                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00305-CV


WILL ANN BREWER                                                  APPELLANT

                                       V.

TOM D. SKUTCA AND NEAVES A.                                      APPELLEES
SKUTCA


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            FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                         MEMORANDUM OPINION1

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      The trial court granted summary judgment in favor of Appellees Tom D.

Skutca and Neaves A. Skutca on Appellant Will Ann Brewer’s claims against

them for trespass and to quiet title and for declaratory relief regarding real

property.    Because we hold that the Skutcas did not establish their right to

judgment as a matter of law, we reverse.


      1
       See Tex. R. App. P. 47.4.
      In 1965, Brewer and Betty Abbey purchased a parcel of land, and in

February 1981, this land was partitioned by judicial order into two parcels (―the

Brewer Property‖ and ―the Abbey Property‖). Brewer alleged in her petition that

in August 1981, she moved onto the Brewer Property and has maintained it as

her primary residence since that time. She alleged that she had a driveway put

onto her property and that part of this driveway cut across the corner of the

Abbey Property. She also asserted that she cultivated the area between the

driveway and the then-existing fence line.      Brewer alleged that the Skutcas

purchased the Abbey Property in October 2006 and on May 9, 2009 removed the

fence and built a new fence that dissected her driveway.

      Brewer then filed suit against the Skutcas, seeking a declaration that by

way of adverse possession, she owned both the portion of her driveway that cut

across the Abbey Property and ―all of the grassy lawn area between the driveway

and the fence surrounding a horse training track established on the Abbey

Property‖ (―the disputed property‖). She also claimed that the Skutcas’ actions

constituted trespass.

      The Skutcas answered and filed a motion for summary judgment. In that

motion, they argued that Brewer’s claims were barred because she had

previously litigated the issue of the boundary line. Attached to their motion, they

included a copy of the 1981 judgment in which the trial court partitioned the

parcel bought by Brewer and Abbey. In response, Brewer argued that she was

not challenging the trial court’s prior partition but was instead claiming by way of

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adverse possession part of the property apportioned to Abbey. She also filed a

supplemental response arguing that under Texas common law, a person may

adversely possess property that the person formerly owned as a co-tenant even

after a decree of partition.   The trial court granted the Skutcas’ motion and

dismissed Brewer’s claims. Brewer now appeals.

      We review a summary judgment de novo.2 We consider the evidence

presented in the light most favorable to the nonmovant, crediting evidence

favorable to the nonmovant if reasonable jurors could, and disregarding evidence

contrary to the nonmovant unless reasonable jurors could not.3         We indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor. 4 A

defendant who conclusively negates at least one essential element of a cause of

action is entitled to summary judgment on that claim.5

      Brewer’s sole issue on appeal asks whether a former co-owner of real

property may legally claim ownership by adverse possession after a judicial

decree of partition in which the claimant was a party when the adverse

possession period does not begin until after the final order in the partition action


      2
       Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
      3
      Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009).
      4
       20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
      5
       Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see
Tex. R. Civ. P. 166a(b), (c).


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is entered. The Skutcas claimed in their summary judgment motion that Brewer

could not now relitigate the issue of the property boundary line. In support of

their argument, the Skutcas cited to Rice v. Armstrong.6 Rice is not applicable to

this case. The suit in Rice arose over a boundary dispute, and the court of

appeals noted that the boundary issue had previously been settled by that court

in a prior case, and therefore, stare decisis applied such that the defendants in

that case could not relitigate the boundary issue.7

      Unlike in Rice, Brewer was not relitigating the issue of the property

boundary. She did not argue that the boundary line was somewhere other than

where it had been established by the prior judgment, that the prior judgment was

wrongfully decided, or that under the prior judgment, she was awarded title to the

disputed area. Her claim was that by adversely possessing part of the property

across that boundary line as set by the partition judgment, she had established

ownership of it.

      Furthermore, we have found no case or statute permanently prohibiting

Brewer from adversely possessing property previously awarded by a judgment of

partition to an opposing party.    The prior judgment does, of course, add an

additional proof requirement for Brewer, in that her use of the property would not

serve to put the true owner on notice of her adverse claim if she had already


      6
       616 S.W.2d 415 (Tex. Civ. App.—Texarkana 1981, writ ref’d n.r.e.).
      7
       Id. at 417–18.


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been using the disputed property in the same manner before the partition.8

Instead, this continued use would be deemed permissive rather than adverse,

and to establish her claim, Brewer would have to show that the owner had

knowledge or notice that Brewer had repudiated the permissive relationship.9

      Brewer alleged in her petition that she did not start using the property as

her home until after the partition. If this assertion is correct, her possession

would not be presumed to be a permissive use of the property.10

      But even if Brewer was in possession of the disputed area before the

partition, the Skutcas put on no summary judgment evidence establishing that

Brewer had not repudiated the deemed permissive nature of her possession.11

Nor did they did file a no-evidence summary judgment claiming that Brewer had

no evidence on this element, which would have required Brewer to present

      8
        Sims v. Cage, 523 S.W.2d 486, 488 (Tex. Civ. App.—Houston [1st Dist.]
1975, writ ref’d n.r.e.); Park v. Sweeten, 270 S.W.2d 687, 689 (Tex. Civ. App.—
San Antonio 1954), aff’d, 154 Tex. 266, 276 S.W.2d 794 (1955); see also Green
v. Vance, 158 Tex. 550, 314 S.W.2d 794, 795 (1958) (holding that courts should
not draw a distinction between a holding over after the execution of a deed and a
holding over after the rendition of a judgment, whether the judgment is adversary
in nature or by consent, and that ―the continued possession of land after the
rendition of a judgment divesting the one in possession of title and vesting it in
another is not adverse until notice of a hostile claim is brought to the prevailing
party as required by law‖).
      9
       See Green, 314 S.W.2d at 795; Sims, 523 S.W.2d at 488.
      10
          See McLaren v. Beard, 811 S.W.2d 564, 568 (Tex. 1991).
      11
       See Tex. R. Civ. P. 166a(c) (stating that summary judgment shall be
granted if the evidence shows that there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law).


                                    5
evidence of repudiation.12 Accordingly, the Skutcas did not meet their burden to

establish their right to summary judgment. We therefore sustain Brewer’s sole

issue.

         Having sustained Brewer’s sole issue, we reverse the trial court’s summary

judgment and remand this case for further proceedings.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: February 10, 2011




         12
          See Tex. R. Civ. P. 166a(i).


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