Affirmed and Memorandum Opinion filed July 11, 2019.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-17-00562-CV

  SHARON BROOKS, INDIVIDUALLY AND AS ADMINISTRATRIX OF
          THE ESTATE OF ANN C. BROOKS, Appellant
                                            V.

    DALE A. BINGER, JR., JOSEPH HUNTER, BILL WATKINS, AND
                 MARSHA WATKINS, Appellees

                     On Appeal from the 239th District Court
                            Brazoria County, Texas
                        Trial Court Cause No. 78706-CV

                      MEMORANDUM OPINION
      In this appeal, trespass-to-try-title plaintiffs ask this court to consider
whether the trial court erred in admitting an alleged contract for deed and in
concluding that the defendant proved that he holds title to the real property.
Finding any such error harmless because the plaintiffs did not conclusively prove
their right to title and possession under any of the four methods available in a
trespass-to-try-title context, we affirm.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       Incorporated in 1964, B2 Towing Company, Inc. was a Texas corporation
until it was dissolved in 1988. B2 Towing has not been reinstated.
       Claude Brooks was the majority owner of B2 Towing. Claude and his wife
Ann were the parents of five children—Sharon Brooks, Christopher Brooks, David
Brooks, Alan Brooks, and Robert Brooks. Laquita Binger worked for B2 Towing
and was the mother of Darren Binger and appellee/defendant Dale A. Binger, Jr.
       In 2014, B2 Towing, the dissolved corporation, as well as “Sharon Brooks,
Individually and as Administrator [sic] of the Estate of Ann C. Brooks, Deceased,”
purportedly filed the original petition that initiated this lawsuit. In this petition, the
plaintiffs asserted a trespass-to-try-title claim against Dale seeking a determination
of title as to certain real property located at 322 County Road 99 in Alvin, Texas
(the “Property”).
       About one month later, “Sharon Brooks, Individually and as Administratrix
of the Estate of Ann C. Brooks, Deceased,” filed a First Amended Petition, in
which B2 Towing, the dissolved corporation, did not assert any claims or act as a
plaintiff.   Sharon later filed a Second Amended Petition, which was the live
petition at trial and when the trial court rendered judgment. In that petition, the
term “Plaintiffs” is defined as “Sharon Brooks, Individually and as Administratrix
of the Estate of Ann C. Brooks, Deceased” (the “Plaintiffs”). The Plaintiffs allege
that Sharon “represents all of the other heirs of Ann C. Brooks, namely, David
Brooks, Robert Brooks, and Alan Brooks,” although the Plaintiffs do not allege
that any of these three men are a plaintiff in this case. The Plaintiffs allege that in
1974 Claude owned a majority of the shares in B2 Towing and that the other
shareholders were Claude’s five children as well as Laquita and her son Darren.
       In this live petition, the Plaintiffs asserted a trespass-to-try-title claim against
Dale seeking a title determination as to the Property. But B2 Towing, the dissolved
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corporation, did not assert any claims or act as a plaintiff. The Plaintiffs added
appellees/defendants Joseph Hunter, Bill Watkins, and Marsha Watkins as
defendants and asserted claims against them and Dale for slander of title and for
filing a fraudulent lien. The Plaintiffs alleged that the “Plaintiffs, standing in place
of the majority shareholders of [B2 Towing] are the lawful majority owners of the
[Property].” The Plaintiffs attached to the live petition a copy of a 1976 deed filed
in the Brazoria County Real Property Records in which Olin G. Wellborn, Jr.
purportedly conveys the Property to B2 Towing (the “Deed”).
      A witness at trial testified that the Brazoria County Real Property Records
contain no instrument in which B2 Towing purports to convey the Property to any
party. Evidence at trial showed that Dale has lived on the Property since at least
1983. Dale alleged that in 1983, Dale and Claude, as Trustee for Robert, allegedly
executed a one-page contract for deed (the “Contract”), under which Claude, as
Trustee for Robert, promised to execute a deed for the Property to Dale if Dale
performed all obligations under the Contract.
      In 1994, Claude died testate. His wife Ann was the independent executrix,
and she filed an inventory that did not reflect any ownership in the Property as an
asset of Claude’s estate. In 1998, Laquita died. In 2004, Christopher died. In
2009, Dale borrowed money to pay off a property-tax judgment on the Property.
In 2011, Ann died testate. Sharon was the executrix of Ann’s estate, and Sharon
filed an inventory that did not reflect any ownership in the Property as an asset of
Ann’s estate. In 2014, Dale signed a deed of trust (the “Deed of Trust”) to secure
payment of the indebtedness he incurred to pay off a property-tax lien on the
Property.

      After a bench trial, the trial court rendered a final judgment ordering that the
Plaintiffs take nothing. In the judgment the trial court denied all claims in the live


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petition and awarded title to the Property to Dale, free and clear of all of the
Plaintiffs’ claims. At the Plaintiffs’ request, the trial court issued findings of fact
and conclusions of law.

                   II. B2 TOWING NOT A PARTY TO THIS APPEAL
      The notice of appeal and appellant’s brief indicate that B 2 Towing is an
appellant, in addition to the Plaintiffs. Although the live petition contained no
purported claims by the dissolved B2 Towing and no allegation that B2 Towing was
a plaintiff, the trial court recited in its judgment and findings of fact that B2 Towing
was a plaintiff.

      Under former article 7.12(C) of the Texas Business Corporations Act, the
Texas Legislature provided that “[a]n existing claim by or against a dissolved
corporation shall be extinguished unless an action or proceeding on such existing
claim is brought before the expiration of the three-year period following the date of
dissolution.” Act of May 25, 1991, 72nd Leg., R.S., ch. 901, § 39, 1991 Tex. Gen.
Laws 3161, 3188 (current version at Tex. Bus. Orgs. Code Ann. § 11.359). The
trial court’s purported adjudication of claims by B2 Towing in a lawsuit
commenced more than 26 years after B2 Towing’s dissolution amounted to a
nullity, and B2 Towing is not an appellant in this case. See id.; Pellow v. Cade, 990
S.W.2d 307, 312–12 (Tex. App.—Texarkana 1999, no pet.).

                                 III. ISSUES AND ANALYSIS

      The Plaintiffs assert four appellate issues: (1) whether the trial court erred in
admitting the Contract into evidence over the Plaintiffs’ objection; (2) whether the
Contract is a proper basis for Dale “obtaining 100% of the [Property], 22.22% of
the [Property], or none of the [Property]”; (3) whether the evidence supports the
trial court’s findings of fact and conclusions of law; and (4) whether legally
sufficient evidence supports the trial court’s conclusion that Dale established title
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to the Property by adverse possession.
       The Plaintiffs have challenged only the trial court’s judgment as to the
adjudication of the issue of title to the Property.1 “A trespass to try title action is
the method for determining title to lands, tenements, or other real property.” Tex.
Prop. Code Ann. § 22.001(a). In a trespass-to-try-title action, the plaintiff must
recover upon the strength of the plaintiff’s own title, and not based on the
weaknesses of the defendant’s title. Hunt v. Heaton, 643 S.W.2d 677, 679 (Tex.
1982); Hejl v. Wirth, 343 S.W.2d 226, 226 (Tex. 1961). To recover on their
trespass-to-try-title claim the Plaintiffs had to carry the burden at trial to prove a
prima facie right to title and possession by one of four methods: (1) by proving a
regular chain of conveyances from the sovereign, (2) by proving a superior title out
of a common source, (3) by proving title by limitations, or (4) by proving prior
possession and that the possession has not been abandoned. See Kilpatrick v.
McKenzie, 230 S.W.3d 207, 213–14 (Tex. App.—Houston [14th Dist.] 2006, no
pet.). Under Texas law, failure to carry the burden kills any chance for a plaintiff
to prevail on its trespass-to-try-title claim.
       Under their appellate issues, the Plaintiffs have briefed the following
arguments: (1) the trial court erred in admitting the Contract into evidence; (2)
Dale did not prove that he alone holds title to the Property because he did not show
this title based on either the Contract or on adverse possession; and (3) real
property and corporate records show that the former B2 Towing shareholders and
the heirs of the deceased former shareholders hold legal title to the Property as a
matter of law. The first two arguments do not address whether the Plaintiffs
proved their right to title and possession. In the third argument, the Plaintiffs

1
 The Plaintiffs have not challenged the trial court’s judgment as to their claims against Joseph
Hunter, Bill Watkins, and Marsha Watkins.


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assert that they proved that they hold title, but the Plaintiffs do not assert on appeal
that they proved title by any of the four acceptable methods. Without proof by one
of these methods, the Plaintiffs cannot succeed in their trespass-to-try-title claim.
See Kilpatrick, 230 S.W.3d at 214–15.
      The trial court ruled against the Plaintiffs in the bench trial, and the trial
evidence does not conclusively prove the Plaintiffs’ right to title and possession
under any of the four methods. See id. at 213–15. The only deeds contained in the
trial evidence are the Deed of Trust signed by Dale and the first page of the Deed.
Dale claimed title based on the Contract purportedly signed by Claude in 1983 as
Trustee for Robert and based on adverse possession. The Plaintiffs did not show
adverse possession. Nor did they show that they were in prior possession of the
Property.
      When, as in this case, the defendant is shown to be in possession of the real
property in controversy and the plaintiffs fail to establish their prima facie right to
title, Texas law commands that judgment be entered in the defendant’s favor.
Kilpatrick, 230 S.W.3d at 214. Even if this judgment is only a judgment that the
plaintiffs take nothing, the effect of this judgment is to vest title in the defendant.
See Hejl, 343 S.W.2d at 226 (stating that “[i]f the plaintiff under the circumstances
fails to establish his title, the effect of a judgment of take nothing against him is to
vest title in the defendant”); Wells v. Kansas University Endowment Ass’n, 825
S.W.2d 483, 487 (Tex. App.—Houston [1st Dist.] 1992, writ denied). This rule
applies even though the defendant may have pled a title that he failed to establish,
because under this well-settled and unforgiving law, the plaintiffs are not entitled
to recover unless they affirmatively prove their own title. See Hejl, 343 S.W.2d at
226; Kilpatrick, 230 S.W.3d at 214; Wells, 825 S.W.2d at 487.
      Presuming without deciding that the trial court erred in concluding that Dale
proved that he holds title to the Property, any such error would be harmless unless
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the Plaintiffs show that they conclusively proved they hold title to the Property
under one of the four methods. See Franzetti v. Franzetti, 124 S.W.2d 195, 198–
99 (Tex. Civ. App.—Austin 1939, writ ref’d); Wells, 825 S.W.2d at 487–88. If
this court were to reverse the trial court’s judgment and render judgment that all
parties take nothing, the Plaintiffs still would lose on their trespass-to-try-title
claim, and the take-nothing judgment against the Plaintiffs, by itself, would vest
title to the Property in Dale. See Hejl, 343 S.W.2d at 226; Wells, 825 S.W.2d at
487. So, for there to be harmful error, the Plaintiffs must have put on conclusive
proof at trial that they hold title to the Property under one of the four methods. See
Franzetti, 124 S.W.2d at 198–99; Wells, 825 S.W.2d at 487–88 (stating that “in a
trespass to try title action, the plaintiff is not prejudiced by an adjudication that title
rest[s] in a defendant, when the plaintiff fails to establish his own title”). They did
not do so.
                                   IV. CONCLUSION
       We conclude that even if the trial court erred in admitting the Contract and
even if the trial court erred in concluding that Dale proved that he holds title to the
Property, any such error would be harmless. See Franzetti, 124 S.W.2d at 198–99;
Wells, 825 S.W.2d at 487–88. Accordingly, we overrule the Plaintiffs’ appellate
issues and affirm the trial court’s judgment.




                                          /s/       Kem Thompson Frost
                                                    Chief Justice



Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.



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