## In T he Court of Appeals Seventh District of Texas at Amarillo

No. 07

- 20

- 00 117

- CV

DALE LANGSTON AND SUE LANGSTON , A PPELLANT S V. GARY C. YOKUM , APPELLEE On Appeal from the 8 7th District Court L eon County , Texas Trial Court No

. 17

- 0091CV , Honorable Deborah Oakes Evans , Presiding 

### July 1 , 202 1 DISSENTNG OPINION Before QUINN , C.J. , and PIRTLE and PARKER , JJ. I respectfully dissent from the majority opinion ’ s disposition of issue one. Appellant s Dale and Sue Langston appeal the trial court ’ s take

- nothing judgment in their trespass to try title action , the effect of which judgment was to vest title to a parcel of land in Gary C. Yokum. On appeal , they challenge the sufficiency of the evidence to support several of the trial court ’ s findings of fact on issues relating to title , adverse possession , and the affirmative defenses of laches and estoppel.2

Background In 1978 , the Langstons allegedly purchase d unimproved Lot 24 , Block 2 of Hilltop Lakes Section 24 subdivision in Leon County , Texas

. In 2000 , Yokum purchased neighboring lots 23 and 34 in the same subdivision. After his purchase of them , he began mowing and caring for Lot 24 while apparently under the mistaken imp ression it was Lot
23 . So too did he clear bushes and weeds on Lot 24 between the years 2000 and 2007 and post signs and permits on the lot s throughout the years he improve d them. Eventually , o n May 19 , 2007 , Yokum executed a Builder Contract and built a home on Lot 24

. The home was completed in June or July 2008 . Nine years later , the Langstons filed a trespass to try title action , claiming that Yokum dispossessed them of their real ty . Yokum answered and counterclaimed , asserting the affirmative defe nse s of adverse possession by ten

- year statute of limitations , laches , and estoppel and also asserting his own counterclaim in trespass to try title by adverse possession. Pursuant to Rule 791 of the Texas Rules of Civil Procedure , Yokum demand ed that the Langstons file an abstract of title to Lot 24. The Langstons did not do so within the prescribed thirty

- day time period but , rather , moved for an extension of time to file it

. 1
The trial co urt granted the Langstons an extension , giving them until September 15 , 2017 ,

1 More specifically , Rule 791 provides that , “ [a]fter answer filed , either party may , by notice in writing , duly served on the opposite party or his attorney of record , not less than ten days before the trial of the cause , demand an abstract in writing of t he claim or title to the premises in question upon which he relies. ” The rules further provide for an extension of time and for a remedy for failure to comply: Such abstract of title shall be filed with the papers of the cause

. . . within thirty days af ter the service of the notice , or within such further time that the court on good cause shown may grant ; and in default thereof , the court may , after notice and hearing prior to the beginning of trial , order that no written instruments which are evidence o f the claim or title of such opposite party be given on trial.
T EX

. R. C IV

. P . 792.3

to file the abstract . They again allowed the deadline to lapse without compliance. Nevertheless , o n May 24 , 2018 , the y filed two documents purporting to satisfy Yokum ’ s demand. Th ose documents consisted of a “ Developer ’ s Dedication ” and a “ General Warranty Deed. ”
T rial was held in November 2019. On December 11 , 2019 , the trial court signed its judgment placing title in Yokum . The Langstons appealed. When a party attacks the legal sufficiency of an adverse finding on an issue that they had to prove at trial , they must demonstrate on appeal that the evidence establishes ,

“ as a matter of law ,” all vital facts supporting the issue. Dow Chem. Co. v. Francis , 46 S.W.3d 237 , 241 (Tex. 2001) (per curiam). When a party challenges the factual sufficiency of a finding on an issue that he or she had the burden of proof , that party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Id. at 242. The first issue I address is the attack upon the trial court ’ s finding that the Langstons failed to establish their title to Lot 24 . Again , they contend that the evidence was insufficient to support it. I disagree.
A s previously indicated , the Langstons began the party by initiat ing suit against the possessor of their allegedly realty . Through that action , they pu r sued a trespass
- to
- try
titl e action. Such an action is the exclusive means of determin ing disputed issues of title on a piece of property. See T EX

. P ROP

. C ODE A NN

. § 22.001 (West 2014 ) ; Danbill Partners , L.P. v. Sandoval , No. 08

- 19

- 00139

- CV , 2020 Tex. App. LEXIS 9302 , at *12 (Tex. App.

— El Paso Nov. 30 , 2020 , no pet. ) (mem. op.)

. To prevail , the claimant must
prove either 1) a regular chain of conveyances from the sovereign , 2) a superior title out4

of a common source , 3) title by limitations , or 4) title by prior possession coupled with proof that possession was not abandoned. Lance v. Robinson , 543 S.W.3d 723 , 735 (Tex. 2018) ; 2027 S. Austin St. , LLC v. Latour Condos. , Inc

. , No. 07

- 19

- 00395

- CV , 2021 Tex. App. LEXIS 2005 , at *10

– 11 (Tex. App.

— Amarillo Mar

. 17 , 2021 , pet. filed ) (mem. op.)

. 2
Next , t he pleading and proof requirements in a trespass to try title action are strict and formal ; they also require a claimant to prevail on the superiority of his title , as opposed to the weakness of his opponent ’ s title

. Martin v. Amerman , 133 S.W.3d 262 , 265 (Tex. 2004) ; see Lanc e , 543 S.W.3d at 735 (noting that trespass

- to
- try
- title actions “ involve detailed pleading and proof requirements ” )

. That is to say , “ [a] plaintiff is not entitled to recover unless the plaintiff ’ s own title is effectively disclosed. ” Ramsey v. Grizzle , 313 S.W.3d 498 , 505 (Tex. App.

— Texarkana 2010 , no pet.)

. Consequently , w hen a defendant is shown to be in possession of the land in controversy and the plaintiff fail s to establish their prima facie right to title , judgment must be entered fo r the defendant. Kilpatrick v. McKenzie , 230 S.W.3d 207 , 214 (Tex. App.

— Houston [14th Dist.] 2006 , no pet. ). This is true even if the defendant may have pled a title that he failed to establish

. Id. The sole documents tendered by the Langstons and pu rportedly evincing their title

were uncertified copies of a “ Developer ’ s Dedication ” dated 1967 and a “ General Warranty Deed ” to the Langstons dated 1978. Neither traced title back to the sovereign , as required by Lance. See Lance , 543 S.W.3d at 735. Th us , the evidence proffered fell

2 Here , the Langstons do not argue they had superior title out of a common source , title by limitations , or title by prior unabandoned possession. Rather , they posit that , “ because they provided evidence of a Deed to the located and surveyed Lot 24 which was not controverted by Appellee ,” the trial court erred in denying them ownership.5

short of establish ing a continuous chain of title back to the sovereign . This also means they failed to satisfy the burdens imposed on them by the standards of review explained earlier. They did not illustrate their entitlement to recovery as a matter of law. Nor did they establish that the trial court ’ s decision was contrary to the great weight and preponderance of the evidence

. To the extent t he Langstons also suggest that § 22.002 of the T exas Property Code created alternative means to establish title , they are mistaken. The statute provides that “ [a] headright certificate , land scrip , bounty warrant , or other evidence of legal right to located and surveyed land is sufficient title to maintain a trespass to try title action

. ” See T EX

. P ROP

. C ODE A NN

. § 22.002 (West 2014 )

. That those items mentioned in the statute evince “ sufficient title ” to “ maintain a trespass to try title action ” means just that ; they evince an interest in the realty sufficient to authorize the individual to pursue such an action. See Ramsey v. Jones Enter s

. , 810 S.W.2d 902 , 904 (Tex. App.

— Beaumont
1991 , writ denied) (stating that “ [s] ection 22.002 of chapter 22 sets out what we perceive to be the minimum requirement to maintain a trespass to try title action ” ). I do not read the statute as modifying Lance or otherwise relieving one from establishing a chain of conveyances from a sovereign when the first of the four modes of proving a trespass

- to
try
- title claim mentioned in Lance is pursued. A headright certificate , land scrip , bounty
warrant , or other ev idence of legal right may be a link in the chain but they are not the chain required by Lance

. 3

3 Holding otherwise would lead to interesting results. Indeed , obta ining a deed to realty does not ipso facto establish that the grantor owned or had title to the property conveyed ; the deed may well be from a fraudulent source , for instance. He may not , and if he did not , then the grantee certainly did not obtain title superior to that of the actual owner simply because he has a document saying the property was transferred to him. This may well be why establishing a chain back to the sovereign is necessary ; such a chain serves to establish that all pr evious owners were actual owners with the ability to convey title to the parcel.6

I disagree with the majority in t hree respects. All i mplicate the strict trespass to try title rules

. First , the Langstons initiated suit. They having sued first , the party was theirs when Yokum pled “ not guilty ” in answer to the trespass to try title allegation. They had the onus to prove the ir claim and superior title

. See Brumley v. McDuff , 616 S.W.3d 826 , 829 n.4 (Tex. 2021) (observing that a defendant in trespass to try title who pleads “ not guilty ” admits possession of the subject property and claims superior title and “ [t]he burden of proof is then on the plaintiff to establish that the plaintiff has a title superior to the defendant ’ s title ” ) ; Doria v. Suchowolski , 531 S.W.2d 360 , 362 (Tex. Civ. App.

— San Antonio 1975 , writ ref ’ d n.r.e.) ( “ A plea of not guilty by the defendants is a denial of plaintiff ’ s allegations and puts plaintiff on proof of all of the elements necessary to the maintenance of the suit and of his right to recover. ” ). Yokum , as the defendant who possessed the land , was under no obligation to prove his title ; again , “ the plaintiff must recover upon the strength of his own title

. ” Roge rs v. Ricane Enter s

. , 884 S.W.2d 763 , 768 (Tex. 1994) ; Hejl v. Wirth , 343 S.W.2d 226 , 226 (Tex. 1961) ; Ramsey , 313 S.W.3d
at 505

. Had Langstons ’ effort fallen short then title effectively would vest in Yokum per Supreme Court ’ s directive. See Hejl , 343 S.W.2d at 226 (stating that “ [i]f the plaintiff under the circumstances fails to establish his title , the effect of a judgment of take nothing against him is to vest title in the defendant ” ). With Yokum being in possession , i t mattered not whether he c ould establish title by adverse possession or other means ; judgment would have had to be entered in favor of him upon Langstons ’ default

. See Kilpatrick v. McKenzie , 230 S.W.3d 207 , 214 (Tex. App.

— Houston [14th Dist.] 2006 , no pet. )

. Indeed , h is own failure to establish title “ would be harmless unless the Plaintiffs [i.e. , the7

Langstons] show[ed] that they conclusively proved they hold title to the [p]roperty under one of the four metho ds ” expressed earlier. Brooks v. Binger , No. 14

- 17

- 00562

- CV , 2019 Tex. App. LEXIS 5882 at * 9 (Tex. App.

— Houston [14 th Dist.] July 11 , 2019 , no pet.) (mem. op.) ; accord Wells v. Kansas Univ

. Endowment Ass ’ n , 825 S.W.2d 483 , 487

– 88 (Tex. App.

— Houston [1 st Dist.] 1992 , writ denied) (stating that “ in a trespass to try title action , the plaintiff is not prejudiced by an adjudication that title rest in a defendant , when the plaintiff fails to establish his own title ” ). Because the Langstons failed to prove their title through any of the four methods , judgment vesting title had to be entered in favor of Yokum irrespective of whether he satisfied all the elements of adverse possession. Second , the general warranty deed and developer ’ s dedicatio n were not the type of evidence required to successfully pursue their trespass to try title suit. This was not a general boundary dispute where the rules underlying such suits are relaxed somewhat. See Martin , 133 S.W.3d at 265

– 66 (noting that the Suprem e Court had relaxed the trespass to try title action ’ s formal proof requirements when the sole dispute involve d a boundary location). When the complaint implicate s mere boundar y as opposed to title issues , a recorded deed showing a plaintiff ’ s interest in the property may be sufficient to establish a present legal right to possess the land in question

. Id. at 265 ; Brownlee v. Sexton , 703 S.W.2d 797 , 799

– 800 (Tex. App.

— Dallas 1986 , writ ref ’ d)

. In those si tuations , the plaintiff need not prove a formal chain of superior title. Martin , 133 S.W.3d
at 265

. That is not true when title is in issue , like here. The pleading and proof requirements are strict , and a claimant must prove his title via one or more of the four ways mentioned above

. Brooks , 2019 Tex. App. LEXIS 5882 , at *9. Merely t endering a deed or developer ’ s dedication without further evidence linking them to a chain of title to8

the sovereign was not one of them and did not sati sfy the strict proof requirements applicable in a trespass to try title action. See Ellis v. Buentello , No. 01

- 12

- 00098

- CV , 2012 Tex. App. LEXIS 6803 , at *11

– 14 (Tex. App.

— Houston [1st Dist.] Aug. 16 , 2012 , no pet. ) (mem. op.) (citing the well

- established means of establishing sufficient title in trespass to try title suit and concluding that correction deed from tax foreclosure sale is merely a conveyance of the previous interest in property and , as such , is insufficient to

“ establish title emanating direc tly from the sovereig n ” ) ; Mosby v. Post Oak Bank , 401 S.W.3d 183 , 189 (Tex. App.

— Houston [14th Dist.] 2011) , pet. denied) (concluding similarly that an execution deed was insufficient to establish a regular and continuous chain of conveyances emanating from sovereign). Third , I also disagree with the conclusion that the Langstons proved superior title through a common source. Satisfying that means of proving one ’ s claims entails the claimant “ connecting its title and [that of its opponent]

. . . through complete chains of title to the common source and then by showing that its [the claimant ’ s]

. . . title is su perior. ” Rogers , 884 S.W.2d at 768 ; accord Adamson v. Doornbos , 587 S.W.2d 445 , 447 (Tex. Civ. App.

— Beaumont 1979 , no writ) (stating that “ [t]o prove a prima facie case of common

source , plaintiff must connect her title by a complete chain of title with t he title of the

common source , connect defendants ’ title by complete chain of title to the same source , [a] nd prove that plaintiff ’ s title is superior to the one defendants derived from the common

source ” ) . Because Yokum ’ s purported source of title to Lot 24 wa s through adverse possession ( as opposed to some conveyance ) while the Langston s’ source was through conveyance from a prior owner , the competing claims of title do not have a common source. This may well be why they did not attempt to prove below a common source.9

No doubt the outcome I would select is harsh. Other jurist s have so noted. Yet , those are the rules utilized in suits like that at bar. One could argue that it may be time to reconsider them , such like what occurred when it came to boundary disputes . But , as of now , those rules hav e their source in higher authority , and I leave it to that authority to undertake the pro cess

. Until that that process is effectuated and completed , I would overrule the Langstons ’ first issue and affirm the trial court ’ s judgment.

Brian Quinn Chief Justice