Jack Carson & Cactus Canyon Quarries of Texas, Inc. v. Joe R. Williams ( 1992 )

Carson v. Williams IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN







NO. 3-90-219-CV





JACK CARSON AND CACTUS CANYON QUARRIES OF TEXAS, INC.,

APPELLANTS

vs.





JOE R. WILLIAMS, BILLIE LOUISE WILLIAMS, TEXAS ARCHITECTURAL AGGREGATES, INC., BILBROUGH MARBLE COMPANY, FLYING W. ENTERPRISES, AND DAVID WILLIAMS,

APPELLEES

FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT

NO. 9752A, HONORABLE THOMAS C. FERGUSON, JUDGE PRESIDING

This is an appeal from a take-nothing judgment in a trespass-to-try-title case. We will reverse the judgment of the trial court.

THE CONTROVERSY

Appellant Jack Carson is general partner of Fairland Investment Company (FIC) and president of appellant Cactus Canyon Quarries of Texas, Inc. He owns and operates a granite quarry in Burnet County commonly known as the "Snead Quarry." Appellee Joe R. Williams owns or controls Zeus Corporation and appellees Texas Architectural Aggregates, Inc., Bilbrough Marble Company and Flying W Enterprises. He operates a Burnet County granite quarry in competition with Carson. ⁽¹⁾

This dispute involves part of a 66.93 acre tract of land located in Burnet County, Texas. See diagram below. The tract was created in a 1943 deed by combining a 17.56 acre tract and a portion of an adjoining 117 acre tract. The parties do not dispute on appeal Carson's superior right to granite in the northern portion, containing 17.56 acres. The southern portion, below a line designated the "TGC Granite Line," was not at issue in the trial court below. At issue here is the right to the granite in the remaining land lying between the undisputed portions of the tract, designated the "GAP."

The actual location of the 17.56 acre tract was disputed at trial. Williams claimed that tract was in a more northerly location separated from the 117 acre tract, thus creating a gap in which he claimed the right to the granite. Carson contended the 17.56 acre tract lay in a more southerly position, but in any event adjoined the 117 acre tract, causing no gap, and thus entitling him to the granite. The trial court ruled that the tract lay north but nevertheless adjoined the 117 acres, there being no gap.

Williams owns the surface of the 66.93 acre tract by virtue of two conveyances to him in 1984, one from Sally Williams and one from Frank and Mary Louise Reading. Carson claims the granite rights in the tract by virtue of two 1984 leases, one from Tom O'Donnell to Carson purportedly covering all the 66.93 acre tract and one from FIC and Carson to Cactus Canyon Quarries covering the 17.56 acre tract. See chart below.

The controversy arises out of a reservation of granite rights set forth in a 1943 deed from O'Donnell to W.T. Parks. In a 1939 deed, W.H. and Annie Koon conveyed to O'Donnell two tracts of land, the first tract being 117 acres (out of the 178 acre Rawlings tract) and the second being 17.56 acres. In 1943, O'Donnell conveyed to Parks three tracts of land, the "Second Tract" containing 66.93 acres comprised of the 17.56 acre tract and a portion of the adjoining 117 acre tract. In the same 1943 deed, O'Donnell reserved to himself all the granite rock in that part of the 66.93 acres described in the 1939 deed from Koon to O'Donnell. Williams eventually acquired Parks's property.

Williams contends that O'Donnell's 1943 deed conveyed to Parks an additional strip of land, the so-called "gap," lying between the 17.56 acre tract and the 117 acre tract. According to Williams, because the gap had not been described in Koon's 1939 deed, O'Donnell did not reserve for himself the granite in the gap. Consequently, Williams contends these granite rights passed to Parks and eventually to him. Carson contends there was no gap, but in any event that O'Donnell reserved all the granite rock in the disputed area and conveyed it by lease to him. The trial court found that there was no gap; that the 17.56 acre tract and the remainder of the 66.93 acre tract adjoin and abut with no vacancy of any kind between the two; that there was no vacancy in title to land or rock south of the 17.56 acre tract; and adjudged that the 17.56 acre tract and the 117 acre "first tract" in the 1939 Koon deed adjoin and abut.

Carson raises eleven points of error claiming generally that, based upon the findings, the trial court should have rendered judgment in his favor on theories of common source and prior possession, and further that the principle of res judicata prevented adjudication of title already decided in his favor. We sustain Carson's res judicata and common source points. As a consequence, we need not consider his prior possession points two and ten.

RES JUDICATA

In his fourth point of error, Carson complains that the trial judge erred in failing to apply the doctrine of res judicata because a previous cause brought by Williams's predecessor in title decided title to the granite rights in question. ⁽²⁾ We agree.

On March 23, 1984, Sally Williams, Frank Reading, and Mary Louis Reading, appellant Williams's predecessor in title, filed suit in the 33rd Judicial District Court of Burnet County in cause number 9577 against the unknown heirs, legal representatives, or assigns of W.D. Engles, Avery Tobey, Benjamin Rawlings, Henry Lewis, James M. Rawlings, John H. Andrews and W.H. Westfall to quiet title to granite rights in an 80 acre tract of land conveyed in 1976 by deed from Nelson Lynn to Sally Williams and her husband. Sally Williams subsequently conveyed the property, describing it as two 40.027 acre tracts represented by Exhibits "A" and "B" attached to the petition in cause number 9577. It is clear from a comparison of exhibits "A" and "B" attached to the pleadings in cause number 9577, the survey plat attached to the 1976 Lynn-to-Williams deed, and exhibit "A" attached to the pleadings in the present lawsuit, that the disputed gap area at issue here also was in issue in cause number 9577.

The plaintiffs in cause number 9577 claimed that a search of their chain of title to the 80 acre tract revealed a deed from Westfall dated July 2, 1895, containing the following reservation of granite rights:

Out of the above described tract of land there is excepted and not intended to be included in this conveyance; (1st) two and one half acres out of the North East corner of said tract. (2nd) All of the granite stone situated on said tract. (3rd) The right of way of the Austin and North Western R.R. Co. as located running across said land, all of which having been heretofore conveyed to other parties by Deeds duly recorded and are not intended to be included in this conveyance.

The plaintiffs in cause number 9577 alleged that no "other conveyance" of the granite rights took place, except for those to a 17.56 acre tract carved out of the 80 acre tract; that no one had ever claimed, mined, or in any way denied plaintiffs' granite ownership rights; and that plaintiffs were therefore entitled to claim ownership of the granite rights. Plaintiffs prayed for fee simple ownership of all granite lying on the surface of and under the 80 acre tract.

After citation by publication, FIC answered "not guilty" and in addition asserted the affirmative defense of adverse possession with respect to the 17.56 acre tract only.

On October 10, 1984, the trial court dismissed cause number 9577 with prejudice to the plaintiffs. Such a dismissal "functions as a final determination on the merits." Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991); see also Zimmerman v. Texaco, 409 S.W.2d 607, 613-14 (Tex. Civ. App. 1966, writ ref'd n.r.e.) (cited with approval in Mossler). On that same date, appellee Williams acquired his title from Sally Williams.

In a trespass-to-try-title case, the effect of a dismissal with prejudice is the same as that of a take-nothing judgment; it is the equivalent of an adjudication that the defendant has title to the land involved. See Halbert v. Green, 293 S.W.2d 848, 851-52 (Tex. 1956) (involving mineral interests); Permian Oil Co. v. Smith, 73 S.W.2d 490, 496 (Tex. 1934). This take-nothing judgment is conclusive against Williams as Sally Williams's successor in title since he acquired his rights after the inception of the suit. See Tex. Prop. Code Ann. § 22.003 (1984).

Williams argues that only the 17.56 acre tract was at issue in cause number 9577. However, it is established that the defendant's answer of "not guilty" put into issue all of the land described in the plaintiff's pleadings. Permian Oil Co., 107 S.W.2d at 570; Humphrey v. Dougherty, 420 S.W.2d 450 (Tex. Civ. App. 1967), rev'd on other grounds, 424 S.W.2d 617 (Tex. 1968); Dunn v. Land, 193 S.W.2d 698, 704 (Tex. Civ. App. 1917, no writ). The fact that FIC may have asserted an affirmative defense with respect to the 17.56 acre tract only is of no consequence.

Williams, as successor in title to Sally Williams, is barred from claiming any granite rights determined in cause number 9577 and also at issue here. We sustain Carson's fourth point of error.

DISCLAIMER OF TITLE

As between Carson and Williams, Carson is entitled to judgment on the basis of res judicata. However, Carson complains in his third point of error that the trial court erred in failing to grant Carson judgment against appellees Texas Agricultural Aggregates, Inc., and David M. Williams, both of whom answered disclaiming any right or title to the land involved in this case.

In a trespass-to-try-title case involving multiple defendants, the fact that a defendant disclaims does not entitle the plaintiff to judgment against the disclaiming defendant absent proof of plaintiff's title. Jansen v. Kelley, 206 S.W.2d 856 (Tex. Civ. App. 1947, writ ref'd n.r.e.); Rio Bravo Oil Co. v. Hunt Petroleum Corp., 439 S.W.2d 853 (Tex. Civ. App. 1969), rev'd on other grounds, 455 S.W.2d 722 (1970). ⁽³⁾

We will hold, however, that as between Carson and all the defendants below, Carson has proven his superior title to the granite rights in question by operation of the doctrine of common source. We therefore sustain this third point of error.

COMMON SOURCE

To the extent Carson was required to prove his claim to the granite rock in the land in question, we hold that he did so. In a trespass-to-try-title action, title may be proven by establishing superior title out of a common source. Land v. Turner, 377 S.W.2d 181, 183 (Tex. 1964). This "common source" doctrine is codified in Rule 798 of the Texas Rules of Civil Procedure:

It shall not be necessary for the plaintiff to deraign title beyond a common source. Proof of a common source may be made by the plaintiff by certified copies of the deeds showing a chain of title to the defendant emanating from and under such common source. Before any such certified copies shall be read in evidence, they shall be filed with the papers of the suit three days before trial, and the adverse party served with notice of such filing as in other cases. Such certified copies shall not be evidence of title in the defendant unless offered in evidence by him. The plaintiff may make any legal objection to such certified copies, or the originals thereof, when introduced by the defendant.

Tex. R. Civ. P. Ann. 798 (1967). In his first point of error, Carson complains that the trial court erred in failing to render judgment for him based upon the doctrine of common source. In related point of error nine, Carson argues that the trial court erred in making finding of fact number eight--that Carson had proved no title except to the "17.28" [sic] acre tract--and conclusion of law number one--that Carson is not entitled to recover any land in controversy other than granite rock in the 17.56 acre tract.

To prove a prima facie case of common source, a plaintiff must connect his title to the common source by a complete chain of title, connect defendant's title by complete chain of title to the same source, and show that plaintiff's title is superior to one defendants derived from the common source. Clarady v. Bonin, 597 S.W.2d 445, 446 (Tex. App. 1980, writ ref'd n.r.e.) (citing Jones v. Mid-State Homes, Inc., 356 S.W.2d 923, 924 (Tex. 1962)). Once Carson establishes his title, he is entitled to judgment unless the presumption is refuted.

The parties agree and the trial court found that Williams and Carson both trace their titles to O'Donnell as their common source. The trial court further found that with respect to the 17.56 acre tract, Carson has superior title to the granite rock and Williams has superior title to the fee simple interest, save and except the granite. The record contains evidence that O'Donnell leased to Carson all of the granite rights in the 66.93 acre tract; Carson introduced a 1984 granite lease from O'Donnell to Cactus Canyon Quarries.

Williams argues that this lease does not establish superior title in Carson to all of the land conveyed in the 1943 deed from O'Donnell to Parks because there is a strip of land between the 17.56 acres and the remaining portion of the 66.93 acres which is not described in the 1939 deed and to which O'Donnell did not therefore reserve the granite rights. Williams claims that granite rights to this strip of land--referred to at trial as "the gap"--passed to Parks along with the fee title in the 1943 deed, and eventually to Williams through his chain of title.

As previously discussed, the doctrine of res judicata bars Williams from claiming granite rights to the tract at issue here. Furthermore, the trial court's judgment and its findings of fact and conclusions of law do not support Williams's argument. The trial court found that the 17.56 acre tract adjoins and abuts the remaining portion of the 66.93 acre tract and concluded "[t]hat there is no vacancy in title to land or granite rock just south of the 17.56 acre tract." The trial court rendered judgment that "the 17.56 acre tract and the tract described as the `First Tract' in the deed from W.H. Koon and wife, Annie Koon, to Tom O'Donnell dated November 24, 1939, recorded in Volume 89, Page 282 of the Deed Records of Burnet County, Texas adjoin and abut each other."

Despite these favorable findings and conclusions, the trial court found that Carson had not proven his claim to granite in the so-called gap and rendered judgment that Carson take nothing. We must therefore determine if the trial court's judgment can be sustained on any other basis.

TITLE IN THIRD PARTY

Williams's only other basis for refuting Carson's superior title to the granite is his claim that the title rests in a third-party, Texas Granite Company, a matter not before the trial court.

Plaintiff's burden in a trespass-to-try-title case is not to establish superiority of title as against the world, but only as against parties bound by the judgment. See Permian Oil Co., 107 S.W.2d at 569. The trial court could not have properly considered whether Texas Granite Company held superior rights to the granite. See Mapco, Inc. v. Carter, 817 S.W.2d 686 (Tex. 1991). The trial court may decide only the case before it.

By points of error five and eleven, Carson argues that the trial court erred in interpreting a "Stipulation of Interest" entered into between Carson and Texas Granite Company regarding granite rights involved in this case, and in failing to make requested finding of fact number fifteen relating to this stipulation. These points are pertinent only to Williams's alternative argument that Carson has not proved superior title because Texas Granite Company owns the granite rights in question. For this reason we overrule Carson's points of error five and eleven.

We hold that Carson established a prima facie case of superior title back to the common source. Neither of Williams's arguments against Carson's title is sufficient to rebut this prima facie case; the "gap" argument is barred by the doctrine of res judicata and is not supported by the trial court's findings of fact, conclusions of law, or judgment, and the third-party-title argument may not properly be considered in this case. We therefore sustain Carson's points of error one and nine.

NON-ANSWERING DEFENDANTS

Points of error six and seven complain that the trial court erred in failing to render a default judgment for Carson against defendant Bilbrough Marble Company and in making finding of fact number nine that Bilbrough was an assumed name of Texas Architectural Aggregates, Inc. (TAA). Carson served Bilbrough with citation, but Bilbrough failed to answer. Carson moved for a default judgment against Bilbrough at the beginning of the trial. At a later hearing in aid of judgment, Williams presented evidence that Bilbrough is not a separate entity, but is a division name for a company acquired by TAA. Carson argues that the court erred by refusing to render a default judgment against Bilbrough and in making a finding of fact based on proof presented after the close of evidence.

The trial court did not err in permitting testimony after the close of evidence regarding the relationship of the non-answering party to another party before the court. The admission of this evidence acted as a reopening of the case. See Uhlir v. Golden Triangle Dev. Corp., 763 S.W.2d 512 (Tex. App. 1988, writ denied). The trial judge, particularly in a trial before the court, is authorized to permit additional evidence to be offered at any time it clearly appears necessary to the due administration of justice. Tex. R. Civ. P. Ann. 270 (Supp. 1992).

We overrule Carson's points of error six and seven.

LAND DESCRIPTION

Carson complains in his eighth point of error that the trial court erred in failing to attach a description of the 17.56 acre tract to its judgment. In its judgment, the trial court refers to an attached "exhibit A," but no exhibit is attached to the judgment. Such an exhibit is attached, however, to the findings of fact and conclusions of law. At oral argument and in his brief Williams agreed that the trial court clearly intended to attach exhibit "A" to the judgment and that this was obviously an oversight or clerical error. As there is no disagreement regarding this point, we sustain Carson's eighth point of error.

For the reasons set forth above, we reverse the judgment and remand the cause to the trial court for rendition of judgment for Carson consistent with this opinion.

Marilyn Aboussie, Justice

[Before Chief Justice Carroll, Justices Aboussie and Kidd]

Reversed and Remanded with Instructions

Filed: August 12, 1992

[Do Not Publish]

1. Throughout this opinion appellants will be referred to collectively as "Carson" and appellees will be referred to collectively as "Williams" unless the context requires otherwise.

2. "A final judgment that establishes title or right to possession in an action to recover real property is conclusive against the party from whom the property is recovered and against a person claiming the property through that party by a title that arises after the action is initiated." Tex. Prop. Code Ann. § 22.003 (1984).

3. Not all courts of appeals agree; some have held that plaintiffs are entitled to judgment against disclaiming defendants even absent proof of title. See Clarady v. Bonin, 597 S.W.2d 445 (Tex. Civ. App. - Beaumont 1980, writ ref'd n.r.e.); Leach v. Cassity's Estate, 279 S.W.2d 630 (Tex. Civ. App. - Fort Worth 1955, writ ref'd n.r.e.); Williams v. Humble Oil & Ref. Co., 139 S.W.2d 346 (Tex. Civ. App. - El Paso 1940, writ dism'd judgm't cor.); Wise v. Haynes, 103 S.W.2d 477 (Tex. Civ. App. - Texarkana 1937, no writ).