1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

_________________

NO. 09
- 18
- 0000 3
- CV



### _________________ RAYMOND CRISWELL , Appellant
V.
KENNETH M. ALLISON AND LINDA C. ALLISON , Appellee s

________________________________________________________________________ On Appeal from the 411 th District Court Polk County, Texas Trial Cause No. CIV29835

________________________________________________________________________ MEMORANDUM OPINION
The owners of neighboring tracts of property sued each other asking the trial
court to determine who owns a strip of property that lies between their respective

tracts

. The owners of the tract that lies south of the disputed strip filed a motion fo r summary judgment , arguing the ir summary judgment evidence established that they acquired the strip by adverse possession. T he trial court granted the motion and2 award ed Kenneth and Linda Allison ownership of the strip

. T he own er of the tract north of the disputed strip, Raymond Criswell, appeals from the trial court’s judgment

. In five issues, Criswell argues the trial court erred by (1) failing to grant
his request for a temporary injunction , (2) failing to grant his motion to compe l discovery , (3) denying his motion seeking a declaratory judgment , (4) granting the
Allisons’ motion for summary judgment , and (5) awarding the Allisons title to the disputed strip between the north and south tract s
. W e affirm the trial court’s judgment

. Background In March 2016, Criswell sued the Allisons c laiming they were interfering with
his use of a strip of property he called Hester Road

. In his petition , Criswell described
Hester Road as a publicly

- owned road that is located on the southern border of his nearly twenty

- three

- acre tract . Criswell asked the trial court to prohibit the Allisons from interfering with his right to use the road by issuing a temporary restraining
order and a temporary injunction against the Allisons

. Also, Criswell asked the trial
court to award him damages and attorney’s fees. T he Allisons filed a general denial in response to Criswell’s suit

. In March 2017, Criswell amended his petition . In his amended petition , Criswell dropped his claim alleging t hat Hester Road is a publicly

- owned road.3 Instead, he alleged that he own s the strip of property between the tracts which, over the years, had been used as a road

. 1 In the amended petition, Criswell also dropped
his claim for injunctive relief. Criswell’s amended petition alleged that someone , who Criswell never identified , moved a fence from its previous location on the south
side of Hester Road to a new location north of Hester Road

. He further alleged that he never gave anyone permission to mo ve the fence or to place it on his property

. A nd he claim ed that someone erected a gate , block ing him from Hester Road

. Based on a survey that Criswell attached to his amended petition, Criswell asked the trial

court to declare he is the sole owner of a ne arly twenty

- three

- acre tract that include s that part of Hester Road that runs between his and the Allisons’ tracts

. Criswell ’s amended petition seeks declaratory relief , damages and attorney’s fees

. In July 2017, Criswell filed a motion for d eclaratory j udgment

. In his moti o n, Criswell alleged the Allisons or their predecessor in title erected a gate on his property without obtaining his permission

. Criswell asked the trial court to declare
that he is the owner of Hester Road and to require th e Allisons to remove the fence and gate on his property , which were preventing him from using Hester Road

.

1 The amended petition refers to the road as “Hester Lane,” not Hester Road. T hroughout the opinion, we will refer to the disputed strip as Hester Road.4 In August 2017, t he Allisons amended their answer and filed a counterclaim. In their counterclaim, the Allisons allege d they acquired the disputed strip that lies

on the north side of their tract by adverse possession

. Shortly thereafter, t he trial

court conducted a hearing on Criswell’s request for declaratory judgment. During
th e hearing, the attorneys for the parties informed the court about the nature of their
claims. In response , the trial court informed the attorneys the dispute appeared to

concern issues involving title to the disputed strip , and that given the dispute over title, the case could not be decided by issuing a declaratory judgment addressing only the location of the fence . The court informed the attorneys that the court would require the parties to try the case as a trespass to try title action

. Several months later , t he trial court signed an order denying Criswell’s motion for declaratory judgment.
I n October 2017, the Allisons filed a combined traditional and no

- evidence motion for summary judgment

. In the no
- evidence part of the motion , the A llisons alleged Criswell could produce no evidence support ing the elements of his claims.
In t he traditional section of the ir motion , the Allisons alleged the summary judgment
evidence they attached to their motion proved they acquired the dispute d strip b ased

on the ten

- year statute govern ing their claim for adverse possession

. 2

2 See Tex. Civ. Prac. & Rem. Code Ann. § 16.026 (West 2002). The Allisons attached the following evidence to their motion for summary judgment: (1) Kenneth Allison’s affidavit; ( 2 ) Ronnie Leggett’s affidavit ; (3) a certified copy of the deed5 In November 2017, Cris well responded to the Allisons’ motion for summary judgment. In his response, Criswell alleged that he own s the disputed strip

. Criswell
also alleged the Allisons and their predecessor in title had not us ed the road continuously for more than ten years before he sued

. 3 In December 2017, the trial court presided over a hearing on the Allisons ’ motion for summary judgment. In the hearing, the Al lisons objected to Criswell’s summary judgment evidence , arguing that Criswell could not rely on his pleadings

as summary judgment proof

. The trial court sustained the Allisons ’ objection , and
the court struck Criswell ’s summary judgment evidence

. Following the hearing , the trial court rendered judgment in favor of the Allisons and Criswell appeal ed

.

Leggett and his wif e used in 2008 when they conveyed their tract to the Allisons; (4) a certified copy of the warranty deed that Dorothy Hodges used in 1997 when she conveyed the tract, now owned by the Allisons, to Ronnie Leggett and his wife ; and (5) a survey, with attache d survey plat, prepared in 1997 by another surveyor, W.A. Cook

.
3 Criswell filed the following exhibits to his response: (1) Criswell’s First Amended Petition, with the exhibits he attached to it when it was filed; (2) Raymond Criswell’s affidavit, whic h states the disputed strip is located within his nearly twenty

- three

- acre tract; (3) a copy of a deposition obtained in discovery from Alan Cook, a surveyor, in which Cook explains the survey he performed at the Allisons ’ request identif ies the boundaries of the Allisons’ and Criswell’s tracts; and (4) a copy of a 1997 survey plat of the tracts at issue, prepared by a surveyor named W.A. Cook.6 In the appeal , the parties filed briefs support ing their arguments about whether
the trial court’s judgment should be affirmed. After reviewing the bri efs, we abat ed the appeal so the trial court could amend its judgment to include a metes and bounds description of the property t he Allisons acquired under the trial court’s judgment

. 4 Temporary Injunction
In the first of Criswell’s five issue s , he complains about the trial court ’s r uling denying his request for a temporary injunct ion

. Following the temporary injunction hearing, the court denied Criswell’s request seeking injunctive relief

. Thereafter,
Criswell amended his pleadings and dropp ed his claim for injunctive relief

. T he record before us does not show that the trial court ever issued a written
order on Criswell’s request for injunct i ve relief

. On the other hand, the final judgment disposed of all of Criswell’s claims. By denying Criswell’ s claim alleging he owns the strip of property that was at issue in the dispute, t he trial court rendered moot any complaints Criswell raised on appeal regarding his claim seeking injunctive relief

. 5 W e overrule Criswell’s fi r st issue

.

4 No parties claim the metes and bounds description in the trial court’s amended judgment fails to accurately de scribe the strip of property the trial court awarded the Allisons when it resolved the counterclaim they filed against Criswell

.
5 See Isuani v. Manske

- Sheffield Radiology Grp. , P.A. , 802 S.W.2d 235, 23 7 (Tex. 1991) (holding “the trial court’s final judg ment on the merits rendered [the appellant’s] appeal from the temporary injunction moot”)

.7 Motion to Compel
In issue two , Criswell complains the trial court should have granted rather
than denied his motion to compel

. Criswell ’s motion to compel is in the appellate
record . In it, Criswell complain s the responses he received when the Allisons
answered his request for production were “incomplete and insufficient.” In December 2016, t he trial court presided over a hearing on Criswell’s motion to compel . D uring th e hearing, Criswell complained the Allisons produced photographs of a poor quality in response to his request

. B ut he also advised the trial

court that since producing the photographs , the Allisons had given him new photographs . Criswell then focused his argument on the Allisons’ alleged failure to organize and label the ir responses to his request to correspond with the numbered
items found in his request

. In the hearing, Criswell also argued the Allisons had not given him any documents responsive to their counterclaim for adverse possession

. At the conclusion of the hearing, t he trial court advised t he Allisons the y would be require d to organize the ir production to correspond with the numbered categories in Criswell ’s request

. Then, t he trial court defer red any further ruling s to
allow the Allisons the opportunity to label and organize the documents t hey had already produced

.8 Less than t hree weeks later , Criswell moved for sanctions. In his motion , Criswell complained that the Allisons had still not organize d or identified the
documents respons ive to his request

. Additionally, h e alleged the Allison s failed to produce any documents support ing their claim that Hester Road had been
abandoned

. While Criswell filed a motion for sanctions, the record does not show that he ever obtained a hearing or a ruling from the trial court on the claims in his
motion that the Allisons had not produced documents responsive to the items in his requests

. 6 We conclude Criswell failed to preserve his complaint about whether the
Allisons fail ed to produce documents to comply with his request to produce. While
Criswe ll obtained a ruling on his request that the Allisons organize and lab el their

6 The clerk’s record shows the trial court scheduled a hearing on Criswell’s motion for sanctions in February 2017 . Yet the record on appeal contains no reporter’s r ecord from a hearing on his motion or a written order denying his motion. And the record does not clearly show the Allisons failed to provide Criswell documents responsive to the ir claim they acquired the disputed strip by adverse possession. For example, during the hearing on the Allisons’ motion for summary judgment , Criswell claimed the Allisons had never given him a copy of the survey they attached to their motion for summary judgment. But t he Allisons disagreed with Criswell’s assertion . T hey advised the trial court they had produced the survey. In their brief, t he Allisons argue that Criswell waived any discovery complaints about whether the y fulfilled their discovery obligations to him because Criswell never object ed to the evidence they atta ched to their motion for summary judgment. See City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 677 (Tex. 1979); see also Tex. R. Civ. P. 166a(f).9 production , he never got a ruling on his motion to compel them to produce more documents. Because Criswell fail ed to preserve the alleged error, w e overrule his
second issue. 7 Declaratory Judgment
In issue three , Criswell argues the trial court erred when it failed to grant his request for declaratory judgment. According to Criswell , the trial court failed to
allow him to “respond to [the Allisons’] argument” during the hearing on his request for declaratory relief

. The record shows that during the hearing , the attorneys desc ribed the nature of the dispute. T he trial court agreed with the Allisons th at the dispute required the
court to decide whether Criswell or the Alli sons owns the disputed strip

. Given the claims the parties presented through their pleadings, we agree with the trial court
that the case could not be resolved as a simple boundary dispute over the location of
the fence

. 8

7 Tex. R. App. P. 33.1(a)(2).

8 For instance, Criswell’s motion for declaratory judgment does n ot assert a claim asking the trial court to award him an easement over Hester Road. Instead, Criswell’s motion asked the trial court to declare that he is the owner of the disputed strip.10 Under Texas law, competing claims for superior title in a dispute concerning
who owns real property must be brought as trespass

- to

- try

- title actions

. 9 We note
that both Criswell ’s motion and the Allisons’ counterclaim asked the trial court to
decide who ow n s the disputed strip. Given the nature of the parties’ claims, we agree with the trial court’s conclusion that the court was required to decide the action as a trespass

- to

- try

- title claim and could not decide the dispute as a declaratory judgment
claim

. 10 Since the trial court correct ly determined the underlying nature of the dispute , Criswell was not harmed when the trial court refus ed to allow him to argue
his declaratory judgment claim. 11 We overrule Criswell’s third issue. Summary Judgment on Criswell’s Claims
In issue four, Criswell argues that the trial court’s ruling granting the Allisons’
motion for summary judgment “was manifest constitutional error and manifest error
on the entire case.” According to Criswell, the fact s he alleged in his First Amended

9 See Lance v. Robinson , 543 S.W.3d 723, 735, 737 (Tex. 2018); see also Tex. Prop. Code Ann. § 22.001(West 2014); Tex. R. Civ. P. 783

- 809.

10 Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (West 2015) (describing the matters that are subject to claim for declaratory relief).

11 Tex. R. App. P. 44.1(a).11 Petition raise issues of material fact , and he concludes the trial court should have
conduct ed a trial on the merits of the parties’ claims

. Criswell rel ies on his pleadings to argu e that the trial court should have treat ed his pleadings as summary judgment proof. T he trial court , however, correctly
refused to treat Criswell’s pleadings as summary judgment proof

. 12 Simply put, pleadings are not competent as summary judgment proof

. 13
D uring the summary judgment hearing , the trial court also sustained the Allisons’ objections to Criswell’s summary judgment proof. On appeal, Criswell
failed to raise an issue that complains about that ruling

. Thus, even if the trial court erred by striking Criswell’s summary judgment evide nce , we could not address that alleged error in this appeal because Criswell never assigned it as error
. 14 Because the arguments supporting Criswell’s fourth issue lack merit , issue four is overruled

.

12 Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer , 9 04 S.W.2d 656, 660 (Tex. 1995)

.
13 Id.

14 “ Except for fundamental error, appellate courts are not authorized to consider issues not properly raised by the parties. ” Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 577 (Tex. 2006) (citing In re B.L.D. , 113 S.W.3d 340, 350

- 52 (Tex. 2003)) ; see also Pat Baker Co. , Inc. v. Wilson , 971 S.W.2d 447, 450 (Tex. 1998); Allright, Inc. v. Pearson , 735 S.W.2d 240 (Tex. 1987).12 Adverse Possession
In his fifth issue , Criswell argues the trial court erred by granting the Allisons ’ motion for summary judgment on their claim of adverse possession

. W e review ruling s on motion s for summary judgment using a de novo standard. 15 In our review,

we examine the same evidence the trial court considered when it ruled on the
motion. 16 The Rules of Civil Procedure that govern motions for s ummary judgment require the party moving for summary judgment to establish it has a right to prevail

on its claim as a matter of law

. 17 Facts in support of a claim are capable of being
establish ed as a matter of law if the evidence the party attaches to its motion shows
that reasonable people could not differ about the conclusion s to be reached from the
evidence attached to the motion

. 18 If the party moving for summary judgment me e t s its burden, the burden of proof then shift s to the party who is opposing the motion

15 First United Pentecostal Church of Beaumont v. Parker , 514 S.W.3d 214, 219 (Tex. 2017) (citing Cantey Hanger, LLP v. Byrd , 467 S.W.3d 477, 481 (Tex. 2015)).

16 Schlumberger Tech. Corp. v. Pasko , 544 S.W.3d 830, 833 (Tex. 2018).

17 See Tex. R. Civ. P. 166a(c); MMP, Ltd. v. Jones , 710 S .W.2d 59, 60 (Tex. 1986).

18 See City of Keller v. Wilson , 168 S.W.3d 802, 816 (Tex. 2005).13 and requires that party to demonstrate , with evidence , that an issue of material fact
remains on at least one of the elements o f the claim at issue in the motion

. 19 To prove a claim of a dverse possession , the party moving for summary judgment must establish (1) it is in actual possession of the disputed property , (2) its possession of the property is open and notorious, (3) its possession is peaceable, (4) it possesses the property under a claim of right, (5) its possession is adverse and
hostile to the opposing party who claims it is the true owner , and (6) th at it and its predecessor in title toge ther have consistently and continuously held the property in their possession for ten years for claims based on the ten

- year statute governing adverse possession

. 20 Here, the Allisons provided the trial court with summary judgment proof on
all the elements of their claim under the ten

- year statute

. To establish when their period of actual, open, peaceable, notorious, and hostile possession began, the Allisons relied on an affidavit from their predecessor in title, Ronnie Leggett. Leggett’s affidavit shows that in 1997 or 1998, he moved a fence that was on the

19 See Chavez v. Kan. City S. Ry. Co

. , 520 S.W.3d 898, 900, 901 (Tex. 2017); Clear Creek Basin Authority , 589 S.W.2d at 678

.
20 Glover v. Union Pac. R.R. Co. , 187 S.W.3d 201, 213 (Tex. App.

— Texarkana 2006, pet. denied) ; see also Rhodes v. Cahill , 802 S.W.2d 643, 645 (Tex. 1990) (op. on reh ’ g) ; Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1) , (3) (West 2002)

.14 northern side of the tract he later sold to the Allisons , which encroached on the southern boundary of Criswell’s tract . According to Leggett: Sometime within approximately one year after purch asing the property in 1997, I repaired and replaced the fence around the perimeter of my property. I did not move the fence 50 feet North onto the property of Raymond Criswell, I built back the fence where it previously stood when I purchased the property. The survey performed in 1997 indicates that this fence slightly encroached onto the property of Raymond Criswell.
Due to the encroachment on the North Eastern corner of the property of buildings owned by Charles Hester, I installed fencing running north

- south in back of those buildings. I installed a new gate at the location of what appeared to be a gateway to the abandoned path or roadway. This gate was installed to replace an existing gateway, and was only used for occasional access to my property.
The existing fence which currently stands on the North boundary of the property was in place at the time I sold the property to Kenneth and Linda Allison in 2008. To establish that their adverse possession of the disputed strip continued when they acquired Leggett’s tract, the Allisons relied on Kenneth Allison’s affidavit.
Kenneth’s affidavit shows after the Allisons acquired Leggett’s tract in 2008, they
continued to maintain the fence that Leggett erected on Criswell’s tract

. Allison’s
affidavit states : Sometime before I purchased the property in 2008, a fence was erected around the perimeter of my property. I did not construct this fence, nor did I at any time move the fence 50 feet North onto the property of Raymond Criswell. This fence has been maint ained peacefully by me in order to exercise possession over all of the property15 included within the fencing, which has been cultivated, used and enjoyed by me since my purchase of the property. We conclude the summary judgment evidence established that th e Allisons and their predecessor in title held the dispute d strip in their peaceable possession
since 1997 and held it adversely to Criswell ’s rights in the strip

. 21 The summary judgment evidence also establishes that when the Allisons filed their countercl aim, they had a claim of right in the disputed strip. T he summary judgment evidence
further establishe s that the Allisons (and their predecessor in title) had been holding the disputed strip adversely to Criswell for more than ten years before Criswell
int errupted their peaceable possession of the strip by suing them in March 2016

. 22 In his brief, Criswell acknowledge s that the trial court “sustained all of [the
Allisons ’ ] objections and denied all of [his] Exhibits” during the summary judgment

21 See Tex. Civ. Prac. & Rem. Code Ann. § 16.023 (West 200 2) (allowing a party relying on a claim of adverse possession to tack the period it held the property being claimed adversely to that party’s predecessor in title if the predecessor also held the property at issue by adverse possession); id . § 16.026(a) (p roviding that individuals who own property with ten

- year limitations period from “the day the cause of action accrues to [file suit to] recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property”) ; id

. 16 .030(a) (West 2002 ) (providing that “[i]f an action for the recovery of real property is barred under this chapter, the person who hold s the property in peaceable and adverse possession has full title, precluding all claims”)

.
22 See id

. § 16 .026(a)

.16 hearing. Yet, Criswell did not raise any issues in his brief complaining of the trial court’s ruling striking his summary judgment evidence

. “In reviewing whether a summary judgment was properly granted, we may not consider stru ck portions of the record because that evidence is not a part of the summary judgment record.” 23 Given the trial court’s ruling on the Allisons’ objection to Criswell’s summary judgment proof, we cannot rely on the documents Criswell attached to his
respons e
. 24
We conclude t he Allisons ’ summary judgment evidence shift ed the burden of proof to Criswell to demonstrate that an issue of material fact existed on one or more element s of the Allisons’ claim for adverse possession. Because Criswell failed to
meet hi s burden of proof, we overrule Criswell’s fifth issue

. Conclusion Having overruled Criswell’s issues, we affirm the trial court’s judgment.
AFFIRMED

.

23 McCollum v. The Bank of N.Y. Mellon Trust Co. , 481 S.W.3d 352, 362 (Tex. App.

— El Paso 2015, no pet.) ; s ee also Kuzmin v. Schiller , No. 05

- 13

- 01394

- CV, 2015 WL 150206, at *5 (Tex. App.

— Dallas Jan. 8, 2015, no pet.) (mem. op.)

.
24 See Kuzmin , 2015 WL 150206 at *5 ; see also Tamez , 206 S.W.3d at 577.17 ________________________________ HOLLIS HORTON Justice

Submitted on December 5, 2018 Opinion Delivered August 22, 2019
Before McKeithen , C.J., Kreger and Horton, JJ.