Court of Appeals of Texas, Sixth District, Texarkana
Submitted: March 7, 2017.
Appeal from the 71st District Court Harrison County, Texas
Trial Court No. 13-0887
Morriss, C.J., Moseley and Burgess, JJ.
C. Moseley Justice.
Brown, heir of Ed Jackson and Grace Jackson, brought a
trespass to try title action against Snider Industries, LLP,
in 2013, alleging himself to be one of the joint owners of an
8.151-acre tract in Harrison County, Texas. In its motion for
summary judgment, Snider argued that because it had perfected
title by adverse possession, Brown's claims were barred
by limitations. The trial court granted Snider's motion,
holding that Snider had perfected title to the realty in
question by adverse possession and was entitled to immediate
title and possession of it.
has appealed the ruling, contending that the trial court
erred in granting Snider's motion for summary judgment
because Snider had failed to join indispensable parties and
that Snider failed to conclusively prove the elements of
adverse possession as a matter of law.
affirm the trial court's judgment because Brown failed to
preserve the issue of joinder and because Snider was entitled
to summary judgment as a matter of law, Brown not having
raised a disputed issue of material fact.
Factual and Procedural Background
Brown filed a trespass to try title action against Snider
Industries, LLP, alleging that Snider had claimed an
8.151-acre tract of Harrison County property in which he
owned an undivided interest. The 8.151-acre tract (the 8-acre
tract) is the southernmost portion of a larger,
rectangularly-shaped, 21.7535-acre tract (the 22-acre tract).
The 8-acre tract is bounded on three sides (the west, east,
and south) by Snider's property.
alleged that in 1923, the 22-acre tract was acquired by Ed
and Grace Jackson, both of whom died intestate. Brown alleged
that Ed and Grace had ten children, including Ida Brown, his
mother, who likewise died intestate. Due to the intestate
demise of Ida Brown and other family members, Brown alleged
that he, "with at least one other Heir, " owned an
undivided interest in the property at issue.
petition alleged that Brown and his predecessors in interest
had paid the taxes on the 22-acre tract through 2010, but
Brown discovered that the Harrison Central Appraisal District
had (at the request of Snider) changed the rendition on the
tax rolls of the property. When doing so, it showed
Snider-not the Jacksons-as the owner of the
property. Brown learned that the District's
action was apparently done at Snider's request, based on
a 1978 Affidavit of Use and Possession and a 1980 correction
deed, in which Snider's predecessor in interest and use,
Ronald Snider, claimed ownership of a 94.824-acre tract that
included the 8-acre tract.
alleges that his efforts to resolve the matter were
unsuccessful, leading to the filing of the trespass to try
title action on November 8, 2013. Snider denied Brown's
allegations and affirmatively pled that Brown's claims
were barred by limitations as Snider had perfected its
ownership of the property by way of adverse possession
through compliance with the requirements of both the ten-year
or twenty-five-year statutory periods. See Tex. Civ.
Prac. & Rem. Code Ann. §§ 16.026, 16.028 (West
2002). Snider subsequently filed a motion for summary
judgment on its claims of adverse possession. After
Brown filed his response to that motion, the trial court
found that Snider had affirmatively established its claim of
adverse possession of the property for the statutory period
and granted Snider's motion for summary judgment. The
trial court did not specify the time period in which Snider
had perfected its adverse possession claim(s). Brown's
motion for new trial was overruled by operation of law.
The Issue of Joinder Was Not Preserved
first point of error, Brown contends that the trial court
"was on notice that there was at least one other heir
whose interest in the . . . . Subject Property would be
directly affected by the present lawsuit" and that the
court erred in granting summary judgment because the trial
court failed to join as parties "all heirs claiming an
ownership interest" in the property.
joinder of parties is governed by Rule 39(a) of the Texas
Rules of Civil Procedure, which states, in pertinent part:
A person who is subject to service of process shall be joined
as a party in the action if (1) in his absence complete
relief cannot be accorded among those already parties, or (2)
he claims an interest relating to the subject of the action
and is so situated that the disposition of the action in his
absence may (i) as a practical matter impair or impede his
ability to protect that interest or (ii) leave any of the
persons already parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent
obligations by reason of his claimed interest. If he has not
been so joined, the court shall order that he be made a
party. If he should join as a plaintiff but refuses to do so,
he may be made a defendant, or, in a proper case, an
Tex. R. Civ. P. 39(a).
motion to abate is the proper procedural tool used to raise
an issue of a defect in the parties. Truong v. City of
Houston, 99 S.W.3d 204, 216 (Tex. App-Houston [1st Dist]
2002, no pet.). Generally, the motion to abate would
challenge the pleadings by alleging facts showing that the
suit could not proceed without the joinder of other parties.
Id.; see Tex. Highway Dep 't v. Jarrell, 418
S.W.2d 486, 488 (Tex. 1967); Martin v. Dosohs I Ltd.,
2 S.W.3d 350, 354 (Tex. App-San Antonio 1999, pet.
denied). The motion to abate must (1) specify the impediment
to the continuation of the case in its current posture, such
as the absence of necessary parties; (2) propose an effective
cure, such as joinder of those parties; and (3) ask the court
to abate the suit until the defect is corrected. See
Martin, 2 S.W.3d at 354 (citing Jarrell, 418
S.W.2d at 488). Although Rule 39 provides for joinder in
mandatory terms, "there is no arbitrary standard or
precise formula for determining whether a particular person
falls within its provision." Cooper v. Tex. Gulf
Indus., Inc., 513 S.W.2d 200, 204 (Tex. 1974). Whether a
person or entity is a necessary party is a discretionary
decision for the trial court. See Jones v. Smith,
157 S.W.3d 517, 522 (Tex. App -Texarkana 2005, pet. denied);
see also Clear Lake City Water Auth. v. Clear Lake Utils.
Co., 549 S.W.2d 385, 389-90 (Tex. 1977). If the trial
court determines the absent person or entity should be joined
under Rule 39, then the court has a duty to effect the
person's joinder. See Tex. R. Civ. P. 39(a);
Clear Lake City Water Auth., 549 S.W.2d at 390.
argues that the trial court had a duty to effect the joinder
of other parties in this case, citing Longoria v. Exxon
Mobil Corp.,255 S.W.3d 174 (Tex. App-Antonio 2008, pet.
denied). However, in Longoria, motions were filed
pursuant to Rule 39(a) of the Texas Rules of Civil Procedure
"to compel joinder" of absent parties, whereas
here, no such motion was ...