Earl Anderson, Carrie Bell Scott, Sharon Anderson, Evance Anderson, Bill Burton, Willie Mae Anderson, and Jerry J. Anderson (Smith) v. Robert Louis Durham

ACCEPTED
12-15-00169CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/30/2015 3:26:39 PM
Pam Estes
CLERK

NO. 12-15-00169-CV
_______________________________________________
FILED IN
12th COURT OF APPEALS
IN THE COURT OF APPEALS TYLER, TEXAS
FOR THE TWELFTH DISTRICT OF TEXAS 9/30/2015 3:26:39 PM
TYLER, TEXAS PAM ESTES
_______________________________________________ Clerk

EARL ANDERSON, CARRIE BELL SCOTT, SHARON ANDERSON,
EVANCE ANDERSON, BILL BURTON, WILLIE MAE ANDERSON AND
JERRY J. ANDERSON (SMITH),

Appellants,
v.

ROBERT LOUIS DURHAM AND FRANK L. ZELLERS, III

Appellees.
_______________________________________________

On Appeal from the 173rd District Court
of Henderson County, Texas, the Honorable Dan Moore,
Presiding Judge
_______________________________________________

BRIEF OF APPELLEE
ROBERT LOUIS DURHAM
_______________________________________________

JOHN J. COPE
State Bar No. 00785784
COPE LAW FIRM
9284 Huntington Square, Suite 100
North Richland Hills, Texas 76182
Telephone: (817) 498-2300
Fax: (817) 581-1500
ATTORNEY FOR ROBERT LOUIS
DURHAM

ORAL ARGUMENT NOT REQUESTED
 TABLE OF CONTENTS
Page

Table of Contents i

Table of Authorities iii

Record References vii

Statement of the Case 1-3

Statement Regarding Oral Argument 3

Argument and Authorities to all Reply Points

Reply Point Number 1 - Fact questions did not preclude the 4, 10
summary judgment.

A. Fact questions did not exist regarding the Warranty 4, 10
Deed from B. A. Anderson and his wife, Martha, to T.B.
Wofford and Bush Wofford dated May 11, 1932 (the
“1932 Deed”).

1. Technical attacks on the 1932 Deed are time-barred. 10-11

2. Even if not time-barred, Appellants failed to 12-15
overcome presumptions in favor of the validity of the
1932 Deed.

B. Appellants failed to present evidence that raised a fact 4, 15
issue on the merits regarding Durham’s chain of title.

1. Appellants failed to present evidence of Durham’s 15-16
title or claim of title to any tract.

2. Appellants failed to describe their own source(s) of 16
title to any of Mr. Durham’s property and thus have
no evidence of an existing justiciable controversy as
to the rights and status as between Appellants and
i
 Durham.

C. Appellants failed to present evidence to address the 5, 17
elements of the mandatory trespass to try title action.

1. Appellants’ case is a trespass to try title action. 17

2. Appellants have not produced required evidence of 17-25
their chain of title originating with the sovereign.

D. Appellants failed to present evidence of standing to 5, 25-27
bring the lawsuit.

Reply Point Number 2 - The trial court did not err by striking 5, 27
portions of Appellants’ evidence.

A. The trial court’s ruling on evidentiary objections will be 5, 27-28
upheld absent such an extreme abuse of discretion that
(1) there is no legitimate basis for the ruling and (2) the
error probably caused the rendition of an improper
judgment.

B. Affidavit of Joe Cofer. 5, 29

C. Affidavits of Carrie Scott, Evance Anderson, Earl 5, 29-31
Anderson, Sharon Anderson, and Jerry Anderson.

Statement of Facts 6-7

Summary of the Argument 8-9

Arguments and Authorities 10

Prayer 31

Certificate of Service 33

Certificate of Compliance 33

ii
 TABLE OF AUTHORITIES

Cases Page

Fleming & Associates, L.L.P. v. Barton, 425 S.W.3d 560, 572 4
(Tex. App.—Houston [14th Dist.] 2014, pet. denied)

Allday v. Drummond, 280 S.W.2d 381, 384 (Tex. Civ. App.—Fort 10, 11
Worth 1955, writ ref’d n.r.e.)

Spivy v. March, 151 S.W. 1037 (Tex. 1912) 10, 11

Stephens Cnty. Museum, Inc. v. Swenson, 517 S.W.2d 257, 261- 12, 14
62 (Tex. 1974)

Texas Land & Mortgage Co. v. Cohen, 138 Tex. 464, 159 S.W.2d 12
859, 863 (1942)

Sorsby v. State, 624 S.W.2d 227, 234 (Tex.Civ.App.—Houston 12
[1st Dist.] 1981, no writ).

Bell v. Sharif-Munir-Davidson Dev. Corp., 738 S.W.2d 326, 330 13, 14
(Tex.App.--Dallas 1987), writ denied (Mar. 2, 1988)

Morris v. Wells Fargo Bank, N.A., 334 S.W.3d 838, 843 13
(Tex.App.—Dallas 2011, no pet.)

Stout v. Oliveira, 153 S.W.2d 590, 597 (Tex. App.-El Paso 1941, 13
writ ref’d w.o.m.)

Martin v. Martin, Martin & Richards, Inc., 12 S.W.3d 120, 125 14
(Tex.App.—Fort Worth 1999, no writ)

Burgess v. Hatton, 209 S.W.2d 999, 1002 (Tex.Civ.App.-- 14
Beaumont 1948, writ refused)

Lindsay v. Texas Iron & Steel Co., 9 S.W.2d 287, 288 (Tex. Civ. 14
App. 1928, writ refused Jan. 30, 1929)

Austin Lake Estates Recreation Club, Inc. v. Gilliam, 493 S.W.2d 14-15
iii
343, 347 (Tex.Civ.App.—Austin 1973, writ refused n.r.e.)

Wells v. Timms, 275 S.W. 468, 470 (Tex.Civ.App.—Fort Worth 15
1925, writ dismissed)

Red River Nat. Bank in Clarksville v. Latimer, 110 S.W.2d 232, 15
238 (Tex. Civ. App. 1937)

Walker v. Haley, 236 S.W. 544, 545 (Tex.Civ.App.—Texarkana 15
1921, no writ)

City of Austin v. Whittington, 385 S.W.3d 28, 33 (Tex.App.— 16
Austin 2007, no pet.)

Gipson-Jenks v. Gipson, No. 14-13-00967-CV, 2015 WL 17
3424714, at *4 (Tex.App.-Houston [14th Dist.] May 28, 2015, no
pet. h.).

Wilhoite v. Sims, 401 S.W.3d 752, 760 (Tex.App.–Dallas 2013, 17
no pet.)

Johnson v. McClintock, 202 S.W.3d 821, 823 (Tex.App.—Corpus 20
Christi 2006, no pet.)

Diversified, Inc. v. Hall, 23 S.W.3d 403 (Tex.App.—Houston [1st 20
Dist.] 2000, pet. denied)

Yzaguirre v. Gonzalez, 1998 WL 251755 (Tex.App.—San 20
Antonio 1998, no pet.)

Wilson v. Beck, 286 S.W. 315, 320 (Tex.Civ.App.--Dallas 1926, 20
writ refused Nov. 3, 1926)

City of Mission v. Popplewell, 294 S.W.2d 712, 717 (Tex. 1956) 25

Rocha v. Campos, 574 S.W.2d 233, 236 (Tex.App.—Corpus 25
Christi 1978, no writ)

Ramsey v. Grizzle, 313 S.W.3d 498, 505 (Tex. App.--Texarkana 25
2010, no pet.)
iv
Neeley v. West Orange-Cove Consol. Ind. Sch. Dist., 176 S.W.3d 25
746, 774 (Tex. 2005)

Aransas Properties, Inc. v. Brashear, 410 S.W.2d 934, 941 25
(Tex.Civ.App.-Corpus Christi 1967, writ ref'd n.r.e.)

Heckman v. Williamson County, 369, S.W.3d 137, 154 (Tex. 26
2012)

Wassmer v. Hopper, 463 S.W.3d 513, 528 (Tex. App. 2014) 26

Tex. Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 26
444 (Tex. 1993)

Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.1995) 26

Noell v. Air Park Homeowners Ass’n, Inc., 246 S.W.3d 827, 832 26
(Tex. App. 2008)

City of Houston v. Williams, 353 S.W.3d 128, 145 (Tex. 2011) 27

Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 27, 31
(Tex. 1998)

City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995) 28

State v. Malone Serv. Co., 829 S.W.2d 763, 767 (Tex.1992) 28

State Bar of Texas v. Evans, 774 S.W.2d 656, 658 n. 5 (Tex.1989) 28

Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 28
(Tex.1989)

Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) 29, 30

Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex.App.—Houston 29
[1st Dist.] 1997, no writ)

Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). 29
v
Valenzuela v. State & County Mut. Fire Ins. Co., 317 S.W.3d 550, 30
552 (Tex.App.—Houston [14th Dist.] 2010, no pet.)

Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) 30

University of Texas M.D. Anderson Cancer Center v. King, 417 30
S.W.3d 1, 10 (Tex.App.—Houston [14th Dist. 2013] 2013, no
pet.)

Gorrell v. Tide Prod., Inc., 532 S.W.2d 390, 395 (Tex.Civ.App.— 30-31
Amarillo 1975, no writ)

Statutes and Rules

Texas Rule of Appellate Procedure

38.1(f) 6

44.1 28, 31

Texas Civil Practice & Remedies Code

§16.033(8) 10

§16.033 10

Texas Rules of Civil Procedure

166a(c) 29, 30

166a(f) 30

vi
Texas Rules of Evidence

Rule 403 28, 30

Rule 802 30

Rule 805 30

RECORD REFERENCES

References to the Clerk’s Record will be designated page number, e.g., “CR

12.”

vii
 STATEMENT OF THE CASE

Appellee disagrees with Appellants’ procedural history of the case because

of omissions and inaccurate characterizations. Plaintiffs-Appellants Earl Anderson,

Carrie Bell Scott, Sharon Anderson, Evance Anderson, Bill Burton, Willie Mae

Anderson, and Jerry J. Anderson (Smith) (“Appellants”) claim in their June 20,

2012 Original Petition that an ancestor named Barrel A. Anderson (“Anderson”)

owned a tract of land in Henderson County at the time of his death in 1940,

presume that Appellants subsequently acquired title, speculate that Defendant-

Appellee Robert Louis Durham (“Durham”) “may” have an adverse claim to the

same tract, and seek a declaratory judgment validating their undocumented claims

to title. [CR 1-3.] Durham filed an Original Answer on July 17, 2012; however,

the lawsuit languished without prosecution for two years. On September 17, 2014,

Durham substituted counsel and filed a First Motion for Continuance to which

Appellants agreed, thereby passing a bench trial setting for October 20, 2014. [CR

4, 9, 14.] Durham filed an amended answer and counterclaim on October 6, 2014.

[CR 23.] Durham filed a motion for no-evidence summary judgment on December

30, 2014. [CR 27.] Following a February 11, 2015 hearing on the motion, the trial

court issued a letter to the parties dated February 25, 2015 that provided Appellants

an opportunity to amend their petition by March 13, 2015 and allowing Durham to

amend his summary judgment motion in response. [2nd Supp. CR 3.] On February

1
13, 2015, after the hearing but before the Court issued its letter, Appellants filed an

amended petition that dropped original defendant Frank L. Zellers, III and added

assertions briefly addressing Durham’s adverse possession counterclaim and a

1932 deed. [CR 84.] Appellants filed a one-page Second Amended Petition for

Declaratory Judgment and Answer to Counterclaim on March 12, 2015 [CR 94.]

Durham then filed his Amended Motion for No Evidence and Traditional

Summary Judgment on April 8, 2015. [CR 96.] In an apparent response to the

motion and long after expiration of the Court-imposed deadline for Appellants to

amend their petition, Appellants filed a second Plaintiffs’ Second Amended

Petition for Declaratory Judgment and Answer to Counterclaim on April 10, 2015

[CR 111.] On April 17, 2015, Appellants filed Plaintiffs’ Motion for Continuance

citing Appellants’ issuance of interrogatories and requests for production in

response to Durham’s no-evidence motion. [CR 116.] Durham filed a Certificate

of Written Discovery for responses provided to Appellants’ discovery requests and

a Response in Opposition to Plaintiffs’ Motion for Continuance on April 24, 2015.

[CR 129, 120.] A hearing on Plaintiffs’ Motion for Continuance was set for May

2, 2015 immediately prior to the hearing on Durham’s amended summary

judgment motion. [CR 119.] On April 30, 2015, Appellants filed their Response to

Defendant’s amended motion for summary judgment. [CR 133.] On the next day,

May 1, 2015, Durham filed a Motion to Strike Plaintiffs’ Affidavit of Family

2
History and Intestate Heirs and his Second Motion to Strike Plaintiffs’ Incompetent

Summary Judgment Evidence. [CR 212, 232.] The trial court granted in part and

denied in part Durham’s motion to strike evidence on May 19, 2015. [CR 240.]

The trial court expressly granted Durham’s Amended Motion for No Evidence and

Traditional Summary Judgment “in all respects” and ordered dismissal of

Plaintiffs’ claims on May 19, 2015. [Supp. CR 1.]

STATEMENT REGARDING ORAL ARGUMENT

Appellant has not requested oral argument. Appellee does not request oral

argument.

3
 ISSUES PRESENTED

Appellants’ statement of the issues presented does not match the arguments

urged in their brief. Appellants stated, but failed to argue, (1) that all named

parties were necessary for final disposition of this case, (which was a curious issue

to list since only Durham was named in Appellants’ Second Amended Petition),

(2) that Durham’s summary judgment was not the proper vehicle to address

Appellants’ failure to state a cause of action for which relief could be granted, and

(3) that the trial court denied due process of law by denying Appellants’ April 17,

2015 Motion for Continuance.1 Durham therefore restates Appellants’ issues

presented in order to track the arguments actually made in Appellants’ brief.

Reply Point Number 1 - Did fact questions preclude summary judgment?

A. Did fact questions exist regarding the recorded Warranty Deed from B.

A. Anderson and his wife, Martha, to T.B. Wofford and Bush Wofford

dated May 11, 1932 (the “1932 Deed”)?

B. Did fact questions exist regarding Durham’s chain of title that precluded

summary judgment in Durham’s favor?

1
Despite Appellants’ assertion in their brief that Durham complained of a defect of parties, no
such argument appears in the record and the trial court did not base its ruling on a defect of
parties. Defect of parties cannot be argued on appeal. Fleming & Associates, L.L.P. v. Barton,
425 S.W.3d 560, 572 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (“[S]ummary
judgments must stand or fall on the grounds raised therein; we cannot consider grounds raised
for the first time on appeal as a basis for affirming or reversing the trial court's judgment.”).

4
 C. Were Appellants required to present evidence to address the elements of

a trespass to try title action?

D. Did Appellants fail to present evidence of standing to bring the lawsuit?

Reply Point Number 2 - Did the trial court err by striking portions of

Appellants’ evidence?

A. The trial court’s ruling on evidentiary objections will be upheld absent

such an extreme abuse of discretion that (1) there is no legitimate basis

for the ruling and (2) the error probably caused the rendition of an

improper judgment.

B. Affidavit of Joe Cofer.

C. Affidavits of Carrie Scott, Evance Anderson, Earl Anderson, Sharon

Anderson, and Jerry Anderson.

5
 STATEMENT OF FACTS

Appellants’ misstate several relevant facts, so Durham challenges factual

statements made in Appellants’ brief under Tex.R.App. P. 38.1(f) and provides the

following alternative statement of facts. Appellants claim to be descendants of

Barrel A. Anderson, who purportedly owned a tract of land in Henderson County

at the time of his death in 1940 despite a previously unchallenged 1932 deed from

Anderson to T.B. and Bush Wofford. [CR 112-113, 108, 143.] The facially valid

1932 Deed was properly executed and recorded in the Real Property Records of

Henderson County, Texas in 1935. [CR 108, 143.] Appellants, who merely assert

that they are direct descendants of Mr. Anderson, state without proof that

Appellants acquired title subsequent to Anderson’s death. [CR 112-114.]

Appellants allege that Durham has by unstated means asserted an adverse claim to

the tract formerly owned by Anderson. [CR 113.] In an apparent attempt to hide

their failure to diligently prosecute their claims, Appellants misleadingly state that

Appellants conducted discovery prior to August 2014, but Appellants issued no

discovery beyond a request for disclosures until April 2015, well over two years

after Appellants filed their petition. [CR 122, para. 15; 125, para 3.] Appellants

also inaccurately state that they filed a response to Durham’s original Motion for

No Evidence Summary Judgment in which Appellants showed standing and

objected to Appellee’s use of summary judgment in contrast to special exceptions

6
in order to address Appellants failure to state a cause of action. [Appellants’ Brief

pp. 1-2.] No such procedural objection appears of record, and although Appellants

did submit objected-to evidence in an effort to show that they are related to

Anderson, such evidence failed to establish title or that an actual dispute existed

with Durham regarding any given tract of land. [CR 32, 63, 87, 240.] Appellants’

statement of facts cryptically refers, for the first time apparently, to an alleged

deficiency in a deed to Frank L. Zellers and to some change of ownership

involving Anderson County Land & Cattle Co., Foresight Investment, an unnamed

individual, “proper agency for transfer to Frank L. Zellers,” and “the brand or

cattle in Henderson County, Texas.” [Appellants’ Brief p. 3.] Durham objects to,

does not understand, and does not address these impermissible new allegations

which were not presented to the trial court.

7
 SUMMARY OF THE ARGUMENT

The trial court did not err by granting the no evidence and traditional

motions for summary judgment because Appellants failed to present evidence that

Appellants or Durham held title (or any legitimate claim) to any given tract(s) of

land. Appellants submitted to the trial court, without explanation, a number of

conveyance instruments for large tracts of land that relied on extensive metes and

bounds legal descriptions from various surveys. The grantors and grantees did not

match up to form a sequential chain of title and the legal descriptions did not match

up from one deed to another, leaving the trial court no choice but to find that

Appellants had not satisfied the threshold requirement of a trespass to try title suit.

In addition, Appellants were procedurally barred from attacking the 80 year old

deed by which Appellants’ purported source of title, B.A. Anderson, conveyed title

to a third party, precluding Appellants’ attempt to belatedly invalidate the ancient

deed and claim inherited title. Finally, the trial court was well within its discretion

in striking portions of Appellants’ evidence because Appellants’ affidavits, which

attempted to reconstruct family history and property ownership, failed to manifest

the source of the affiant’s personal knowledge, contained inadmissible hearsay,

unsupported speculation, factual conclusions, were not “clear, positive and direct,

otherwise credible and free from contradictions and inconsistencies, and could

have been readily controverted,” and because any possible probative value of the
8
infirm evidence would be substantially outweighed by the danger of unfair

prejudice. The trial court was further within its discretion to strike evidence

objected to as inadmissible legal conclusions and as violations of the best evidence

rule.

9
 ARGUMENTS & AUTHORITIES

Appellants argue that various fact questions precluded summary judgment and

that the trial court should be reversed for striking portions of Appellants’ evidence.

Durham explains below that no fact questions existed for both procedural and

substantive reasons, and that the trial court had numerous legitimate grounds to

strike portions of Appellants’ evidence.

Fact questions did not preclude the summary judgment.

A. Fact questions did not exist regarding the Warranty Deed from B. A.

Anderson and his wife, Martha, to T.B. Wofford and Bush Wofford dated

May 11, 1932 (the “1932 Deed”).

1. Technical attacks on the 1932 Deed are time-barred. Appellants

allege irregularities in the execution and acknowledgement of the 1932 Deed. [CR

85, Appellants’ Brief p. 5, para. 3] While Appellants’ allegations are unsound

even if they had been timely, complaints of technical defects in the

acknowledgement of the 1932 Deed are time-barred under TEX. CIV. PRAC. & REM.

CODE §16.033(8). See, Allday v. Drummond, 280 S.W.2d 381, 384 (Tex. Civ.

App.—Fort Worth 1955, writ ref’d n.r.e.); TEX. CIV. PRAC. & REM. CODE §16.033

(barring actions against specified technical defects in instruments conveying real

property after two years from the day the instrument was filed for record).

Appellants mistakenly cite Spivy v. March, 151 S.W. 1037 (Tex. 1912) for the
10
principle that “without a properly executed deed, title does not pass under Texas

law,” but the holding of Spivy actually refuses to allow an attack on execution of a

50-year old deed. Spivy addresses a challenge brought under a formerly applicable

statute that established certain standards for acknowledgments in order to protect

wives from coercion. The court ruled that challenged instrument must be

construed liberally and gave weight to the historic acceptance of the deed by the

parties, explaining that “we are firmly convinced by authority and sound

reasoning that under such conditions a court should construe the language as

Mrs. Hensley, [the grantor whose signature was challenged], and her heirs have

construed it by their inaction for a half century.” Spivy at 1039-40. The court

went on to emphasize the injustice of allowing such a remote attack by those not

privy to the challenged instrument; “We have in this case … a stranger setting up a

defect which the vendor refused to assert. The injustice and unreasonable

character of the proposition forbids that this court should approve it, [and no

precedent compels otherwise].” Spivy at 1040. If the 1932 deed were sincerely

thought to be invalid, then the Appellants should not have waited 80 years to attack

it. Allday, 280 S.W.2d at 384 (“We agree with the Amarillo court that the intent of

the Legislature is to quiet title to uncertainties concerning land titles.”).

11
 2. Even if not time-barred, Appellants failed to overcome presumptions

in favor of the validity of the 1932 Deed. Appellants have no summary judgment

evidence supporting allegations that the 1932 Deed is “irregular” on its face. The

1932 Deed plainly states the parties, property, consideration, and effect of the

conveyance. A prima facie case of delivery, acceptance, and the accompanying

presumption that the grantor intended to convey the land according to the terms of

the deed is established when it is shown that the deed has been filed for record.

Stephens Cnty. Museum, Inc. v. Swenson, 517 S.W.2d 257, 261-62 (Tex. 1974);

Texas Land & Mortgage Co. v. Cohen, 138 Tex. 464, 159 S.W.2d 859, 863 (1942);

Sorsby v. State, 624 S.W.2d 227, 234 (Tex.Civ.App.—Houston [1st Dist.] 1981, no

writ). Appellants have no evidence (1) that “[s]aid deed has been altered” by

“several strikes through undecipherable sentences under the section for approval

by a wife” or of (2) an alleged lack of consideration. The challenged

acknowledgment of Martha Anderson states “Before me, the undersigned authority

a Notary Public in and for Henderson County, Texas, on this day personally

appeared Martha Anderson, wife of B.A. Anderson, known to me to be the person

whose name is subscribed to the foregoing instrument, having been examined by

me privily and apart from her husband, and having the same by me fully explained

to her, she, the said Martha Anderson, acknowledged such instrument to me to be

her act and deed, and she declared that she had willingly signed the same for the

12
purposes and consideration therein expressed and that she did not wish to retract

it.” [CR 108, 143.] The acknowledgment is conclusive evidence of the facts

recited. Bell v. Sharif-Munir-Davidson Dev. Corp., 738 S.W.2d 326, 330

(Tex.App.--Dallas 1987), writ denied (Mar. 2, 1988); Morris v. Wells Fargo Bank,

N.A., 334 S.W.3d 838, 843 (Tex.App.—Dallas 2011, no pet.). The law relevant to

the challenged acknowledgment has been well explained by the Dallas Court of

Appeals:

The law is settled that a certificate of acknowledgment is

prima facie evidence that [the signatory] appeared before

the notary and executed the deed in question for the

purposes and consideration therein expressed.…The

rationale behind this rule was stated in Stout: “The reason

is obvious, because, if the rule were otherwise, titles

would be insecure and ruinous consequences would

ensue from the doubt and uncertainty with which titles

would be clouded.” [Stout v. Oliveira, 153 S.W.2d 590,

597 (Tex. App.-El Paso 1941, writ ref’d w.o.m.)]. Under

any other rule, the title to land would lose, in a great

measure, the security which the registration laws were

designed to insure; the stability of title would often

13
 depend on the memory and integrity of those interested in

nullifying it and the door to fraud and perjury would

thereby be opened wide.”

Bell, 738 S.W.2d at 330. Appellants have not argued, much less supported, any

legal reason that the Court should not follow the law as explained in Swenson and

Bell.

Appellants attack the legal sufficiency of stated consideration consisting of

$10.00 cash and the further consideration of the cancellation and delivery of eight

notes signed by B.A. Anderson and payable to George M. Wofford or order. [CR

108.] Appellants admit that grantee T.B. Wofford was an heir of the obligors on

the cancelled notes and present no evidence showing that the notes were not, in

fact, cancelled. [CR 139.] Moreover, the 1932 deed asserts independently

sufficient monetary consideration. [CR 108.]

The court is not charged with authority to evaluate the adequacy of stated

consideration. Martin v. Martin, Martin & Richards, Inc., 12 S.W.3d 120, 125

(Tex.App.—Fort Worth 1999, no writ). Burgess v. Hatton, 209 S.W.2d 999, 1002

(Tex.Civ.App.--Beaumont 1948, writ refused) (Failure of consideration is not

grounds for avoidance of an executed deed absent fraud or undue influence);

Lindsay v. Texas Iron & Steel Co., 9 S.W.2d 287, 288 (Tex. Civ. App. 1928, writ

refused Jan. 30, 1929) (Nominal consideration will support a deed); Austin Lake
14
Estates Recreation Club, Inc. v. Gilliam, 493 S.W.2d 343, 347 (Tex.Civ.App.—

Austin 1973, writ refused n.r.e.) (Even “improvident” stated consideration will

support a deed absent fraud, surprise, or undue influence); Wells v. Timms, 275

S.W. 468, 470 (Tex.Civ.App.—Fort Worth 1925, writ dismissed) (Gain or loss to a

party is not required if a party foregoes an advantage, benefit, or right); Red River

Nat. Bank in Clarksville v. Latimer, 110 S.W.2d 232, 238 (Tex. Civ. App. 1937)

(cancellation of debt is sufficient consideration).

B. Fact questions did not exist regarding Durham’s chain of title because

Appellants failed to present evidence of title to any tract to which Durham

asserted a claim.

1. Appellants failed to present evidence of Durham’s title or claim of

title to any tract. Appellants have not provided evidence of the property that is

allegedly claimed by Durham. Durham’s alleged deed is not part of the record for

consideration by this Court. Even apart from an actual deed, Appellants have

failed to describe any land that is burdened by competing claims of Appellants and

Durham. See Walker v. Haley, 236 S.W. 544, 545 (Tex.Civ.App.—Texarkana

1921, no writ) (unsupported assertion of title and allegations of competing claim

are insufficient to support trespass to try title suit). The burden was on Appellants

to show that Durham asserted a claim constituting a cloud on title which they were

15
entitled to have removed. Appellants have not met their burden of producing a

scintilla of evidence that Durham claims property to which they hold an interest.

2. Appellants failed to describe their own source(s) of title to any of Mr.

Durham’s property and thus have no evidence of an existing justiciable

controversy as to the rights and status between Appellants and Durham. See

City of Austin v. Whittington, 385 S.W.3d 28, 33 (Tex.App.—Austin 2007, no

pet.). Appellants have no evidence that they own an interest in the claimed

property. Any purported defect in the 1932 Deed has no relevance as to whether

Appellants hold an interest in the same tract. Even if we assume that the

historically unchallenged deed is invalid and that Appellants are direct descendants

of B.A. Anderson, Appellants have failed to provide evidence that they hold title to

any property that once belonged to B.A. Anderson through the laws of intestacy or

otherwise. As shown below, the extensive metes and bounds legal descriptions

contained in each of the deeds offered by Appellants stretch over multiple pages

and incorporate properties extracted from numerous surveys. [3rd Supp. CR 8-13]

Neither the parties nor the legal descriptions match sequentially, and the deeds are

not traced to the land described in the 1932 Deed. Indeed, the land described in the

deeds provided by Appellants included wholly separate properties from other

surveys, and therefore could not share the common source with the 1932 Deed.

16
 C. Appellants failed to present evidence to address the elements of the

mandatory trespass to try title action.

1. Appellants’ case is a trespass to try title action. “Any suit involving a

dispute over the title to land is a trespass-to-try-title action, whatever its form and

regardless of whether legal or equitable relief is sought.” Gipson-Jenks v. Gipson,

No. 14-13-00967-CV, 2015 WL 3424714, at *4 (Tex.App.—Houston [14th

District], May 28, 2015, no pet. h.). “To prevail in a trespass to try title action, a

plaintiff must usually (1) prove a regular chain of conveyances from the sovereign,

(2) establish superior title out of a common source, (3) prove title by limitations, or

(4) prove title by prior possession coupled with proof that possession was not

abandoned.” Wilhoite v. Sims, 401 S.W.3d 752, 760 (Tex.App.–Dallas 2013, no

pet.). Appellants failed to show that Appellants and Durham claimed title from a

common source, by a consecutive chain of transfers from the sovereign, by

limitations title, or by possession. Id.

2. Appellants have not produced required evidence of their chain of

title originating with the sovereign. There is no competent summary judgment

evidence supporting Appellants’ assertion that they acquired interests in the

property previously owned by B.A. Anderson and Martha Anderson through

inheritance or by any other means.

17
 1. No competent evidence establishes that the Andersons owned the

property described in the 1932 Deed at the time of their deaths.

2. There is no competent evidence that the Anderson’s died intestate.

3. No competent evidence identifies the universe of Andersons’ heirs at

law at the time of the Andersons’ respective deaths.

In addition to Appellants’ failure to prove inherited title through B.A.

Anderson, Appellants offered a number of instruments that failed to link the

property described in the 1932 Deed with either Appellants or Durham, leaving

them without evidence of their own claim to the property described in the 1932

Deed or a competing claim that would have justified dragging Durham into this

case. The extensive metes and bounds legal descriptions contained in each of the

deeds offered by Appellants stretch over multiple pages and incorporate properties

extracted from numerous surveys. The legal descriptions do not match the land

described in the 1932 Deed. Moreover, the land described in the deeds provided

by Appellants included wholly separate properties from other surveys, and could

not share the common source with the 1932 Deed.

The relevant documents in the proposed chain of title offered by Appellants are

briefly discussed below in reverse chronological order.

1. Zellars Deed [CR 175] - The Zellars Deed is a warranty deed from Rick

Justiss to Frank L. Zellars, III, dated September 6, 1995 and recorded on the

18
 same day, that includes property beyond the scope of the 1932 deed and

does not describe any property with the specific calls, distances or any

description similar to that of the legal description in the 1932 Deed.2 The

legal description is 17 pages of metes and bounds calls encompassing

approximately 3,430 acres of land out of 12 surveys -- the James Duncan

Survey, part of Jas. Parmer Survey, part of the Mary Stewart Survey, part of

the P.C. Langham Survey, part of the Jesse Cole Survey, all of the Jos. S.

Johnston Survey, part of the J.C. lane Survey, part of the William H. Wyatt

Survey, part of the James K. Brown Survey, part of the Armstead Eans

Survey, part of the Jno [sic] C. Trannell Survey, and all of the AnLaCo, Inc

Survey and being part of those tracts described in a Deed of Trust from

AnLaCo Inc. to George W. Cunningham dated December 2, 1973 and

recorded in Volume 96, Page 773 of the Deed of Trust Records of

Henderson County.

2. Tom Wofford Quit-Claim Deed [CR 173.] - Quit-claim deed from Tom B.

Wofford to Ivy Lee Woodward and OT Woodward dated December [blank]

1959 and recorded February 9, 1960 that includes property beyond the scope

of the 1932 deed and does not describe any property with the specific calls,

distances or any description similar to that of the legal description in the

2
Frank Zellars was originally named as a defendant but was dropped by Appellants’ First
Amended Petition. [CR 83].
19
1932 Deed. The deed purports only to convey “all my right, title and interest

in and to” the land described. The legal description summarily states the

deed covers 659 acres extracted from 3 surveys; 94 acres of land on the

P.C. Langham Survey, 240 acres on the Jesse Cole Survey, 325 acres on the

Jas. K. Brown Survey, being the same three tracts described in the deed

between Jule Wofford Mayfield, et vir., et al to I. L. Woodward and O.T.

Woodward, dated December 4, 1939, recorded in Vol. 257 page 433 of the

Deed Records of Henderson County, Texas. Appellants do not present the

Mayfield Deed, precluding a detailed examination of the property. It is

clear, however, that the Tom Wofford Quit-Claim Deed includes property

beyond the scope of the 1932 deed and does not provide evidence that the

subject property shares the specific calls, distances or any description of the

1932 Deed. In any case, a quit-claim deed is not a vesting deed and will

not support title (or color of title). Johnson v. McClintock, 202 S.W.3d

821, 823 (Tex.App.—Corpus Christi 2006, no pet.); Diversified, Inc. v.

Hall, 23 S.W.3d 403 (Tex.App.—Houston [1st Dist.] 2000, pet. denied);

Yzaguirre v. Gonzalez, 1998 WL 251755 (Tex.App.—San Antonio 1998,

no pet.); Wilson v. Beck, 286 S.W. 315, 320 (Tex.Civ.App.--Dallas 1926,

writ refused Nov. 3, 1926) (“The commonly accepted meaning of the word

‘deed’ is that it is an instrument in writing, duly executed and delivered,

20
 conveying real estate as distinguished from a mere quitclaim.”).

3. Woodward Deed [CR 165.] – Warranty deed from Ivy Lee Woodward and

wife, Augustine B. Woodward and O.T. Woodward and wife, Ethel J.

Woodward to Anderson County Land & Cattle Co. dated December 23,

1959 and recorded February 8, 1960 that includes property beyond the scope

of the 1932 deed and does not describe any property with the specific calls,

distances or any description similar to that of the legal description in the

1932 Deed. The legal description is 5 pages of metes and bounds calls

identifying 11 separate tracts of land encompassing 1,310.76 acres of

land out of 5 surveys, including parts of the J.C. Lane Survey, P.C.

Langham Survey, William Wyatt Survey, Jesse Cole Survey, and Jas K.

Brown Survey.

4. Partition Deed [CR 152.] – Irrelevant partition deed of mineral rights that

does not relate to surface rights.

5. Wofford Family Deed [CR 145.] – Warranty deed from Bush Wofford,

W.M. Wofford, George M. Wofford, Jr., Willie Wofford, Salome Taylor,

Jack Hedrick Taylor, Lucy Wofford Jamison, Fred Jamison, Ethel Wofford,

Jule Wofford Mayfield, John Mayfield, Hilda Wofford Bigger, Morton

Bigger, Arabella Wofford to I.L. Woodward and O.T. Woodward, dated

December 4, 1939 and recorded December 3, 1941 that includes property

21
 beyond the scope of the 1932 deed and does not describe any property with

the specific calls, distances or any description similar to that of the legal

description in the 1932 Deed. The legal description contains 2 pages of

metes and bounds calls identifying 3 tracts of land extracted from 3

surveys; the P.C. Langham Survey, Jesse Cole Survey, and Jas K. Brown

Survey.

6. 1932 Deed [CR 143.] – Warranty deed from B.A. Anderson and wife,

Martha Anderson, to T.B. Wofford and Bush Wofford dated May 11, 1932

and recorded March 6, 1935. The legal description is a brief metes and

bounds description of a rectangular tract as part of the J.K. Brown Survey.

It matches the legal description of the 1917 Deed below.

7. 1917 Deed [CR 144.] – Warranty deed from J.B. Wofford and Geo M.

Wofford to B.A. Anderson dated November 4, 1917 and recorded April 1,

1930. The legal description is a brief metes and bounds description of a

rectangular tract as part of the J.K. Brown Survey.

8. The following chart summarizes for the court the failure of Appellants’
evidence to identify the property described in the 1932 Deed with
Appellants or with Durham.

Record Grantor(s) Grantee(s) Instrument Property
[CR 175.] Rick Justiss Frank L. Warranty 17 pages of
Zellars, III Deed dated metes and
September 6, bounds calls
1995 encompassing
approximately
22
 3,430 acres of
land out of 12
surveys
[CR 173.] Tom B. Ivy Lee Quit-Claim 659 acres
Wofford Woodward Deed dated extracted
and OT December from 3
Woodward 1959 surveys
[CR 165.] Ivy Lee Anderson Warranty 5 pages of
Woodward County Land Deed dated metes and
and wife, & Cattle Co. December bounds calls
Augustine B. 23, 1959 identifying 11
Woodward separate
O.T. and tracts of land
Woodward encompassing
and wife, 1,310.76 acres
Ethel J. of land out of
Woodward 5 surveys
[CR 152.] Partition Irrelevant
Deed partition deed
of mineral
rights that
does not relate
to surface
rights.
[CR 145.] Bush I.L. Warranty 2 pages of
Wofford, Woodward deed dated metes and
W.M. and O.T. December 4, bounds calls
Wofford, Woodward 1939 identifying 3
George M. tracts of land
Wofford, Jr., extracted from
Willie 3 surveys
Wofford,
Salome
Taylor, Jack
Hedrick
Taylor, Lucy
Wofford
Jamison,
Fred
Jamison,
23
 Ethel
Wofford, Jule
Wofford
Mayfield,
John
Mayfield,
Hilda
Wofford
Bigger,
Morton
Bigger,
Arabella
Wofford
[CR 143.] B.A. T.B. Wofford Warranty brief metes
Anderson and and Bush deed dated and bounds
wife, Martha Wofford May 11, description of
Anderson 1932 a rectangular
tract as part of
the J.K.
Brown
Survey
[CR 144.] J.B. Wofford B.A. Warranty brief metes
and Geo M. Anderson deed dated and bounds
Wofford November 4, description of
1917 a rectangular
tract as part of
the J.K.
Brown
Survey

Appellants have not provided evidence of a chain of title as required for a

trespass to try title action. Appellants’ oral claims and collection of mismatched

deeds do not form a consecutive chain of conveyances from the sovereign to

Appellants, much less identify property to which Durham allegedly holds a

competing claim. An interest in real property, as a general rule, can only be
24
established by a valid written instrument and not by parol evidence. City of

Mission v. Popplewell, 294 S.W.2d 712, 717 (Tex. 1956) (“Parol evidence in the

form of opinions and conclusions without documentary basis is inadmissible to

establish such title, and even if admitted without objection is of no probative

force.”). Similarly, it is not sufficient to simply claim that one acquired property.

Rocha v. Campos, 574 S.W.2d 233, 236 (Tex.App.—Corpus Christi 1978, no writ)

(“The only evidence plaintiff offered to prove that he was the fee owner of the

disputed land was his own testimony that the land had been given to him by his

father. The plaintiff identified a deed which he testified his father had delivered to

him. However, the deed was not entered or read into evidence. An interest in real

property, as a general rule, can only be established by a valid written instrument

and not by parol evidence.”).

D. Appellants failed to present evidence of standing to bring the lawsuit.

Standing requires: (1) that Appellants prove an interest in the subject property, and

(2) that an actual controversy exists in connection with that interest. Ramsey v.

Grizzle, 313 S.W.3d 498, 505 (Tex. App.--Texarkana 2010, no pet.) (“To maintain

an action of trespass to try title, the person bringing the suit must have title to the

land sought to be recovered.”); Neeley v. West Orange-Cove Consol. Ind. Sch.

Dist., 176 S.W.3d 746, 774 (Tex. 2005); Aransas Properties, Inc. v. Brashear, 410

S.W.2d 934, 941 (Tex.Civ.App.-Corpus Christi 1967, writ ref'd n.r.e.) (failure to

25
show present title to previously conveyed subject property precluded claimant’s

challenge to instrument relating to conveyed tract); Heckman v. Williamson

County, 369, S.W.3d 137, 154 (Tex. 2012) (“In Texas, the standing doctrine

requires a concrete injury to the plaintiff and a real controversy between the parties

that will be resolved by the court.”).3 A third element of standing addressed in

Heckman, that the relief sought will address the harm presented, is moot given

resolution of the first two elements. The Texas Supreme Court has stated:

Standing is a constitutional prerequisite to suit…The

separation of powers doctrine precludes courts from

issuing advisory opinions on abstract questions of law

that do not bind actual parties….[T]he open courts

provision guaranties access to the courts, but the purpose

is to make whole those who have suffered actual injury,
3
Note: Even if characterized as a declaratory judgment action, the analysis of standing is
substantively the same. Wassmer v. Hopper, 463 S.W.3d 513, 528 (Tex. App. 2014) (“The Texas
Supreme Court has held the Declaratory Judgments Act to be ‘merely a procedural device for
deciding cases already within a court's jurisdiction rather than a legislative enlargement of a
court's power, permitting the rendition of advisory opinions.’ Tex. Ass'n of Business v. Texas Air
Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). A court's declaratory judgment is proper only if a
justiciable controversy exists as to the rights and status of the parties and the controversy will be
resolved by the declaration sought. See Bonham State Bank v. Beadle, 907 S.W.2d 465, 467
(Tex.1995); Noell v. Air Park Homeowners Ass’n, Inc., 246 S.W.3d 827, 832 (Tex. App. 2008).
‘To constitute a justiciable controversy, there must exist a real and substantial controversy
involving genuine conflict of tangible interests and not merely a theoretical dispute.’ Bonham
State Bank, 907 S.W.2d at 467; Noell, 246 S.W.3d at 832.”).

26
 not to provide a forum for general injuries or hypothetical

complaints.

City of Houston v. Williams, 353 S.W.3d 128, 145 (Tex. 2011). The first prong of

standing is similar to, but not as extensive as, the threshold requirement of a

trespass to try title suit. Appellants have not shown that they hold interests in the

tract of land formerly owned by B.A. Anderson or any other tract. The second

prong has also not been satisfied, because Appellants have not shown that Durham

asserts a conflicting claim to the same tract. Appellants thus failed to establish

either of the two elements of standing to bring suit against Durham.

The trial court did not err by striking portions of Appellants’ evidence.

A. The trial court’s ruling on evidentiary objections will be upheld absent such

an extreme abuse of discretion that (1) there is no legitimate basis for the ruling

and (2) the error probably caused the rendition of an improper judgment. Owens-

Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Appellants’

affidavit evidence was uniformly objected to on a number of grounds in the trial

court. The trial court granted Durham’s Motion to Strike in part and denied the

motion in part. [CR 240-242.] The court’s rulings were well justified and could

not have contributed to rendition of an improper judgment.

27
 Evidentiary rulings are “committed to the trial court's

sound discretion.” City of Brownsville v. Alvarado, 897

S.W.2d 750, 753 (Tex.1995). A trial court abuses its

discretion when it rules “without regard for any guiding

rules or principles.” Alvarado, 897 S.W.2d at 754. Trial

courts may exclude relevant evidence if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury.

See Tex.R. Evid. 403; State v. Malone Serv. Co., 829

S.W.2d 763, 767 (Tex.1992). An appellate court must

uphold the trial court's evidentiary ruling if there is any

legitimate basis for the ruling. See State Bar of Texas v.

Evans, 774 S.W.2d 656, 658 n. 5 (Tex.1989). Moreover,

we will not reverse a trial court for an erroneous

evidentiary ruling unless the error probably caused the

rendition of an improper judgment. See Tex.R.App. P.

44.1; see also Gee v. Liberty Mut. Fire Ins. Co., 765

S.W.2d 394, 396 (Tex.1989).

Id.

28
 B. Affidavit of Joe Cofer. The affidavit of Joe Cofer, which is relied upon by

several affiants, is nothing more than a mass listing of 151 purported heirs of Bass

A. Anderson and Martha Anderson [CR 195, 224]. Cofer affirmed only that “the

information I give herein is correct and true to the best of my knowledge.” [Id.]

His lists of purported family relationships and “heirs” are inadmissible legal

conclusions that reference no source of personal knowledge whatsoever. Kerlin v.

Arias, 274 S.W.3d 666, 668 (Tex. 2008) (affiant’s representation that “all

statements contained herein are true and correct to the best of my personal

knowledge and belief “ held legally insufficient); Rizkallah v. Conner, 952 S.W.2d

580, 587 (Tex.App.—Houston [1st Dist.] 1997, no writ) (explaining legal and

factual conclusions). Conclusory statements in affidavits are insufficient to raise a

fact issue. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Durham

also objected on grounds of hearsay and Texas Rule of Civil Procedure 166a(c).

[CR 232-239].4

C. Affidavits of Carrie Scott, Evance Anderson, Earl Anderson, Sharon

Anderson, and Jerry Anderson. The affidavits of Carrie Scott, Evance

Anderson, Earl Anderson, Sharon Anderson, and Jerry Anderson [CR 198, 201,

204, 206, 209] are virtual duplicates of each other that assert an assortment of

4
A similar affidavit of Carrie Scott that was submitted in connection with the first motion for
summary judgment is likewise incompetent and is objected to in an abundance of caution for all
reasons stated above.
29
factual and legal conclusions and purported facts relating to the life and practices

of B.A. Anderson in the 19th and early 20th centuries. The affidavits uniformly

fail to assert or manifest personal knowledge and do not provide testimony that “is

clear, positive and direct, otherwise credible and fee from contradictions and

inconsistencies, and could have been readily controverted” as required under Tex.

R. Civ. P. 166a(c). Additional objections based on Rules of Evidence 802

(hearsay), 805 (hearsay within hearsay), and 403 (probative value substantially

outweighed by unfair prejudice) were presented to the trial court for its

consideration, as well as objections based on factual and legal conclusions.

Durham objected in a separate motion to the affidavit of Earl Anderson for failure

to show a basis for claimed personal knowledge [CR 212]. Valenzuela v. State &

County Mut. Fire Ins. Co., 317 S.W.3d 550, 552 (Tex.App.—Houston [14th Dist.]

2010, no pet.) (mere recitation that a summary judgment affidavit is based on

personal knowledge is inadequate if the affidavit does not positively show a basis

for the personal knowledge). Additional objections were presented to the trial

court to address Anderson’s incompetent sources and failure to comply with Tex.

R. Civ. P. 166a(f). Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008); Brownlee v.

Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); University of Texas M.D. Anderson

Cancer Center v. King, 417 S.W.3d 1, 10 (Tex.App.—Houston [14th Dist. 2013]

2013, no pet.); Gorrell v. Tide Prod., Inc., 532 S.W.2d 390, 395 (Tex.Civ.App.—

30
Amarillo 1975, no writ) (affiant’s statement of fact is no more than hearsay absent

personal knowledge). Further written objections to specific statements were

presented to the trial court for its consideration.

Durham’s objections to Appellants’ affidavits were specific and supported

with appropriate case law and Rules of Civil Procedure and Evidence, providing

the trial court with numerous legitimate bases to strike the evidence. [CR 212-239].

Moreover, Appellants’ failure to link themselves to an interest in any given

property or to show that Durham asserted a competing claim to such property

demonstrated a lack of standing and merit to their lawsuit, and thereby eliminated

the possibility that the trial court’s rulings on the evidence “probably caused the

rendition of an improper judgment.” Owens-Corning Fiberglas Corp. v. Malone,

972 S.W.2d at 43; Also see Tex.R.App. P. 44.1.

PRAYER

Appellants have no standing or substantive basis for this appeal. Durham

respectfully requests that the Court affirm the rulings and judgment of the trial

court.

31
Respectfully submitted,

By: /s/ John J. Cope
John J. Cope
State Bar No. 00785784
COPE LAW FIRM
9284 Huntington Square, Suite 100
North Richland Hills, Texas 76182
Telephone: (817) 498-2300
Fax: (817) 581-1500

ATTORNEY FOR ROBERT LOUIS
DURHAM

32
 CERTIFICATE OF SERVICE

This is to certify that on the 30th day of September 2015, a true and correct
copy of the foregoing document has been served via certified mail, return receipt
requested on all counsel of record, addressed as follows:

Lana Johnson
P. O. Box 816325
Dallas, Texas 75381-6325
Attorney for Appellants

/s/ John J. Cope
John J. Cope

CERTIFICATE OF COMPLIANCE

This is to certify that according to the Microsoft Word program, the word
count for this document is 7,808.

/s/ John J. Cope
John J. Cope

33