                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00193-CV
                           ____________________


    EARNEST TAYLOR, AS LAWFUL POWER OF ATTORNEY FOR
                FRANKIE TAYLOR, Appellant

                                         V.

          JEFF LANGHAM AND BRENDA LANGHAM, Appellees

_______________________________________________________            ______________

                    On Appeal from the 258th District Court
                          San Jacinto County, Texas
                          Trial Cause No. CV13181
________________________________________________________             _____________

                          MEMORANDUM OPINION

      This is an appeal of a summary judgment. Appellant, Earnest Taylor “as

lawful power of attorney for Frankie Taylor” 1 argues the trial court erred in


      1
        Earnest Taylor alleged in his Original Petition that he was acting as “lawful
power of attorney for Frankie Taylor.” He later described his status in subsequent
pleadings as “Earnest Taylor Frankie Taylor in all capacities [d]escribed in this
petition” and then included references to Earnest Taylor and Frankie Taylor

                                         1
granting a summary judgment in favor of Jeff Langham and Brenda Langham (the

Langhams or appellees). The underlying suit involves the ownership of certain real

property located in San Jacinto County, Texas. Taylor raises five issues on appeal.

Finding no error, we affirm the trial court’s judgment.

                                UNDERLYING FACTS

      On August 29, 2011, Taylor filed a petition styled as “Plaintiff’s Original

Petition in Trespass to Try Title,” against the Langhams, wherein Taylor alleged

that Taylor held superior title and ownership of an undivided one-half interest in

and to an eighty acre tract of land located in the R.W. Wilbourn Survey, Abstract

308, in San Jacinto County, Texas (hereinafter “the Property”). Taylor alleged that

he was seeking a judgment to “clear Plaintiffs’ title” and seeking to remove a

“cloud on title” to the Property. Taylor alleged that the Langhams acquired their

title to the Property “unlawfully.” Taylor further alleged that “[a]t all times

mentioned herein, Plaintiff [Taylor] and her predecessors in title were, by deed of

record dated the 15th day of August, 2005, and still are, the lawful owners in fee

simple” of the Property. Taylor did not include a claim for adverse possession in
_______________________
globally as “Plaintiffs.” Earnest Taylor argues in his responses to the motions for
summary judgment and on appeal that he is acting with a power of attorney for his
mother, “Frankie Taylor.” We collectively reference Earnest Taylor and Frankie
Taylor as “Taylor” or appellant, and we use a masculine pronoun, where
appropriate.

                                         2
the Original Petition. Taylor did not attach a copy of the referenced August 15th

Deed or provide a recording reference thereto.

        On or about September 22, 2011, the Langhams filed an answer and asserted

they were not guilty of trespass, and they also included a general denial to the

Original Petition. The Langhams also served a Demand for Abstract of title on

Taylor. On or about January 9, 2013, the Langhams filed a Traditional and No-

Evidence Motion for Final Summary Judgment (hereinafter the “initial MSJ”),

which was set for a hearing on January 30, 2013. In the initial MSJ, the Langhams

argued that, as a matter of law, they hold lawful and superior title to and ownership

of the Property, that there is no genuine issue of any material fact, and that Taylor

has no evidence to support any of his claims. The Langhams alleged that they

could

        trace their chain of title in the undivided one-half interest in the
        Property to a common source - that being JH and Willie Nicholson in
        1929. This documented chain of title from San Jacinto County
        affirmatively and conclusively proves Defendants’ rightful and legal
        indefeasible title to the Property. Therefore, there are no genuine
        issues of material fact and summary judgment should be granted and
        the Plaintiff’s suit to quiet title should be dismissed as a matter of law,
        as it is frivolous. Defendants, through their summary judgment
        evidence have established their ownership and right to the Property.

The Langhams attached several documents including a land survey, an affidavit of

heirship, an affidavit from a title examiner regarding title to the Property, and

                                            3
certified copies of the deeds and other documents pertaining to their chain of title.

The Langhams also attached an affidavit from a landman who conducted a title

search on the property and found the following: (1) On December 12, 1929, Jeff

Cochran, by and through the administrator of his estate, J.M. Hansbro, sold and

conveyed a full undivided interest in the Property to JH and Willie Nicholson; (2)

On March 21, 1934, JH and Willie Nicholson sold and conveyed an undivided one-

half interest in the Property to Isom V. Johnson, Sr.; (3) Isom V. Johnson, Sr.

owned the undivided one-half interest in the Property until he died in October

1941, and his interests in the Property passed to his only surviving heir, his son,

Isom V. Johnson, Jr.; and (4) On or about August 30, 2004, Isom V. Johnson Jr.,

sold and conveyed the undivided one-half interest in the Property to the Langhams.

        On January 18, 2013, Taylor filed a Motion for Continuance with respect to

the hearing on the initial MSJ, arguing that he needed more time to “hire an

attorney” and to “[r]eview and gather documents[.]”The trial court granted the

Motion for Continuance, and reset the hearing. On April 9, 2013, which was one

week before the hearing on the initial MSJ, Taylor filed a document styled as

“Clarification and Supplementation of Original Petition,” wherein Taylor alleged

that:




                                         4
      Plaintiffs would clarify that the first basis for their ownership of the
      40 acres in contest is the 25 year adverse possession of this land. The
      second basis for non ownership by Isom V. Johnson Sr. & Jr[.] is that
      they never fulfilled their financial obligation under which they claim
      ownership. They never in fact paid any consideration for any transfer
      of land to them. Rather they wholly defaulted in the initial attempt to
      buy this land.

      ....

      Both JH Nicholson and Calvin Johnson the two mainstays on this land
      became disgusted with the I. Johnsons and adverse [sic] possessed
      against them. Earnest Taylor continued the adverse possession to the
      present. There has never been a break in such adverse [sic] since the
      1930’s.

      Plaintiff file [sic] this document to clarify and expand on their original
      pleadings. These very allegations were understood []to be [sic] their
      pleaded position and this is to clarify and give certainty to their
      pleaded position.

On that same date, Taylor also filed a response to the initial MSJ, an Affidavit in

Support thereof, and a Motion for Default Judgment. On April 17, 2013, the

Langhams filed a Response to the Motion for Default Judgment, and also filed

Objections to Taylor’s Summary Judgment Evidence and subject thereto filed a

Reply to Plaintiffs’ Response to Defendants’ Traditional and No-Evidence Motion

for Final Summary Judgment.

      On April 17, 2013, the court held a hearing on the initial MSJ, entered an

Interlocutory Order granting the initial MSJ as to the title to the Property, and


                                          5
expressly found that the Langhams “have established that they have good and

indefeasible title to an undivided one-half (1/2) interest in and to the surface of the

Property[.]” The trial court noted, however, on the face of the Order that “the

Plaintiffs have reserved their right to challenge that title by their claims of adverse

possession.”2

      On December 17, 2013, the Langhams filed another motion for summary

judgment which was styled as “Defendants Jeff Langham and Brenda Langham’s

No-Evidence Motion for Final Summary Judgment” (hereinafter the “December

MSJ”) wherein they argued that Taylor had no evidence to support an adverse

possession claim, and they attached a copy of the land survey, a copy of the initial

MSJ (with copies of the attached exhibits), and a copy of the Interlocutory Order.

      On January 7, 2014, Taylor filed a “Response/Legal Memorandum Reurging

the Original Response to Second Identical Motion,” which also included a

reference to the previous affidavit Taylor filed in response to the initial MSJ.

Thereafter, on March 4, 2014, the Langhams hand-delivered a copy of their “First

Amended No-Evidence Motion for Final Summary Judgment and Motion to Show


      2
       At the inception of this lawsuit, Plaintiff was prosecuting his claim pro se.
However, at Defendants’ summary judgment hearing on April 17, 2013, Mr. John
P. Mustachio appeared and represented to the court that he would be counsel for
Taylor.

                                          6
Authority Pursuant to Rule 12” (hereinafter “the First Amended MSJ”) to Taylor’s

attorney. On that same date, Langham also served Taylor with an Amended Notice

of Hearing, indicating a hearing on the no evidence motion for summary judgment

was set for March 26, 2014. In the First Amended MSJ, the Langhams argued that

Taylor “has no evidence to substantiate a claim for adverse possession,” and that

Taylor has presented “no evidence of standing to assert an adverse possession

claim.” Additionally, the Langhams included a Rule 12 Motion to Show Authority.

      The Langhams also contend on appeal that in addition to hand-delivering the

First Amended MSJ and the Amended Notice of Hearing to Taylor on March 4,

2014, they e-mailed both documents to the clerk of court for filing on March 4,

2014. Nevertheless, the file-stamped copies of the First Amended MSJ and the

Amended Notice of Hearing that appear in the clerk’s record reflect a file stamp of

March 11, 2014. After the clerk’s record was filed with this Court, the Langhams

also sent a letter to the district clerk asking the clerk to supplement the record with

the e-mail from the Langhams to the court coordinator to show they sent the First

Amended MSJ and Amended Notice of Hearing to the court coordinator by e-mail

for filing on March 4, 2014. The clerk has not supplemented the record. 3


      3
       Taylor admits that he received the First Amended MSJ and the Amended
Notice of Hearing on March 4, 2014. In his brief he states “Appellant’s counsel

                                          7
      On March 18, 2014, the Langhams filed a “First Amended Verified

Answer.” That same day, Taylor filed a “Motion to Strike Late Filed Amended

Answer of Defendants,” arguing that the First Amended Answer was untimely

filed because it was filed “within thirty days of the trial.” Taylor also filed a

document styled as “Plaintiff’s Response/Legal Memorandum Reurging the

Original Response to Second Identical Motion.” On March 26, 2014, the day of the

hearing on the no evidence motion for summary judgment, the Langhams filed

their reply to Taylor’s response to the First Amended MSJ. Following an oral

hearing wherein both parties appeared with counsel, the trial court signed a Final

Judgment on March 26, 2014. The Final Judgment reads as follows:

                                  Final Judgment

           The Court having considered the No Evidence Motion for
      Summary Judgment filed by Defendants Jeff Langham and Brenda
      Langham is of the opinion that it should be in all things GRANTED.

             Defendants Jeff and Brenda Langham, through their proof, have
      established as a matter of law that they have good, marketable and
      indefeasible title to an undivided one-half (1/2) interest in and to the
      surface of the Property known as:

_______________________
was served with a copy of the First Amended Motion for Summary Judgment on
March 4, 2014 and assumed it had been filed the same date, now in the course of
this Brief Counsel has determined that the real date of filing [with the clerk] was
March 11, 2014.” Taylor also admits in his brief that he did not object at the
hearing to the “untimely” filing of the First Amended MSJ.

                                         8
           80.9185 acres of land, more or less, out of the R.W. Willbourn
           Survey, Abstract 308, San Jacinto County, Texas, being all of
           that certain 81.3 acre tract described in a deed from James H.
           Nicholson and wife Willie Nicholson to Isom Johnson, dated
           February 8, 1932 recorded in Volume 29, page 398 of the Deed
           of Records of San Jacinto County, Texas and being more
           accurately described by metes and bounds description as
           described in Exhibit A to this Final Judgment which is
           incorporated herein by reference for all purposes.

            The Court further ORDERS that all claims filed by Plaintiff
      Earnest Taylor as Lawful Power of Attorney for Frankie Taylor
      against Jeff Langham and Brenda Langham are denied in their entirety
      as a matter of law with prejudice and are dismissed as a matter of law.

             This order shall serve as a Final Appealable Judgment. All costs
      shall be borne by the parties bearing same. All relief not expressly
      granted herein is denied. This Final Judgment shall also serve as a
      muniment of title.

Taylor timely filed a Notice of Appeal.

                                ISSUES ON APPEAL

      On appeal, Taylor asserts five issues. In his first issue, Taylor contends there

are “fact questions which are supported by the [a]ppellant’s affidavits filed in

opposition to the [m]otions for summary judgment.” In his second issue, appellant

argues that the December MSJ “is not supported by the pleadings[]” because the

“original unverified answer raised only a not guilty issue and a general denial[,]”

and the “[First] [A]mended [A]nswer was filed . . . 8 days before the hearing” and

“is disqualified under the 21 day rule.” In his third issue, appellant argues “[t]he

                                          9
only timely notice of 21 days given by appellee” was the December MSJ and it

was not a “live pleading having been superseded and abandoned” by the First

Amended MSJ. In his fourth issue, appellant argues that the First Amended MSJ

which was not filed until March 11, 2014, which is less than twenty-one days

before the hearing, is “disqualified from consideration because no notice was given

at all or no notice of 21 days was given.” Finally, in his fifth issue, appellant

contends that neither the filing of the “[First Amended MSJ] on 3/11/14 and . . .

[the First] Amended Answer on 3/18/14 which legally superseded the original

general denial answer and superseded the [initial MSJ] neither of which were ripe

for hearing on March 26, 2014, and both were disqualified for improper filing 21

days before trial[,]” and therefore there is no support for the summary judgment

issued by the court.

                              STANDARD OF REVIEW

      We review a trial court’s summary judgment de novo. Joe v. Two Thirty

Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). To prevail on a traditional

motion for summary judgment, the movant must show “there is no genuine issue as

to any material fact and the [movant] is entitled to judgment as a matter of law[.]”

Tex. R. Civ. P. 166a(c); accord Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

548 (Tex. 1985). In our review of the trial court’s judgment, we examine “the

                                        10
evidence presented in 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.” Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); see City of Keller v.

Wilson, 168 S.W.3d 802, 827 (Tex. 2005).         “We indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor.” Rhone-Poulenc, Inc.

v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); accord Goodyear Tire & Rubber Co. v.

Mayes, 236 S.W.3d 754, 756 (Tex. 2007) (per curiam). A defendant moving for

traditional summary judgment must conclusively disprove at least one essential

element of each of the plaintiff’s claims. Elliott-Williams Co. v. Diaz, 9 S.W.3d

801, 803 (Tex. 1999); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472,

476-77 (Tex. 1995).

      We review a no-evidence summary judgment using a legal sufficiency

standard. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).

“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.” Mack Trucks,

                                       11
Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (citing City of Keller, 168 S.W.3d

at 827). A trial court may not properly grant a no-evidence motion for summary

judgment if the non-movant’s summary judgment evidence contains “more than a

scintilla of probative evidence to raise a genuine issue of material fact[.]” Smith v.

O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); see Tex. R. Civ. P. 166a(i). When

evidence is so weak as to do no more than create a surmise or suspicion of the

matter to be proved, the evidence is “‘no more than a scintilla and, in legal effect,

is no evidence.’” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)

(quoting Kindred v. Con/Chem, Inc., 640 S.W.2d 61, 63 (Tex. 1983)). Under the

no-evidence standard, a defendant may move for summary judgment after adequate

time for discovery on the ground that there is no evidence of one or more essential

elements of a claim on which the plaintiff would have the burden of proof at trial.

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

      When the trial court does not specify the grounds on which it granted a

summary judgment, we will affirm the judgment if any of the theories presented to

the trial court are meritorious. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d

211, 216 (Tex. 2003). As the movant on the motions for summary judgment, the

Langhams had the burden to conclusively negate at least one element of Taylor’s

adverse possession cause of action or to conclusively establish all elements of an

                                         12
affirmative defense. See Little v. Tex. Dep’t of Crim. Justice, 148 S.W.3d 374, 381

(Tex. 2004); Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 645-46 (Tex.

2000).

   NOTICE OF HEARING, FILING OF FIRST AMENDED MOTION FOR NO-EVIDENCE
             SUMMARY JUDGMENT AND FIRST AMENDED ANSWER

      We first address Taylor’s third and fourth issues in which he contends that

the trial court could not consider the Langhams’ First Amended MSJ because it

was not timely filed and that Taylor did not receive twenty-one-days’ notice before

the hearing, and that the trial court could not consider the December MSJ because

the untimely filed First Amended MSJ had “superseded” it. The record reflects and

Taylor admits on appeal that the Langhams hand-delivered a copy of the First

Amended MSJ and a notice of the hearing to Taylor on March 4, 2014, twenty-two

days before the hearing which was held on March 26, 2014. Nevertheless, the First

Amended MSJ was not file stamped into the clerk’s record until March 11, 2014.

The Langhams argue on appeal that they also e-mailed the First Amended MSJ and

notice to the clerk of court for filing on March 4, 2014, and they attached a copy of

an affidavit and an e-mail to an appendix with appellee’s brief.

      We may not consider documents in appendices that are not also in the

appellate record. In re Guardianship of Winn, 372 S.W.3d 291, 297 (Tex. App.–


                                         13
Dallas 2012, no pet.); Jarvis v. Field, 327 S.W.3d 918, 932 n.4 (Tex. App.–Corpus

Christi 2010, no pet.). Under the Rules of Appellate Procedure, a party or the court

can request the trial court clerk to supplement the appellate record with missing

items. See Tex. R. App. P. 34.5(c). Appellees sent a letter to the district clerk

requesting the clerk to supplement the record with a copy of the e-mail in question.

To date the district clerk has not supplemented the record or responded to the

request. We also have no evidence in the clerk’s record that indicates the San

Jacinto County District Clerk accepted the “filing” of the First Amended MSJ by e-

mail. Therefore, we have not considered the documents contained in the Appellees’

appendix.

      Texas Rule of Civil Procedure 166a(c) states: “Except on leave of court,

with notice to opposing counsel, the motion and any supporting affidavits shall be

filed and served at least twenty-one days before the time specified for hearing.”

Tex. R. Civ. P. 166a(c). The Rules of Civil Procedure also provide that if any

document is sent to the proper clerk by first-class United States mail in an

envelope or wrapper properly addressed and stamped and is deposited in the mail

on or before the last day for filing same, the document shall be considered timely

filed, as long as the clerk of court receives the document not more than ten days

thereafter. Tex. R. Civ. P. 5. A legible postmark affixed by the United States Postal

                                         14
Service (“USPS”) shall be prima facie evidence of the date of mailing. Id. Our

Supreme Court has also promulgated certain e-filing procedures allowing parties to

electronically file documents with an “electronic filing service provider” (EFSP)

which means a business entity that provides electronic filing services and support

to its customers (filers). Rule 21(f) of the Texas Rules of Civil Procedure outlines

the e-filing procedures in part as follows:

      (f) Electronic Filing.

          (1) Requirement. Except in juvenile cases under Title 3 of the
          Family Code, attorneys must electronically file documents in
          courts where electronic filing has been mandated. Attorneys
          practicing in courts where electronic filing is available but not
          mandated and unrepresented parties may electronically file
          documents, but it is not required.

          (2) Email Address. The email address of an attorney or
          unrepresented party who electronically files a document must be
          included on the document.

          (3) Mechanism. Electronic filing must be done through the
          electronic filing manager established by the Office of Court
          Administration and an electronic filing service provider certified
          by the Office of Court Administration.

Tex. R. Civ. P. 21(f). The appellees do not argue that they filed the First Amended

MSJ by hand-delivery, or first class mail with the USPS, or that they complied

with the electronic filing requirements of Rule 21(f). Rather, the appellees argue

that they e-mailed the First Amended MSJ to the clerk of the trial court via an e-

                                          15
mail address. The appellate record before us provides no evidence of the alleged e-

mail, or whether or not the First Amended MSJ was attached to an e-mail and

forwarded to the clerk of court, or whether or not the clerk of court actually

received the e-mail, or related details. The clerk’s file stamp is prima facie

evidence of the date of filing, but the presumption it raises may be rebutted. Dallas

Cnty. v. Gonzales, 183 S.W.3d 94, 103 (Tex. App.—Dallas 2006, pet. denied)

(citing Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371,

371-72 (Tex. 1990) (per curiam)). The appellate record before us provides no

evidence that rebuts the presumption that the First Amended MSJ was not “filed”

until March 11, 2014.

      Accordingly, although the First Amended MSJ was timely served upon

Taylor, based upon the record before us, and the presumption that the file stamp on

the First Amended MSJ reflects the date the document was filed with the clerk of

court, we find that the First Amended MSJ was filed with the district clerk less

than twenty-one days before the time specified for the hearing. Therefore, we must

presume that the trial court did not consider the late filed First Amended MSJ.

There is no reporter’s record in this case and there is no indication in the appellate




                                         16
record or in the Final Judgment that the trial court actually considered the First

Amended MSJ.4

      The trial court’s Final Judgment expressly stated: “The Court having

considered the No Evidence Motion for Summary Judgment filed by Defendants

Jeff Langham and Brenda Langham is of the opinion that it should be in all things

GRANTED.” The trial court did not include any language in the Final Judgment

that would allow us to conclude on appeal that the trial court considered the First

Amended MSJ. Therefore, it must be presumed that the trial court did not consider

the First Amended MSJ. INA of Tex., 686 S.W.2d 614, 615 (Tex. 1985).

      Taylor argues that the untimely filed First Amended MSJ supplants and

replaces the December MSJ, and therefore the December MSJ became a nullity

and there was nothing on file for the trial court to consider or grant at the time of

the Summary Judgment hearing. We disagree. Because the First Amended MSJ


      4
        Appellate courts apply different presumptions to an amended answer filed
less than seven days before a summary judgment hearing than the presumptions
applicable to late filed summary judgment responses or late filed evidence. See
Goswami v. Metropolitan Sav. & Loan Ass’n, 751 S.W.2d 487, 491 n.1 (Tex.
1988). In the case of a late filed answer, the appellate court will generally presume
the trial court granted leave for a late filed pleading absent some showing to the
contrary. In contrast, as “stated in INA of Tex. v. Bryant, 686 S.W.2d 614, 615
(Tex. 1985), when nothing appears of record to indicate that the late filing of the
written response was with leave of court, it must be presumed that the trial court
did not consider the response.” Id.

                                         17
was untimely filed into the record as evidenced by the file-stamped copy reflecting

a date of March 11, 2014, and there is no indication in the record that the

Langhams sought leave to file the First Amended MSJ or that the trial court

considered the late filed motion, we presume the trial court did not consider it.

Therefore, the December MSJ remained before the trial court as the live motion for

summary judgment.5 See Johnston v. Vilardi, 817 S.W.2d 794, 796 (Tex. App.—

Houston [1st Dist.] 1991, writ denied) (holding that because appellant filed an

untimely amended response to appellee’s motion for summary judgment, it could

consider only appellant’s original response); see generally ENGlobal U.S., Inc. v.

      5
        Taylor does not challenge the timeliness or filing of the December MSJ
which was styled as a No-Evidence Motion for Final Summary Judgment and filed
by the Langhams on December 17, 2013. Furthermore, Taylor affirmatively states
in his appellate brief that “[t]he only timely notice of 21 days given by appellee
was the Original Motion for No Evidence Summary Judgment filed 12/17/13. . . .
that was set for hearing on March 26, 2014.” We note that in his discussion of his
second issue, and then again generally in his global discussion of his third, fourth,
and fifth issues, Taylor contends on appeal that Sams v. N.L. Industries, Inc., 735
S.W.2d 486 (Tex. App.—Houston [1st Dist.] 1987, no writ) and cases cited therein
require a reversal of the trial court’s summary judgment. In Sams, the First Court
of Appeals held that by including two additional grounds for the summary
judgment in the Reply, the appellee filed “what is essentially a new motion for
summary judgment” and therefore the employee was entitled to the mandatory
twenty-one day notice for the Reply which he did not receive. In the case at bar,
Taylor admits he received twenty-two days’ notice of the First Amended MSJ, and
then also admits he received timely notice of the December MSJ. Because we must
assume that the trial court in granting the summary judgment only considered the
December MSJ, and Taylor acknowledges he received timely notice of the
December MSJ, the reasoning outlined in Sams does not apply.

                                         18
Gatlin, 449 S.W.3d 269, 277 n.5 (Tex. App.—Beaumont 2014, no pet.) (noting

that “[a]s a general rule, ‘[a] plaintiff’s timely filed amended pleading supersedes

all previous pleadings and becomes the controlling petition in the case regarding

theories of recovery[]’”) (emphasis added) (quoting Elliott v. Methodist Hosp., 54

S.W.3d 789, 793 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)). Issues three

and four are overruled.

      In his second issue, Taylor contends that the December MSJ is not supported

by the pleadings because he argues that the original answer raised only a not guilty

issue and general denial and the Langhams’ first amended answer which was filed

eight days before the hearing should be “disqualified under the 21 day rule.”

Taylor further contends that the Amended Answer was filed only eight days before

the hearing on the Motion for Summary Judgment, and the “New Motion for

Summary Judgment [filed] on 3/11/14 and a New 1st Amended Answer on

3/18/14” superseded the original answer and previous motions for summary

judgment, and “the Summary Judgment of 3/26/14 has no legal standing or support

under the law.” We disagree.

      Taylor conflates the twenty-one day requirement for notice of the hearing as

set forth in Rule 166a(c) upon the filing requirements for amended pleadings. Rule

63 of the Texas Rules of Civil Procedure provides that “[p]arties may amend their

                                        19
pleadings, . . . by filing such pleas with the clerk at such time as not to operate as a

surprise to the opposite party; provided, that any pleadings, responses or pleas

offered for filing within seven days of the date of trial or thereafter, or after such

time as may be ordered by the judge under Rule 166, shall be filed only after leave

of the judge is obtained[.]” Tex. R. Civ. P. 63. In the context of an amended

petition, if the amendment is not timely and is not allowed by the trial court, the

amended pleading does not supersede the prior pleading, and a summary judgment

movant need not amend or supplement the summary judgment motion to address

the amendment. Mensa-Wilmot v. Smith Int’l, Inc., 312 S.W.3d 771, 779-80 (Tex.

App.—Houston [1st Dist.] 2009, no pet.). The seven-day limitation in Rule 63 also

applies to amendments to pleadings that are made before a hearing on a motion for

summary judgment. Fletcher v. Edwards, 26 S.W.3d 66, 74 (Tex. App.—Waco

2000, pet. denied); Leche v. Stautz, 386 S.W.2d 872, 873 (Tex. Civ. App.—Austin

1965, writ ref’d n.r.e.) (stating a summary judgment proceeding is a trial within

meaning of Rule 63). We conclude that the amended answer which was filed by

the Langhams eight days before trial was timely filed under Rule 63 and further

that the December MSJ is supported by the Langhams’ pleadings. We overrule

Taylor’s second issue.



                                          20
      In his fifth issue, Taylor argues that the Appellees have created “a legal

disqualification for a summary judgment in that they filed a New Motion for

Summary Judgment on 3/11/14 and a New []1st Amended Answer on 3/18/14”

which Taylor argues then superseded the original answer and previous motions for

summary judgment and that “the Summary Jud[g]ment of 3/26/14 has no legal

standing or support under the law.” Taylor grouped issues three, four, and five

together and he presents no additional analysis or argument to support this issue.

For the same reasons as outlined above in overruling issues two, three, and four,

we also overrule Taylor’s fifth issue.

                       MERITS OF THE NO EVIDENCE MOTION

      Having overruled Taylor’s second, third, fourth, and fifth issues, we now

consider Taylor’s first issue which essentially requires us to consider the merits of

the December MSJ. More specifically, Taylor contends that fact questions were

raised by the affidavit he filed in opposition to the motion for summary judgment.

On appeal, Taylor does not specify the nature of the “fact questions” or exactly

how the unspecified “fact questions” provide a genuine issue of a material fact.

Elsewhere in his brief, Taylor alleges that Taylor holds “priority of title by adverse

possession against the Appellee’s sellers/predecessors in title to the 40 [sic] acres

in issue.” Taylor refers to the property as “40 acres in issue” without any

                                         21
explanation of how the undivided one-half interest in the eighty acre tract became

“40 acres in issue.” Based upon the uncontroverted facts and unchallenged findings

of the trial court, the Langhams hold an undivided one-half interest in the eighty

acre tract, as cotenants. An undivided possessory interest in property is a tenancy

in common and the owners are referenced as cotenants. Rittgers v. Rittgers, 802

S.W.2d 109, 113 (Tex. App.—Corpus Christi 1990, writ denied); Freeman v.

Southland Paper Mills, Inc., 573 S.W.2d 822, 824 (Tex. Civ. App.—Beaumont

1978, writ ref’d n.r.e.). 6

       Taylor has not challenged the ruling of the trial court that

             Defendants Jeff and Brenda Langham, through their proof,
       have established . . . that they have good, . . . and indefeasible title
       to an undivided one-half (1/2) interest in and to the surface of the
       Property known as:

              80.9185 acres of land, more or less, out of the R.W.
              Willbourn Survey, Abstract 308, San Jacinto County, Texas,
              being all of that certain 81.3 acre tract described in a deed
              from James H. Nicholson and wife Willie Nicholson to Isom

       6
        Cotenants may either voluntarily agree to partition land by written
agreement or seek a court order to divide their interest and sever their rights of
possession and thereafter hold exclusive possession of specific parts of property to
which all joint owners had an equal right of possession prior to partition. Garza v.
Cavazos, 221 S.W.2d 549, 552 (Tex. 1949); Ruff v. Brown, 446 S.W.2d 103, 112
(Tex. Civ. App.—Texarkana 1969, no writ). However, all cotenants must
participate in a voluntary partition. Joyner v. Christian, 113 S.W.2d 1229, 1232-33
(Tex. 1938); State v. Kirkpatrick, 299 S.W.2d 394, 397 (Tex. Civ. App.—Dallas
1957, writ ref’d n.r.e.); see also Tex. Prop. Code Ann. § 23.001 (West 2013).

                                          22
             Johnson, dated February 8,1932 recorded in Volume 29, page
             398 of the Deed of Records of San Jacinto County, Texas[.]

Taylor does not dispute on appeal that the Langhams’ survey, deeds, and

affidavit of heirship establish they acquired by deed the same undivided interest

previously held by Isom Johnson.

      Rather, Taylor argues that his affidavit created a fact question relating to his

claim of “adverse possession” and Taylor requests in his appellate brief that this

Court should “refer to” the “case [r]ecords” and he cites the Court generally to his

affidavits, pleadings, and briefing that he filed in the trial court. The Appellees

argue that Taylor has waived this issue on appeal because this global reference to

trial court documents amounts to inadequate briefing and lacks a “succinct, clear,

and accurate statement of the arguments made in the body of the brief[]” in

violation of Rule 38.1(h) of the Texas Rules of Appellate Procedure. See Tex. R.

App. P. 38.1(h); see generally Kuykendall v. State, 335 S.W.3d 429, 436 (Tex.

App.—Beaumont 2011, pet. ref’d). While we agree that Taylor’s brief lacks a

succinct and clear statement and argument in the body of the brief that would

establish the specific “fact issue” in question, we find it unnecessary to decide this

issue based upon the failure of Taylor to comply with Rule 38.1(h) because we

conclude that the affidavit submitted by Taylor in response to the December MSJ


                                         23
does not amount to even a scintilla of credible evidence that would create a

genuine issue of material fact that would preclude the granting of the summary

judgment.

         More specifically, because Taylor’s underlying claim is based upon what he

characterized as “priority of title by adverse possession,” and because the

Langhams’ December MSJ expressly challenged each of the elements of his

adverse possession claim, in response to the motion for summary judgment and

now on appeal, Taylor must establish that he presented at least a “scintilla of

evidence” to support each of the necessary elements of his adverse possession

claim.

         An adverse possession claimant must hold real property in adverse

possession and cultivate, use, or enjoy it for more than the required time limits as

specified in the applicable statute. See Tex. Civ. Prac. & Rem. Code Ann. §§

16.025, 16.026, 16.027 (West 2002). Adverse possession is defined by statute as

“an actual and visible appropriation of real property, commenced and continued

under a claim of right that is inconsistent with and is hostile to the claim of another

person.” Id. § 16.021(1) (West 2002). In his supplemental petition Taylor asserted

that his claim for adverse possession is pursuant to the twenty-five year statute.



                                          24
      Section 16.027 of the Texas Civil Practice and Remedies Code reads as

follows:

      § 16.027. Adverse Possession: 25-Year Limitations Period
      Notwithstanding Disability

      A person, regardless of whether the person is or has been under a legal
      disability, must bring suit not later than 25 years after the day the
      cause of action accrues to recover real property held in peaceable and
      adverse possession by another who cultivates, uses, or enjoys the
      property.

Id. § 16.027. Title to property by adverse possession is said to “mature” when the

applicable statutory limitations period expires. See generally Gandy v. Culpepper,

528 S.W.2d 333, 337 (Tex. Civ. App.—Beaumont 1975, no writ). On appeal,

Taylor has not challenged the finding of the trial court that the Langhams acquired

an undivided one-half interest in the eighty acre tract, and that the Langhams hold

good and defeasible title thereto. Taylor does not dispute that the Langhams, and

their predecessor in title, Isom Johnson, Jr. and Isom Johnson, Sr., are cotenants on

the property. Rather, Taylor contends in his affidavit and response to the motion

for summary judgment that neither Isom Johnson Sr. nor Jr. ever paid anyone for

their undivided one-half interest, that neither paid taxes on the eighty acres, that

Isom Johnson abandoned the land, and that Taylor’s predecessors in title paid the

taxes and used and cultivated the land.


                                          25
      Possession and use by a cotenant is presumed to be in recognition of

common title, and a cotenant cannot claim title by adverse possession unless the

cotenant clearly repudiates title of his cotenant and is holding the property

adversely to the cotenant. See Calfee v. Duke, 544 S.W.2d 640, 641-42 (Tex.

1976). Cotenants to an undivided estate have an equal right to “enter upon the

common estate and a corollary right to possession.” Dyer v. Cotton, 333 S.W.3d

703, 712 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (quoting Byrom v.

Pendley, 717 S.W.2d 602, 605 (Tex. 1986)). Therefore, a cotenant seeking to

establish title by adverse possession must prove, in addition to the usual adverse

possession requirements, an ouster of the cotenant not in possession or a

repudiation of the co-tenancy relationship. Id. “Possession by one co-tenant, or by

one claiming under a co-tenant, is not sufficient to give notice of a claim by that

co-tenant adverse to the interest of the other co-tenant.” Gibraltar Sav. Ass’n v.

Martin, 784 S.W.2d 555, 559 (Tex. App.—Amarillo 1990, writ denied). Exclusive

use and possession of the property for long periods of time is common in a co-

tenancy relationship and usually occurs “with the acquiescence of the other

cotenants.” Todd v. Bruner, 365 S.W.2d 155, 159 (Tex. 1963). The party claiming

property by adverse possession against a cotenant “must prove actual or

constructive notice of the ouster, and the clear, unequivocal, and unmistakable

                                        26
repudiation of the common title.” Frazier v. Donovan, 420 S.W.3d 463, 467 (Tex.

App.—Tyler 2014, no pet.).

      In the December MSJ, the Langhams asserted that there is no evidence that

either Taylor or her predecessors had actual possession of the property, or that

Taylor had peaceable possession of the property under a claim of right, or that

Taylor consistently and continuously maintained possession adverse and hostile to

the claim of any cotenant, including the predecessor in title to the Langhams,

during any applicable statutory period, or that Taylor repudiated the co-tenancy

relationship or provided notice of that repudiation to the Langhams or their

predecessors in title. The Langhams further challenged and objected to Taylor’s

affidavit for various reasons, including hearsay, the Deadman’s Statute, and

conclusory statements. However, the record before us is silent as to whether or not

the trial court ruled on the objections to the affidavit.

      The granting of a summary judgment motion “does not necessarily provide

an implicit ruling that either sustains or overrules the objections to the summary

judgment evidence.’” Gonzalez v. VATR Constr. LLC, 418 S.W.3d 777, 783 (Tex.

App.—Dallas 2013, no pet.) (quoting Allen v. Albin, 97 S.W.3d 655, 663 (Tex.

App.—Waco 2002, no pet.)). Objections to the “form” of summary judgment

evidence are preserved for appellate review only if such objections are made and

                                           27
ruled on in the trial court, while objections to the “substance” of summary

judgment evidence do not require a ruling from the trial court and may be raised

for the first time on appeal. Id.; Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 207

(Tex. App.—Dallas 2005, no pet.); Choctaw Props., L.L.C. v. Aledo Indep. Sch.

Dist., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.). We cannot imply a

ruling on the Langhams’ objections from this record. See Choctaw Props., 127

S.W.3d at 241; Allen, 97 S.W.3d at 663.

      We find it unnecessary to determine whether the Langhams’ objections to

the affidavits were objections to “form” or “substance” because even if we assume

that all of the statements made in the affidavits were true, and that the objections

thereto were to form and thereby waived, the affidavits filed by Taylor in

opposition to the no evidence motions for summary judgment simply fail to create

a scintilla of evidence to support his adverse possession claim. Nothing in the

affidavits filed by Taylor established any evidence that any cotenant clearly

repudiated the co-tenancy relationship and provided notice of the repudiation to

either the Langhams or their predecessors in interest. See Frazier, 420 S.W.3d at

467. Reviewing the basis for the December MSJ and the evidence presented by the

Langhams attached to the December MSJ, as well as Taylor’s response filed

thereto in the light most favorable to Taylor, we conclude that the evidence is so

                                          28
weak as to do no more than create a surmise or suspicion of the matter to be

proved, and the evidence is “‘no more than a scintilla and, in legal effect, is no

evidence.’” Ford Motor Co., 135 S.W.3d at 601 (quoting Kindred, 650 S.W.2d at

63). Because Taylor produced no evidence on a necessary element of his adverse

possession claim, the trial court did not err in granting the no-evidence summary

judgment in favor of the Langhams. Issue one is overruled. Having overruled all of

appellant’s issues, we affirm the summary judgment granted by the trial court.

      AFFIRMED.

                                                   _________________________
                                                       LEANNE JOHNSON
                                                             Justice


Submitted on November 21, 2014
Opinion Delivered April 2, 1015

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




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