Nac Tex Hotel Co., Inc. v. Stephen Greak, Individually, Dee Winston, Individually and E & G Investments, a General Partnership

ACCEPTED
12-14-00260-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
10/7/2015 3:14:19 PM
Pam Estes
CLERK

In The
Court of Appeals
For The FILED IN
12th COURT OF APPEALS
Twelfth District of Texas TYLER, TEXAS
10/7/2015 3:14:19 PM
PAM ESTES
NO. 12-14-00260-CV Clerk

Nac Tex Hotel Co., Inc., Appellant-Plaintiff

v.

Stephen Greak, Dee Winston, and E&G Investments, Appellees-Defendants

On Appeal from the 159th District Court
Angelina County, Texas
Trial Court Cause No. CV-01824-12-10

APPELLANT’S MOTION FOR REHEARING

Donald H. Grissom
don@gandtlaw.com
State Bar No. 08511550
509 West 12th Street
Austin, Texas 78701
(512) 478-4059
(512) 482-8410 fax

ATTORNEY FOR APPELLANT

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 In The
Court of Appeals
For The
Twelfth District of Texas

NO. 12-14-00260-CV

Nac Tex Hotel Co., Inc., Appellant-Plaintiff

v.

Stephen Greak, Dee Winston, and E&G Investments, Appellees-Defendants

On Appeal from the 159th District Court
Angelina County, Texas
Trial Court Cause No. CV-01824-12-10

APPELLANT’S MOTION FOR REHEARING

TO THE HONORABLE TWELFTH COURT OF APPEALS:

Appellant Nac Tex Hotel Co., Inc., (“Appellant”) files this, its Motion

for Rehearing of the Court’s Memorandum Opinion dated September 23,

2015. In support of its motion, Appellant respectfully shows the Court the

following:

I.   INTRODUCTION

This action is one for Trespass to Try Title under Chapter 22 of the

Texas Property Code and Rule 783 et seq. of the Texas Rules of Civil

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Procedure involving a piece of property (.054 acres/2,352 sq.ft.) located

between a Kentucky Fried Chicken and a Valero gas station (CR 21).

By this Motion for Rehearing, Appellant, Nac Tex Hotel Co., Inc.,

asks this Court to revisit its decision to affirm the Trial Court jury’s finding

that Appellant did not hold the property in adverse possession for the ten-

year limitations period. Rehearing is appropriate in this litigation because the

Court’s ruling neglects critical evidence presented and has a dispositive

effect. For that reason, Appellant urges the panel to consider the following

argument.

II. PROCEDURAL BACKGROUND

Appellant, Nac Tex Hotel Co., Inc. filed suit to try title and for

injunction on October 22, 2012 (CR 14). After a jury trial on the merits on

June 3, 2014, the trial court submitted the case to the jury. The jury found

that Appellant did not adversely possess the property for a period of ten (10)

or twenty-five (25) years, the Appellant filed the suit in bad faith, and the

Appellees should be awarded attorney’s fees (CR 62). The trial court signed

a judgment for Appellees on June 23, 2014 (CR 79). On June 16, 2015, this

Court heard oral argument. The Opinion of this Court was issued on

September 23, 2015, modifying the trial court’s judgment to remove the

finding of bad faith and the award of attorney’s fees, but affirming the

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remainder of the judgment. Plaintiff now appeals from that Opinion.

II.   ARGUMENT

The dispositive issues stated by this Court for its finding that

Appellant did not meet the ten-year statutory requirements for adverse

possession is that Appellant lacked the intent for its possession to be hostile,

and that it had an opportunity to purchase the property but chose not to.

Nowhere in the record is there any evidence that Temple offered to

sell Appellant the disputed Property in 2007. This never occurred. The only

testimony regarding purchasing the disputed property occurred in 2012 when

Appellees offered to sell the Property for $25,000. (Supp. RR. Vol. 1 P.

108).

Since Appellant bought its property in 1988 (CR 137) and already had

possession of the disputed Property, the ten-year limitations period expired

in 1998. Even if Appellant had been afforded the opportunity to purchase the

tract, it is inconsequential to the ten-year limitations period. It should further

be noted that because Parmalee testified she always thought she owned the

Property (Supp. RR Vol. 1 P. 84, 117, 126, 129, 144 173-174), any offer to

sell the adjacent tract, in her mind, would not have included the disputed

Property.

Appellant argues that Parmalee’s statement that she would never take

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anything from the prior owner of the Property (Supp. RR Vol 1 P. 136) does

not create a fact issue regarding Appellant’s intent to claim the property.

This statement from the record is misconstrued by the Appellees to be a

judicial admission, however, when the quote is placed in context, it is clear

that Parmalee was stating her intentions as to theft from Temple, not her lack

intent to claim the Property. Appellant clearly intended to claim the Property

as is shown through Pamalee’s testimony regarding her intent when

questioned by Appellees’ counsel.

Q. You know that doesn’t have anything to do with
whether or not you knew he was getting his land,
did he?
A. No, but he’s a very smart man. Arthur Temple
is a very smart man. We all know that.
Q. That’s right. You [never] discussed it, did you?
A. Uh-huh.
Q. Okay.
A. Because I didn’t think there was anything to
discuss with him. I wouldn’t never intentionally
take anything from that man.
Q. Well, it didn’t matter because never looked at
the plat, you never been to a closing, you never
read your deed, you didn’t know what you owned.
A. No, and, you know—I didn’t. And maybe
Arthur—
Q. I know.
A. I mean, I knew. I in my mind I owned that
property.
Q. Okay.
A. Okay. I owned that property.
Q. But you never told anybody?
A. I told everybody. I mean, who was [I] supposed
to tell? Am I supposed to go hey—you know, I
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 mean, I told, you know, everybody knew I owned
the property. I don’t know who you’re talking
about.

(Supp. RR Vol 1 P. 136-137)

The evidence is overwhelming that when Appellant acquired the

Property in 1981, it had every intention to claim the disputed tract where

Appellant and its predecessor in title had made improvements. Parmalee,

testified multiple times that she claimed that disputed Property because her

dad built the bridge (Supp. RR Vol. 1 P. 52); the bridge on the disputed

Property belonged to her company and always has (Supp. RR Vol. 1 P. 117,

144 173-174); she believed the tract was included in her deed (Supp. RR

Vol. 1 P. 84, 129); she believes her company is the rightful owner of the

Property (Supp. RR Vol. 1 P. 126, 129); it would hurt the business if the

Property in controversy was not claimed and used (Supp. RR Vol. 1 P. 94-

101, 118) and the property was improved for the benefit of the Appellant

and its customers (Supp. RR Vol. 1. P. 118).

The case at hand closely follows Calfee v. Duke, 544 S.W.2d 640

(Tex. 1976). In Calfee, the adverse claimant claimed property that he

believed he was included in his deed when the property was transferred to

him from his parents. Id. at 641. This is the same as the overwhelming and

repeated testimony of Parmalee. (Supp. RR Vol. 1 P. 84, 117, 126, 129, 144

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173-174). Also, Calfee’s intent to claim the land was brought to question

when he testified that he, “was not claiming it against anybody”, because he

thought he owned it. Id. at 641. The testimony of Parmalee is the same. She

states she would not have taken the Property from Temple, but that she

didn’t have to because she believed that she already owned it. (Supp. RR

Vol 1 P. 136-137).

The court in Calfee held that his claim of right, coupled with the

actual and visible possession and use, cannot be defeated by his lack of

knowledge of the deficiency of his title or the possibility that there may be

other claimants. Id. at 642. The only intent that is required is the intent to

claim the land, not intent to take the land belonging to another. Clearly, the

evidence shows that Appellant intended to claim the land, it was merely

mistaken about who actually held title to the Property.

III.   CONCLUSION

Temple never offered to sell the property to Appellant in 2007, but

even if Temple had offered, the ten-year statute of limitations had run. Also,

the evidence clearly shows that Appellant possessed the requisite intent to

claim the property as its own, even if it had the mistaken belief that the

property already belonged to it.

IV. PRAYER

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 Appellant respectfully requests that this Court reverse its Opinion of

September 23, 2014, as to the ten-year possession statute, grant Appellant a

new hearing, and such other and further relief, at law or equity, to which it

may be justly entitled.

Respectfully submitted,

/s/DonaldHGrissom
Donald H. Grissom
don@gandtlaw.com
GRISSOM & THOMPSON, LLP
TX State Bar No. 08511550
William W. Thompson, III
TX State Bar No. 19960050
509 West 12th Street
Austin, Texas 78701
512/478-4059
512/482-8410 Fax
ATTORNEY FOR APPELLANT

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 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document
has been forwarded to all counsel of record in compliance with Texas Rules
of Appellate Procedure, via facsimile, electronic case filing, or certified mail
return receipt requested, on October 7, 2015.

/s/DonaldHGrissom
Donald H. Grissom

CERTIFICATE OF COMPLIANCE
I hereby certify on this date that the foregoing document contains
1,490 words.

/s/DonaldHGrissom
Donald H. Grissom

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