Chief Justice                                                                                                      Clerk
James T. Worthen                                                                                                   Cathy S.Lusk


                                     Twelfth Court of Appeals
Justices                                                                                                           Chief Staff Attorney
Sam Griffith                                                                                                       Margaret Hussey
Diane DeVasto



           Wednesday, November 02, 2005

           Ms. Deborah J. Race                                               Mr. Daniel F. Dean
           Ireland, Carroll & Kelley, P.C.                                   Dean, Coe & Associates, PC
           6101 S. Broadway                                                  603 East Lacy
           Suite 500                                                         P.O. Box 1578
           Tyler, TX 75703                                                   Palestine, TX 75802-1578

           Mr. G. Roland Love                                                Mr. Stephen Evans
           Winstead Sechrest & Minick PC                                     P.O. Box 754
           5400 Renaissance Tower                                            513 North Church
           1201 Elm Street                                                   Palestine, TX 75801
           Dallas, TX 75270

           Ms. Brenda K. Hicks                                               Tammie Bailey
           Hicks & Hicks                                                     2212 Hwy. 87 North
           513 North Church Street                                           Center, TX 75935
           Palestine, TX 75801

           RE:      Case Number:                       12-03-00374-CV
                    Trial Court Case Number:           9216


           Style: Billie Wiggins and Carl Hamilton
                    v.

                    Bruce Barrett, Mitchell Bailey, Elmo J. King, Letha King, David King, Warren King,
                    Elkhart State Bank, Kay Pennington and Neches Hills Property Owners Association

           Enclosed is a copy of the Memorandum Opinion issued this date in the above styled and
           numbered cause. Also enclosed is a copy of the court's judgment.

           Very truly yours,

           CATHY S. LUSK, CLERK



           By:     KdjuiiA. Mfl<
                 Katrina McClenny, Chief Deputy Clerk

           CC:           Hon. Deborah Oakes Evans
                         Hon. John Ovard
                         Ms. Janice Staples
                 1517 West Front Street • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax: 903-593-2193
   ServingAnderson, Angelina, Cherokee, Gregg,Henderson, Houston,Nacogdoches,Rains, Rusk, Sabine,San Augustine, Shelby, Smith, Trinity,
                                                   Upshur, Van Zandt and Wood Counties
                                                       www.12thcoa.courts.state.tx.us
                                 NO. 12-03-00374-CV


                       IN THE COURT OF APPEALS


          TWELFTH COURT OF APPEALS DISTRICT


                                    TYLER, TEXAS


BILLIE WIGGINS AND                               §           APPEAL FROM THE 87TH
CARL HAMILTON,
APPELLANTS



BRUCE BARRETT, MITCHELL BAILEY,      §                       JUDICIAL DISTRICT COURT OF
ELMO J. KING, LETHA KING, DA VID KING,
WARREN KING, ELKHART STATE BANK,
KAY PENNINGTON, AND NECHES HILLS
PROPERTY OWNERS ASSOCIA TION,
APPELLEES                                        §           ANDERSON COUNTY, TEXAS



                                  MEMORANDUM OPINION

       This is an appeal of a summary judgment rendered in a trespass to try title case. Appellants
Billie Wiggins and Carl Hamilton complain in two issues that the trial court erred in granting
summary judgment for Bruce Barrett, Mitchell Bailey, Elmo J. King, Letha King, David King,
Warren King, Elkhart State Bank, Kay Pennington, and Neches Hills Property Owners Association,
Appellees. We reverse and remand.


                                          Background

       Appellants sued Appellees for trespass to try title and for a declaratoryjudgment that certain
deeds into Appellees are void and that Appellants are the owners of the 31.374 acre tract in dispute.
Appellants also sought actual and exemplarydamages and attorney's fees. Various Appellees filed
motions for traditional and no-evidence summary judgments, and Appellants filed a traditional
motion for partial summary judgment. See Tex. R. Civ. P. 166a(a), (i). The trial court denied
Appellants' motion for summary judgment and granted Appellees' motions. All Appellees were
named as parties to the final summaryjudgment.
        Appellants claim an undivided interest inthe subject tract through their grandfather, Richard
Crawford, whose fifty acre homeplace, Appellants assert, included within itsfences allofthe31.374
acre tract in controversy. Intheir petition, they claimed title to theproperty (1) byrecord title, (2) by
adverse possession under the ten and twenty-five year statutes, and (3) under the doctrine of prior
possession.
        Appellee Bruce Barrett filed a no-evidence summaryjudgment motion contending there was
no evidence of anyof the elements of proofrequired under the three, five, ten, andtwenty-five year
statutes.

        Appellees Elmo J. King, Letha King, and Elkhart State Bank filed a no-evidence summary
judgment motion maintaining that Appellants could produce no evidence ofrecord title. They also
claimed in their no-evidence motion that Appellants had no evidence sufficient to describe the
property adversely possessed nor any probative evidence to establish any of the listed requisite
elements of the ten or twenty-five year statues. Their no-evidence motion included a traditional
summary judgment motion seeking to establish thatAppellants could notrecover under thedoctrine
of prior possession b ecause the movants held record title to the property. I n support of their
traditional motion, the movants attached a series of deeds beginning with a 1972 conveyance from
James Wren to Bascom Bentley.
        Appellee Cynthia Bailey, Independent Executrix of the Estate of Mitchell Bailey, deceased,
subsequently joined both motions.
        In their response to the motions for summary judgment,Appellants presented no evidence of
record title, but offered affidavits to support their claims of limitations and prior possession.


                                        Standard of Review

        Summary judgment decisions are reviewed by appellate courts de novo. Lavaca Bay
Autoworld,L.L.C. v. Marshall PontiacBuickOldsmobile, 103 S.W.3d650,653 (Tex. App.-Corpus
Christi 2003, no pet.). "When both sides move for summaryjudgment and the trial court grants one
motion but denies the other, the reviewing court should review both sides' summary judgment
evidence, determine all questions presented, and render thejudgment that the trial court should have
rendered." Id. (citing FMProps. Operating Co. v. City ofAustin, 22 S.W.3d 868,872 (Tex. 2000)).
Traditional motions for summaryjudgment andno-evidence motionsfor summaryjudgmentinvoke
different standards of review. Lavaca, 103 S.W.3d at 653. For traditional motions for summary
judgment, the keyquestion is "whether the summary judgment proof establishes as a matter of law
that there is no genuine issue of fact as to one or more of the essential elements of the ... cause of
action." Id. (quoting Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970)). For no-
evidence motions for summaryjudgment, the legal sufficiency standard applied to pretrial directed
verdicts is appropriate. "Ifthenonmovant produces evidence to raisea genuine issueofmaterial fact,
summary judgment is improper." Lavaca, 103 S.W.3d at 653.
       None of the appellees filed a traditional motion for summaryjudgment seeking to negate as
a matter of law one or more elements of Appellants' claim of adverse possession under the ten or
twenty-five year statute of limitations. Therefore, if Appellants produced evidence amounting to
more than a scintilla on each of the requisite elements to recovery under either statute, the trial court
erred in granting summary judgment.
Applicable Law
        "A person must bring suit not later than 10 years after the day the cause of action accrues to
recoverreal propertyheld in peaceable and adversepossessionby one who cultivates,uses, or enjoys
theproperty." Tex. Civ.Prac.& Rem. Code Ann. § 16.026(a) (Vernon 2002). Thetwenty-five year
statute provides that "[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
realpropertyheld in peaceable and adverse possession by anotherwho cultivates, uses,or enjoys the
property." Id. § 16.027. "Adverse possession" means an actual and visible appropriation of real
property,commencedand continued under a claim ofright that is inconsistentwith and hostile to the
claim of another person. Id. § 16.021(1). Peaceable possession is defined as possession "that is
continuous and is not interrupted by an adverse suit to recover the property." Id. § 16.021(3).
Possession must not only be actual, but also visible, continuous, notorious, distinct, hostile (i.e.,
adverse), and of such a character as to indicate unmistakably an assertion of a claim of exclusive
ownership in the occupant. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990).
Evidence

        The affidavit of James M. Crawford recited that he was born three miles from his Uncle

Richard Crawford's homeplace in 1922. When he went to school, he walked or rode a horse across
the Wren property near his uncle's home. James Crawford stated that from the time he was three or
four years old until he joined the Soil Conservation Corps in 1939, Richard Crawford lived on his
homeplace, farmed on his homeplace, and raised his family there. James Crawford returned to
Palestine in 1946 from military service. After that time, his Uncle Richard Crawford continuously
resided on his homeplace until his death. James Crawford stated that the affidavit of James Wren
correctly described the Richard Crawford. From his earliest recollection, he knew that Richard
Crawford lived on and farmed the homeplace growing cotton, corn, peas, and other vegetables.
Richard Crawford, he stated, planted fruit trees there. He also stated that, after Richard Crawford's
death, his descendants continued to live on the property.
        James Wren stated in his 1978 affidavit that Richard Crawford purchased a fifty acre tract
adjoining the McCleod survey in 1917 and lived there until his death in 1949. He further stated that
neither he nor his family had ever asserted a claim to the Richard Crawford tract.
        Plaintiff Billie Wiggins recited in her affidavit that she was born in 1943 on the homeplace
of Richard Crawford, her great-grandfather, and that, except for six months, she had lived there all
ofher life and still lived there. She said the fifty acre tract was fenced on all four sides and, since she
had lived there for most of her life, she was very familiar with its boundaries. She said Richard
Crawford and his heirs farmed and planted fruit and nut trees on the land in dispute and harvested
the fruit from the trees continuously for more than twenty-five years and until this dispute arose in
1993. She recited that she has paid taxes on the fifty acres known as the Richard Crawford Place and
said that the tax statements sometimes called it a part ofthe Payne Survey and other times described
it as part of the Payne and McCleod Surveys. She further stated that the 31.374 acres in dispute are
located within the Richard Crawford home place.
        There is more than a scintilla ofevidence that from 1917 until 1950 there was a fifty acre farm
known as the Richard Crawford Place; that from the time of James Crawford's earliest recollection

(no later than 1930) until Richard Crawford's death in 1949 or 1950, Richard Crawford lived
continuously on the property, planted fruit and nut trees on it, and farmed it in cotton, corn, and
vegetables; and that during that time the fifty acre tract was enclosed by a boundary fence. The
affidavits of James Wren and James Crawford show that the fifty acre tract was known in the
neighborhood as the Richard Crawford Place and that Richard Crawford was regarded as its owner.
The summaryj udgment proof also shows that since Richard Crawford's death, his heirs have
continued to occupy and farm the place and that Appellants are among his heirs. In her affidavit,
Billie Wiggins states that, except for six months, she has lived on the farm all her life, that she is
familiar with its boundaries, and that the disputed 31.374 acre tract described by metes and bounds
lies entirely within the fifty acre tract adversely possessed by Richard Crawford and his heirs.
          There is, however, no metes and bounds description of the Richard Crawford fifty acre tract,
although the disputed 31.374 acre tract claimed to lie within it is described by metes and bounds.
James Wren, in his 1978 affidavit, describes the tract as fifty acres lying adjacent to certain other
tracts, a description defendants assail as too vague to permit a surveyor to accurately locate it on the
ground.
        A plaintiff in a trespass to try title suit must describe the premises claimed "by metes and
bounds, or with sufficient certainty to identify the same." Tex. R. Civ. P. 783(b). When a plaintiff
sues for a specific tract, the burden is on the plaintiffto prove the location of the adversely possessed
tract on the ground. Coleman v. Waddell, 151 Tex. 337, 340, 249 S.W.2d 912, 913 (Tex. 1952);
Thompson v. Texas CommerceNat'lBank Ass'n, 586 S.W.2d 138, 139 (Tex. Civ. App.-Houston
[lstDist] 1979, writ refdn.r.e.).
        In Coleman, the court addressed the converse of the description problem presented here;
there, the adverse possession claimant failed to describe a smaller tract inside a sufficiently described
larger one. The Waddells claimed a described one hundred acre tract, their claim resting upon their
enclosure and continuous use of an approximately two acre garden plot for a period sufficient to
satisfy the ten year statute. Their claim failed as to the area outside of the garden, because the
evidence showed that during the limitation period the record owners, through their vendee Kirby
Lumber Company, had cut and removed the commercial timber from the property outside of the
garden. The court also rejected their claim to the enclosed two acre garden, because the Waddells
failed to allege or prove an adequate legal description ofthe smaller tract. "For that reason the trial
court could not renderjudgment in theirfavor for it." Coleman, 249 S.W.2d at 913 (emphasis
added).
          In Thompson, the plaintiff claimed adverse possession by enclosure of a specifically
described two acre tract. The court rejected the plaintiffs claim because his proofdid not "establish
the physical location of each side of the enclosure on the ground." Thus, the plaintiff did not meet
his burden of establishing by prima facie proof the ground location of the property described in the
petition." Thompson, 586 S.W.2d at 141.
          Appellees argue that to avoid no-evidence summary judgment, Appellants' summary
judgment proof must legally describe the 31.374 acres in dispute claimed to be adversely possessed
as well as the adversely possessed fifty acre tract that encompasses it, although a considerable part
of the larger tract is not in dispute.
          Appellants contend that Rule 783 and the case law require that their pleading and proof
include a specific legal description for only that part ofthe adversely possessed tract that is in dispute.
          The rationale underlying the requirement that the petitioner in trespass to try title describe the
premises claimed "by metes and bounds, or with sufficient certainty to identify the same" is that,
absent such a description, the trial court cannot render a judgment that will effectively deliver
possession ofthe premises in controversy. Coleman, 249 SW.2d at 913; see Tex. R. Civ. P. 783(b).
This rationale does not support Appellees' argument. We conclude that to avoid no-evidence
summaryjudgment, Appellants' proofneed only legally describe the 31.374 acres in controversy, but
not the adversely possessed larger tract embracing it.


                                                    Conclusion

          We conclude that Appellants presented summaryjudgment proof amounting to more than a
scintilla supporting each element of their adverse possession claim to the property in controversy.
The trial court's judgment is reversed, and the cause is remanded for further proceedings.

                                                                              BILL BASS
                                                                                    Justice

Opinion delivered November 2, 2005.
Panel consistedofWorthen, C.J., Griffith, J., andBass, RetiredJustice, Twelfth CourtofAppeals, Tyler, sittingbyassignment.


                                                     (PUBLISH)

                                                            6                            •
                                COURT OF APPEALS

           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT


                                          NOVEMBER 2, 2005



                                       NO. 12-03-00374-CV


                         BILLIE WIGGINS AND CARL HAMILTON,
                                                 Appellants
                                                      V.

                 BRUCE BARRETT, MITCHELL BAILEY, ELMO J. KING,
       LETHA KING, DAVID KING, WARREN KING, ELKHART STATE BANK,
  KAY PENNINGTON, AND NECHES HILLS PROPERTY OWNERS ASSOCIATION,
                                                  Appellees


                            Appeal from the 87th Judicial District Court
                            of Anderson County, Texas. (Tr.Ct.No. 9216)


                       THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being inspected, it is the opinion of this court that there was error in the judgment as
entered by the trial court and that the same should be reversed and the cause remanded to the court

below for further proceedings.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be reversed and the cause remanded for further proceedings in accordance with
the opinion of this court; and that all costs of this appeal be, and the same are, adjudged against the
Appellees, BRUCE BARRETT, MITCHELL BAILEY, ELMO J. KING, LETHA KING,
DAVID KING, WARREN KING, ELKHART STATE BANK, KAY PENNINGTON, AND

NECHES HILLS PROPERTY OWNERS ASSOCIATION, for which let execution issue; and

that this decision be certified to the court below for observance.

                       Bill Bass, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., andBass, RetiredJustice, Twelfth CourtofAppeals
                       Tyler, sitting by assignment.
