                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-09-00006-CV

TOM HILL, JR. AND MARION ANN HILL,
                                                          Appellants
v.

KEVIN CROWSON, SHANNON CROWSON,
AND SANDERSON FARMS, INC.,
                                                          Appellees



                          From the 87th District Court
                              Leon County, Texas
                            Trial Court No. 0-07-581


                         MEMORANDUM OPINION


      Tom Hill, Jr. and his wife Marion own a 150-acre tract of land. They access this

property via a 1.0345-acre tract. They gave R.L. Crowson permission to use the 1.0345-

acre tract for access to his property.   When R.L. conveyed his property to Kevin

Crowson and Shannon Crowson, the Hills granted them permission to use the 1.0345-

acre tract as well. Increased traffic across the tract, including Sanderson Farms, Inc.

trucks, prompted the Hills to withdraw permission, but the Crowsons and Sanderson

continued using the tract. The Hills sued for trespass. The Crowsons and Sanderson
filed a no-evidence motion for summary judgment, which the trial court granted. In

three issues, the Hills challenge the trial court’s: (1) failure to grant their motion for

continuance; (2) failure to rule on objections before granting the no-evidence motion;

and (3) granting of the no-evidence motion. We reverse and remand.

                           MOTION FOR CONTINUANCE

       In issue one, the Hills maintain that the trial court erred by ruling on the no-

evidence motion without first granting their motion for continuance.

       The Hills filed their summary-judgment response two days before the no-

evidence motion was to be heard on submission. The next day, the Crowsons and

Sanderson filed objections to the Hills’ summary-judgment evidence. The Hills filed a

motion for continuance seeking additional time to address and/or cure any defects in

their evidence. The trial court did not rule on this motion, but granted the no-evidence

motion about one month later.

       “Rule of Civil Procedure 251 requires that a continuance motion be supported by

affidavit unless the motion is agreed to or a continuance is required by operation of

law.” Spigener v. Wallis, 80 S.W.3d 174, 182 (Tex. App.—Waco 2002, no pet.); TEX. R. CIV.

P. 251. The Hills’ motion for continuance was not supported by an affidavit and the

parties did not agree to a continuance. See Spigener, 80 S.W.3d at 182. Accordingly, the

trial court did not abuse its discretion by ruling on the no-evidence motion without

granting the Hill’s motion for continuance. We overrule issue one.




Hill v. Crowson                                                                     Page 2
                  OBJECTIONS TO SUMMARY JUDGMENT EVIDENCE

       The Hills’ second issue challenges the trial court’s decision to rule on objections

after the no-evidence motion had been granted.

       The trial court signed a written order on the Crowsons’ and Sanderson’s

objections nearly one month after the no-evidence motion was granted and only a

couple of days after the Hills filed a notice of appeal. Thus, the Hills maintain that the

Crowsons and Sanderson waived their objections by failing to obtain a written ruling at

or before the granting of the no-evidence motion. Preservation, however, is not the

issue before us.

        In Crocker v. Paulyne’s Nursing Home, 95 S.W.3d 416 (Tex. App.—Dallas 2002, no

pet.), Crocker argued that summary-judgment objections were waived because a

written order on the objections was not entered until after summary judgment was

granted. See Crocker, 95 S.W.3d at 420. The Dallas Court held that Crocker “confuse[d]

a party’s duty to preserve error with a trial court’s authority to rule on objections.” Id.

The issue was “not whether the Rembrandt Center (which obtained a favorable ruling

in the trial court) preserved its complaint for appellate review,” but “whether the trial

court’s order, which was reduced to writing eighty-nine days after the summary

judgment was signed, was effective.” Id. at 420-21. The Dallas Court recognized that “a

party must obtain a written ruling on its objections, ‘at, before, or very near the time the

trial court rules on the motion for summary judgment or risk waiver,’” but this

“indicates only that a trial court is not required to reduce to writing any rulings on

summary judgment evidence if it is not timely requested to do so.” Id. at 421 (citing


Hill v. Crowson                                                                       Page 3
Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App.—Houston [14th Dist.] 2000, pet.

denied)). The Court held, “[A] trial court may reduce its rulings on summary judgment

evidence to writing as long it retains plenary jurisdiction.” Id.

       In this case, the trial court’s order on the summary-judgment objections states

that the objections were considered, along with the no-evidence motion, on the

submission date. The summary-judgment order, however, fails to identify specific

rulings on the objections. In light of Crocker, the trial court properly reduced its ruling

to writing even though the no-evidence motion had previously been granted.              See

Crocker, 95 S.W.3d at 421. We overrule issue two.

                       NO-EVIDENCE SUMMARY JUDGMENT

       In their third issue, the Hills argue that the trial court improperly granted the no-

evidence motion.

       We review a no-evidence summary judgment under the same standard of review

as a directed verdict. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006).

“We review the evidence presented by the motion and response in the light most

favorable to the party against whom the summary judgment was rendered, crediting

evidence favorable to that party if reasonable jurors could, and disregarding contrary

evidence unless reasonable jurors could not.” Id. at 582. A no-evidence summary

judgment will be defeated if the non-movant produces some evidence “raising an issue

of material fact” on the elements challenged by the movant. Id.

       To recover damages for trespass to real property, a plaintiff must prove that (1)

the plaintiff owns or has a lawful right to possess real property, (2) the defendant


Hill v. Crowson                                                                       Page 4
entered the plaintiff’s land and the entry was physical, intentional, and voluntary, and

(3) the defendant’s trespass caused injury to the plaintiff. Wilen v. Falkenstein, 191

S.W.3d 791, 798 (Tex. App.—Fort Worth 2006, pet. denied).                           The Crowsons and

Sanderson challenged elements one and three.

        The Hills maintain that their affidavits raise a fact issue as to element one. In

their affidavits, the Hills explained that their attorney contacted the owner of the 1.0345-

acre tract, they purchased the tract with cash in 1979, they received a deed, they have

been in exclusive possession of the tract for twenty-nine years, and no one has “ever

claimed the property or questioned our ownership or possession of the property.” They

have negotiated oil and gas leases, maintained a fence, constructed a gate, and paid ad

valorem taxes on the tract.

        The Crowsons and Sanderson objected to the affidavits on grounds that (1) they

are conclusory as to ownership and possession; and (2) certified or sworn copies of

documents to which the affidavits refer are not attached to the affidavits. The trial court

sustained these objections.           The Hills do not challenge the trial court’s rulings. 1

However, according to the record, the Crowsons and Sanderson did not appear

concerned with the Hills’ statements regarding actions taken to maintain the tract.




1        The Hills do contend that the trial court entered contradictory rulings by overruling an objection
that their affidavits violate the best evidence rule. Whether the affidavits attempt to establish the contents
of a document and whether they contain conclusory statements are distinct issues. See TEX. R. EVID. 1002
(“To prove the content of a writing, recording, or photograph, the original writing, recording, or
photograph is required except as otherwise provided in these rules or by law.”); see also Choctaw Props.,
L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 242 (Tex. App.—Waco 2003, no pet.) (“A conclusory statement is one
that does not provide the underlying facts to support the conclusion.”). Thus, the trial court’s rulings are
not contradictory.


Hill v. Crowson                                                                                        Page 5
        Although the record before us contains no evidence of ownership, the portions of

the Hills’ affidavits that were not objected to raise a fact issue as to their right to

possession. See Pentagon Enter. v. Sw. Bell Tel. Co., 540 S.W.2d 477, 478 (Tex. Civ. App.—

Houston [14th Dist.] 1976, writ ref’d n.r.e.) (“The gist of an action of trespass to realty is

the injury to the right of possession.”). The Hills stated that they constructed fencing

and a gate on the tract, paid taxes on the tract, and negotiated leases on the tract.

        Additionally, to establish damages, the Hills need only show an interference

with their right to possession and not actual damages. See Coastal Oil & Gas Corp. v.

Garza Energy Trust, 268 S.W.3d 1, 12 n. 36 (Tex. 2008) (“[T]respass against a possessory

interest…does not require actual injury to be actionable and may result in an award of

nominal damages.”); see also General Mills Rest., Inc. v. Texas Wings, Inc., 12 S.W.3d 827,

833 (Tex. App.—Dallas 2000, no pet.) (“Even if a plaintiff fails to plead or prove that the

defendant did any injury by entering plaintiff's property, the plaintiff is still entitled to

nominal damages.”).

        Accordingly, we conclude that the record contains some evidence of elements

one and three of the Hills’ trespass claim.2 Because the trial court erred by granting no-


2         Citing Lorino v. Crawford Packing Co., 142 Tex. 51, 175 S.W.2d 410 (1943), and other cases, the
Crowsons and Sanderson maintain that the Hills’ attempt to prove prior possession is based on an
evidentiary presumption, not legal evidence. See Lorino, 175 S.W.2d at 413 (“[I]n an action of trespass to
try title, plaintiff may recover by virtue of prior possession, without proof of title, where no title is shown
in the defendant. Such proof, however, is but a rule of evidence and not of property, and may be
rebutted.”). Unlike Lorino, this is not a trespass to try title case. Nor must the Hills prove exclusive
possession as part of their trespass claim. See Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex. App.—Fort
Worth 2006, pet. denied); see also Kazmir v. Benavides, 288 S.W.3d 557, 561 (Tex. App.—Houston [14th
Dist.] 2009, no pet.) (Exclusive possession required to establish adverse possession under section 16.026 of
the Civil Practice & Remedies Code). The Crowsons and Sanderson further contend that the Hills failed
to address the damages element. However, in both their summary judgment response and in their brief,
the Hills argued their entitlement to nominal damages absent a showing of actual damage.


Hill v. Crowson                                                                                        Page 6
evidence summary judgment in favor of the Crowsons and Sanderson, we sustain issue

three.

         The trial court’s judgment is reversed and remanded for further proceedings

consistent with this opinion.




                                                      FELIPE REYNA
                                                      Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurring with note)*
Reversed and remanded
Opinion delivered and filed November 18, 2009
[CV06]

*      (Chief Justice Gray concurs in the judgment only and only to the extent that it
reverses the trial court’s summary judgment and remands this proceeding. A separate
opinion will not issue. He notes, however, that because the scope of the third objection,
which was sustained, to the Hills’ affidavits is not clear, it is thus not clear what
portions of the affidavits were objected to and which statements would remain as
summary judgment evidence. The Chief Justice treated this somewhat like a trial before
the bench and presumed the trial court considered the evidence that could properly be
considered.)




Hill v. Crowson                                                                    Page 7
