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Criswell v. Allison

Court of Appeals of Texas, Ninth District, Beaumont

August 22, 2019

RAYMOND CRISWELL, Appellant
v.
KENNETH M. ALLISON AND LINDA C. ALLISON, Appellees

          Submitted on December 5, 2018

          On Appeal from the 411th District Court Polk County, Texas Trial Cause No. CIV29835

          Before McKeithen, C.J., Kreger and Horton, JJ.

          MEMORANDUM OPINION

          HOLLIS HORTON JUSTICE.

         The owners of neighboring tracts of property sued each other asking the trial court to determine who owns a strip of property that lies between their respective tracts. The owners of the tract that lies south of the disputed strip filed a motion for summary judgment, arguing their summary judgment evidence established that they acquired the strip by adverse possession. The trial court granted the motion and awarded Kenneth and Linda Allison ownership of the strip. The owner of the tract north of the disputed strip, Raymond Criswell, appeals from the trial court's judgment. In five issues, Criswell argues the trial court erred by (1) failing to grant his request for a temporary injunction, (2) failing to grant his motion to compel discovery, (3) denying his motion seeking a declaratory judgment, (4) granting the Allisons' motion for summary judgment, and (5) awarding the Allisons title to the disputed strip between the north and south tracts. We affirm the trial court's judgment.

         Background

         In March 2016, Criswell sued the Allisons claiming they were interfering with his use of a strip of property he called Hester Road. In his petition, Criswell described Hester Road as a publicly-owned road that is located on the southern border of his nearly twenty-three-acre tract. Criswell asked the trial court to prohibit the Allisons from interfering with his right to use the road by issuing a temporary restraining order and a temporary injunction against the Allisons. Also, Criswell asked the trial court to award him damages and attorney's fees. The Allisons filed a general denial in response to Criswell's suit.

         In March 2017, Criswell amended his petition. In his amended petition, Criswell dropped his claim alleging that Hester Road is a publicly-owned road. Instead, he alleged that he owns the strip of property between the tracts which, over the years, had been used as a road.[1] In the amended petition, Criswell also dropped his claim for injunctive relief. Criswell's amended petition alleged that someone, who Criswell never identified, moved a fence from its previous location on the south side of Hester Road to a new location north of Hester Road. He further alleged that he never gave anyone permission to move the fence or to place it on his property. And he claimed that someone erected a gate, blocking him from Hester Road. Based on a survey that Criswell attached to his amended petition, Criswell asked the trial court to declare he is the sole owner of a nearly twenty-three-acre tract that includes that part of Hester Road that runs between his and the Allisons' tracts. Criswell's amended petition seeks declaratory relief, damages and attorney's fees.

         In July 2017, Criswell filed a motion for declaratory judgment. In his motion, Criswell alleged the Allisons or their predecessor in title erected a gate on his property without obtaining his permission. Criswell asked the trial court to declare that he is the owner of Hester Road and to require the Allisons to remove the fence and gate on his property, which were preventing him from using Hester Road.

         In August 2017, the Allisons amended their answer and filed a counterclaim. In their counterclaim, the Allisons alleged they acquired the disputed strip that lies on the north side of their tract by adverse possession. Shortly thereafter, the trial court conducted a hearing on Criswell's request for declaratory judgment. During the hearing, the attorneys for the parties informed the court about the nature of their claims. In response, the trial court informed the attorneys the dispute appeared to concern issues involving title to the disputed strip, and that given the dispute over title, the case could not be decided by issuing a declaratory judgment addressing only the location of the fence. The court informed the attorneys that the court would require the parties to try the case as a trespass to try title action. Several months later, the trial court signed an order denying Criswell's motion for declaratory judgment.

         In October 2017, the Allisons filed a combined traditional and no-evidence motion for summary judgment. In the no-evidence part of the motion, the Allisons alleged Criswell could produce no evidence supporting the elements of his claims. In the traditional section of their motion, the Allisons alleged the summary judgment evidence they attached to their motion proved they acquired the disputed strip based on the ten-year statute governing their claim for adverse possession.[2]

         In November 2017, Criswell responded to the Allisons' motion for summary judgment. In his response, Criswell alleged that he owns the disputed strip. Criswell also alleged the Allisons and their predecessor in title had not used the road continuously for more than ten years before he sued.[3]

         In December 2017, the trial court presided over a hearing on the Allisons' motion for summary judgment. In the hearing, the Allisons objected to Criswell's summary judgment evidence, arguing that Criswell could not rely on his pleadings as summary judgment proof. The trial court sustained the Allisons' objection, and the court struck Criswell's summary judgment evidence. Following the hearing, the trial court rendered judgment in favor of the Allisons and Criswell appealed.

         In the appeal, the parties filed briefs supporting their arguments about whether the trial court's judgment should be affirmed. After reviewing the briefs, we abated the appeal so the trial court could amend its judgment to include a metes and bounds description of the property the Allisons acquired under the trial court's judgment.[4]

         Temporary Injunction

         In the first of Criswell's five issues, he complains about the trial court's ruling denying his request for a temporary injunction. Following the temporary injunction hearing, the court denied Criswell's request seeking injunctive relief. Thereafter, Criswell amended his pleadings and dropped his claim for injunctive relief.

         The record before us does not show that the trial court ever issued a written order on Criswell's request for injunctive relief. On the other hand, the final judgment disposed of all of Criswell's claims. By denying Criswell's claim alleging he owns the strip of property that was at issue in the dispute, the trial court rendered moot any complaints Criswell raised on appeal regarding his claim seeking injunctive relief.[5] We overrule Criswell's first issue.

         Motion to Compel

         In issue two, Criswell complains the trial court should have granted rather than denied his motion to compel. Criswell's motion to compel is in the appellate record. In it, Criswell complains the responses he received when the Allisons answered his request for production were "incomplete and insufficient."

         In December 2016, the trial court presided over a hearing on Criswell's motion to compel. During the hearing, Criswell complained the Allisons produced photographs of a poor quality in response to his request. But he also advised the trial court that since producing the photographs, the Allisons had given him new photographs. Criswell then focused his argument on the Allisons' alleged failure to organize and label their responses to his request to correspond with the numbered items found in his request. In the hearing, Criswell also argued the Allisons had not given him any documents responsive to their counterclaim for adverse possession.

         At the conclusion of the hearing, the trial court advised the Allisons they would be required to organize their production to correspond with the numbered categories in Criswell's request. Then, the trial court deferred any further rulings to allow the Allisons the opportunity to label and organize the documents they had already produced.

         Less than three weeks later, Criswell moved for sanctions. In his motion, Criswell complained that the Allisons had still not organized or identified the documents responsive to his request. Additionally, he alleged the Allisons failed to produce any documents supporting their claim that Hester Road had been abandoned. While Criswell filed a motion for sanctions, the record does not show that he ever obtained a hearing or a ruling from the trial ...


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