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Brown v. Snider Industries, LLP

Court of Appeals of Texas, Sixth District, Texarkana

May 17, 2017

MOSES BROWN, HEIR OF ED JACKSON AND GRACE JACKSON, Appellant
v.
SNIDER INDUSTRIES, LLP, Appellee

          Date Submitted: March 7, 2017.

         On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 13-0887

          Before Morriss, C.J., Moseley and Burgess, JJ.

          OPINION

          Bailey C. Moseley Justice.

         Moses 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.

         Brown 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.

         We 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.

         I. Factual and Procedural Background

         Moses 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.

         Brown 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.

         The 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.[1] 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.

         Brown 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.[2] 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[3] 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.

         II. The Issue of Joinder Was Not Preserved

         In his 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.[4]

         The 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 involuntary plaintiff.

Tex. R. Civ. P. 39(a).

         A motion to abate is the proper procedural tool used to raise an issue of a defect in the parties.[5] 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.

         Brown 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 ...


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