









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-02-00063-CV
______________________________


ACTS HOUSING DEVELOPERS, LTD. AND
ASLAN HOUSING PARTNERS VI, LTD., Appellants

V.

RONNY HILL, INDIVIDUALLY AND D/B/A
R & L BUILDERS, AND PEOPLES NATIONAL BANK, Appellees



On Appeal from the 62nd Judicial District Court
Lamar County, Texas
Trial Court No. 67377





Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross

MEMORANDUM  OPINION

	Acts Housing Developers, Ltd. and Aslan Housing Partners VI, Ltd., appellants,
have filed a letter with this Court in which they ask that their appeal be dismissed because
of a settlement entered into among the parties.  Pursuant to Tex. R. App. P. 42.1, the
request is granted.
	We dismiss the appeal.

							Donald R. Ross
							Justice

Date Submitted:	October 13, 2003
Date Decided:	October 14, 2003


 STYLE="font-family: Times New Roman">O P I N I O N

	Honley Witcher and Roy Witcher (herein collectively the Witchers) appeal from the trial
court's granting of R. Daryll Bennett's motion for summary judgment, which rejected the trespass
to try title claims of the Witchers, awarded a permanent injunction against the Witchers from
entering onto the lands in controversy, and awarded attorney's fees to Bennett.
	The Witchers raise four issues on appeal.  They argue the trial court erred in 1) awarding
attorney's fees to Bennett due to lack of authorization under the law, 2) awarding summary judgment
on attorney's fees due to the existence of a fact issue concerning attorney's fees, 3) granting Bennett's
motion for summary judgment disposing of Honley Witcher's claim of adverse possession because
an issue of fact existed as to whether Honley Witcher had matured title under the ten-year statute of
limitations, (1) and 4) granting a permanent injunction to Bennett.  On appeal, Bennett has waived any
and all claims for attorney's fees associated with the motion for summary judgment.  Therefore, we
will only address the Witchers' third and fourth points of error.
	In 1985, Honley Witcher constructed a pond on the disputed tract of land in Rusk County,
Texas, comprising approximately sixty-four acres.  The disputed tract is adjacent to the land on
which Honley Witcher's home is located.  In 1987, a judgment in trespass to try title was taken
against Honely Witcher concerning the disputed tract.  Despite the judgment, Honley Witcher
remained in possession of the land.  In 1989, a default judgment was granted in another trespass to
try title suit brought by a new owner of the record title of the same land, which included a permanent
injunction prohibiting Honley Witcher from entering the property.  Honley Witcher continued to
possess the disputed land.  
	In their answers to interrogatories, the Witchers claim that, during this time, Honley Witcher
and Roy Witcher, at Honley Witcher's direction, grazed livestock, built and maintained fences,
fertilized, harvested hay, constructed a pond, and paid taxes on the disputed property.  Philip Hobbs,
a neighbor of Honley Witcher, testified that Honley Witcher has grazed his livestock and harvested
hay from the land for "a period of at least 15 years and, perhaps, 20 years."  Both Roy Witcher and
Honley Witcher admit in their answers to the interrogatories they never told the record owners that
Honley Witcher claimed ownership of the land.
	Honley Witcher also claimed that it "is well known in the community that the land belongs
to me."  Terry McAllister and Hobbs assert that Honley Witcher has been in continuous possession
of the land to the exclusion of all other persons since before 1989 and at all times has represented
he owned the said land.  In his answers to the interrogatories, Roy Witcher asserts that, during early
January of 2001, he ordered Warren Mangnall, the record owner of the property at that time, off the
property.  When Mangnall refused to leave, Roy Witcher called the sheriff, who escorted Mangnall
from the property. 
	On January 11, 2002, Bennett acquired title to the disputed tract.  Bennett filed the current
suit on January 18, 2002, against Honley Witcher and his son, Roy Witcher, to permanently enjoin
them from entering on the land.  The Witchers filed a counterclaim in trespass to try title, alleging
Honley Witcher had acquired record title by adverse possession.  Bennett filed a motion for summary
judgment alleging he could disprove that the Witchers failed to provide any "actual notice or
unequivocal and notorious actions," which repudiated the tenancy at sufferance or in the alternative
provided any repudiation before January 18, 1992.  On October 7, 2002, the trial court granted
Bennett's motion for summary judgment, which rejected the trespass to try title claim of the
Witchers, awarded a permanent injunction against the Witchers from entering onto the land in
controversy, and awarded attorney's fees in the amount of $6,500.00, plus interest, to Bennett.
	To prevail on a motion for summary judgment, a movant must establish that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. 
Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). 
Summary judgment for a defendant is proper when the defendant negates at least one element of each
of the plaintiff's theories of recovery or pleads and conclusively establishes each element of an
affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). 
	In reviewing a summary judgment, we accept all the nonmovant's proof as true and indulge
every reasonable inference in the nonmovant's favor.  Martinez, 941 S.W.2d at 911.   All doubts
about the existence of a genuine issue of a material fact must be resolved against the movant. 
Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996).  A movant must
establish his or her entitlement to a summary judgment on the issues expressly presented to the trial
court.  City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979); Christensen v.
Sherwood Ins. Servs., 758 S.W.2d 801, 803 (Tex. App.-Texarkana 1988, writ denied).
	The Witchers concede Bennett possesses record title to the tract in controversy.  The
Witchers also concede Honley Witcher continued in possession after the 1987 judgment as a tenant
at sufferance.  Rather, the Witchers argue that summary judgment was inappropriate because Bennett
had not conclusively established the lack of constructive notice of repudiation of the tenancy at
sufferance.
	A party that holds over after an adverse judgment has been rendered against it is merely a
permissive tenant, or a tenant at sufferance.  Tex-Wis Co. v. Johnson, 534 S.W.2d 895, 899 (Tex.
1976); Williams v. Martin, 395 S.W.2d 714, 717 (Tex. Civ. App.-Texarkana 1965, writ ref'd n.r.e.). 
Consequently, before the tenant can begin to adversely possess the land, he or she must repudiate
the tenancy.  Tex-Wis Co., 534 S.W.2d at 899; Williams, 395 S.W.2d at 717; Angelina County
Lumber Co. v. Reinhardt, 285 S.W.2d 446, 447 (Tex. Civ. App.-Beaumont 1955, writ ref'd n.r.e.). 
However, the Texas Supreme Court has held that actual notice is not required.  Tex-Wis Co., 534
S.W.2d at 899.  Adopting the reasoning of the Galveston Court of Civil Appeals, the Texas Supreme
Court held that:
	Such notice may be constructive and will be presumed to have been brought home
to the co-tenant or owner when the adverse occupancy and claim of title to the
property is so long-continued, open, notorious, exclusive and inconsistent with the
existence of title in others, except the occupant, that the law will raise the inference
of notice to the co-tenant or owner out of possession, or from which a jury might
rightfully presume such notice.  It is held that repudiation of the claim of a co-tenant
and notice thereof may be shown by circumstances and that a jury may infer such
facts from long continued possession of the land under claim of ownership and
non-assertion of claim by the owners.

Id. (emphasis in original) (quoting Mauritz v. Thatcher, 140 S.W.2d 303, 304 (Tex. Civ.
App.-Galveston 1940, writ ref'd)); accord Natural Gas Pipeline Co. of Am. v. Pool, 40 Tex. Sup.
Ct. J. 1077, 2003 Tex. LEXIS 246 (Tex. Aug. 28, 2003).  Constructive notice can be established by
(1) long-continued possession, or (2) change in the use or character of possession of the land.  Tex-Wis Co., 534 S.W.2d at 901.  
	The Witchers argue that constructive notice was established through long-continued
possession, giving rise to a fact issue for the jury.  The Texas Supreme Court has held that
constructive notice could be established by "(1) long-continued possession under claim of ownership
and (2) nonassertion of claim by the titleholder."  Id.  The Texas Supreme Court further noted that
"we make no attempt to set out any precise test for determining 'long-continued' possession.  The
number of years required may vary according to the circumstances of the particular case."  Id. at 902;
accord Woodrow v. Henderson, 783 S.W.2d 281, 285 (Tex. App.-Texarkana 1989, no writ).  
	 The last judgment prohibiting the Witchers from entering the property was granted on
April 13, 1989.  Bennett filed this suit on January 18, 2002.  Therefore, in order to acquire title by
adverse possession under the ten-year statute, the Witchers must have given constructive notice after
April 13, 1989 and before January 18, 1992.  Bennett argues that a period of two years and nine
months is insufficient as a matter of law to entitle the Witchers to establish constructive notice of
the permissive tenancy by "long-continued" possession.  In Sweeten v. Park, 154 Tex. 266, 276
S.W.2d 794, 798 (1955), the Texas Supreme Court affirmed the Court of Appeals' decision that three
years and seven months was insufficient to establish long-continued possession as a matter of law. 
While in general whether constructive notice has been given is a fact issue, (2) Sweeten indicates that
a period of less than three years and seven months is insufficient as a matter of law. (3)  Honley Witcher
only possessed the land two years and nine months after the second adverse judgment.  Based on
Sweeten, we hold that the Witchers did not repudiate the tenancy at sufferance due to long-continued
possession as a matter of law.
	In their fourth point of error, the Witchers argue that, if we find that a fact issue existed
concerning whether Honley had acquired title by adverse possession, the trial court erred in granting
the permanent injunction.  Because we have held that the Witchers did not repudiate the tenancy at
sufferance by Honley Witcher's "long-continued" possession as a matter of law, there is no need to
address their fourth point of error.
	Since Bennett has waived any and all claims to attorney's fees associated with the summary
judgment, we reverse the trial court's award of attorney's fees and render a take-nothing judgment
for attorney's fees.  We affirm the remainder of the trial court's judgment.



						Jack Carter
						Justice

Date Submitted:	October 2, 2003
Date Decided:		October 14, 2003
1. See Tex. Civ. Prac. & Rem. Code Ann. § 16.026 (Vernon 2002).
2. Tex-Wis Co. v. Johnson, 534 S.W.2d 895, 901 (Tex. 1976); see Woodrow v. Henderson, 783
S.W.2d 281, 285 (Tex. App.-Texarkana 1989, no writ); see also King Ranch, Inc. v. Chapman, 46
Tex. Sup. Ct. J. 1093, 2003 Tex. LEXIS 242 (Tex. Aug. 28, 2003).  
3. Sweeten v. Park, 154 Tex. 266, 276 S.W.2d 794, 798 (1955).  We note that Sweeten was
limited to 1) when the grantor retained possession of land after executing a deed thereto, or 2) when
both parties consented to the judgment.  Id. at 796.  Sweeten specifically did not rule on when a party
held over after an adverse judgment.  Id.  The Houston Court of Civil Appeals has held that there
is no logical distinction between a consent judgment and an adverse judgment and applied the
reasoning of Sweeten to repudiation of a tenancy at sufferance after an adverse judgment.  Green v.
Vance, 311 S.W.2d 738, 740 (Tex. Civ. App.-Houston 1958), writ ref'd n.r.e., 158 Tex. 550, 314
S.W.2d 794 (1959) (per curiam).  In refusing writ, the Texas Supreme Court agreed with the Houston
court that no distinction exists between a party holding over after a judgment based on the consent
of the parties or a judgment based on adverse proceedings.  Green, 314 S.W.2d 794.  

