Opinion
No. 04-04-00422-CV
Delivered and Filed: May 4, 2005.
Appeal from the 37th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-05332, Honorable Pat Boone, Judge Presiding.
Affirmed in Part; Reversed in Part.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Joyce Knowles appeals the trial court's judgment granting a no-evidence summary judgment in favor of Nathaniel Mack and Margaret Mack in a trespass to try title action. Knowles contends that the trial court erred in overruling her objections to the evidence presented by the Macks. Knowles further contends that the Macks' no-evidence motion lacks the specificity required by Rule 166a(i). Finally, Knowles contends that the evidence she presented was sufficient to preclude a no-evidence summary judgment. We affirm the trial court's judgment with regard to Knowles's claim pursuant to Section 16.024 of the Texas Civil Practice and Remedies Code. We reverse the trial court's judgment with regard to Knowles's parol gift theory or claim, and we remand the cause to the trial court for further proceedings consistent with this opinion.
Background
The Macks purchased a home on Markham Lane in June of 1999. Knowles is the mother of Margaret Macks. After the home was purchased, Knowles moved into the home by herself. The parties dispute whether the Macks gifted the home to Knowles or whether the Macks allowed Knowles to reside in the home as "a showing of [their] affection and goodwill" toward Knowles.
In January of 2003, the Macks requested that Knowles vacate the home because they wanted to sell the house to relieve some of their financial obligations to the IRS. When Knowles refused to vacate the home, the Macks filed a lawsuit to have Knowles evicted. Shortly before a judgment was entered in the Macks' eviction suit, Knowles filed a petition for declaratory judgment, contending that she had title to the home based on a parol gift. After special exceptions and several hearings, an order was entered that stated:
[T]he Plaintiff may only contend prospectively that title for the subject property was acquired pursuant to Section 16.024 of the Texas Civil Practice Remedies Code or Hooks vs. Bridgewater, 229 S.W. 1114 (Tex. 1921), and related opinions; and no other factual or legal theories shall be permitted.
The Macks filed a no-evidence motion for summary judgment as to these two theories, and the trial court granted the motion.
Standard of Review
We apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. La Tier v. Compaq Computer Corp., 123 S.W.3d 557, 562 (Tex.App.-San Antonio 2003, no pet.). We look at the evidence in the light most favorable to the respondent against whom the summary judgment was rendered, disregarding all contrary evidence and inferences. Id. A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Id. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id.
Specificity of No-Evidence Motion
A no-evidence motion for summary judgment "must state the elements as to which there is no evidence." Tex. R. Civ. P. 166a(i). The comments to Rule 166a(i), which are "intended to inform the construction and application of the rule," state, "The motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent's case." Tex. R. Civ. P. 166a(i) cmt. "If a no-evidence motion for summary judgment is not specific in challenging a particular element or is conclusory, the motion is legally insufficient as a matter of law and may be challenged for the first time on appeal." Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3 (Tex.App.-San Antonio 2000, pet. denied).
The trial court permitted Knowles to proceed on two claims or theories, namely adverse possession under Section 16.024 of the Texas Civil Practice and Remedies Code and the law set forth in " Hooks vs. Bridgewater, 229 S.W. 1114 (Tex. 1921), and related opinions." Although Knowles mistakenly believed that the Macks filed both a traditional and a no-evidence motion, Knowles challenged the specificity of the motion under Rule 166a(i) in her response to the motion and in her appellate brief.
1. Adverse Possession
With regard to the adverse possession claim, the Macks' motion asserted that the record was void of any written document to prove that Knowles had title to the property. We construe this assertion as challenging the requirement under Section 16.024 that Knowles must have "title or color of title."
2. Parol Gift
The second theory upon which Knowles was permitted to assert title was pursuant to " Hooks v. Bridgewater, 229 S.W. 1114 (Tex. 1921), and related opinions." In Hooks v. Bridgewater, the Texas Supreme Court held that "to relieve a parol sale of land from the operation of the statute of frauds, three things were necessary: 1. Payment of the consideration, whether it be in money or services. 2. Possession by the vendee. And 3. The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced." Id. at 1116. The three requirements in Hooks have been modified with regard to situations involving a parol gift of realty, which is the theory asserted by Knowles in this case. See Dawson v. Tumlinson, 242 S.W.2d 191, 192-93 (Tex. 1951); Davis v. Douglas, 15 S.W.2d 232, 233 (Tex. Comm'n App. 1929, holding approved); Springer v. Lingle, No. 11-01-00303-CV, 2002 WL 32344908, at *2 (Tex.App.-Eastland 2002, no pet.); Thompson v. Dart, 746 S.W.2d 821, 825 (Tex.App.-San Antonio 1988, no writ). The three requirements to uphold a parol gift of realty in equity are: (1) a gift in praesenti, (2) possession under the gift by the donee with the donor's consent, and (3) permanent and valuable improvements made on the property with the donor's knowledge or consent or, without improvements, the existence of such facts as would make it a fraud upon the donee not to enforce the gift. Davis, 15 S.W.2d at 233; Springer, 2002 WL 32344908, at *2; Thompson, 746 S.W.2d at 825. The donee's possession must be in the nature of an owner's right of control. Thompson, 746 S.W.2d at 825.
The difficulty with the Macks' no-evidence motion is that it fails to acknowledge the difference between the elements of a parol transfer or sale claim and a parol gift claim. See Dawson, 242 S.W.2d at 192-93 (distinguishing elements). Although the trial court's order limited the theories Knowles could pursue, the trial court's order permitted Knowles to pursue claims based on Hooks "and related opinions." The Macks' motion only referred to Hooks and not the related opinions that distinguish between a parol transfer or sale and a parol gift. In other contexts, the difference in elements may not be critical; however, the difference in elements in a no-evidence summary judgment context is problematic since the movant must specify the element being challenged.
The only reference in the Macks' motion to parol gift is the global assertion, "Simply, no evidence exists that supports the contentions of Plaintiff KNOWLES that the Defendants MACK made a parol gift of the Markham Lane real property to KNOWLES." This global assertion lacks the specificity required by Rule 166a(i). After reviewing the text of the no-evidence motion, we conclude that the only element of Knowles's parol gift claim that the Macks have specifically challenged is the element of possession.
Discussion
The first theory upon which Knowles was permitted to assert title was adverse possession under Section 16.024 of the Texas Civil Practice and Remedies Code. Section 16.024 provides:
A person must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the date the cause of action accrues.
Tex. Civ. Prac. Rem. Code Ann. § 16.024 (Vernon 2002). The only evidence introduced by Knowles to establish "title or color of title" was a letter from the homebuilder stating that all warranty repairs had been completed. The letter does not mention title or ownership and is no evidence that Knowles had "color of title" to the property.
In response to the Macks' challenge to the possession element of Knowles's parol gift claim, Knowles presented her affidavit. Knowles stated that she selected the tile and other amenities while the house was under construction. Upon completion of the construction, Knowles stated that she was in complete possession and control of the house. Knowles presented a letter the homebuilder wrote to her, stating:
We note that the Macks' motion also cited to evidence attached to the motion to disprove the possession element. This approach by the Macks, however, ignores that they filed a no-evidence motion for summary judgment, not a traditional motion. Under the applicable standard of review, we disregard evidence and inferences contrary to Knowles's position. Furthermore, the case cited in the Macks' motion is readily distinguishable based on the evidence presented in this case. In Sharp v. Stacy, 565 S.W.2d 345, 346 (Tex. 1976), the party claiming to have received property as a parol gift had resided with his parents, who owned the property, for only one month before moving off the property and living at a residence in town. After that, the party claiming the property farmed the land but never resided on the property. See id.; see also Dawson, 242 S.W.2d at 194 (finding no possession where party claiming by parol gift never resided on property but lived in house across the street).
Dear Ms. Knowles,
This letter is confirmation that warrantable items in your warranty request of June 9, 2000 have been completed. Please be advised that as of this date we are removing your letter from our active files. In the future should any questions arise, please refer to your "New Home Information" booklet you received at the rewalk.
Knowles further stated that she paid homeowners' association fees and provided documentation of such payment. Knowles stated that she paid the insurance for the house and provided the insurance declaration page listing her as the insured. Finally, Knowles stated that she paid for repairs and improvements and provided copies of canceled checks as proof of some of those repairs. This evidence was more than a scintilla of evidence sufficient to raise a genuine issue of material fact with regard to Knowles's possession. Accordingly, the trial court erred in granting the motion as to Knowles's parol gift theory or claim.
Conclusion
We affirm the trial court's judgment with regard to Knowles's claim pursuant to Section 16.024 of the Texas Civil Practice and Remedies Code. We reverse the trial court's judgment with regard to Knowles's parol gift theory or claim, and we remand the cause to the trial court for further proceedings consistent with this opinion.