Ivy Bell v. Midway Petroleum Group LP ( 2021 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-19-00211-CV
________________
IVY BELL, Appellant
V.
MIDWAY PETROLEUM GROUP, L.P., Appellee
________________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 17-10-13053
________________________________________________________________________
MEMORANDUM OPINION
In this action pleaded as a trespass to try title action, suit to quiet title and for
possession of real property, as well as a counterclaim for title by adverse possession,
Ivy Bell appeals the trial court’s judgment awarding title and possession of a tract of
property to Midway Petroleum Group, L.P. Following a bench trial, the trial court
concluded that Midway proved its superior title to an .878 acre tract (sometimes
referenced as the .883 acre tract) of land and Bell failed to sufficiently prove his
adverse possession claim, thus entitling Midway to record title and possession of the
1
property. Relevant to this appeal, the trial court also ruled that Midway was entitled
to recover attorney’s fees from Bell totaling $20,000, in addition to certain attorney’s
fees in the event of an appeal to the Court of Appeals or Texas Supreme Court.
In three issues, Bell claims that the trial court erred when it awarded the
property to Midway, Bell maintains that he conclusively proved he has been in
continuous possession of the property since 1989 entitling him to superior title by
adverse possession, and finally, the trial court erred when it awarded attorney’s fees
to Midway. We affirm the trial court’s judgment.
Background
The property in dispute is a tract of land located in Montgomery County.
According to Midway, in 1964, Hubert Vestal and James M. Smith purchased the
property from the heirs of Dick Nailor. Bell owns land in close proximity to the
property in question. In 2012, Bell moved equipment and supplies onto the property.
Thereafter, Vestal sent notice to Bell asserting his ownership of the property and
demanding Bell vacate the property. Bell, being represented by legal counsel,
disputed Vestal’s claim of record title and asserted his right by adverse possession.
In 2017, Vestal filed an eviction action against Bell in the Justice Court, but the
lawsuit was dismissed for lack of jurisdiction because of Bell’s claims of adverse
possession. After the lawsuit’s dismissal, Bell then cleared the property and placed
signs around the property.
2
Vestal then filed the underlying lawsuit against Bell to quiet title and
requested, among other relief, that Bell be evicted from the property. In 2018, Vestal
sold the property to Midway. After Vestal sold the property, Midway was substituted
as the plaintiff. Bell responded to the lawsuit alleging that he owns the property,
Vestal presented an invalid deed which does not pertain to the property, and he has
been in adverse possession of the property for at least twenty-five years. After a trial
to the bench, the trial court entered a judgment that Midway had “superior and
equitable title” to the property and that Bell had five days to vacate. The trial court
denied Bell’s adverse possession claim and ordered Bell to pay Midway’s attorney’s
fees. At Bell’s request, the trial court issued the following Findings of Fact and
Conclusions of Law.
Findings of Fact
1. Plaintiff Midway Petroleum Group, LP is a Texas Limited
Partnership with its corporate office in Montgomery County, Texas.
2. Ivy Bell is an individual residing in Montgomery County, Texas.
3. On November 9, 1964, a Warranty Deed was given to Hubert Vestal
and James M. Smith covering the Property. This Deed is recorded in
Volume 623, page 883, et seq., of the Deed Records of Montgomery
County, Texas. Thereafter, Jamie Lynn Smith Tisdale, the sole
surviving heir of James M. Smith conveyed all her undivided interest
to Hubert Vestal. This Deed is recorded under County Clerk’s File
Number 2010112685 of the Deed Records of Montgomery County,
Texas.
4. The November 9, 1964, Warranty Deed included the real property
located in Tamina, Montgomery County, Texas, descri[b]ed more fully
3
in Exhibit “A” (the “Property”) attached hereto and incorporated
herein.
5. On September 27, 2018, Hubert Vestal sold the Property to Midway
Petroleum Group, LP.
6. On September 27, 2018, Hubert Vestal assigned all of his claims in
this lawsuit to Midway Petroleum Group, LP[.]
7. Ivy Bell has not adversely possessed the Property.
8. The Property is owned by Midway Petroleum Group, LP.
9. Hubert Vestal presented its pre-suit notice to Ivy Bell in a timely
fashion.
10. Midway’s reasonable and necessary attorney’s fees are $20,000.00
for this lawsuit, $10,000.00 for an appeal to the Court of Appeals, and
$5,000.00 for an appeal to the Supreme Court.
Conclusions of Law
11. Midway’s claims against Ivy Bell are granted.
12. Midway is the proper owner in fee simple of the Property.
13. There was no evidence that Ivy Bell tort[i]ously interfered with the
sales contract between Hubert Vestal and Ivy Bell. Midway takes
nothing on its claims for tortious interference.
14. Midway is entitled to recover its reasonable and necessary
attorney’s fees in the amount of $20,000.00 for trial and preparation,
$10,000.00 in attorney’s fees in the event of an appeal to the Court of
Appeals, $5,000.00 in attorney’s fees in the event of an appeal to the
Supreme Court of Texas.
15. Midway is entitled to post judgment interest at the rate of five
percent (5%) per annum.
16. Midway is entitled to costs of Court.
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17. Defendants’ counterclaims are hereby denied.
Bell then timely appealed.
Sufficiency
In his second issue on appeal, Bell challenges the trial court’s finding that
Midway had superior title to the property arguing that the evidence is legally
insufficient to support that finding. 1
In an appeal from a bench trial, an appeals court reviews a party’s legal
sufficiency challenge under the same standards that are applied to the review of a
jury’s verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).
When reviewing a finding for legal sufficiency, we credit the favorable evidence if
a reasonable factfinder could and disregard the contrary evidence unless a reasonable
factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
“When appellants attack the legal sufficiency of an adverse finding on an issue on
which they did not have the burden of proof, they must demonstrate on appeal that
no evidence supports the adverse finding.” Campbell v. DLJ Mortg. Capital, Inc.,
No. 01-18-01047-CV, 2020 WL 5048136, at *5 (Tex. App.—Houston [1st Dist.]
Aug. 27, 2020, no pet.) (mem. op.) (citing Exxon Corp. v. Emerald Oil & Gas, Co.,
1
Bell challenges both the trial court’s finding that Midway had superior title
and its denial of his adverse possession claim in his second issue. As such, we will
address each sub-issue separately.
5
L.C., 348 S.W.3d 194, 215 (Tex. 2011)). On review, the appeals court will sustain a
no-evidence point if
(1) the record discloses 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 to prove a vital fact[,] (3) the evidence
offered to prove a vital fact is no more than a mere scintilla[,] or (4) the
evidence establishes conclusively the opposite of the vital fact.
Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). In addition, the trial
court, which acted as the factfinder, determined credibility of the testifying witnesses
and what weight to assign to the evidence admitted. See McGalliard v. Kuhlmann,
722 S.W.2d 694, 697 (Tex. 1986); see also City of Keller, 168 S.W.3d at 819.
While we review the trial court’s factual findings following a bench trial in
the light most favorable to the verdict, we review the trial court’s legal conclusions
de novo. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.
2002). Nonetheless, if a party demonstrates in an appeal that the trial court erred, the
trial court’s judgment will not be reversed if the trial record shows that the trial court,
despite its error, reached the proper judgment. See id.Bell challenges the legal sufficiency of the evidence supporting the trial
court’s conclusion that Midway’s evidence established a formal chain of title to the
contested tract traceable to a patent deed issued by the sovereign. To prevail on a
trespass-to-try-title claim, the party must establish that it has (1) title emanating from
the sovereignty of the soil, (2) superior title in itself emanating from a common
6
source to which the defendant claims, (3) title by adverse possession, or (4) title by
earlier possession coupled with proof that possession has not been abandoned. See
Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004). Midway was required to
prove that it had a regular chain of conveyances from the sovereign to prevail. See
id.At trial, Midway presented a deed dated November 9, 1964. The deed purports
to convey to Hubert Vestal and James M. Smith, several different tracts of land but
specifically the land at issue in this case, under paragraph five of the deed.2
Paragraph five contains the following language:
Being 33.3 acres of land, more or less, in the Montgomery County
School Land Survey and being the same property described in deed
from _______________ to _____________________ dated
______________, and recorded in Volume _____, Page _________,
Deed Records, Montgomery County, Texas, which reference is here
made for all purposes.
The deed also contains the following Mother Hubbard Clause.
It is the intention of Grantors herein to convey unto Grantees all of the
lands and properties and all right title and interest therein which
Grantors may own or possess in the Montgomery County School Land
Survey, Matilda Wilborn Survey, and the N. Dial Survey, Montgomery
County, Texas.
Under Texas law, a deed “must furnish within itself, or by reference to some
other existing writing, the means or data by which the particular land to be conveyed
2
The heirs of James M. Smith conveyed all rights to any land listed in the
1964 deed to Vestal in 2010 in a Special Warranty Deed.
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may be identified with reasonable certainty.” Wilson v. Fisher, 188 S.W.2d 150, 152
(Tex. 1945) (citation omitted); see also AIC Mgmt. v. Crews, 246 S.W.3d 640, 645
(Tex. 2008) (noting that conveyances of land require a description of the property
sufficient to allow an individual to locate the conveyed property with reasonable
certainty). The sufficiency of the legal description in a deed presents a matter
generally resolved as a question of law. See Wiggins v. Cade, 313 S.W.3d 468, 472
(Tex. App.—Tyler 2010, pet. denied); Dixon v. Amoco Prod., Co., 150 S.W.3d 191,
194 (Tex. App.—Tyler 2004, pet. denied). “To be valid, a conveyance of real
property must contain a sufficient description of the property to be conveyed.” Hahn
v. Love, 394 S.W.3d 14, 25 (Tex. App.–Houston [1st Dist.] 2012, pet. denied).
At trial, Midway called Lyn Wingert as an expert witness regarding the title
history of this property. According to Wingert, she has known Vestal since the mid
1980’s and has assisted him in selling various portions of land granted to him under
the 1964 deed, without issue. Wingert testified that the grantors who sold the land to
Vestal did not know the exact size of the property they were conveying and that there
was never a formal survey performed on the property at the time of the sale.
Well, there never was a deed for 33 acres, because when this property
was sold by the heirs of the Nailor family 50 years after Mr. Nailor
passed away, they had an estimate. This was timberland, basically, and
it was not worth hardly any money at all; and so no big survey was
actually done. And this is a residual number. It was a much larger tract;
and over time, pieces got sold off to different people, and so this is the
amount that was remaining . . . at the time that Smith and Vestal bought
it.
8
Because the acreage of the land was undetermined, Wingert explained that the 1964
deed contained a Mother Hubbard clause that stated the sellers conveyed to Vestal
and Smith all the property that they owned within the Montgomery County School
Land Survey. Wingert stated that the disputed .878 acre tract of land is contained in
the Montgomery County School Land Survey. During cross-examination, Wingert
admitted that the Montgomery County School Land survey contains “lots of acres
of land.” Wingert stated that grantors of the 1964 deed were implicitly selling land
they owned in the survey although the land is not listed by metes or bounds and
confirmed that there was no deed for the 33.3 acres listed in the 1964 deed.
The description of the property in the 1964 deed does not provide any means
or data by which the property can be identified. See Morrow v. Shotwell, 477 S.W.2d
538, 539–40 (Tex. 1972). The deed in question does not provide an unambiguous
recitation of the land conveyed, nor was there any evidence presented at trial that
identified the land with reasonable certainty. See id. While a trial court can consider
parol evidence to explain or clarify a deed, the parol evidence cannot supply essential
terms missing from the deed. See Manor v. Manor, No. 02-18-00056-CV, 2019 WL
7407740, at *4 (Tex. App.—Fort Worth Dec. 31, 2019, pet. denied) (mem. op.). We
are cautioned by the Texas Supreme Court in relying too heavily on parol evidence
introduced at trial to aid in determining the knowledge and intent of the parties.
The certainty of the contract may be aided by parol only with certain
limitations. The essential elements may never be supplied by parol. The
9
details which merely explain or clarify the essential terms appearing in
the instrument may ordinarily be shown by parol. But the parol must
not constitute the framework or skeleton of the agreement. That must
be contained in the writing. Thus, resort to extrinsic evidence, where
proper at all, is not for the purpose of supplying the location or
description of the land, but only for the purpose of identifying it with
reasonable certainty from the data in the memorandum.
Morrow, 477 S.W.2d at 541 (quoting O’Herin v. Neal, Tex. Civ. App., 56 S.W.2d
1105, writ ref’d)). As such, the deed in paragraph five fails to properly identify the
land in question to be conveyed to Vestal.
However, the deed does contain a Mother Hubbard clause in paragraph nine.
The Texas Supreme Court addressed a similar Mother Hubbard clause in Davis v.
Mueller and concluded that although the description of the property was inadequate,
the Mother Hubbard Clause was sufficient to convey all the property owned by the
grantor in the expressly listed recorded surveys. 528 S.W.3d 97, 103 (Tex. 2017).
[The appellee] also argues that, as we stated in Texas Builders v. Keller,
a reference to “an unidentified portion of a larger, identifiable tract is
not sufficient” to satisfy the Statute of Frauds. We agree with that
proposition, of course, but it has no application here. A conveyance of
the north or east part of a tract does not identify specific acreage; neither
does a conveyance of a certain number of acres out of a subdivision or
survey in which the grantor owns multiple tracts. The rule Mueller cites
would apply if [the grantors] had conveyed part of what they owned in
Harrison County, because the parts could not be identified from the
deeds. But they conveyed all.
Id. at 102 (citations omitted) (emphasis added). The Texas Supreme Court stated that
appellee Mueller was not arguing that the grantors did not own the property
conveyed, only that the deficiencies of the land conveyed cannot be cured by the
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Mother Hubbard clause. Id. at 101–02. The Court rejected this idea and stated that
the “general grant’s conveyance of ‘all of the mineral, royalty, and overriding royalty
interest owned by Grantor in Harrison County, whether or not same is herein above
correctly described’ could not be clearer. All means all.” Id. at 102 (emphasis added).
We are faced with a similar situation. Although we hold that the description of the
property sought to be conveyed in the 1964 deed is inadequate, the Mother Hubbard
clause in paragraph nine conveys all property owned by the grantors in the
“Montgomery County School Land Survey, Matilda Wilborn Survey, and the N.
Dial Survey, Montgomery County, Texas.” As the Davis court explained, this
conveyance is unambiguous and means all land. Bell does not dispute that the land
in question was owned by the grantors, only that Midway, through Vestal and the
1964 deed, does not have superior title because the description in paragraph five is
inadequate. 3 And while we agree that the description in paragraph five is inadequate,
the grantors’ conveyance of all property listed within the “Montgomery County
School Land Survey, Matilda Wilborn Survey, and the N. Dial Survey, Montgomery
County, Texas[]” provides the grantors intended to convey all land owned by
grantors in those surveys to Vestal, necessarily including the .878 acre parcel in
dispute. See Davis, 528 S.W.3d at 102.
3
While the record shows Bell never requested an abstract of title, testimony
was presented at trial by Wingert, without objection, that she traced the title to the
land in question “all the way back to the [S]tate of Texas[.]”
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Adverse Possession
In his second issue, Bell also argues the trial court erred when it denied his
claim of adverse possession for the .878 acres.
A party seeking to establish title to land by adverse possession has the burden
of pleading and proving every fact essential to that claim. Rhodes v. Cahill, 802
S.W.2d 643, 645 (Tex. 1990); Harlow v. Giles, 132 S.W.3d 641, 646 (Tex. App.—
Eastland 2004, pet. denied). Texas law requires that adverse possession be “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.” Tex.
Civ. Prac. & Rem. Code Ann. § 16.021(1). The possession must be actual, visible,
continuous, notorious, distinct, hostile, and of such a character “as to indicate
unmistakably an assertion of a claim of exclusive ownership in the occupant.”
Rhodes, 802 S.W.2d at 645 (quoting Satterwhite v. Rosser, 61 Tex. 166, 171 (Tex.
1884)). However, “‘hostile’ use does not require an intention to dispossess the
rightful owner, or even know that there is one.” Tran v. Macha, 213 S.W.3d 913,
915 (Tex. 2006). Nonetheless, “there must be an intention to claim property as one’s
own to the exclusion of all others[.]” Id. “Belief that one is the rightful owner and
has no competition for the ownership of the land at issue is sufficient intention of a
claim of right.” Kazmir v. Benavides, 288 S.W.3d 557, 564 (Tex. App.—Houston
[14th Dist.] 2009, no pet.) (citations omitted). Generally, whether a party has proven
12
a claim of adverse possession is a matter that is resolved as a question of fact. See
Estrada v. Cheshire, 470 S.W.3d 109, 123 (Tex. App.—Houston [1st Dist.] 2015,
pet. denied).
Bell called several witnesses to testify regarding his claim for adverse
possession, including testifying himself at trial. Andrew Robinson stated that he has
known Bell since at least 1989 and that he has on several occasions helped Bell
“take[] down dead trees . . . brought dirt for low spots and . . . I did some clearing[.]”
He testified that he has continued to work for Bell from 1989 until the present and
that he has noticed Bell’s equipment and different items on the land.
Johnny Jones testified that he lives in close proximity to the .878 acres and
that Bell has occupied that acreage since the “[19]80[’]s.” He stated that Bell has
used the property to store his equipment and that Bell maintained he owned the land.
According to Jones, no one else occupied the property.
Arthur Terry testified that his Mother lives “diagonally across the road[]”
from Bell’s property. He stated that he has lived at his Mother’s home except for a
few years in college and the military. Bell moved into his property in 1989 or 1990.
Terry stated he is aware of the .878 acres and that he has been on the property before,
though he could not identify a certain calendar time period. He testified that he
believed Bell had occupied the land, starting a couple of years after he moved to his
home, “roughly [19]92, [19]93.” According to Terry, Bell kept “a backhoe, some
13
telephone poles, and other little stuff, like, little battery-operated, like, golf cart or
some kind of thing back there [on the property.]”
Bell testified that he has lived at his current property since 1989. He stated
that he has been in continuous possession of the .878 acres since 1989. Bell stated
he has used the land for “storing . . . I got a lot of equipment; trailers, material,
cement poles, rocks, a lot of iron, burning, fire power[,]” and that he has “lots of
stuff back there; cars, bricks, just common use for storage, fence post and fence, just
common use.” Pictures were admitted at trial that according to Bell portrayed a sign
that states “No trespassing, Bell.”
Wingert testified that she has been to the .878 acres “hundreds of times . . .
since the 1980’s.” She stated that in the last 40 years she has never seen a building
on the .878 acres, and prior to the land being cleared in 2017 it was only occupied
by “animals and mosquitoes.” She described the .878 acres as heavily forested and
not something that you could easily access except for a few footpaths. Wingert
testified that she helped Vestal pay taxes on his properties including the .878 acres
and he paid “thousands and thousands of dollars, over time. He has since 1968.
That’s a long time.” She was not aware that Bell had ever paid taxes on the property.
Naresh Mittal testified that he is President of Midway. According to Mittal,
when he purchased the two acres he walked an easement and viewed the .878 acres
in 2013. He stated the land was heavily forested, making it difficult to walk. There
14
was no sign of occupation on the land. Mittal stated the easement was clear, but he
was not sure if Bell was maintaining that easement. In 2015, Mittal purchased more
property and again walked the land and viewed the .878 acres. He again stated that
there were no signs of occupation and that the .878 acres was covered in dense forest.
During the pendency of this lawsuit, Midway purchased the .878 acres from Vestal. 4
Mittal stated that in 2013, he noticed “maybe two things lying on the floor, like in
front of that where the easement ends[]” in the .878 acres. But in 2017, items “kept
on piling up” on the property. Later, a bulldozer showed up on the .878 acres and
Bell’s attorney accused Midway of encroaching on “Ivy Bell’s tract[.]” Mittal told
Bell’s attorney he did not know who owned the bulldozer, and someone stated he
was going “‘to take a gun and go get those people out of that property.’” According
to Mittal, thereafter, the .878 acres was cleared and signs were posted on the
property. Mittal confirmed he is currently paying taxes on the .878 acres.
Manjeet Ghuman testified that he was present with Mittal when he walked his
property in 2013 and described the .878 acres as a dense forest with no sign of
anyone occupying the property. He stated the .878 acres was still dense forest in
2015. He did confirm there were a few items on the front of the .878 acres in 2015,
but he did not know who owned the items.
4
Because of the purchase, Midway was assigned all of Vestal’s claims in this
lawsuit.
15
Bell bore the burden of proving every element of his adverse possession claim
at trial. See Rhodes, 802 S.W.2d at 645. Texas law requires “[t]he possession must
be actual, visible, continuous, notorious, distinct, hostile, and of such character as to
indicate unmistakably an assertion of a claim of exclusive ownership by the
occupant.” Acrey v. Langston Land Partners, LP., No. 11-14-00025-CV, 2016 WL
1725371, at *2 (Tex. App.—Eastland Apr. 29, 2016, no pet.) (mem. op.) (citations
omitted). Testimony was conflicting about whether the land was cleared by Bell
before 2017 and to “claim property through adverse possession, ‘the possession must
be of such character as to indicate unmistakably an assertion of a claim of exclusive
ownership in the occupant.’” Wells v. Johnson, 443 S.W.3d 479, 489 (Tex. App.—
Amarillo 2014, pet. denied) (quoting Rick v. Grubbs, 214 S.W.2d 925, 927 (1948)).
At most, the evidence presented demonstrated that Bell’s occupation was contested
and “presented nothing more than an opportunity for the trial court, as fact finder, to
weigh the credibility of the witnesses, draw inferences and make reasonable
deductions from the evidence and to believe or disbelieve all or part of it.” Harlow,
132 S.W.3d at 650 (citation omitted). Generally, adverse possession is a question of
fact, and we are mindful of our duty upon review and defer to the trial court as
factfinder. Heirs of Simmons v. Bouligny, No. 13-09-00269-CV, 2010 WL 1619069,
at *7 (Tex. App.—Corpus Christi Apr. 22, 2010, no pet) (mem. op.); see also
Rhodes, 802 S.W.2d at 646.
16
Attorney’s Fees
Bell next contests the trial court’s award of attorney’s fees to Midway. Under
section 16.034(a) of the Texas Civil Practice and Remedies Code, the trial court may
award attorney’s fees to a prevailing party in a trespass to title case involving adverse
possession. Tex. Civ. Prac. & Rem. Code Ann. § 16.034(a). Specifically, 16.034(a)
states
In a suit for the possession of real property between a person claiming
under record title to the property and one claiming by adverse
possession, if the prevailing party recovers possession of the property
from a person unlawfully in actual possession, the court [] shall award
costs and reasonable attorney’s fees to the prevailing party if the court
finds that the person unlawfully in actual possession made a claim of
adverse possession that was groundless and made in bad faith[.]
Id. § 16.034(a)(1). However, in the absence of a finding that the person made a claim
of adverse possession that was groundless and in bad faith, the court “may award
costs and reasonable attorney’s fees to the prevailing party[.]” Id. § 16.034(a)(2).
The decision of a trial court to award attorney fees under section 16.034(a)(2) is
discretionary and reviewed under an abuse of discretion standard. See id.; Smith v.
McCarthy, 195 S.W.3d 301, 304 (Tex. App.—Fort Worth 2006, pet. denied). “A
trial court abuses its discretion when it acts arbitrarily and unreasonably, or without
reference to guiding rules and principles.” Martin v. Cockrell, 335 S.W.3d 229, 242
(Tex. App.—Amarillo 2010, no pet.). Section 16.034 further requires the following
17
to recover attorney’s fees in a suit for possession of real property with one party
claiming adverse possession:
(b) To recover attorney’s fees, the person seeking possession must give
the person unlawfully in possession a written demand for that person to
vacate the premises. The demand must be given by registered or
certified mail at least 10 days before filing the claim for recovery of
possession.
(c) The demand must state that if the person unlawfully in possession
does not vacate the premises within 10 days and a claim is filed by the
person seeking possession, the court may enter a judgment against the
person unlawfully in possession for costs and attorney’s fees in an
amount determined by the court to be reasonable.
Tex. Civ. Prac. & Rem. Code Ann. § 16.034(b), (c).
Bell is not contesting that he made a claim of adverse possession triggering
section 16.034 but that Midway failed to send “a demand with the warning required
by [section] 16.034[.]”5 Bell’s judicial admission of unlawful actual possession is
sufficient for the trial court to award attorney’s fees under section 16.034, therefore
eliminating the requirement of a factual determination whether Midway was entitled
to attorney’s fees. See Maldonado v. Empire Land Co. Ltd., No. 04-09-00104-CV,
2010 WL 3250025, at *3 (Tex. App.—San Antonio Aug. 18, 2010, no pet.) (mem.
op.) (citations omitted) (explaining that because “[The appellants] judicially
5
See Sullivan v. Abraham, No. 07-17-00125-CV, 2018 WL 845615, at *10
(Tex. App.—Amarillo Feb. 13, 2018, no pet.) (mem. op.) (explaining a plaintiff can
challenge the award of attorney’s fees in a post judgment motion and outlining
various sister courts refusing to review an issue of attorney’s fees that was not
preserved on appeal either during trial or in a post judgment motion).
18
admitted their unlawful possession by pleading it before trial[,] no further jury
finding was required to award [the appellee] attorney’s fees under section
16.034(a).”). As such, the trial court did not abuse its discretion in awarding fees
under section 16.034(a)(2).
We note that Bell argues that Midway, as substitute plaintiff for Vestal, failed
to send proper notice in its demand letter as required by section 16.034. Midway
presented two demand letters sent by Vestal to Bell before initiation of the current
lawsuit. In a letter dated September 13, 2017, Vestal demands that Bell vacate the
property in “five (5) days[]” not ten days and fails to state he may be subject to legal
action if he refuses and attorney’s fees pursuant to section 16.034(c). Id. In a second
letter dated September 27, 2017, Vestal demands that Bell respond to the letter in
ten days, and states that Bell’s “prompt attention . . . can avoid the cost of any further
legal action.” Id. Because Midway assumed the claims of Vestal in this lawsuit while
the lawsuit was pending, Midway could rely upon the notices sent by Vestal and
received by Bell. Midway expressly pleaded that proper notice was sent to Bell
pursuant to section 16.034(c) prior to the lawsuit and Bell failed to specially deny or
otherwise specially except to the pleading. Tex. R. Civ. P. 54. Further, because the
trial court’s award of attorney’s fees under section 16.034 is discretionary in this
case, we reject this argument. While Vestal’s written notice may not have
specifically tracked the language of section 16.034(c), an attorney continuously
19
represented Bell during this period, the notices alerted Bell that he needed to remove
himself from the property, and the notices provided him at least ten (10) days to
comply before litigation was commenced seeking attorney’s fees. The record
demonstrates substantial compliance with the statute, and the trial court is allowed
to exercise its discretion under 16.034(a)(2) to award attorney’s fees. See RDG
P’ship v. Long, 350 S.W.3d 262, 276 (Tex. App.—San Antonio 2011, no pet.)
(explaining “the statute affords the trial court a measure of discretion in deciding
whether to award attorney’s fees[]” and an abuse of discretion occurs only when the
“decision is arbitrary, unreasonable and without reference to any guiding rules and
principles.”). We overrule Bell’s final issue.
Conclusion
Having overruled Bell’s issues on appeal, we affirm the trial court’s judgment.
AFFIRMED.
________________________________
CHARLES KREGER
Justice
Submitted on July 17, 2020
Opinion Delivered March 18, 2021
Before Kreger, Horton, and Johnson, JJ.
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