Kevin Scribner v. Randal Wineinger, Individually and D/B/A Akins Oil Company and Parra Oil and Gas, Inc. ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00208-CV
___________________________
KEVIN SCRIBNER, Appellant
V.
RANDAL WINEINGER, INDIVIDUALLY AND D/B/A AKINS OIL COMPANY
AND PARRA OIL AND GAS, INC., Appellees
On Appeal from the 97th District Court
Archer County, Texas
Trial Court No. 2018-0094A-CV
Before Sudderth, C.J.; Bassel and Womack, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. INTRODUCTION
This case concerns adverse possession of an oil-and-gas leasehold interest. In a
single issue, Appellant Kevin Scribner challenges the trial court’s order and final
judgment granting summary judgment in favor of Appellees Randal Wineinger,
Individually and d/b/a Akins Oil Company, and Parra Oil and Gas, Inc. on their
affirmative defense of adverse possession and Parra’s claim of limitations title (under
the five-year statute). The trial court ordered that Scribner take nothing on his claims
for trespass to try title, conversion, and trespass and declared that Parra was the
owner of the oil-and-gas leasehold interest.
Scribner does not dispute that the summary-judgment record establishes that
Appellees’ predecessors in title obtained adverse title to the leasehold interest before
the conveyance of that interest to Appellees. Scribner contends that Appellees
acknowledged his title in the lease at least three times when they sought an assignment
of that interest and that the acknowledgements precluded any limitation title running
in their favor. But even assuming that the acknowledgments occurred, they came too
late to benefit Scribner because all the acts necessary for Appellees’ predecessors to
obtain adverse title and to divest Scribner of any claim to the lease occurred before
the claimed acknowledgments. The acknowledgments did not stop the clock on the
adverse claim because the clock had already run out before they occurred.
2
Scribner also contends that Appellees’ acknowledgements of his title raised a
fact issue on whether Appellees’ possession was adverse. An acknowledgement of
title after the statutory bar may constitute evidence showing that an adverse claimant’s
possession was not adverse during the limitations period because the possessor must
intend to appropriate the property. But that principle does not apply here because
Appellees did not possess the leasehold interest during the limitations period.
Accordingly, we affirm.
II. BACKGROUND
A. The parties proffer alternative contentions regarding ownership of the
leasehold interest.1
In 1999, Scribner’s father acquired an oil-and-gas leasehold interest arising by
virtue of an oil-and-gas lease recorded in Archer County, Texas. The record reflects
that Scribner’s father conveyed all the working interest in the lease to him by virtue of
a May 30, 2002 Assignment and Bill of Sale (2002 Assignment) filed of record in
Archer County. Scribner contends that he did not know about the 2002 Assignment
until 2016. He alleged that he had never transferred the working interest to any other
person or entity and that he remains the owner.
1
We draw these allegations and facts from the parties’ live pleadings and the
summary-judgment evidence. We refer to allegations in the pleadings only to more
clearly outline the context for this dispute; we do not consider them evidence
supporting summary judgment. See Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilmer, 904
S.W.2d 656, 660 (Tex. 1995).
3
Wineinger contends that he previously held and Parra contends that it currently
holds superior title to the leasehold interest because their predecessors acquired title
through adverse possession under the five-year statute.2 See Tex. Civ. Prac. & Rem.
Code Ann. § 16.025. The summary-judgment evidence shows that on March 29,
2010, Louise Daniel, acting under the will of Scribner’s father (then deceased),
assigned the working interest and lease to Latigo Drilling, LLC (2010 Assignment).
Appellees allege that although Scribner was present when Daniel executed and
delivered the assignment of the lease to Latigo, Scribner did not assert any ownership
to the lease at that time.
The record reflects that a series of individuals and entities owned and assigned
the leasehold interest following the 2010 Assignment:
• On October 8, 2010, Latigo assigned the working interest to Hanaco
LLC.
• On September 10, 2012, Hanaco assigned one-third of the working
interest to Duncan Oil Company, assigned one-third of the working
interest to Gary Grace d/b/a Grace Services, and retained one-third of
the working interest for itself.
• On May 15, 2014, Grace assigned its one-third of the working interest to
A&G Operating, LLC.
• On June 13, 2016, Hanaco, Duncan, and A&G assigned 100% of the
working interest to Wineinger and David Park, in their individual
capacities.
Wineinger does not assert current ownership of the leasehold interest because
2
he had assigned his interest to Parra prior to Scribner filing suit, as discussed below.
4
• On October 1, 2016, Wineinger and Park assigned the working interest
to Parra, a company in which they both own an interest.
These assignments were recorded in Archer County.
According to Appellees, Parra and each of its predecessors exclusively operated
the lease, received all revenue (less royalty) from the lease, and paid all taxes
attributable to the lease. They assert that Scribner, on the other hand, did not
participate in the operations of the lease; did not make any expenditures for the lease;
did not receive any revenue from the lease; and did not pay any taxes attributable to
the lease.
In June 2018, Scribner filed suit against Appellees asserting claims for trespass
to try title, trespass to real property, and conversion. Scribner sought a determination
that he holds superior title to the working interest, an accounting, and an award of
damages. Appellees answered, asserting the affirmative defense of perfection of title
by adverse possession under the five-year statute of limitations, citing section 16.025
of the Texas Civil Practice and Remedies Code (five-year statute). Parra also
counterclaimed for trespass to try title, declaratory judgment, and suit to quiet title,
seeking a declaration that it has a superior title by limitations.3
3
Appellees asserted other affirmative defenses, including limitations under the
three- and ten-year statutes of limitations under chapter 16 of the Texas Civil Practice
and Remedies Code, and Parra asserted counterclaims in addition to those listed
above. Those defenses and counterclaims are not relevant to the disposition of this
appeal, and the trial court’s judgment provides that “[t]his Judgment disposes of all
parties and claims and is final and appealable.” This language unmistakably indicates
5
B. Appellees moved for summary judgment on Scribner’s claims and
Parra’s counterclaims, arguing that their predecessors acquired
limitation title by adverse possession under the five-year statute.
Appellees moved for traditional summary judgment, arguing that Scribner’s
claims were precluded by their predecessors’ adverse possession and that Parra was
the rightful, current owner of the leasehold interest. Appellees argued that the
summary-judgment evidence satisfied each element of the five-year statute and that
after tacking or stringing together all periods of possession of their predecessors since
April 2010 (when Latigo began operating the lease), they had adversely possessed the
lease by April 2015, and Scribner’s claimed ownership in and right to possess the
property had terminated in April 2015.
Appellees requested that the trial court enter a judgment that Scribner take
nothing on his trespass-to-try-title claim, arguing the evidence established the
affirmative defense of limitations under the five-year statute as a matter of law. They
also requested that the trial court enter a judgment that Scribner take nothing on his
trespass and conversion claims, arguing that the evidence established that they had
adversely possessed the lease in April 2015 under the five-year statute, thereby
dispensing with the essential elements of these claims relating to Scribner’s ownership
or rights to possession. Parra also requested summary judgment on its counterclaims
for trespass to try title, declaratory judgment, and suit to quiet title, arguing that the
that the summary judgment was final. See In re Daredia, 317 S.W.3d 247, 248 (Tex.
2010) (orig. proceeding).
6
evidence established all elements to each counterclaim based on the evidence
establishing title through adverse possession under the five-year statute.
C. Scribner opposed summary judgment by arguing that Appellees
acknowledged his title to the lease, precluding limitations from running
in Appellees’ favor and evidencing that their possession at any time was
not adverse.
In response to Appellees’ motion, Scribner argued that there was “a genuine
issue of material fact as to who owns the working interest” that precluded summary
judgment. Scribner cited Tex-Wis Co. v. Johnson, 525 S.W.2d 232 (Tex. App.—Waco
1975), aff’d on other grounds, 534 S.W.2d 895 (Tex. 1976), for the proposition that a
defendant’s offer to buy land constitutes an acknowledgment in title in the plaintiff
that precludes limitations from running in favor of the defendant and is evidence
tending to show that any possession by the defendant is not adverse to the plaintiff.
Scribner argued that Appellees acknowledged title in him when they contacted him at
least three times to request that he execute a proposed assignment of his interests.
First, Billy Elder is an attorney who represented Parra in June 2016 in
connection with Parra’s acquisition of leasehold interests in several leases situated in
Archer County, including the lease at issue. In connection with that work, Elder
discovered the 2002 Assignment in the Archer County records.4
4
Elder submitted an affidavit attesting to these facts.
7
On June 10, 2016, Elder sent Scribner an email, which provided,
Thank you for visiting with me. Attached is the assignment from [your
father] to you, back in 2002. I could not find any assignment back into
[your father] that was filed with the County Clerk. The assignment to
Latigo Drilling was from Louise Daniel u/w/o [your father], instead of
you. I have attached a copy of the assignment to Latigo as well, so you
can see the problem. What I would like to do to clear this up is to do an
assignment from you into the current owners, Hanaco, LLC, A&G
Operating, LLC and Robert Duncan d/b/a Duncan Oil Company, so
we can clear up this break in the change.[5] Let me know if this is
acceptable and I will prepare it for your signature.
That same day, Elder sent Scribner a draft of the proposed assignment of Scribner’s
working interest to Hanaco, Duncan, and A&G. 6 Elder copied Park on at least one
of his June 10, 2016 emails to Scribner. 7
Second, on June 13, 2016, Park forwarded Elder’s June 10, 2016 email with the
draft assignment attached to Scribner’s wife asking, “Can you have Kevin sign,
5
The original text says “change”; Scribner contends this was a typo and should
state “chain.” This issue is not relevant to the disposition of the appeal.
6
After referencing the 2010 Assignment, the proposed assignment provided
that the working interests in the lease “are now purported to be owned” by Hanaco,
A&G, and Duncan and that “a question has arisen as to a possible break in the chain
of title, due to an Assignment and Bill of Sale from [Scribner’s father] to Kevin
Scribner, dated May 30, 2002, said assignment being recorded at Volume 616, Page
649 of the Official Public Records of Archer County, Texas.” The proposed
assignment further provided, “Kevin Scribner desires to correct the chain of title and
assign all of his right, title, and interest in the above described lease to the now
purported owners . . . .” In a sworn declaration, Scribner authenticated Elder’s first
June 10, 2016 email and the draft assignment.
7
As noted above, Park is an owner of Parra.
8
notarize and return to me? Thanks for your help.” 8 Park and Scribner’s wife worked
together at First Bank.9
Third, according to Scribner’s declaration, in July 2016, he received another
email from Elder inquiring about the status of the proposed assignment. This email is
not in the summary-judgment record. 10
Attributing the above actions to Appellees, Scribner argued that Appellees’
contacts regarding execution of the proposed assignment were analogous to the offer
to purchase real property in Tex-Wis Co. He argued that the contacts constituted an
acknowledgement of title in Scribner that precluded any limitations from running in
Appellees’ favor as a matter of law and was evidence tending to show that any
possession by Appellees was not adverse to Scribner.
The trial court granted Appellees’ motion and entered a final judgment that
Scribner take nothing on all of his claims; awarded Parra title to a 100% working
That same day, Hanaco, Duncan, and Grace executed an assignment of the
8
working interest to Wineinger and Park.
9
In a sworn declaration, Scribner’s wife testified to these facts and
authenticated Park’s June 13, 2016 email, which forwarded Elder’s second June 10,
2016 email to Scribner.
10
In Elder’s affidavit, he averred that he called Scribner in July 2016 asking him
about the assignment. In Scribner’s declaration, he denied this conversation took
place. This dispute is not material to the disposition of this appeal. See Tex. R. Civ. P.
166a(c).
9
interest in the lease; declared Parra to be the sole owner of the working interest; and
declared the 2002 Assignment null, void, and of no effect. Scribner timely appealed.
III. STANDARD OF REVIEW
We review a summary judgment de novo. Tex. Workforce Comm’n v. Wichita Cty.,
548 S.W.3d 489, 492 (Tex. 2018). Summary judgment is proper when no genuine
issue of material fact exists and the movant is entitled to judgment as a matter of law.
Tex. R. Civ. P. 166a(c). We consider the evidence presented in the light most
favorable to the nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could, and disregarding evidence contrary to the nonmovant unless
reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289
S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.
2008).
Here, we deal with the affirmative defense of limitations title, and a defendant is
entitled to summary judgment on an affirmative defense if the defendant conclusively
proves all the elements of that defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494,
508–09 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c). To accomplish this, the defendant
must present summary-judgment evidence establishing each element of the affirmative
defense as a matter of law. Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008); Ryland Grp.,
Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). This standard governs the trial court’s
ruling that Scribner take nothing on his trespass-to-try-title claim.
10
Additionally, a defendant that conclusively negates at least one essential element
of a plaintiff’s cause of action is entitled to summary judgment on that claim. Frost
Nat’l Bank, 315 S.W.3d at 508; see Tex. R. Civ. P. 166a(b), (c). Once the defendant
produces sufficient evidence to establish the right to summary judgment, the burden
shifts to the plaintiff to come forward with competent controverting evidence that
raises a fact issue. Van v. Peña, 990 S.W.2d 751, 753 (Tex. 1999). This standard is the
basis for the trial court’s ruling that Scribner take nothing on his trespass and
conversion claims.
Finally, a claimant is also entitled to summary judgment on a cause of action if
it conclusively proves all essential elements of the claim. See Tex. R. Civ. P. 166a(a),
(c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). This standard is the basis for
the trial courts’ ruling in favor of Parra on its counterclaims.
Although each of the above standards applies to this case, all questions we
resolve in this appeal rely upon our analysis of the evidence regarding Appellees’
affirmative defense of adverse title by limitations under the five-year statute.
IV. APPLICABLE LAW
“‘A mineral estate, even when severed from the surface estate, may be
adversely possessed under the various statutes of limitations,’ so long as the statutory
requirements are met.” BP Am. Oil Prod. Co. v. Marshall, 342 S.W.3d 59, 69 (Tex.
2011) (quoting Nat. Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 192–93 (Tex.
2003)). The five-year statute provides,
11
(a) A person must bring suit not later than five years after the day the cause
of action accrues to recover real property held in peaceable and adverse
possession by another who:
(1) cultivates, uses, or enjoys the property;
(2) pays applicable taxes on the property; and
(3) claims the property under a duly registered deed.
Tex. Civ. Prac. & Rem. Code Ann. § 16.025(a). If an action for the recovery of real
property is barred by the five-year statute, then “the person who holds the property in
peaceable and adverse possession has full title, precluding all claims.” Id. § 16.030(a).
An adverse possession claimant may “tack” or string together and aggregate prior
periods of possession by the claimant’s predecessors to satisfy the limitations period
as long as there is privity of estate between each holder and its successor. See id.
§ 16.023.11
Pertinent to this appeal, section 16.021 of the Texas Civil Practice and
Remedies Code defines “adverse possession” to mean “an actual and visible
appropriation of real property, commenced and continued under a claim of right that
11
Here, Scribner does not challenge whether Appellees’ summary-judgment
evidence established the elements of the five-year statute, except the requirement that
the possession be adverse to Scribner, which we address below. Production of oil and
gas constitutes a use of the mineral estate that is an adverse use, as discussed below.
And the summary-judgment record establishes a use for the requisite period of time.
That record also establishes—and Scribner does not contend otherwise—that Parra’s
predecessors held title under documents that qualify as duly registered deeds. Finally,
the summary-judgment record establishes that Parra’s predecessors in title paid the
taxes attributable to the mineral estate.
12
is inconsistent with and is hostile to the claim of another person.” Id. § 16.021(1).
“The ‘possession must be of such character as to indicate unmistakably an assertion of
a claim of exclusive ownership in the occupant.” BP Am. Oil Prod. Co., 342 S.W.3d at
70 (citing Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990), and McDonnold v. Weinacht,
465 S.W.2d 136, 141 (Tex. 1971)). “[I]n order to mature title by limitations to a
mineral estate, actual possession of the minerals must occur.” Nat. Gas Pipeline Co.,
124 S.W.3d at 193 (citations omitted). In the context of a mineral interest, actual
possession occurs through production of oil and gas, and with respect to the mineral
estate, the supreme court provides the following description of the process of how
actual possession occurs:
A mineral estate, even when severed from the surface estate, may be
adversely possessed under the various statutes of limitations. Once
severance occurs, possession of the surface alone will not constitute
adverse possession of minerals. Generally, courts across the country
including Texas courts have said that in order to mature title by
limitations to a mineral estate, actual possession of the minerals must
occur. In the case of oil and gas, that means drilling and production of
oil or gas.
Id. at 192–93 (citations and footnotes omitted). With uncontroverted proof of such
actual possession, adverse title may be conclusively established and warrant a
determination that adverse title exists as a matter of law. Id. at 201.
But “[n]o matter what the use and occupancy of the land may be, the possessor
must intend to appropriate it.” Calfee v. Duke, 544 S.W.2d 640, 642 (Tex. 1976)
(citation omitted). “If by mental reservation the possessor intends to hold the land
13
only until or unless the true owner appears, his claim of right does not satisfy this
requirement.” Id. (citations omitted). “In many cases the statements of the adverse
claimant appear to be, or may in fact be, inconsistent. It is usually held that a fact
issue is thereby presented on the question of his intent to claim the land.” Id. (citation
omitted).
A “possessor’s acknowledgement of title in another when made before the
completion of the bar will defeat limitation.” Bruni v. Vidaurri, 166 S.W.2d 81, 88
(Tex. 1942) (emphasis added) (citations omitted); see also Brown v. Snider Indus., LLP,
528 S.W.3d 620, 629 (Tex. App.—Texarkana 2017, pet. denied) (“If, prior to the
completion of the limitations period, an adverse possessor acknowledges that another
has superior title to the property he is possessing, it will defeat limitations as to that
possessor.” (citations omitted)). An acknowledgment of title may occur, for example,
if a possessor’s offer to purchase the property from the record owner involves an
admission of title. Brown, 528 S.W.2d at 629 (citations omitted); see also Bruni, 166
S.W.2d at 88 (explaining that it is usually a fact question on whether a person’s offer
to purchase property is a recognition of superior title or is an effort to buy peace and
protect oneself from adverse litigation).
A possessor’s acknowledgement of title in another after the limitation title has
been completed, however, does not destroy the limitation title. Bruni, 166 S.W.2d at
88. As the Texas Supreme Court has stated,
14
A limitation title once consummated, is as full and absolute as any other
perfect title, and is not lost by a subsequent oral statement by the
limitation owner that he never intended to claim by limitations. . . . A
written acknowledgement of tenancy by one who perfected title is also
ineffective to divest a limitation title.
Republic Nat’l Bank of Dall. v. Stetson, 390 S.W.2d 257, 260 (Tex. 1965) (citations
omitted); see also Butler v. Hanson, 455 S.W.2d 942, 946 (Tex. 1970) (same); Harris v.
Mayfield, 260 S.W. 835, 838 (Tex. [Comm’n Op.] 1924) (holding that once limitation
title accrues, a later gratuitous acknowledgement that the title never existed cannot
defeat the acquired title); Hurr v. Hildebrand, 388 S.W.2d 284, 291 (Tex. App.—
Houston 1965, writ ref’d n.r.e.) (“[A] title acquired by limitation can no more be
abandoned by moving away or orally conveyed or divested by other conduct, or orally
relinquished than a record title.”). But a possessor’s acknowledgement of title in
another after the limitation period may tend to show that the possession was not
adverse. See Bruni, 166 S.W.2d at 88; see also Butler, 455 S.W.2d at 946 (stating that it
was for the jury to determine whether a possessor claimed land as his own under a
claim of right during the limitations period when, after the limitation period, he
executed an affidavit disclaiming interest in the property).
15
V. THE TRIAL COURT DID NOT ERR BY GRANTING SUMMARY JUDGMENT
BECAUSE ANY ACKNOWLEDGMENT OF TITLE BY APPELLEES OCCURRED AFTER
APPELLEES’ PREDECESSORS OBTAINED ADVERSE TITLE.
The sole issue on appeal as phrased by Scribner is whether the trial court erred
by granting summary judgment in favor of Appellees 12 under the five-year statute
because Appellees acknowledged title in Scribner.13 This issue requires us to address
two questions. First, did the summary-judgment evidence regarding
acknowledgments of title in Scribner preclude limitations from running in favor of
Appellees? Second, did the summary-judgment evidence regarding
acknowledgements of title in Scribner raise a genuine issue of material fact on whether
Appellees’ possession was adverse to Scribner? We resolve both questions against
Scribner.
12
Scribner’s briefing in the trial court and on appeal is often unclear about
which party he intends to reference (or if he is referencing both) when he refers to
“Appellee” or “defendant” in the singular. Construing the briefing liberally, we read
his briefing as referring to both Appellees as necessary. See Tex. R. App. P. 38.1.
13
Scribner argued in the trial court and on appeal that he did not know that his
father had assigned the lease to him until June 10, 2016, when he was contacted by
Elder. Scribner does not assign any error to the trial court’s order based on this
argument. Even if we construe Scribner’s briefing in the trial court and on appeal
liberally to include a tolling argument, we conclude that such argument is without
merit. See Tex. R. App. P. 38.1. Limitations is not suspended due to a record
titleholder’s ignorance of what it owns. Nat. Gas Pipeline Co., 124 S.W.3d at 198. The
record on appeal also does not include any answer to the counterclaim in which
Scribner alleged any basis for tolling the five-year statute, thus waiving the defense.
See Tex. R. Civ. P. 63; Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex.
1988).
16
A. Any acknowledgement of title in 2016 did not preclude limitations from
running in favor of Appellees.
As explained above, an acknowledgment of title precludes limitations from
running in favor of an adverse-possession claimant only if it occurs before limitation
title is completed. See Bruni, 166 S.W.2d at 88. Scribner raised no argument in the
trial court or on appeal disputing April 2010 through April 2015 as the relevant time
period for the five-year statute or disputing Appellees’ adverse-possession claim based
on the tacking of successive interests from Latigo through Parra. Thus, evidence of
an acknowledged title in Scribner after April 2015 does not preclude limitations from
running in favor of Appellees under the five-year statute.
Here, all contacts that Scribner contends evidence “acknowledgements of title”
occurred in June or July 2016. Those three contacts are (1) Elder’s June 10, 2016
emails to Scribner regarding the proposed assignment; (2) Park’s June 13, 2016 email
to Scribner’s wife asking her to have Scribner sign the assignment; and (3) Elder’s July
2016 email to Scribner inquiring about the proposed assignment. These events all
took place over a year after title matured by limitations in April 2015. See Tex. Civ.
Prac. & Rem. Code Ann. §§ 16.023, 16.025, 16.030. Scribner cites no evidence of any
acknowledgement of title taking place during or prior to April 2015. Accordingly,
assuming without deciding that the three contacts at issue constitute
“acknowledgements of title” in Scribner, we conclude as a matter of law that they did
not preclude limitations from running in favor of Appellees’ predecessors in title. See,
17
e.g., Auchterlonie v. McBride, 705 S.W.2d 183, 186 (Tex. App.—Houston [14th Dist.]
1985, no writ) (holding that appellees’ offer to purchase property from appellant did
not destroy limitation title, which had already matured).
B. Any acknowledgement of title by Elder or Park in 2016 did not create a
genuine issue of material fact on whether any possession was adverse to
Scribner during the statutory time period.
As noted above, adverse possession includes a mental component. If the
possessor does not intend to appropriate the land, but instead intends to hold the land
only until or unless the true owner appears, the possessor’s claim of right does not
satisfy the appropriation requirement of the five-year statute as the possessor does not
have the necessary intent to claim the land. See Tex. Civ. Prac. & Rem. Code Ann.
§§ 16.021(1), 16.025(a); Calfee, 544 S.W.2d at 642. Again, Scribner raised no argument
in the trial court or on appeal disputing that the relevant time period for the five-year
statute is April 2010 through April 2015. Instead, Scribner attributes the actions of
Elder and Park in 2016 to Appellees and then argues that the summary-judgment
evidence reflecting their “acknowledgments of title” in him raised a fact question on
whether the acknowledgements negated an intent to claim an interest adverse to his
claim of title. We disagree.
Scribner’s argument fails to acknowledge the existence of successive periods of
possession in this case and that Appellees did not have possession prior to completion
of the statutory bar. The record reflects, and Scribner does not dispute, that Latigo,
Hanaco, Duncan, Grace, and A&G possessed all or a portion of the working interest
18
in the lease at various times between April 2010 and April 2015. Consequently, it is
the intent of Latigo, Hanaco, Duncan, Grace, and A&G during each of their
respective periods of possession that is relevant to the issue of whether the possession
was adverse to Scribner during the five-year limitations period. See, e.g., Collins v. Ivey,
531 S.W.2d 357, 359 (Tex. App.—El Paso 1975, writ ref’d n.r.e.) (holding that it was
immaterial whether appellee’s actions in inquiring about acquiring an interest in the
land at issue was an acknowledgment of appellants’ title during the limitations period
because appellee did not possess the property while title was maturing by limitations).
Like in the trial court, the sole authority Scribner cites in support of his
argument on appeal is Tex-Wis Co. That case does not support the proposition that
any “acknowledgement of title” by Appellees, who obtained possession after April
2015, is relevant to the question of whether the possession by any of their
predecessors was adverse during the already-expired, five-year limitations period.14 In
Tex-Wis Co., the defendants appealed a judgment that the trial court rendered in favor
of the plaintiffs after a jury found that the plaintiffs, and not the defendants, had
adversely possessed two tracts of land under the three- and ten-year statutes. 525
S.W.2d at 233–34. At trial, a defendant’s president testified that he had offered to buy
Scribner does not contend that the intent of Appellees is relevant when
14
neither possessed the leasehold interest during the limitations period.
19
the land in controversy from the plaintiffs in 1964.15 Id. at 235. On appeal, the
defendants argued, among other things, that the evidence established that they had
adverse possession of the tracts under the three- or ten-year statutes and that the jury
findings to the contrary were against the great weight and preponderance of the
evidence. Id. The Waco court affirmed, explaining that “[t]he acknowledgement of
title in plaintiffs by [defendants’] offering to buy the land in controversy precluded any
limitation running in favor of defendants after 1964 as a matter of law and is evidence
showing their possession at any time was not adverse to plaintiffs.” Id. The Waco
court did not address the relevance of an acknowledgment of title that was made by a
party who did not possess the property at issue at any time during the limitations
period.
Turning back to the instant case, Elder and Park made all the contacts that
Scribner contends constitute “acknowledgments of title.” We assume without
deciding that the actions of Elder and Park constitute “acknowledgements of title” in
Scribner and that Elder’s actions are attributable to any individual or entity he
represented in connection with his work. Scribner cites no evidence in the summary-
judgment record, and we have found none, by which we can reasonably infer that
15
The opinion states that the president testified that he had offered to buy the
tracts “from defendants.” Id. at 235. Our reading of the opinion is that the reference
to “defendants” in this sentence is a typographical error that should have read “from
plaintiffs” because in the paragraph that follows that sentence the Waco court
construes the offer to buy the land as an “acknowledgement of title in plaintiffs.” See
id.
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Elder’s and Park’s contacts with Scribner in 2016 have any bearing upon the intent of
Latigo, Hanaco, Duncan, Grace, or A&G to appropriate the working interest between
April 2010 and April 2015. 16 Scribner also cites no evidence, and we have found
none, indicating that Elder represented Latigo, Hanaco, Duncan, Grace, or A&G in
2016 in connection with any of his actions. On the contrary, Elder testified in his
declaration that he represented Parra in 2016. When Elder emailed Scribner on
June 10, 2016, he copied Park, who has an interest in Parra. Scribner also cites no
evidence, and we have found none, indicating that Park had any affiliation with
Latigo, Hanaco, Duncan, Grace, or A&G.
Our review of the summary-judgment record identifies no evidence of actions
attributable to Latigo, Hanaco, Duncan, Grace, or A&G to acknowledge title in
Scribner at any point in time. There is testimony in Scribner’s declaration in which he
stated that Elder had told him “in his June 10, 2016 email” that he represented
Hanaco. The June 10, 2016 emails and their attachments, however, do not identify
any express or implied statement by Elder that he represented Hanaco. Thus, the
communication that Scribner cites does not contain the statement he relies upon. In
that circumstance, Scribner’s affidavit did not create a genuine issue of material fact that
precluded summary judgment for Appellees. See Tex. R. Civ. P. 166a(c); Davis v.
Conveyor-Matic Inc., 139 S.W.3d 423, 429 (Tex. App.—Fort Worth 2004, no pet.) (“A
We reach the same result regardless of whether the July 2016 conversation
16
between Elder and Scribner took place.
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genuine issue of material fact is raised by presenting evidence on which a reasonable
jury could return a verdict in the nonmovant’s favor.”); Rayon v. Energy Specialties, Inc.,
121 S.W.3d 7, 11–12 (Tex. App.—Fort Worth 2002, no pet.) (“A material fact issue is
‘genuine’ only if the evidence is such that a reasonable jury could find the fact in favor
of the nonmoving party.”).
Finally, Scribner argues that Appellees “knew of the break in the chain of title”
or “knew about the existence of the [2002 Assignment],” claiming evidence of such
knowledge created a fact issue on ownership. We disagree. The summary-judgment
evidence reflecting knowledge (at least by Elder and Park) of a break in the chain of
title following Elder’s discovery of the 2002 Assignment in 2016 did not raise a
genuine issue of material fact precluding summary judgment. Scribner’s argument
concerns the existence of a deficiency in record title from his father to Parra, rather
than any relevant intent to appropriate real property. Satisfaction of the statutory
requirements cannot be defeated by a lack of knowledge of the deficiency of record
title or by the absence of a realization that there could be other claimants for the
property. See Calfee, 544 S.W.2d at 642.
Again, Appellees’ predecessors in title had already performed the acts necessary
to establish adverse title before Appellees knew about the break in the record title.
Knowledge of a possible break in the chain of title through Scribner might prompt an
investigation into the property’s title, but that knowledge is no evidence that
Appellees would disavow the title created by the actions of the parties conveying title
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to them. Further, Scribner is again relying upon events that occurred too late to be of
help to him. If Appellees’ acknowledgements of title are irrelevant because Appellees
did not possess the property during the limitations period, then Appellees’ knowledge
of a record deficiency prompting such acknowledgements is also irrelevant.
With the exception of one issue, Scribner does not challenge that Appellees
have established limitations title. For all the foregoing reasons, we conclude that the
“acknowledgements of title” that Scribner relied on in an attempt to avoid summary
judgment did not create a fact issue on whether possession was adverse for purposes
of the five-year statute. The summary-judgment record establishes all the other
necessary elements to demonstrate limitations title. Thus, the trial court properly
quieted title in Parra, decreed that it was the owner of the subject property, and
ordered that Scribner take nothing on his causes of action against Appellees that relied
on his claim of title. Accordingly, we overrule Scribner’s sole issue.
VI. CONCLUSION
Having overruled Scribner’s sole issue, we affirm the trial court’s order and
final judgment.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: October 17, 2019
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