1. law, govt and politics

NO. 11-0751
FILED
IN THE SUPREME COURT
OF TEXAS
11 October 17 P3:03
BLAKE. A. HAWTHORNE
CLERK
IN THE
SUPREME COURT OF TEXAS
________________________________________________________________
JERRY SMITH, on behalf of the heirs of W.H. Wade & Clara Smith,
Petitioner,
v.
HORACE E. AND ELIZABETH J. PEEK,
Respondents.
________________________________________________________________
RESPONSE TO PETITION FOR REVIEW
________________________________________________________________
Respectfully Submitted,
_/s/ Amy Casbeer_____________
Amy Casbeer
State Bar No. 24053133
NIX PATTERSON & ROACH LLP
205 Linda Drive
Daingerfield, Texas 75638
(903) 645-7333 (phone)
(903) 645-2172 (fax)
ATTORNEYS FOR RESPONDENT
TABLE OF CONTENTS
Table of Contents. . . . . . . . . . . . . . . . . . . . .
i
Index of Authorities . . . . . . . . . . . . . . . . . . .
ii
Statement of the Case . . . . . . . . . . . . . . . . . . . 1
Summary of the Argument. . . . . . . . . . . . . . . . . .
1
Argument . . . . . . . . . . . . . . . . . . . . . . . . .
2
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . .
6
Certificate of Service . . . . . . . . . . . . . . . . . .
7
Appendix
Opinion of the Court of Appeals . . . . . . . . . . .
i
A-1
INDEX OF AUTHORITIES
CASES:
Haley v. Murray,
177 S.W.2d 333 (Tex. Civ. App. – Austin 1944,
writ denied). . . . . . . . . . . . . . . . . . . . . . 4
Houston v. Church,
554 S.W.2d 242 (Tex. Civ. App. – Houston [1st]
1977, writ ref’d n.r.e.). . . . . . . . . . . . . . . . 5
Noble v. Cooke,
253 S.W.2d 911 (Tex. Civ. App. – Texarkana
1952, writ ref’d n.r.e.). . . . . . . . . . . . . . . 4-5
Orsborn v. Deep Rock Oil Co.,
267 S.W.2d 781 (Tex. 1954). . . . . . . . . . . . . . . 5
Smith v. Peek,
No. 06-11-00056-CV, 2011 Tex. App. LEXIS
6455 (Texarkana Aug. 16, 2011). . . . . . . . . . .
1, 3
Sun Oil Co. v. Burns,
84 S.W.2d 442 (Tex. 1935) . . . . . . . . . . . . . . . 4
RULES:
TEX. R. APP. P. 56(a)(1). . . . . . . . . . . . . . . . . . . 5
TEX. R. APP. P. 56(a)(2). . . . . . . . . . . . . . . . . . . 5
TEX. R. APP. P. 56(a)(3). . . . . . . . . . . . . . . . . . . 6
TEX. R. APP. P. 56(a)(4). . . . . . . . . . . . . . . . . . . 6
TEX. R. APP. P. 56(a)(5). . . . . . . . . . . . . . . . . . . 6
TEX. R. APP. P. 56(a)(6). . . . . . . . . . . . . . . . . . . 6
ii
Statement of the Case
This
appeal
comes
from
an
action
to
quiet
title.
The
Honorable Joe Clayton, sitting in the 76th Judicial District
Court
in
Camp
Respondents,
Peeks”).
County,
Horace
granted
and
summary
Elizabeth
judgment
Peek
in
favor
(hereinafter
of
“the
Petitioner Jerry Smith (hereinafter “Smith”) appealed
Judge Clayton’s decision to the Court of Appeals for the Sixth
Appellate
District
of
Texas
in
Texarkana.
filed a responsive brief on appeal.
The
Peeks
timely
Justices Morriss, Carter
and Moseley heard the appeal, and Justice Carter authored the
court’s
opinion
affirming
Judge
Clayton’s
summary judgment in favor of the Peeks.
11-00056-CV,
2011).
2011
Tex.
App.
LEXIS
decision
to
grant
Smith v. Peek, No. 06-
6455
(Texarkana
Aug.
16,
No motions for rehearing or en banc reconsideration were
filed.
Summary of the Argument
The Peeks have established a chain of title showing that
they
are
the
rightful
owners
of
the
subject
property.
Furthermore, the Peeks have established a right to the subject
property through adverse possession. Smith failed to raise a
genuine issue of material fact regarding the ownership of the
subject
property,
and
Smith
failed
to
articulate
a
basis
by
which he has any ownership in or right to the subject property.
Therefore, the court of appeals correctly affirmed the trial
1
court’s
decision
to
grant
summary
judgment
in
favor
of
the
Peeks.
Now,
Smith
has
provided
this
Court
with
new
arguments,
supported by no evidence, and inapplicable case law.
raised
in
decision
Smith’s
of
the
Petition
court
review being granted.
of
for
Review
appeals
was
illustrates
in
error
or
Nothing
that
the
justifies
In fact, the factors this Court considers
when determining whether to grant review weigh heavily in favor
of denying review.
And, thus, this Court should deny review.
Argument
The Peeks acquired the subject property on August 11, 1986
by a duly recorded deed.
[R. at 8-11].
Such deed is part of a
chain of title that traces back to the distant relative through
whom Smith now alleges an interest in the subject property.
at 8-53, 87-106].
[R.
Since acquiring the property in 1986, the
Peeks have maintained exclusive and continuous possession of the
property, have cultivated, used and enjoyed the property and
have paid taxes on the property.
[R. at 55-56].
Smith brought
suit to quiet title on January 28, 2008 – 22 years after the
Peeks took possession of the property.
[R. at 2].
The Peeks
moved for summary judgment on the grounds that they have a clear
chain of title to the property and, in the alternative, have
title to the property through adverse possession.
83-112].
[R. at 1-56,
The trial court granted summary judgment in favor of
2
the Peeks.
to
a
[R. at 153].
common
matter
of
source
law,
and
[the
court’s judgment.”
“Because the Peeks both traced title
established
Court
of
adverse
Appeals]
possession
affirm[ed]
the
as
a
trial
Smith v. Peek, No. 06-11-00056-CV, 2011 Tex.
App. LEXIS 6455 *1-2 (Texarkana Aug. 16, 2011).
Indeed, the Court of Appeals stated that:
Peek’s affidavit established the claim of adverse
possession under Section 16.025 of the Texas Civil
Practice and Remedies Code (five-year statute of
limitations).
Smith’s response to the motion for
summary judgment and the exhibits attached thereto did
not mention or raise any genuine issues of material
fact relating to Peek’s adverse possession claim.
Therefore, the Peeks established their entitlement to
summary judgment on their adverse possession claim as
a matter of law.
Id. at *4 (internal citations omitted).
Smith’s Petition for Review continues to ignore the fact
that he failed to bring forth any evidence to counter the Peeks’
right
to
the
land
Petition
for
Review
unrelated
to
the
via
adverse
contains
court
of
possession.
(1)
new
appeals’
Rather,
arguments
opinion;
Smith’s
that
(2)
are
recycled
arguments that are unrelated to the court of appeals’ decision;
and (3) inapplicable or easily distinguishable case law.
First,
Smith
incorporates
new
and
unsubstantiated
allegations of forgery that were presented neither to the trial
court nor to the appellate court.
See, e.g., Smith’s Petition
for Review at viii, 4, 5 (Mayben’s “ficticious [sic] deed” and
forged deeds from Philonia and Phronia).
3
Such allegations are
inappropriately raised for the first time before this Court.
Further, such allegations attack only the Peeks’ chain of title,
but
have
no
impact
on
the
Peeks’
adverse
possession
claim.
Thus, this argument does not sufficiently challenge the decision
by the court of appeals, and therefore, Smith’s Petition for
Review should be denied.
Second,
Smith
rehashes
appellate court level.
several
arguments
made
at
the
These arguments involve a clerical error
made by the Camp County Surveyor in 1978 and a 1979 order by the
Camp County district court from which no appeal was taken.
Smith’s Petition for Review at viii, 5.
See
These arguments impact
only the Peeks’ chain of title and have no impact on the Peeks’
adverse
possession
claim.
Thus,
this
argument
does
not
sufficiently challenge the decision by the court of appeals, and
therefore, Smith’s Petition for Review should be denied.
Furthermore,
the
case
law cited
by
Smith
in
support
of
these arguments is equally inapplicable to the issue of adverse
possession.
(Tex.
1935),
For example, in Sun Oil Co. v. Burns, 84 S.W.2d 442
a
particular lease.
lease.
dispute
arose
as
to
the
land
involved
in
a
This case turned on the interpretation of the
There is no interpretation involved in the instant case.
Likewise, Haley v. Murray, 177 S.W.2d 333 (Tex. Civ. App. –
Austin 1944, writ denied), involved deed construction that is
not applicable here.
And, Noble v. Cooke, 253 S.W.2d 911 (Tex.
4
Civ. App. – Texarkana 1952, writ ref’d n.r.e.), involved a chain
of title being used to meet the limitations period.
Such case
is inapplicable here where the Peeks met the limitations period
without tacking.
The final two cases cited by Smith involve situations where
a court was forced to examine whether the elements of adverse
possession were met.
See Orsborn v. Deep Rock Oil Co., 267
S.W.2d 781 (Tex. 1954); Houston v. Church, 554 S.W.2d 242 (Tex.
Civ. App. – Houston [1st] 1977, writ ref’d n.r.e.).
Each of
these cases involved a determination of whether there was an
assertion
of
possession.
ownership
sufficient
to
demonstrate
adverse
Here, where the Peeks have recorded a deed, used
the land, paid taxes on the land, and installed a locked gate to
prevent entry on the land, there is no question that the Peeks
have asserted their ownership of the property.
Therefore, these
cases do not present a factual scenario similar enough to the
instant case to warrant review by this Court.
The factors considered by this Court under Texas Rule of
Appellate
Procedure
56.1(a)
in
determining
whether
review weigh heavily in favor of denying review.
to
grant
First, this
case does not involve a situation where the justices of the
court of appeals disagree on an important point of law or where
there is conflict between the courts of appeals on an important
point
of
law.
See
TEX.
R.
APP.
5
P.
56.1(a)(1)
and
(a)(2).
Further, this is not a case involving constitutional issues or
the construction or validity of a statute. See TEX. R. APP. P.
56.1(a)(3) and (a)(4).
There is no indication that the court of
appeals committed an error of law of such importance to the
state’s jurisprudence that it should be corrected. See TEX. R.
APP. P. 56.1(a)(5).
And, finally, there is no indication that
the court of appeals decided an important question of law that
should be, but has not been, resolved by this Court. See TEX. R.
APP.
P.
56.1(a)(6).
Each
of
these
factors
weighs
against
granting Smith’s Petition for Review.
Smith
review.
has
articulated
Rather,
Smith
no
coherent
continues
to
basis
make
for
granting
unsubstantiated
allegations and irrelevant arguments that do nothing to call
into question the arguments and evidence upon which the trial
court and court of appeals based their decisions.
In short,
Smith’s Petition presents no error that requires reversal.
This
Court should deny Smith’s Petition for Review.
Prayer
The Peeks pray this Court deny Smith’s Petition for Review.
6
Certificate of Service
I
hereby
certify
that
a
true
and
correct
copy
of
the
Respondents’ Response to Petition for Review has been served
upon Petitioner via certified mail, return receipt requested at
928
Ivy
Wood,
Dallas,
Texas
75232
on
this
the
17th
day
of
October, 2011.
_/s/ Amy Casbeer________
Amy Casbeer
7
APPENDIX
Page A-1
JERRY SMITH, ON BEHALF OF THE HEIRS OF WADE AND
CLARA SMITH, Appellant v. HORACE E. PEEK AND
ELIZABETH J. PEEK, Appellees
No. 06-11-00056-CV
COURT OF APPEALS OF TEXAS, SIXTH DISTRICT,
TEXARKANA
2011 Tex. App. LEXIS 6455
August 11, 2011, Submitted
August 16, 2011, Decided
PRIOR HISTORY: [*1]
On Appeal from the 76th Judicial
District
Court,
Camp
County, Texas. Trial Court No.
CV-08-773.
JUDGES: Before Morriss, C.J.,
Carter and Moseley, JJ. Memorandum Opinion by Justice Carter.
OPINION BY: Jack Carter
OPINION
MEMORANDUM OPINION
Horace E. Peek and Elizabeth
J. Peek purchased a 52.41-acre
piece of real property from
Paul Mayben. Jerry Smith, on
behalf of the heirs of Wade
Smith and Clara Smith, brought
suit to quiet title against the
Peeks, claiming ownership of
the property based on his dis1
tant relation to the Smiths,
who became owners of the property over a century ago. The
Peeks filed a motion for summary
judgment
and
attached
deeds purporting to trace title
to the property back to the
Smiths, whose heirs had allegedly conveyed the property. The
Peeks argued that because they
could establish Jerry had no
interest in the property, he
could not be successful in his
action to quiet title. They
further claimed they had established adverse possession in
the form of actual and visible
appropriation of the property
since 1986 under color of deed.
Smith appeals the trial court's
summary judgment granted in favor of the Peeks. Because the
Peeks both traced title to a
common source and established
adverse possession
[*2] as a
2
Page A-2
2011 Tex. App. LEXIS 6455, *
matter of law, we affirm
trial court's judgment.
the
de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699
(Tex. 1994).
1
This tract is known as
Tract 2 of the Tanton Estate.
Irvin
and
Nancy
Tanton conveyed Tracts 1
and 2 of their estate to W.
H. Smith.
2
The Smiths took possession of the property in
question
on
January
26,
1892.
The
trial court's summary
judgment specified no particular ground as supporting the
summary judgment. When, as is
the case here, the trial court
does not set out the grounds on
which it ruled, we affirm the
summary judgment if any ground
urged in the motion for summary
judgment
is
meritorious.
W.
Invs.,
Inc.
v.
Urena,
162
S.W.3d 547, 550 (Tex. 2005).
Traditional summary judgment
is proper when the movant establishes
that
there
is no
genuine issue of material fact
and that the movant is entitled
to judgment as a matter of law.
TEX. R. CIV. P. 166a(c); City of
Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671,
678
(Tex. 1979); Dresser Indus.,
Inc.
v.
Underwriters
at
Lloyd's, London, 106 S.W.3d 767
(Tex.
App.--Texarkana
2003,
pet.
denied).
Because
the
movant bears the burden of
proof, all evidence favorable
to the nonmovant is taken as
true, and all doubts as to the
genuine issue of material fact
are resolved in favor of the
nonmovant. Rhone-Poulenc, Inc.
v. Steel, 997 S.W.2d 217, 223
(Tex. 1999). Summary judgment
for a defendant is proper when
the defendant pleads and conclusively establishes each element of an affirmative defense.
Sci.
Spectrum,
Inc.
v.
Martinez, 941 S.W.2d 910, 911
(Tex. 1997). Because the propriety of a summary judgment is
a question of law, we review
[*3] the trial court's decision
A copy of the 1986 deed from
Mayben to the Peeks was attached to the motion for summary judgment. After setting
forth the metes and bounds description of Tract 2 of the
Tanton Estate conveyed in Mayben's deed, the affidavit of
Horace Peek stated:
3. I took possession
of the above-described
property from Paul Mayben on August 11, 1986.
4. A duly recorded
deed reflects my acquisition of the abovereferenced property.
5. Since taking possession of the abovedescribed property in
1986, I have enjoyed
continuous and uninterrupted use of the property. I have paid taxes
on the property and use
the
property
to
the
fullest extent possible.
Page A-3
2011 Tex. App. LEXIS 6455, *
6. My possession of
the
above-described
property has been actual
and
visible,
peaceable, and open and
notorious,
[*4] and I
have exercised exclusive control over who
is granted use of an
access to the property.
To that end, I have
utilized a locked gate
to prevent unauthorized
entry onto my property.
REM. CODE ANN. § 16.025 (West
2002). Smith's response to the
motion for summary judgment and
the exhibits attached thereto
did not mention or raise any
genuine issues of material fact
relating to Peek's adverse possession claim. Therefore, the
Peeks established their entitlement to summary judgment on
their adverse possession claim
as a matter of law.
We affirm the trial court's
judgment.
Jack Carter
Peek's
affidavit
established
the claim of adverse possession
under Section 16.025 of the
Texas Civil Practice and Remedies Code (five-year statute of
limitations). TEX. CIV. PRAC. &
Justice
Date
2011
Date
2011
Submitted:
August
11,
Decided:
August
16,