                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00327-CV

NAITH GRIFFIN, JR.,
                                                             Appellant
v.

VIRGIL GRIFFIN,
                                                             Appellee


                           From the 335th District Court
                              Burleson County, Texas
                               Trial Court No. 25,001


                          MEMORANDUM OPINION


       Naith Griffin, Jr. appeals the granting of Virgil Griffin’s motions for summary

judgment that resulted in the trial court entering a final judgment as to all claims. Naith

Griffin, Jr. complains that the motions for summary judgment filed by Virgil Griffin did

not include all causes of action, and therefore, the trial court’s final judgment which

purported to dispose of all claims was erroneously final.          Naith Griffin, Jr. also

complains that the granting of the traditional and no-evidence motions for summary

judgment filed by Virgil Griffin was erroneous and that Naith Griffin, Jr. was entitled to

summary judgment on his no-evidence motions. Because we find that the trial court’s
judgment was final, but erroneously so, we reverse and remand to the trial court for

further proceedings the claim to set aside the 1986 deeds, the partition claim, and the

declaratory judgment actions and trespass to try title claims insofar as they relate to the

present ownership of the real property. We affirm the judgment of the trial court in all

other respects.

                                 Final—Erroneous, But Final

        Virgil Griffin filed a petition against Naith Griffin, Jr. asserting a cause of action

for trespass to try title and seeking a declaratory judgment as to ownership of a piece of

real property.       Naith Griffin, Jr. initially filed counterclaims against Virgil Griffin

alleging that Virgil Griffin’s claims were brought in bad faith and for harassment, for

trespass to try title with a request for reimbursement for rents, profits, and damages,

and seeking a declaratory judgment regarding ownership. In an amended pleading

filed four days before the summary judgment hearing, Naith Griffin, Jr. added claims to

set aside the 1986 deeds which conveyed the property to Virgil Griffin and for partition

of the real property, to include an accounting.

        Approximately four months before the amended petition adding the new causes

of action was filed with the trial court, Virgil Griffin filed a traditional and no-evidence

motion for summary judgment, asserting in the traditional motion that he established

his ownership and right to possession of the property as a matter of law, that a

provision contained in a 1956 deed was void as an impermissible restraint on alienation,

and for attorney’s fees. In the no-evidence motion, Virgil Griffin asserted that Naith

Griffin, Jr. could not provide any evidence of title in Naith Griffin, Jr.’s name to support

Griffin v. Griffin                                                                      Page 2
the trespass to try title and declaratory judgment claims that Naith Griffin, Jr. had filed.

Additionally, the no-evidence motion averred that Naith Griffin, Jr.’s claims for bad

faith and harassment are “wholly unsupported, without evidence, and nonsensical.”1

        Neither the traditional motion for summary judgment nor the no-evidence

motion for summary judgment address the issue of the claim to set aside the 1986 deeds

or the partition action. Virgil Griffin asserts that the order granting judgment in his

favor encompassed Naith Griffin, Jr.’s claims by its language that stated that Virgil

Griffin owned the property, that Naith Griffin, Jr. did not have any interest in the real

property, and the trial court’s language that “[t]he Court expressly denies all relief not

expressly granted herein,” “[t]his judgment finally disposes of all parties and claims

and is appealable,” and “[i]t is further ORDERED that Defendant Naith Griffin, Jr. take

nothing, and that the Plaintiff be granted the relief set forth herein” indicate that the

trial court’s decision was intended to be final.

        The Texas Supreme Court has stated that “if a defendant moves for summary

judgment on only one of [multiple] claims asserted by the plaintiff, but the trial court

renders judgment that the plaintiff takes nothing on all claims asserted, the judgment is

final--erroneous, but final.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).

Accordingly, the trial court's judgment was a final judgment encompassing all of both

parties’ claims; but because the claim to set aside the 1986 deeds and the partition claim

were not addressed in Virgil Griffin's motion, judgment on those claims was erroneous.



1Naith Griffin, Jr. does not challenge the sufficiency of the pleadings of the no-evidence motion in this
appeal.

Griffin v. Griffin                                                                                Page 3
Id.; see also Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001) (citing Black v. Victoria

Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990) (“A summary judgment movant may not be

granted judgment as a matter of law on a cause of action not addressed in a summary

judgment proceeding.”). We sustain Naith Griffin, Jr.’s first issue.

                         Judgment on Claims Properly Addressed

        However, we must also determine whether the summary judgment was correctly

granted as to the other claims. Jacobs, 65 S.W.3d at 653 (error to reverse and remand as

to all claims when all were not raised in appeal).

Standard of Review

        We review the trial court's granting of a motion for summary judgment de novo.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The movants in a

traditional summary judgment motion must show that there is no genuine issue of

material fact and that they are entitled to judgment as a matter of law. See TEX. R. CIV.

P. 166a(c).      When reviewing a summary judgment, we take as true all evidence

favorable to the nonmovants, and we indulge every reasonable inference and resolve

any doubts in the nonmovant’s favor. Valence Operating Co., 164 S.W.3d at 661. Once

the movants establish their right to a judgment as a matter of law, the burden shifts to

the nonmovants to present evidence raising a genuine issue of material fact, thereby

precluding summary judgment.         See City of Houston v. Clear Creek Basin Auth., 589

S.W.2d 671, 678-79 (Tex. 1979). Evidence is conclusive only if reasonable people could

not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

When the trial court does not specify the grounds upon which it ruled, the summary

Griffin v. Griffin                                                                     Page 4
judgment may be affirmed if any of the grounds stated in the motion is meritorious. W.

Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

        A no-evidence summary judgment motion is treated as essentially a pretrial

directed verdict. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

After an adequate time for discovery has passed, a party without the burden of proof at

trial may move for summary judgment on the ground that the nonmoving party lacks

supporting evidence for one or more essential elements of its claim. See TEX. R. CIV. P.

166a(i); Espalin v. Children's Med. Ctr. of Dallas, 27 S.W.3d 675, 682-83 (Tex. App.—Dallas

2000, no pet.). The moving party must file a motion that specifies which elements of the

nonmoving party's claim lack supporting evidence. TEX. R. CIV. P. 166a(i). If the

motion is alleged to be deficient, the nonmoving party must challenge the inadequacy

of the motion in their written response to the motion or in some other pleading.

Williams v. Bank One, 15 S.W.3d 110, 117 (Tex. App.—Waco 1999, no pet.).               See

Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 773 (Tex. 1978). Once a proper

motion is filed, the burden shifts to the nonmoving party to present evidence raising

any issues of material fact on the challenged elements. Murray v. Ford Motor Co., 97

S.W.3d 888, 890-91 (Tex. App.—Dallas 2003, no pet.). We review the evidence in the

light most favorable to the party against whom the summary judgment was rendered.

Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002).

        A no-evidence motion for summary judgment is properly granted if the non-

movant fails to bring forth more than a scintilla of probative evidence to raise a genuine

issue of material fact as to an essential element of the non-movant's claim on which the

Griffin v. Griffin                                                                   Page 5
non-movant would have the burden of proof at trial. See TEX. R. CIV. P. 166a(i); Merrell

Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If the evidence supporting a

finding rises to a level that would enable reasonable, fair-minded persons to differ in

their conclusions, then more than a scintilla of evidence exists. Havner, 953 S.W.2d at

711. A scintilla of evidence exists when the evidence is “so weak as to do no more than

create a mere surmise or suspicion” of a fact, and the legal effect is that there is no

evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

Declaratory Judgment

        In his original petition, Virgil Griffin’s second claim sought a declaratory

judgment determining that he is the lawful owner of the real estate in question and a

finding that he was entitled to immediate possession of the property pursuant to

Section 37.004 of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM.

CODE ANN. § 37.004 (Vernon 2008).

Provision in Deed at Issue

        The primary controversy surrounds the interpretation and enforcement of a

provision in a deed. In 1956, Naith Griffin, Sr. and his wife, Effie Griffin, executed a

warranty deed purporting to convey real property to Naith Griffin, Sr.’s parents, Ira

Griffin and Ollie Griffin. The deed contained the following provision that is at the

center of this controversy:

        “But the above covenant is subject to the conveyance hereby made by the
        said Ira Griffin and Ollie Griffin, and upon the condition that the above
        described land and premises may not be sold by the said Ira Griffin, or the
        said Ollie Griffin, or both of them, for and during the natural lives of the
        said Ira Griffin and Ollie Griffin, and the natural life of the survivor of

Griffin v. Griffin                                                                     Page 6
        them, and any instrument other than a will or other testamentary
        document, which purports to sell or convey the above described premises,
        or any part thereof, during the lives of Ira Griffin and Ollie Griffin, and
        during the life of the survivor of them, shall be ab initio null and void, and
        of no force and effect whatsoever.” (emphasis in original).

        Then, in a series of transactions in 1986, Ira Griffin executed two gift deeds

conveying his entire interest in the property to Virgil Griffin.        The first deed was

executed prior to Ollie Griffin’s death whereby Ira Griffin conveyed his interest in the

property to Virgil Griffin. Then, after Ollie Griffin’s death and the probate of her will,

Ira Griffin executed a deed to Virgil Griffin conveying the interest that he had received

as a bequeath in Ollie Griffin’s will, which resulted in the entire interest being conveyed

to Virgil Griffin.

        Virgil Griffin contends that the 1956 deed purports to convey fee simple title and

that the quoted provision is an impermissible restraint on alienation and therefore, is

void and has no effect. Naith Griffin, Jr. argues that the deed purports to convey only a

life estate and that the impermissible restraint on alienation, if any, merely relates to the

conveyance of the life estate granted by the deed. The conveyance of the life estate, if

proper, would terminate on the death of the grantees, Ira Griffin and Ollie Griffin.

Naith Griffin, Jr. also contends alternatively that the deed is ambiguous as to the intent

of the grantors and therefore extrinsic evidence should be admissible and that a fact

question has been raised regarding the intent of the grantors.

Restraint on Alienation

        Since 1890, the United States Supreme Court has held that the right of alienation

is an inherent and inseparable quality of a fee simple estate. Potter v. Couch, 141 U.S.

Griffin v. Griffin                                                                       Page 7
296, 315, 11 S. Ct. 1005, 1010, 35 L. Ed. 721 (1890). This principle has been considered

well-settled in this state prior to 1909. See Diamond v. Raton, 58 Texas Civ. App. 263, 267,

124 S.W. 196 (“That a general restraint upon the power of alienation, when incorporated

in a deed or will otherwise conveying a fee-simple right to the property is void, is now

too well settled to require discussion.” (internal citations omitted)).

        The language of the provision is unique and certain aspects of it may be less than

clear. But when the clause prohibiting conveyance of the property during their lifetime

and the clause giving the right to dispose by will or other testamentary document are

considered together, it is evident that the grantor tried to prevent the grantees from

having the ability to dispose of the property during their lifetime. Such a limitation on

the ability to convey what is otherwise a fee simple conveyance is void.            Frame v.

Whitaker, 120 Tex. 53, 36 S.W.2d 149, 151 (1931); Laval v. Staffel, 64 Texas 370; Bouldin v.

Miller, 87 Texas 359, 28 S.W. 940; Hamilton v. Jones, 32 Texas Civ. App. 598, 75 S.W. 554.

        We hold that the complained-of provision in the 1956 deed was an impermissible

restraint on alienation during the life of Ira Griffin and Ollie Griffin, and was therefore,

void.

                                 Life Estate or Fee Simple?

        We must then determine whether Virgil Griffin established, as a matter of law,

that the deed conveyed fee simple title to Ira Griffin and Ollie Griffin or whether Naith

Griffin, Jr. either established as a matter of law or raised a fact question that the deed

conveyed merely a life estate. We think that this deed, when viewed and construed in

its entirety, clearly evidences the purpose to convey the fee simple title to the land to Ira

Griffin v. Griffin                                                                     Page 8
Griffin and Ollie Griffin. The general language of the deed, including the title as a

general warranty deed, the words “grant, sell, and convey,” and “[to have and to hold]

the above described premises, …, unto the said Ira Griffin and Ollie Griffin, their heirs

and assigns forever,” indicate an intent to convey fee simple title to Ira Griffin and Ollie

Griffin. See O'Connor v. Thetford, 174 S.W. 680 (Tex. Civ. App.—San Antonio, 1915, writ

ref'd). Further, the language in the restriction on alienation contains language that the

property could not be sold, but that “any instrument other than a will or other

testamentary document” conveying the real property would be void.              It does not,

however, contain any condition for what would happen to the property in the event Ira

Griffin or Ollie Griffin attempted to convey it prior to their deaths. We do not find that

the deed is ambiguous. We find that Virgil Griffin established, as a matter of law, that

the deed conveyed fee simple title to Ira Griffin and Ollie Griffin, and that Naith Griffin,

Jr. did not present summary judgment evidence raising a genuine issue of material fact.

See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). We do

not find that the evidence presented by Naith Griffin, Jr. regarding his purported

ownership of the property rises to a level that would enable reasonable, fair-minded

persons to differ in their conclusions. Havner, 953 S.W.2d at 711. Consequently, we do

not find that Naith Griffin, Jr. established that there was a conveyance of a life estate as

a matter of law or that his summary judgment evidence raises a fact issue in regard to

the 1956 deed. We find that the trial court properly granted the motion for summary

judgment on the declaratory judgment claims in favor of Virgil Griffin, but only insofar

as the trial court determined that the deed restriction was void, that the property was

Griffin v. Griffin                                                                    Page 9
conveyed in fee simple to Ira Griffin and Ollie Griffin, and therefore, they had the right

to convey the property.

Trespass to Try Title

        A trespass to try title action is a procedure by which claims to title or the right of

possession may be adjudicated. Rogers v. Ricane Enterprises, Inc., 884 S.W.2d 763, 768, 37

Tex. Sup. Ct. J. 995 (Tex. 1994). The plaintiff in a trespass to try title action must recover,

if at all, on the strength of its own title and not on the weakness of the defendant’s title.

Rogers, 884 S.W.2d at 768; Adams v. Rowles, 149 Tex. 52, 56, 228 S.W.2d 849, 853 (1950).

The plaintiff has the burden to establish superior title by showing it has: (1) title

emanating from the sovereignty of the soil; (2) a superior title in itself emanating from a

common 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.

Rogers, 884 S.W.2d at 768; see also Land v. Turner, 377 S.W.2d 181, 183, 7 Tex. Sup. Ct. J.

237 (Tex. 1964).

        Naith Griffin, Jr. does not challenge the granting of the traditional motion for

summary judgment as to the trespass to try title claims beyond his challenge to the

ownership of the property; therefore, other than the determination regarding the

interpretation of the 1956 deed, the judgment has not been challenged. However, when

a claim that affects the ultimate determination of ownership of the land has not been

properly included in the order granting the summary judgment, the summary

judgment as to the trespass to try title causes of action is also improper.               The

determination of the validity of the 1986 deeds, which affects the ultimate

Griffin v. Griffin                                                                      Page 10
determination of the present ownership of the land, must be decided prior to the final

determination of the trespass to try title claims. We sustain the portion of Naith Griffin,

Jr.’s second issue complaining of the granting of the motion for summary judgment

regarding the trespass to try title claims only as that issue relates to the ultimate issue of

the present ownership of the real property. The other elements of the trespass to try

title suit have not been challenged in this appeal and therefore, are affirmed. See TEX. R.

APP. P. 38.1.

Bad Faith and Harassment

        Naith Griffin, Jr. claimed that the pleadings filed by Virgil Griffin were filed in

bad faith and for the purposes of harassment. In his third issue, Naith Griffin, Jr.

complains that the trial court erred in granting Virgil Griffin’s no-evidence motion for

summary judgment on this claim. However, he presents no authorities in support of

this contention, nor does he provide appropriate citations to the record.2 We find this

portion of Naith Griffin, Jr.’s third issue to be inadequately briefed, and therefore,

waived. See TEX. R. APP. P. 38.1(i).

Conclusion

        We find that the trial court erred in dismissing claims that were not included in

Virgil Griffin’s motions for summary judgment, and as such, that this judgment is

erroneously final. We find that the trial court did not err in granting Virgil Griffin’s

traditional and no-evidence motions for summary judgment only insofar as they related

2 Naith Griffin, Jr.’s citations to the record on this issue are “Defendant’s Response and First Amended
Response and Counter-Motion, C.R. 6 and 8, Tabs A and L.” The other citations to the record are the
same except they reference tabs B, Q, and R. These documents cover approximately 350 pages in the
clerk’s record.

Griffin v. Griffin                                                                              Page 11
to the interpretation of the 1956 deed, as to Naith Griffin, Jr.’s claims for bad faith,

harassment, and to the declaratory judgments as it relates to the interpretation of the

1956 deed. We affirm the trial court’s judgment in those regards. We find that the

claims regarding the 1986 deeds, the partition claim, and ultimately, the determination

of the present owner of the property as it relates to both parties’ declaratory judgment

claims and their respective trespass to try title claims, are reversed and remanded to the

trial court for further proceedings in accordance with this opinion.



                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed in part, Reversed and remanded in part
Opinion delivered and filed January 13, 2010
[CV06]




Griffin v. Griffin                                                                 Page 12
