of a writing, recording, or photograph, the original writing, recording, or
photograph is required except as otherwise provided in these rules or by law.”); see also Choctaw Props.,
L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 242 (Tex. App.—Waco 2003, no pet.) (“A conclusory statement is one
that does not provide the underlying facts to support the conclusion.”). Thus, the trial court’s rulings are
not contradictory.
Hill v. Crowson Page 5
Although the record before us contains no evidence of ownership, the portions of
the Hills’ affidavits that were not objected to raise a fact issue as to their right to
possession. See Pentagon Enter. v. Sw. Bell Tel. Co., 540 S.W.2d 477, 478 (Tex. Civ. App.—
Houston [14th Dist.] 1976, writ ref’d n.r.e.) (“The gist of an action of trespass to realty is
the injury to the right of possession.”). The Hills stated that they constructed fencing
and a gate on the tract, paid taxes on the tract, and negotiated leases on the tract.
Additionally, to establish damages, the Hills need only show an interference
with their right to possession and not actual damages. See Coastal Oil & Gas Corp. v.
Garza Energy Trust, 268 S.W.3d 1, 12 n. 36 (Tex. 2008) (“[T]respass against a possessory
interest…does not require actual injury to be actionable and may result in an award of
nominal damages.”); see also General Mills Rest., Inc. v. Texas Wings, Inc., 12 S.W.3d 827,
833 (Tex. App.—Dallas 2000, no pet.) (“Even if a plaintiff fails to plead or prove that the
defendant did any injury by entering plaintiff's property, the plaintiff is still entitled to
nominal damages.”).
Accordingly, we conclude that the record contains some evidence of elements
one and three of the Hills’ trespass claim.2 Because the trial court erred by granting no-
2 Citing Lorino v. Crawford Packing Co., 142 Tex. 51, 175 S.W.2d 410 (1943), and other cases, the
Crowsons and Sanderson maintain that the Hills’ attempt to prove prior possession is based on an
evidentiary presumption, not legal evidence. See Lorino, 175 S.W.2d at 413 (“[I]n an action of trespass to
try title, plaintiff may recover by virtue of prior possession, without proof of title, where no title is shown
in the defendant. Such proof, however, is but a rule of evidence and not of property, and may be
rebutted.”). Unlike Lorino, this is not a trespass to try title case. Nor must the Hills prove exclusive
possession as part of their trespass claim. See Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex. App.—Fort
Worth 2006, pet. denied); see also Kazmir v. Benavides, 288 S.W.3d 557, 561 (Tex. App.—Houston [14th
Dist.] 2009, no pet.) (Exclusive possession required to establish adverse possession under section 16.026 of
the Civil Practice & Remedies Code). The Crowsons and Sanderson further contend that the Hills failed
to address the damages element. However, in both their summary judgment response and in their brief,
the Hills argued their entitlement to nominal damages absent a showing of actual damage.
Hill v. Crowson Page 6
evidence summary judgment in favor of the Crowsons and Sanderson, we sustain issue
three.
The trial court’s judgment is reversed and remanded for further proceedings
consistent with this opinion.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray concurring with note)*
Reversed and remanded
Opinion delivered and filed November 18, 2009
[CV06]
* (Chief Justice Gray concurs in the judgment only and only to the extent that it
reverses the trial court’s summary judgment and remands this proceeding. A separate
opinion will not issue. He notes, however, that because the scope of the third objection,
which was sustained, to the Hills’ affidavits is not clear, it is thus not clear what
portions of the affidavits were objected to and which statements would remain as
summary judgment evidence. The Chief Justice treated this somewhat like a trial before
the bench and presumed the trial court considered the evidence that could properly be
considered.)
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