Albert Bonner, Trustee v. Presidio Exploration, Inc., et al.--Appeal from 87th District Court of Freestone County

IN THE

TENTH COURT OF APPEALS

No. 10-94-186-CV

ALBERT BONNER, TRUSTEE,

Appellant

v.

PRESIDIO EXPLORATION, INC., ET AL.,

Appellees

From the 87th District Court

Freestone County, Texas

Trial Court # 92-162-B

O P I N I O N

Albert Bonner, as trustee for his three children, brought this trespass to try title action against Presidio Exploration, Inc. (Presidio), Frank Banks, Jr. and Billie Faye Banks (collectively "the Banks") to establish ownership of a fee-simple estate in 82.689 acres. The parties filed cross summary-judgment motions. After a hearing, the court denied Bonner's motion and granted the motions filed by Presidio and the Banks, ruling that Frank, Jr. owns an undivided 1/10 interest in the land, subject to a life estate possessed by Billie Faye. Bonner brings five points of error, substantively claiming that there is no evidence to support the court's ruling, and that the court erred in rejecting his claim to title as a bona fide purchaser or by adverse possession. In the remaining two points, Bonner attacks the court's procedural rulings, claiming error in the court's failure to hold a hearing on his motion for new trial and failure to file findings of facts and conclusions of law after his timely request. Finding that there is an outstanding issue of fact yet to be resolved, we will reverse the summary judgments granted in favor of the Banks and Presidio. However, we will affirm the court's rulings on Bonner's motions for summary judgment. Finally, we will remand the cause for further proceedings.

The land is a portion of a tract purchased by Ella Banks in 1928. Bonner claims title to the property under a warranty deed executed in February 1975 (the Fantroy deed), signed by Ella's surviving husband (Waymon, Sr.), seven children, and ten grandchildren born of two deceased children. A February 1975 affidavit of heirship, filed in connection with the sale, states that these individuals are all of her surviving heirs. Among other documents, Bonner submitted the Fantroy deed, the February 1975 affidavit of heirship, a September 1974 affidavit of heirship, // and his affidavit of use and possession in support of his motion for summary judgment.

The Banks claim to be additional heirs of Ella by way of Frank Banks, Sr., their deceased father and husband. They assert that Frank, Sr. was Ella's child, and that he was left off of the February 1975 affidavit of heirship and, accordingly, left off of the Fantroy deed. Thus, according to the Banks, Bonner only purchased a 9/10's undivided interest in the property when he accepted the Fantroy deed on the strength of the recorded February 1975 affidavit of heirship. In support of their motion for summary judgment, the Banks relied on a 1978 affidavit of heirship executed by Waymon Banks, Sr., Ella's husband, which recites that Frank, Sr. was the son of his and Ella's marriage, that Frank, Sr. had a wife named Billie Faye, and that Frank, Sr. and Billie Faye raised Frank, Jr. as their own son, even though he was born out of wedlock to another woman. The Banks also relied on a birth certificate for Frank, Jr. showing that his father was Frank, Sr.

Presidio holds mineral leases covering the disputed tract of land. Both Bonner and the Banks have executed leases with Presidio's predecessor in interest. Since this dispute has erupted, Presidio has been withholding the royalty payments to the Banks. It has been joined as a party to the lawsuit to clarify its obligations under the leases.

To prevail on a motion for summary judgment, a party has the burden of showing that there are no genuine issues of material fact. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management, 690 S.W.2d 546, 548 (Tex. 1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979). The initial issue for resolution is Frank, Sr.'s relationship to Ella. However, a fact question concerning his lineage was created by the conflicting documents filed in support of the motions for summary judgment. Under the circumstances, the court could not find that Frank, Sr. has been conclusively shown to be Ella's heir. See id. Point one is sustained.

In point three, Bonner complains that the court wrongfully denied his motion for summary judgment based on his bona-fide-purchaser theory. However, Bonner cannot be a purchaser with regard to an interest his sellers did not own. See Hines v. Pointer, 523 S.W.2d 733, 739 (Tex. Civ. App. Fort Worth 1975, writ ref'd n.r.e.). If Frank, Sr. was Ella's heir, the parties to the February 1975 deed only owned, at most, a 9/10's interest in the property. Thus, at most, Bonner could be a bona fide purchaser of their 9/10's interest and cannot cut off Frank, Jr.'s interest under this theory. Accordingly, the court did not err in denying his motion on this ground. Point three is overruled.

By point four, Bonner complains that the court improperly denied his motion on an adverse-possession theory. If Frank, Sr. was Ella's heir, the Banks and Bonner would be co-tenants of the property. To claim title by adverse possession against the Banks, co-tenants, Bonner must conclusively show that he repudiated their title in such a manner as to bring the repudiation to their attention. See Sebesta v. Daniels, 812 S.W.2d 641, 645 (Tex. App. Houston [14th Dist.] 1991, writ denied); Spiller v. Woodard, 809 S.W.2d 624, 627-28 (Tex. App. Houston [1st Dist.] 1991, no writ). Nothing in the record demonstrates that Bonner carried this burden, which would have triggered the five-year limitations period. See Tex. Civ. Prac. & Rem. Code Ann. 16.025 (Vernon 1986). Thus, the court did not err by denying Bonner's motion for summary judgment on this ground. Point four is overruled.

Finally, in points two and five, Bonner complains about the court's failure to hold a hearing on his motion for new trial and failure to file findings of fact and conclusions of law. We overrule these two points because, given our disposition of his first point, they are moot.

The summary judgment of the trial court granted in favor of Presidio and the Banks is reversed and this cause is remanded for further proceedings.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and remanded

Opinion delivered and filed November 30, 1994

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