                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00146-CV

IVA JEAN CARRINGTON,
                                                             Appellant
v.

ANTHONY CARRINGTON,
DORYL GOFFNEY AND ROSA GOFFNEY,
                                                             Appellees



                            From the 12th District Court
                               Walker County, Texas
                               Trial Court No. 25,262


                           MEMORANDUM OPINION


       In this appeal, appellant, Iva Jean Carrington, challenges the trial court’s final

judgment awarding a 5.18-acre tract of land to appellees, Doryl and Rosa Goffney. In

five issues, Iva argues that the trial court erred in: (1) concluding that she does not have

a claim to the land under color of title; (2) concluding that she did not adversely possess

the land in question; (3) declaring that the Goffneys were good-faith purchasers of the

land; (4) concluding that the Goffneys owned the land in fee simple; and (5)
determining that she breached a contract she had with her brother, co-appellee Anthony

Carrington. We affirm.

                                               I. BACKGROUND

       This action centers on a dispute regarding a 5.18-acre tract of land in New

Waverly, Texas. On December 17, 1966, Clyde and Emma Lois Carrington, Iva and

Anthony’s parents, obtained a warranty deed to the land in question. The Carringtons

built a house on the land, which was used as the family’s residence.

       On May 3, 1983, Clyde and Emma contracted with Major United Steel Siding

Corporation (“Major”) for the installation of: (1) vinyl siding on the house; (2) two

wood doors and two aluminum storm doors; (3) aluminum screens; (4) shutters; and (5)

a new front porch and cement steps. Using the land as collateral for the aforementioned

projects, Clyde and Emma entered into a “Contract for Labor and Materials and Trust

Deed” with Major.

           According to Anthony, Clyde received notice sometime in 1994 that Ronald J.

Sommers, the Liquidating Trustee for Major, intended to foreclose on Major’s lien

because the Carringtons had failed to pay for all of the work done to the property.1

However, Clyde passed away on February 26, 1994 without leaving a will, and Major

subsequently foreclosed on its lien on August 2, 1994.

       Despite the foreclosure, Anthony continued to live on the property. Shortly after

the foreclosure, Anthony decided that he wanted to buy the property.                             He began



       1   At trial, Emma denied receiving notice from Major about its intent to foreclose on its lien.


Carrington v. Carrington                                                                                  Page 2
making installment payments to Major in the amount of $265 per month.                               After

Anthony had paid the agreed-upon price of $12,500, on May 15, 1996, Major issued a

“No Warranty Deed,” which conveyed the property to Anthony. After receiving the

deed from Major, Anthony believed that he owned the property free and clear and

subsequently had the deed recorded in the County Clerk’s Office of Walker County,

Texas.

         As the purported owner of the property, Anthony allowed other family members

to live on the land. In November 1996, Iva moved her mobile home onto the land.

According to Anthony, Iva lived on the land subject to his permission. Then, on April 5,

2007, Iva contracted with Anthony for the sale of one acre of the 5.18-acre tract of land

to Iva.2 The contract specified that Iva intended to build a “Jim Walters Home” on the

one-acre tract and that she was to pay Anthony $3,000 for the land. She made an initial

payment of $150 and agreed to pay $200 a month until the contract price was met. Iva

admitted at trial that she only made two $100 payments to Anthony—leaving $2,650

remaining on the balance owed—and that she never did finish paying the remaining

balance to Anthony.

         In the meantime, Iva contracted with Jim Walter Homes, Inc. to build a home on

the land where she resided. Jimmy Holder, purportedly a former employee of Jim

Walter Homes, sent Iva a handwritten letter dated June 8, 2010, indicating that, in

February or March 2007, he ran a title search on the property and that he “could not get


         2Iva alleged that Anthony also contracted with their brother, Willie Carrington, for the sale of a
one-acre tract.


Carrington v. Carrington                                                                            Page 3
a clear title for our customers to build a home with financing. The chain of title . . . had

serious defects.”

       After Iva failed to make the required payments under the contract, Anthony sent

her an eviction notice, stating that the property had been sold and giving her three days

to remove her mobile home. Iva refused to leave.

       On December 1, 2009, Anthony sold the entire 5.18-acre tract to the Goffneys.

The Goffneys procured title insurance. In addition, they had Sam Houston Landmark

Title Company conduct a title search on the property. The title search indicated that

Anthony had been the owner of the property since May 1996.

       In mid 2010, the Goffneys filed lawsuits to evict Iva and her family from the

property. These lawsuits were dismissed. The instant case, filed by Iva on September 3,

2010, alleged causes of action against Anthony for breach of contract and deceptive

trade practices. She also alleged a trespass to try title claim, asserting that she acquired

title to the property by adverse possession. At trial, Iva tendered into evidence a letter

written by Emma, which stated that each of the five children in the family were to

receive one acre of land. This letter was notarized on June 9, 2010; however, it was not

recorded in the county land records. In addition, she sought to enjoin Anthony and the

Goffneys from interfering with her peaceful use and enjoyment of the property. The

Goffneys filed an answer generally denying all of the claims made by Iva and asserted

counterclaims for trespass.3




       3   Anthony testified and represented himself at trial.

Carrington v. Carrington                                                              Page 4
       The trial court conducted a bench trial on Iva’s claims and subsequently

concluded that: (1) the Goffneys should recover exclusive right, title to, and possession

of the property; (2) Iva should be divested of any title or right of possession to the

property; (3) Iva’s breach of contract and DTPA claims should fail; and (4) the Goffneys

should take nothing on their counterclaims. At the urging of Iva, the trial court entered

numerous findings of fact and conclusions of law. This appeal followed.

                                   II. STANDARD OF REVIEW

       The trial court’s findings of fact after a bench trial are reviewable for legal and

factual sufficiency by the same standards applied in reviewing the evidence supporting

a jury’s answer. Cason v. Taylor, 51 S.W.3d 397, 403 (Tex. App.—Waco 2001, no pet.).

We review a trial court’s conclusions of law de novo. Id. A conclusion of law will be set

aside only if it is erroneous as a matter of law. Id.

       Here, Iva appears to challenge the legal and factual sufficiency of the trial court’s

findings, and as the plaintiff, she had the burden to prove her claims in the trial court.

When a party attacks the legal sufficiency of an adverse finding on an issue on which it

had the burden of proof, it must demonstrate that the evidence establishes, as a matter

of law, all vital facts in support of that issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237,

241 (Tex. 2001). We must first examine the record for probative evidence that supports

the trial court’s finding, while ignoring all evidence to the contrary unless a reasonable

fact-finder could not. Id.; City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If

there is no evidence to support the trial court’s answer, then we must examine the

entire record to see if the contrary proposition is established as a matter of law. Dow

Carrington v. Carrington                                                              Page 5
Chem Co., 46 S.W.3d at 241.       The issue should be sustained only if the contrary

proposition is conclusively established. Id.

       When a party attacks the factual sufficiency of an adverse finding on an issue on

which it has the burden of proof, it must demonstrate that the adverse finding is against

the great weight and preponderance of the evidence. Id. at 242. We must consider and

weigh all of the evidence, and we can set aside the judgment only if the evidence is so

weak or the finding is so against the great weight and preponderance of the evidence

that it is clearly wrong and unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Fact findings are not conclusive when, as in this case, a complete reporter’s record

appears in the record if the contrary is established as a matter of law or if there is no

evidence to support the finding. Material P’ships, Inc. v. Ventura, 102 S.W.3d 252, 257

(Tex. App.—Houston [14th Dist.] 2003, pet. denied).

       In a bench trial, the trial court judges the credibility of the witnesses, determines

the weight to be given their testimony, and resolves conflicts and inconsistencies in the

testimony. Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.—Houston [1st

Dist.] 1992, writ denied); Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.—Dallas

1986, writ ref’d n.r.e.). An appellate court may not substitute its judgment for that of

the trier of fact, even though, after reviewing the evidence, it may have reached a

different conclusion. Essex Crane Rental Corp. v. Striland Constr. Co., 753 S.W.2d 751, 755

(Tex. App.—Dallas 1988, writ denied). The amount of evidence necessary to affirm a

judgment is far less than necessary to reverse a judgment. Rowlett/2000, Ltd. v. City of

Rowlett, 231 S.W.3d 587, 590 (Tex. App.—Dallas 2007, no pet.).

Carrington v. Carrington                                                              Page 6
                                      III. COLOR OF TITLE

       In her first issue, Iva contends that she has a claim for the property under color of

title. We disagree.

A. Applicable Law

       Title is defined as “a regular chain of transfers of real property from or under the

sovereignty of the soil.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.021(4) (West 2002).

Color of title is defined as a consecutive chain of transfers to the person in possession

that: (1) is not regular because of a muniment that is not properly recorded or is only in

writing or because of a similar defect that does not want of intrinsic fairness or honesty;

or (2) is based on a certificate of headright, land warrant, or land scrip.             Id. §

16.021(2)(A). “[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.”

Lorino v. Crawford Packing Co., 142 Tex. 51, 175 S.W.2d 410, 413 (1943). The plaintiff in a

trespass to try title action must recover, if at all, on the strength of its own title and not

on the weakness of the defendant’s title. Rogers v. Ricane Enters., Inc., 884 S.W.2d 763,

768 (Tex. 1994). The plaintiff has the burden to establish superior title by showing she

has: (1) title emanating from the sovereignty of the soil; (2) a superior title in itself

emanating from a common source to which the defendant claims; (3) title by adverse

possession; or (4) title by earlier possession coupled with proof that possession has not

been abandoned. Id.; see also Griffin v. Griffin, No. 10-08-00327-CV, 2010 Tex. App.

LEXIS 272, at *14 (Tex. App.—Waco Jan. 13, 2010, pet. denied) (mem. op.).

Carrington v. Carrington                                                                Page 7
B. Discussion

         Here, the trial court, in its findings of fact, stated that: “[t]here was no deed or

other recorded instrument conveying any interest in the 5.18 acres to Iva Jean

Carrington introduced into evidence.” In its conclusions of law, the trial court noted

that Iva “has no claim of ownership under color of title” and that “Anthony Carrington

received fee simple title by way of the No Warranty Deed recorded in 1996.” At trial,

Anthony testified that he purchased the property from Major in 1996 and, thus, owned

the property. Moreover, Sam Moak, the president of Sam Houston Landmark Title

Company, stated that he conducted a title search for the Goffneys and that the title

search revealed that Anthony owned the property in fee simple. Iva tendered evidence,

which she alleged refuted Anthony’s ownership claims, including a letter written by

Emma, stating that each of the five children were to receive one acre of land. Curiously,

this letter was notarized on June 9, 2010, after the Goffneys initiated their lawsuits, and

it was never recorded in the county records. And furthermore, at the time the letter was

drafted, Emma no longer owned the land—Anthony did. In any event, it was within

the province of the trial court to weigh and reconcile the evidence presented at trial, and

in doing so, it clearly believed the testimony of Anthony and Moak with regard to

ownership of the property. See Lyles, 825 S.W.2d at 493; Clancy, 705 S.W.2d at 826.

Because there is more than a scintilla of evidence to support the trial court’s conclusions

that: (1) Anthony owned the property in fee simple prior to the sale to the Goffneys;

and (2) Iva did not have a claim under color of title, we will not disturb the trial court’s

findings. See Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.

Carrington v. Carrington                                                               Page 8
App.—Austin 1992, no writ) (stating that conclusions of law may not be reversed unless

they are erroneous as a matter of law); see also Lorino, 175 S.W.2d at 413. As such, we

conclude that the evidence supporting the trial court’s findings as to color of title is

legally and factually sufficient. See Dow Chem. Co., 46 S.W.3d at 241; Cain, 709 S.W.2d at

176. Iva’s first issue is overruled.

                                       IV. ADVERSE POSSESSION

       In her second issue, Iva asserts that she has title to the property by virtue of

adverse possession.

A. Applicable Law

       Adverse possession is “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” throughout the statutory period—ten years here. TEX.

CIV. PRAC. & REM. CODE ANN. §§ 16.021(1), 16.026 (West 2002); see Moore v. Stone, 255

S.W.3d 284, 288 (Tex. App.—Waco 2008, pet. denied). Section 16.021(1) specifically

requires that such possession of real property be “inconsistent with” and “hostile to”

the claims of all others. See Moore, 255 S.W.3d at 288 (citing Minh Thu Tran v. Macha, 213

S.W.3d 913, 914 (Tex. 2006)). Essentially, to prevail on a claim of adverse possession,

the elements to prove by a preponderance of the evidence are: (1) actual and visible

possession of the disputed property; (2) that is adverse and hostile to the claim of the

owner of record title; (3) that is open and notorious; (4) that is peaceable; (5) that is

exclusive; and (6) involves continuous cultivation, use, or enjoyment for ten years.



Carrington v. Carrington                                                            Page 9
Glover v. Union Pac. R.R. Co., 187 S.W.3d 201, 213 (Tex. App.—Texarkana 2006, pet.

denied) (citing Natural Gas Pipeline Co. v. Pool, 124 S.W.3d 188, 193-94 (Tex. 2003)).

       “One seeking to establish title to land by virtue of the statute of limitations has

the burden of proving every fact essential to that claim by a preponderance of the

evidence.” Id. (citing Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990)). Inferences from

the facts are never indulged in the adverse claimant’s favor. Bywaters v. Gannon, 686

S.W.2d 593, 595 (Tex. 1985); see Moore, 255 S.W.3d at 288. Whether adverse possession

has been established is ordinarily a question of fact. Gannon, 686 S.W.2d at 595.

B. Discussion

       On appeal, Iva claims that because she occupied, maintained, and paid taxes on

the land from November 1996 until the present, she “has openly, notoriously, and when

required, hostile to anyone else’s claim, retained possession of the 5.18[-]acre tract.” In

its findings of fact, the trial court noted that the testimony “established that Iva Jean

Carrington has lived on the property since 1996 with the permission of Anthony

Carrington” and that “Anthony Carrington resided on and used the property until on

or about November 2009.” As a result, the trial court concluded that: (1) “Iva Jean

Carrington enjoyed the use and possession of a portion of the 5.18 acres with full

knowledge and consent of Anthony Carrington”; and (2) “Iva Jean Carrington never

exercised open, notorious[,] and hostile use of the 5.18 acres.”

       Anthony testified that he was aware that Iva was living on a portion of the 5.18

acres and that she was doing so with his permission. Iva admitted that all of the family

members used or lived on the property at various times and that she did not try to

Carrington v. Carrington                                                                 Page 10
exclude any of them from using or exercising possession of the property. In concluding

that Iva did not adversely possess the property, the trial court found Anthony’s

statement about granting Iva permission to live on the property to be credible, which it

was entitled to do. See Lyles, 825 S.W.2d at 493; Clancy, 705 S.W.2d at 826. The evidence

does not demonstrate that Iva possessed the entire 5.18 acres to the exclusion of all

others or that her possession of the one-acre portion of the property was hostile,

especially considering that Anthony, the owner of record title, testified that he granted

Iva permission to move onto the property. See TEX. CIV. PRAC. & REM. CODE ANN. §§

16.021(1), 16.026; see also Pool, 124 S.W.3d at 193-94; Glover, 187 S.W.3d at 213. Based on

our review of the record, we find that there is sufficient evidence to support the trial

court’s finding that Iva did not adversely possess the property. See TEX. CIV. PRAC. &

REM. CODE ANN. §§ 16.021(1), 16.026; Pool, 124 S.W.3d at 193-94; Glover, 187 S.W.3d at

213; see also Dow Chem. Co., 46 S.W.3d at 241; Cain, 709 S.W.2d at 176. Accordingly, Iva’s

second issue is overruled.

                                 V. IVA’S CONTRACT CLAIM

       In her fifth issue, Iva argues that the trial court erred in concluding that she had

no contractual claim to the 5.18 acres and that she had breached the contract she entered

into with Anthony.

       The elements of a breach of contract claim are: (1) the existence of a valid

contract; (2) performance, or tendered performance, by the claimant; (3) breach of the

contract by the defendant; and (4) damages to the plaintiff resulting from that breach.



Carrington v. Carrington                                                            Page 11
Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 758 (Tex. App.—El Paso 2000, no

pet.).

         The trial court stated that “[a]n agreement existed between Anthony Carrington

and Iva Jean Carrington for the purchase of a 1[-]acre tract out of the 5.18[-]acre parent

tract” and that “Iva Jean Carrington, by her own admission, failed to pay the money

owed as part of that agreement.”       Accordingly, the trial court concluded that Iva

breached the contract with Anthony and, as a result, did not have a contractual claim to

the property. In her testimony, Iva acknowledged that she entered into an agreement

with Anthony for the purchase of the land, but she admitted to not paying the full

balance owed to Anthony for the property. The contract was admitted into evidence,

and the record demonstrated that Iva owed Anthony the remaining $2,650 balance for

the property.

         On appeal, Iva argues that Anthony did not honor the contract because he

sought to evict her and because he did not forgive her failure to make payments under

the contract. By failing to pay the $2,650 balance owed, Iva did not perform her duties

under the contract, yet Iva continued to live on the property. Because Anthony found a

buyer for the property and because she had not completely paid for the property in

accordance with the contract, Anthony sought to have Iva evicted. Furthermore, the

express language of the contract did not require that Anthony forgive Iva for failing to

make payments for the property. In fact, the contract did not address that contingency

at all. Based on our review of the record, we conclude that there exists sufficient

evidence to support the trial court’s finding that Iva breached the contract with

Carrington v. Carrington                                                           Page 12
Anthony, and as a result, Iva did not have a contractual claim to the property. See

Hornburg, 20 S.W.3d at 758; see also Dow Chem. Co., 46 S.W.3d at 241; Cain, 709 S.W.2d at

176. Iva’s fifth issue is overruled.

   VI. WHETHER THE GOFFNEYS WERE GOOD-FAITH PURCHASERS AND OWNED THE LAND
                                   IN FEE SIMPLE


        In her third and fourth issues, Iva complains about the sale of the property to the

Goffneys. In particular, Iva alleges that the Goffneys were not good-faith purchasers of

the property because they had knowledge that she was living on a part of the land and

that the Goffneys did not own the property in fee simple as a result of her possession of

the land.    Appellees counter that Iva lacked standing to challenge the sale of the

property to the Goffneys because she does not have any cognizable legal right to the

land.

A. Applicable Law

        Standing is a necessary component of subject-matter jurisdiction and involves

the court’s power to hear a case. McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 231

(Tex. 2001); Walston v. Lockhart, 62 S.W.3d 257, 259 (Tex. App.—Waco 2001, pet. denied).

A question of subject-matter jurisdiction is fundamental and may be raised at any time.

See In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003); Walston, 62 S.W.3d at 259. Whether a

trial court has subject-matter jurisdiction is a question of law subject to de novo review.

See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). The general test for

standing in Texas requires that there “(a) shall be a real controversy between the parties,




Carrington v. Carrington                                                            Page 13
which (b) will be actually determined by the judicial declaration sought.” Tex. Ass’n of

Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

       A cause of action for injury to real property accrues when the injury is

committed. Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex. 1984); Exxon Corp. v. Pluff,

94 S.W.3d 22, 26-27 (Tex. App.—Tyler 2002, pet. denied). The right to sue for the injury

is a personal right that belongs to the person who owns the property at the time of the

injury. Pluff, 94 S.W.3d at 27; Abbott v. City of Princeton, 721 S.W.2d 872, 875 (Tex.

App.—Dallas 1986, writ ref’d n.r.e.). Because it is a personal right, the right does not

pass to a subsequent purchaser of the property, or, in other words, the right does not

run with the land, unless there is an express assignment of the cause of action to the

subsequent purchaser. Pluff, 94 S.W.3d at 27; Abbott, 721 S.W.2d at 875.

B. Discussion

       Here, Iva did not have an interest in the land at the time of the sale to the

Goffneys. As we concluded earlier, Iva breached the contract she had with Anthony for

the sale of the land, and she did not obtain title to the land by adverse possession or

under color of title. Because the right to sue for injury to real property does not run

with the land and because there is no express assignment of any rights to Iva with

respect to the land, she lacks standing to complain about any injury to the land as a

result of the Goffneys’ purchase. See Pluff, 94 S.W.3d at 27; see also Abbott, 721 S.W.2d at

875. The right to sue for injury to the property at the time of the sale to the Goffneys

solely belonged to the owner of the property at the time—Anthony. See Pluff, 94 S.W.3d



Carrington v. Carrington                                                             Page 14
at 27; see also Abbott, 721 S.W.2d at 875. Because she lacked standing to challenge the

Goffneys’ purchase of the land, we overrule Iva’s third and fourth issues.

                                     VII.   CONCLUSION

       Having overruled all of Iva’s issues, we affirm the judgment of the trial court.




                                                 AL SCOGGINS
                                                 Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       Affirmed
Opinion delivered and filed October 12, 2011
[CV06]




Carrington v. Carrington                                                            Page 15
