                                       NO. 12-13-00242-CV

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

NEAL FRAZIER, JR.,                                     §       APPEAL FROM THE 159TH
APPELLANT

V.                                                     §       JUDICIAL DISTRICT COURT

RICHARD DONOVAN,
APPELLEE                                               §       ANGELINA COUNTY, TEXAS

                                                  OPINION
        Neal Frazier, Jr. filed suit to establish title by limitations to a tract of real property in
Zavalla, Angelina County, Texas. In seven issues, he appeals the trial court’s order granting
summary judgment in favor of the record title holder and appellee, Richard Donovan. We reverse
and remand.


                                                BACKGROUND
        In late 1934 or early 1935, the home of Mary Frazier and her husband, Harrison, was
destroyed by a fire. In February 1935, Mary’s parents conveyed to her the land on which Mary
and Harrison’s home once stood (the Frazier tract). Mary and Harrison built a new home for
themselves and their thirteen children across the road from their previous home site.
        In February 1936, Mary’s parents conveyed a tract of their land to Mary’s sister, Eddie
Barnett, and her husband, Eugene (the Barnett tract). Eddie and Eugene had five sons.
        Both couples died intestate. Following Mary’s death in 1981, her daughter, Dessor, moved
into Mary’s house. Dessor’s nephew, Neal, lived in the house with her and assisted her in raising
cattle on the surrounding tract of land.1 They also maintained the fences that enclosed the tract.



        1
           There is summary judgment evidence indicating that Neal lived in the house with Dessor during the week
and traveled to Lufkin to be with his wife and children on the weekends.
       In 1997, Dessor moved out of the house due to her declining health. Neal continued to
reside in the house and use the property until 2011. In February 2011, Donovan purchased both
the Frazier and the Barnett tracts, at which point a survey revealed that the Frazier house, in which
Neal resided, was located on the Barnett tract. This fact notwithstanding, Donovan closed the
purchase of both the Barnett and Frazier tracts without Neal’s signing either deed. Thereafter,
Donovan filed a forcible entry and detainer action against Neal, who was eventually removed from
the property.
       Neal filed the instant suit against Donovan seeking to establish title to the Barnett tract by
adverse possession. Donovan filed a traditional motion for summary judgment, in which he
contended that (1) Neal did not exercise exclusive dominion over the property and appropriate it
for his own use and benefit because there was no evidence he had attempted to oust any cotenants
from the Barnett tract, (2) Neal could not have claimed the property by adverse possession because
he did not realize the Frazier homestead had been built on the Barnett tract until the property was
surveyed in 2011, and (3) Neal was not entitled to prevail on his alternative claim through
ownership of a fractional undivided interest in the Barnett tract because the property had passed
through the heirs of Eugene and Eddie Barnett rather than the heirs of Harrison and Mary Frazier.
Neal filed a response, and in support thereof, attached an affidavit, by which he testified, in
pertinent part, as follows:


       After Dessor Frazier left the property in 1997, I continued to occupy the subject property as my
       primary residence until I was removed from the property in 2013. I exercised exclusive control
       over the property since 1997 until 2013 by routinely removing trespassers. I also continued to use,
       cultivate and enjoy the subject property for agricultural purposes.


Ultimately, the trial court granted Donovan’s traditional motion for summary judgment, and this
appeal followed.


                                           SUMMARY JUDGMENT
       In his first, second, third, fifth, sixth, and seventh issues, Neal argues that the trial court
erred in granting summary judgment in Donovan’s favor. In addressing these issues, Neal seeks to
rebut Donovan’s arguments in his motion for summary judgment that Neal could not adversely
possess the property at issue because he (1) failed to oust his cotenants and (2) mistakenly believed
that he owned an interest in the Barnett tract. We will address these issues together.



                                                       2
Standard of Review
       The party moving for traditional summary judgment bears the burden of showing that no
genuine issue of material fact exists and it is entitled to judgment as a matter of law. See TEX. R.
CIV. P. 166a(c); see also Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009). A movant that conclusively negates at least one essential element of a cause
of action is entitled to summary judgment on that claim. Sw. Elec. Power Co. v. Grant, 73 S.W.3d
211, 215 (Tex. 2002). In reviewing a summary judgment, we consider the evidence in the light
most favorable to the nonmovant and resolve any doubt in the nonmovant’s favor. Doe v. Boys
Club of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).
       We review the trial court’s summary judgment de novo. Provident Life & Acc. Ins. Co. v.
Knott, 128 S.W.3d 211, 215 (Tex. 2003). Because the trial court’s order in this case does not
specify the grounds for its summary judgment, we must affirm the summary judgment if any of the
theories presented to the trial court and preserved for appellate review are meritorious.         Id.
Summary judgments, however, may only be granted upon grounds expressly asserted in the
motion. See G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011).
Adverse Possession
       “Adverse possession” means 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. TEX. CIV. PRAC. & REM. CODE ANN. § 16.021(1) (West 2002). The
concept of adverse possession allows the person to claim title to real property presently owned by
another. Bynum v. Lewis, 393 S.W.3d 916, 918 (Tex. App.–Tyler 2013, no pet.). To establish
title through adverse possession, the possession unmistakably must assert a claim of exclusive
ownership in the occupant. See id.
       “A person must bring suit not later than 10 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.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.026(a) (West 2002). “Under this
ten year statute, it is incumbent upon a claimant to show affirmatively: (1) possession of the land;
(2) cultivation, use, or enjoyment thereof; (3) an adverse or hostile claim; and (4) an exclusive
domination over the property and an appropriation of it for his own use and benefit for the
statutory period.” Ramirez v. Wood, 577 S.W.2d 278, 287 (Tex. Civ. App.–Corpus Christi 1978,
no writ).



                                                 3
Ouster of Cotenants
       A “tenancy in common” is a tenancy by two or more persons, in equal or unequal
undivided shares, where each person has an equal right to possess the whole property, but with no
right of survivorship. See BLACK’S LAW DICTIONARY 1604 (9th ed. 2009). Therefore, cotenants
are those who have title “in some manner,” such as by conveyance, inheritance, limitations, or
some other legal means, to real property. See Reed v. Turner, 489 S.W.2d 373, 381 (Tex. Civ.
App.–Tyler 1972, writ ref’d n.r.e.). Any cotenant has a right to be in possession of real property in
which he owns an interest. Todd v. Bruner, 365 S.W.2d 155, 160 (Tex. 1963).
       Because cotenants in an undivided estate have an equal right to “enter upon the common
estate and a corollary right to possession,” 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 repudiation of the cotenancy relationship. Dyer v. Cotton, 333
S.W.3d 703, 712 (Tex. App.–Houston [1st Dist.] 2010, no pet.) (citing Byrom v. Pendley, 717
S.W.2d 602, 605 (Tex. 1986)). The “real property statutes of limitations [pertaining] to cotenants
are not designed to run in secrecy and silence;” therefore, the claimant must prove actual or
constructive notice of the ouster, and the clear, unequivocal, and unmistakable repudiation of the
common title. See Dyer, 333 S.W.3d at 713 (quoting Todd, 365 S.W.2d at 160). In order to
establish title by adverse possession, the cotenant has to show unmistakable and hostile acts that
would put other cotenants on notice of its intent to oust them from the real property. See BP Am.
Prod. Co. v. Marshall, 342 S.W.3d 59, 70 (Tex. 2011).            The test for establishing adverse
possession, both between strangers and cotenants, is whether the acts unmistakably assert a claim
of “exclusive ownership” by the occupant. Id.
       In his motion for summary judgment, Donovan argued that Neal failed to prove that he had
ousted his cotenants, namely, Mary’s heirs, and did not establish the exclusive dominion element
required for adverse possession. Yet based on our review of the summary judgment record, there
is no indication that Neal and another person were ever cotenants in the property. A cotenant must
own an undivided interest in the real property at issue. See Turner, 489 S.W.2d at 381. In this
case, the summary judgment record reflects that none of Mary’s heirs owned any interest in the
Barnett tract. The summary judgment evidence further indicates that Neal never inherited any
portion of the Barnett tract. Rather, the evidence indicates that tract passed by intestacy to either
the five sons of Eugene and Eddie Barnett or their heirs. Consequently, the summary judgment
evidence conclusively demonstrates that from the period from 1997 until 2011, when Neal had


                                                 4
exclusive dominion of the Barnett tract, he had no cotenants. Therefore, we hold that because
Neal had no cotenants during this period, Donovan was not entitled to summary judgment based
on his contentions that Neal could not adversely possess the property due to his failure to oust
cotenants.
Mistaken Belief of Ownership
       We next consider the question of Neal’s mistaken belief of his ownership and its effect on
his ability to adversely possess the property at issue. When an individual has a claim of right
coupled with his actual, visible possession and use of real property, the adverse claim and
possession satisfy the statutory requirements. See Calfee v. Duke, 544 S.W.2d 640, 642 (Tex.
1976). This claim and possession cannot be defeated by the claimant’s lack of knowledge of any
deficiency in his record title or by the absence of a realization that there could be other claimants
for the land. See id. Stated succinctly, a record title holder’s ignorance of what he owns does not
affect the running of limitations. See Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188,
198 (Tex. 2003). The adverse possession statutes require visible appropriation; mistaken beliefs
about ownership do not transfer title until someone acts on them. See Marshall, 342 S.W.3d at 69.
       In his motion for summary judgment, Donovan argued that neither Neal nor any of the
Fraziers realized that the Frazier home had been built on the Barnett tract. Donovan contends that
this mistaken belief prevents Neal from asserting his adverse possession claim based upon his
exclusive dominion of the property from 1997 until 2011. However, the Duke case establishes
that an individual who believes he is the rightful owner and has no competition for that ownership
has a claim of right under the adverse possession statutes. See Duke, 544 S.W.2d at 642; see also
Pool, 188 S.W.3d at 198. In Neal’s affidavit attached to his response to Donovan’s motion for
summary judgment, he stated that he removed all trespassers from the Barnett tract between 1997
and 2011.    This evidence raises an issue of material fact regarding whether Neal’s actions
amounted to an unmistakable assertion of his claim of exclusive ownership of the property. See
BP Am. Prod. Co., 342 S.W.3d at 71. Therefore, we hold that Donovan was not entitled to
summary judgment based on his contentions that Neal could not adversely possess the property
due to his mistaken belief of ownership.
Summation
       Donovan failed to prove that any of Mary’s heirs were Neal’s cotenants. Thus, Donovan
was not entitled to summary judgment based on his contention that Neal could not adversely
possess the property due to his failure to oust cotenants. Moreover, despite any mistaken belief he


                                                 5
may have had concerning his ownership of the property, Neal had a claim of right under the
adverse possession statutes. His affidavit testimony reflects his belief that he was the rightful
owner of the property and raises a material fact issue regarding his claim of exclusive ownership.
Accordingly, we hold that Donovan failed to establish that he was entitled to summary judgment
under this theory. Neal’s first, second, third, fifth, sixth, and seventh issues are sustained.2


                                                     DISPOSITION
             Having sustained Neal’s first, second, third, fifth, sixth, and seventh issues, we reverse the
trial court’s judgment and remand the cause for further proceedings consistent with this opinion.


                                                                       JAMES T. WORTHEN
                                                                              Chief Justice


Opinion delivered January 15, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                     (PUBLISH)




         2
           Because issues one, two, three, five, six and seven are dispositive of this appeal, we do not address Neal’s
fourth issue concerning whether the trial court erred in granting summary judgment based on an implied finding that
he does not have an undivided interest in the property through inheritance. See TEX. R. APP. P. 47.1.


                                                            6
                                    COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                           JANUARY 15, 2014


                                          NO. 12-13-00242-CV


                                         NEAL FRAZIER JR.,
                                             Appellant
                                                V.
                                        RICHARD DONOVAN,
                                              Appellee


                                 Appeal from the 159th District Court
                     of Angelina County, Texas (Tr.Ct.No. CV-01477-12-06)

               THIS CAUSE came to be heard on the appellate record and the briefs filed herein,
and the same being considered, because it is the opinion of this court that there was error in the
judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court that
the judgment be reversed and the cause remanded to the trial court for further proceedings
and that all costs of this appeal are hereby adjudged against the Appellee, RICHARD
DONOVAN, in accordance with the opinion of this court; and that this decision be certified to
the court below for observance.
               James T. Worthen, Chief Justice.
               Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
