2027 South Austin Street, LLC and Paul B. Christy v. LaTour Condominiums, Inc.

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-19-00395-CV

2027 SOUTH AUSTIN STREET, LLC AND PAUL B. CHRISTY, APPELLANTS

V.

LATOUR CONDOMINIUMS, INC., APPELLEE

On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 106532-E-CV, Honorable Douglas R. Woodburn, Presiding

March 17, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.

This appeal concerns ownership and use of portions of a parking lot situated

between the condominium building of Appellee, LaTour Condominiums, Inc., and the

Canterbury Apartments owned by Appellant, 2027 South Austin Street, LLC. 1 LaTour

filed suit against Austin Street and its principal, Paul B. Christy. Finding that LaTour

obtained a portion of the parking lot by adverse possession and a prescriptive easement,

1During litigation, the parties referred to the owner of the Canterbury Apartments by various names.
We refer to the entity as “Austin Street” for purposes of simplicity.
the district court granted LaTour’s motion for summary judgment. The remainder of the

case was tried to a jury, who found that no trespass had been committed by Appellants.

On LaTour’s motion, the district court rendered final judgment on September 10, 2019,

by signing LaTour’s proposed judgment. The judgment reflected the adverse possession

and prescriptive easement rulings in the court’s grant of summary judgment, ordered

injunctive relief against Austin Street, and denied all other relief. All parties filed motions

for post-judgment relief and have filed cross notices of appeal.

Because we hold that the district court erred in granting LaTour’s motion for

summary judgment, we reverse the judgment and remand.

Background

In Amarillo, Texas, between LaTour’s condominium parking garage and

Canterbury Apartments, is land that has been jointly used by residents of both housing

units. When LaTour was organized in 1980, its declaration and master deed indicated its

property proceeded diagonally across the parking lot (as indicated by the dashed line in

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the illustration).2 During litigation, the parties referred to the 144-foot by 10-foot triangle

of LaTour’s originally-deeded land as “The Wedge.”

The evidence suggests that neither the parties nor their residents heeded the

diagonal boundary line until just before litigation began. Relevant to this litigation,

evidence shows a row of parking places was painted the length of LaTour’s parking

garage, and that residents from both housing units parked in spaces in The Wedge and

the area identified as “Tract 2.” Moreover, residents from both drove across the boundary

when entering and leaving the property, including the area denoted as Tract 1.

At some time, three or four signs were placed on the wall of LaTour’s parking

garage, stating:

“LaTour Condominiums
RESIDENT & GUEST PARKING ONLY
Unauthorized vehicles will be towed away at owner’s expense”

There is no evidence, however, that any “unauthorized” vehicle was ever towed from The

Wedge or Tract 2.

In 2013, Austin Street repaved the entire lot, including The Wedge, at its own

expense. In mid-2016, John Templer, then-president of LaTour, met with Christy, Austin

Street’s owner, to discuss LaTour’s desire to construct a carport over the row of parking

spaces adjacent to LaTour’s garage. When no agreement regarding the carports was

reached, LaTour’s counsel sent a letter to Christy in April 2017 stating that the lot “has

been owned and used in common for many decades,” and that LaTour had acquired title

2 On March 1, 2011, Austin Street purchased the Canterbury Apartments, with the same boundary
line as identified in LaTour’s deed.

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to Tract 2 by adverse possession. LaTour tendered one-half the amount of the repaving

cost expended by Austin Street in repaving the lot in 2013.

Austin Street and Christy did not accept the tender or agree with LaTour’s position

that Tract 2’s ownership had changed. In response, these Appellants painted a blue line

denoting the diagonal boundary line, and later erected metal poles connected by cable

along the line, presumably to prevent vehicles from parking in Tract 2.

In June 2017, LaTour filed suit in Potter County district court, alleging it obtained

title to Tract 2 by adverse possession under the ten-year statute of limitations3, and

seeking a declaratory judgment that it held a prescriptive easement over Tract 1. LaTour

also pleaded an application for temporary and permanent injunctive relief and requested

attorney’s fees. Austin Street answered and counterclaimed with a suit to quiet title, for

slander of title, and for trespass to try title, alleging LaTour’s residents had used Tract 1

and Tract 2 with permission and did not therefore obtain the property by adverse

possession.4

In September 2018, LaTour filed a traditional and no evidence motion for summary

judgment. In its traditional motion, LaTour contended that its “use” of Tract 2 and Tract 1

demonstrated it had obtained fee simple title by adverse possession and a prescriptive

easement, respectively. As for its no-evidence grounds, LaTour argued that Austin Street

and Christy were unable to produce evidence supporting permissive use, interruption of

adverse use, and other issues. The district court granted the motion, rendering an

3 TEX. CIV. PRAC. & REM. CODE ANN. § 16.026(a) (West 2002).
4 Austin Street subsequently amended its counterclaim to seek a declaratory judgment that the
boundary line is consistent with recorded legal title and that it continues to own Tracts 1 and 2.

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interlocutory order establishing LaTour’s ownership of Tract 2 via adverse possession

and a prescriptive easement in its favor over Tract 1. LaTour then amended its petition

alleging Austin Street and Christy trespassed on LaTour’s property by placing the poles

on the area covered by Tract 2.

The remainder of the case was tried by jury. At the close of evidence, the district

court directed a verdict in favor of Austin Street and Christy on actual and exemplary

damages arising from the alleged trespass. The court then submitted its charge, asking

the jury questions regarding trespass liability, nominal damages, malice/exemplary

damages (despite its directed verdict), and LaTour’s attorney’s fees. The jury found

neither Austin Street nor Christy committed a trespass or acted with malice; the jury also

awarded no damages or attorney’s fees.

Despite the jury’s verdict against it, LaTour moved for the trial court to “enter

judgment based upon the jury’s Verdict, this Court’s December 6, 2018 Summary

Judgment Order, the live pleadings of the parties, and the evidence and admissions made

during the trial of this cause.” The district court granted LaTour’s motion and, on

September 10, 2019, signed LaTour’s proposed judgment, awarding Tract 2 to LaTour

and granting LaTour a prescriptive easement over Tract 1. The judgment further granted

LaTour a writ of possession for Tract 2, ordered Austin Street to not impair, impede, or

obstruct LaTour’s use of its easement over Tract 1, and enjoined Austin Street and Christy

from placing objects or impediments on Tract 1 or Tract 2. The judgment denied all other

relief sought by the parties.

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 In addition to objecting to rendition of the judgment, Austin Street and Christy filed

a motion to modify, correct, and reform judgment and motion for new trial. LaTour also

filed a motion for new trial, complaining about the jury’s non-finding as to attorney’s fees

and trespass. Both sides timely filed notices of appeal.

Standard of Review

Even though the standard for reviewing a summary judgment order has been

articulated by the Supreme Court of Texas for nearly 70 years, the parties disagree

regarding the proof necessary to support LaTour’s motion. We thus discuss the standard

of review here. A summary judgment is not a trial on paper. Its function is not to deprive

a litigant of its right to a full trial on the merits but is a procedural device to ask a trial court

for an expedited ruling when the critical facts are not in dispute and the litigation can be

resolved on a question of law. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929,

931 (1952). TEX. R. CIV. P. 166a(c) thus expressly requires that summary judgment is

only appropriate when:

except as to the amount of damages, there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law
on the issues expressly set out in the motion or in an answer or any other
response.

To ensure a court’s assessment of the evidence does not supplant how the hypothetical

juror would review the same if presented at trial, we take as true all evidence favorable to

the nonmoving party, as well as all reasonable inferences and doubts when interpreting

the evidence. Gator Frac Heating & Rentals, L.L.C. v. Brooks, 581 S.W.3d 460, 463 (Tex.

App.—Amarillo 2019, pet. denied) (citing Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445,

449 (Tex. 2015)).

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 When, as here, the plaintiff moves for summary judgment on a claim for which it

possesses the burden of proof at trial, we view the evidence in the light most favorable to

the defendant as the non-moving party, and we resolve all reasonable inferences and

doubts in favor of the defendant. Granting a plaintiff’s motion for summary judgment is

therefore improper unless the plaintiff conclusively proves each element of the cause of

action – except for the amount of unliquidated damages – and shows why the facts

demonstrate its entitlement to judgment as a matter of law. TEX. R. CIV. P. 166a(a), (c).

Disraeli v. State, No. 11-10-00010-CV, 2011 Tex. App. LEXIS 9923, at *2 (Tex. App.—

Eastland Dec. 15, 2011, no pet.); Fry v. Comm’n for Lawyer Discipline, 979 S.W.2d 331,

333-34 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). When a summary judgment

movant is required to produce “conclusive” evidence, it means that only one logical

conclusion can be drawn from the evidence. Jones v. Energen Res. Corp., No. 07-18-

00132-CV, 2020 Tex. App. LEXIS 854, at *5 (Tex. App.—Amarillo Jan. 29, 2020, no pet.)

(mem. op.) (“Evidence is conclusive when reasonable people could not disagree in their

conclusions.”) (citing City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005)).5

5 There is a critical difference between “undisputed evidence” and “conclusive” evidence:
undisputed evidence can be susceptible to competing interpretations, whereas conclusive evidence points
only to a single logical conclusion. Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 154 (Tex.
2012) (citing City of Keller, 168 S.W.3d at 815-16) (conclusive “evidence must also have only one logical
inference. Undisputed evidence that reasonable jurors could disbelieve has two: (1) it is true, or (2) it is
not.”). See also Flores v. Medline Indus., Inc., No. 13-14-00436-CV, 2015 Tex. App. LEXIS 12719, at *16
(Tex. App.—Corpus Christi Dec. 17, 2015, no pet.) (rejecting undisputed affidavit as inconclusive because
truthfulness of statements contained therein were dependent upon assessment of affiant’s credibility).

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 Analysis

I. Did LaTour “waive” its summary judgment awarding ownership of Tract 2 when
the jury rejected LaTour’s trespass claims?

Before we assess whether the district court committed any error, it is necessary to

determine whether the summary judgment finding that LaTour had acquired Tract 2 by

adverse possession was undermined when the jury unanimously found that neither Austin

Street nor Christy trespassed on the property. The Supreme Court has held that “a trial

court’s erroneous decision to grant summary judgment can be rendered harmless by

subsequent events in the trial court.” Progressive County Mut. Ins. Co. v. Boyd, 177

S.W.3d 919, 921 (Tex. 2005) (citing Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d

357, 359 (Tex. 1998)). For the reasons stated below, however, we hold that the jury’s

verdict of “No” on the trespass issue did not affect the viability of the district court’s

summary judgment awarding LaTour Tract 2 by limitations.

Here is what the jury was asked in the court’s broad-form submission6 of the

trespass issue:

Did Paul Christy or 2027 Austin Street, LLC, or both, trespass on LaTour
Condominium, Inc.’s property?

“Trespass” means an entry on the property of another without having
consent of the owners. To constitute trespass, entry upon another’s
property need not be in person, but may be made by causing or
permitting a thing to cross the boundary of the property.

Answer “Yes” or “No”.

Answer as to Paul Christy: NO

6 No party put the district court on notice of a desire to submit the elements of trespass in granulated
form. In re A.V., 113 S.W.3d 355, 363 (Tex. 2003) (discussing requisites of Casteel-type objections).

8
 Answer as to 2027 Austin Street: NO

While the jury’s answer of “Yes” might have supported a conclusion that it believed

LaTour owned the property, the jury’s failure to find a trespass does not permit the

opposite conclusion, i.e., that LaTour did not own Tract 2. This is particularly true because

the definition of trespass – as charged – contained a discussion of ownership alongside

other elements pertaining to entry onto the property and whether Appellants acted with

consent. The jury could have answered “No” for reasons unrelated to ownership,

including a belief that LaTour failed to carry its burden of proof. See Phila. Indem. Ins.

Co. v. White, 490 S.W.3d 468, 488 (Tex. 2016) (holding that characterization of jury’s

non-finding regarding White’s alleged negligence as a “finding that White did not cause

the damage [] misinterprets the jury’s finding”); Battaglia v. Alexander, 177 S.W.3d 893,

903 (Tex. 2005) (“The jury’s failure to find Battaglia negligent was not an affirmative

finding that Battaglia was not negligent”); Grenwelge v. Shamrock Reconstructors, Inc.,

705 S.W.2d 693, 694 (Tex. 1986) (“The jury’s failure to find that Shamrock breached the

contract merely means that the Grenwelges failed to carry their burden of proving the fact.

It does not mean the reverse, that Shamrock substantially performed the contract.”).

We hold that the jury’s non-finding of a trespass by Austin Street or Christy fails to

support Appellants’ conclusion that the jury made a finding supplanting the district court’s

summary judgment order of ownership of Tract 2 by adverse possession.

II. Did LaTour conclusively prove the elements of title to Tract 2 by limitations?

Austin Street and Christy also challenge the district court’s grant of summary

judgment and whether the evidence conclusively supports title by limitations.

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 A. Elements for proving title by limitations (adverse possession).

A litigant suing in trespass to try title must recover on the strength of its own title.

Land v. Turner, 377 S.W.2d 181, 183 (Tex. 1964). Recovery may be had by proof of (1) a

regular chain of conveyances from the sovereign, (2) a superior title out of a common

source, (3) title by limitations (i.e., adverse possession), or (4) prior possession without

abandonment. Brumley v. McDuff, No. 19-0365, 2021 Tex. LEXIS 118, at *9 (Feb. 5,

2021) (citing id.). LaTour sought to prove title by the third theory. TEX. CIV. PRAC. & REM.

CODE ANN. § 16.026(a). Adverse possession means an actual and visible appropriation

of real property, commenced and continued under a claim of right that is inconsistent with

and hostile to the claim of another person. TEX. CIV. PRAC. & REM. CODE ANN. § 16.021(1)

(West 2002). An adverse possession claimant must show: (1) visible appropriation and

possession of the disputed property; (2) that is open and notorious; (3) that is peaceable;

(4) under a claim of right; (5) that is adverse and hostile to the claim of the owner; and (6)

consistent and continuous for the duration of the statutory period. Wells v. Johnson, 443

S.W.3d 479, 489 (Tex. App.—Amarillo 2014, pet. denied) (citation omitted).

“A person must bring suit not later than 10 years after the day the cause of action

accrues to recover real property held in peaceable and adverse possession by another

who cultivates, uses, or enjoys the property.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 16.026(a). Although title to land by adverse possession may be shown as a matter of

law when the facts are conclusive, see King Ranch, Inc. v. Chapman, 118 S.W.3d 742,

757-58 (Tex. 2003), adverse possession normally presents questions of fact. Bywaters

v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985); La. Pac. Corp. v. Holmes, 94 S.W.3d 834,

838 (Tex. App.—San Antonio 2002, pet denied) (noting exclusiveness of claimant’s

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possession is ordinarily a fact question to be determined by the trier of fact) (citation

omitted).

B. The summary judgment evidence does not conclusively show LaTour’s intent to
claim Tract 2 as its own during the limitations period.

As noted above, Civil Practice and Remedies Code section 16.021(1) requires an

adverse possession claimant to show appropriation of real property that is “inconsistent

with” and “hostile to” the claims of all others. Minh Thu Tran v. Macha, 213 S.W.3d 913,

914 (Tex. 2006) (per curiam). “‘[H]ostile’ use does not require an intention to dispossess

the rightful owner, or even know that there is one. But there must be an intention to claim

property as one’s own to the exclusion of all others.” Id. at 915. As the Supreme Court

has held since 1956, “‘[m]ere occupancy of land without any intention to appropriate it will

not support the statute of limitations.’” Ellis v. Jansing, 620 S.W.2d 569, 571 (Tex. 1981)

(quoting Wright v. Vernon Compress Company, 156 Tex. 474, 296 S.W.2d 517 (1956)).

The district court’s grant of summary judgment was in error because the evidence

does not conclusively demonstrate that LaTour occupied Tract 2 with intent to claim the

property as its own to the exclusion of all others. LaTour does not seek to prove that it

physically and continuously occupied the whole of Tract 2 for the entire limitations period;

rather it argued, in part, that its residents used the parking lot for the limitations period.

While multiple periods of possession by two or more persons might be combined to fulfill

the limitations period, the evidence must prove that the possessors acted in concert with

one another. Anzaldua v. Richardson, 287 S.W.2d 299, 300 (Tex. Civ. App.—San

Antonio 1956, writ ref’d n.r.e.). Even assuming for the purpose of argument that LaTour’s

residents stand in the shoes of LaTour, there is no evidence in the summary judgment

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record to indicate what LaTour’s residents intended when they parked their vehicles in

Tract 2, nor evidence that multiple residents acted in concert so that LaTour would

exclusively own the property. “[P]ossession must be of such character as to indicate

unmistakably an assertion of a claim of exclusive ownership in the occupant.” Tran, 213

S.W.3d at 914 (internal quotation marks and citations omitted, emphasis in original).

Even the testimony of LaTour’s corporate representative during litigation suggests

an inconsistency regarding what the Appellee intended. During his deposition, Templer

testified as follows:

Q. Is LaTour asserting ownership of the southern half or just ownership
of a prescriptive easement over the southern half?

A. Prescriptive easement.

Q. So they’re not going to try to change the boundary line?

A. No, sir.

Elsewhere in Templer’s deposition the following exchange occurred:

Q. If I told you that you’re also seeking to have a judge declare that you
own the southern half of that parking lot, would that sound right?
A. Yes, sir.
Q. And again, you’re asking the judge to declare that LaTour owns that
southern half?
A. No. I think the way it’s worded is we’re asking for the judge to declare
that we have a prescriptive easement over the south half of that lot by
use that we’ve used for adverse possession for 60 years.
Q. Okay. So you’re not saying that you own the lot?
A. We’re asking for him to declare that our prescriptive easement is
correct.

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 In its brief, LaTour attempts to reconcile the testimony’s inconsistency with its legal

position by stating that “Templer was asked confusing questions with undefined, legal

terms during his deposition.” While a jury might have resolved the potential conflicting

testimony by agreeing that Templer was confused, we are not at liberty to make that

conclusion given the standard for reviewing a summary judgment. Hennigan v. I.P. Pet.

Co., 858 S.W.2d 371, 372 (Tex. 1993) (holding that “Hennigan’s averment that she was

confused in responding to deposition questions raises a genuine issue of material fact

regarding Hennigan’s gender discrimination claim.”). Because the summary judgment

evidence does not conclusively demonstrate that LaTour intended to appropriate the

entirety of Tract 2 to the exclusion of Austin Street and all others, we hold that the district

court erred in granting LaTour’s motion for summary judgment and awarding Tract 2 by

limitations.

LaTour substantially relies on the presence of the tow-away signs as proof of its

adverse ownership claim of Tract 2. The presence of signage can support an adverse

possession claim in some circumstances. See Click v. Collins, 273 S.W.2d 90, 91-93

(Tex. Civ. App.—Galveston 1954, writ ref’d n.r.e.) (considering “no trespassing” signs

among the evidence that showed adverse possessor excluded title owner from land,

when possessor built a fence to enclose the land and grazing cattle “indiscriminately” and

“continuously” within the enclosed area for 26 years). However, the presence of the signs

in this case is not sufficient to conclusively satisfy LaTour’s burden. See Roberts v. Ratliff,

No. 02-18-00125-CV, 2018 Tex. App. LEXIS 6296, at *29 (Tex. App.—Fort Worth Aug.

9, 2018, no pet.) (mem. op.) (holding that evidence of property’s joint use and the

13
ambiguous intent for fence defeated conclusive proof of adverse possession despite

evidence of “no trespassing” signs on the fence).

First, the signs’ language restricting parking to authorized vehicles does not show

unmistakable intent to exclude all drivers except LaTour residents from using the parking

spaces in Tract 2. Even if the language on the signs could be read to suggest that parking

is exclusive to LaTour residents and guests, the summary judgment record does not

conclusively indicate that the signs’ generalized placement would put drivers on notice

that LaTour was claiming the spaces in Tract 2. The signs’ intended purpose becomes

more amorphous in the language that threatens to tow “unauthorized” vehicles; during

the limitations period, Canterbury’s tenants were legally authorized to use the parking

spaces. We hold that the record evidence regarding the no trespassing signs failed to

conclusively satisfy LaTour’s summary judgment burden. See Roberts, No. 02-18-00125-

CV, 2018 Tex. App. LEXIS 6296, at *29-30 (observing that evidence of joint use of

property rendered meaning of “no trespassing” signs to be subject to more than one

meaning regarding intent: “That Leonard placed no trespassing signs on the fence by the

pond could be consistent with either his exclusive intent to keep Lucille and the Couch

Heirs off the Disputed Property or an intent to keep all those other than permitted grazers

and users off the property.”) (emphasis added).

Second, even if the signs had been intended by LaTour to exclude Canterbury

tenants, there is no conclusory evidence that the signs were effective or that Appellants

were actually excluded. Templer, in fact, testified that he observed people park in the

spaces and walk over to the Canterbury Apartments, yet was unaware of anyone ever

being towed for unauthorized parking. We hold that such evidence does not conclusively

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establish LaTour’s intent or of its exclusive and hostile claim of possession over Tract 2.

Rick v. Grubbs, 147 Tex. 267, 214 S.W.2d 925, 927 (1948) (requiring adverse possession

to prove owner was “wholly excluded” from the land).

Because we sustain Appellants’ complaint that the district court erred in granting

summary judgment awarding Tract 2 to LaTour, it is unnecessary to consider Appellants’

additional arguments regarding that issue.

III. Did LaTour conclusively prove the elements of a prescriptive easement over
Tract 1?

By its second issue, Appellants argue the district court erred by declaring that

LaTour possessed a prescriptive easement over Tract 1. We agree.

A prescriptive easement is shown by “the open, notorious, hostile, adverse,

uninterrupted, exclusive and continuous use of the servient estate for a period of more

than ten years, and the absence of any of these elements is fatal to the prescriptive claim.”

Allen v. Allen, 280 S.W.3d 366, 377 (Tex. App.—Amarillo 2008, pet. denied); see also

Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979) (“To obtain a prescriptive easement

one must use someone else’s land in a manner that is open, notorious, continuous,

exclusive, and adverse for the requisite period of time.”). Additionally, “the owner of the

subservient estate must have actual or constructive notice that there was an adverse and

hostile claim against the property.” Allen, 280 S.W.3d at 378. Thus, the elements for the

prescriptive easement track those for adverse possession. Harrington v. Dawson-

Conway Ranch, Ltd., 372 S.W.3d 711, 718 (Tex. App.—Eastland 2012, pet. denied)

(“[C]laim of prescription must be supported by proof of all of the elements that are involved

in the statute of limitations for adverse possession.”). Prescriptive easements are not
15
well-regarded in the law. Wallace v. Kent Cty., No. 07-11-00427-CV, 2013 Tex. App.

LEXIS 10573, at *10-11 (Tex. App.—Amarillo Aug. 21, 2013, no pet.) (mem. op.) (citing

Dawson-Conway Ranch, 372 S.W.3d at 716).

As with a claim of adverse possession, joint use of property by the claimant and

the owner generally precludes establishment of a prescriptive easement as a matter of

law. RDG P’ship v. Long, 350 S.W.3d 262, 275 (Tex. App.—San Antonio 2011, no pet.)

(affirming no-evidence summary judgment for title owner when evidence undisputedly

established joint use of road); Allen, 280 S.W.3d at 378 (“Joint continuous use, without a

legally adverse or hostile act, is not sufficient.”). “It has long been the law in Texas that

when a landowner and the claimant of an easement both use the same way, the use by

the claimant is not exclusive of the owner’s use and therefore will not be considered

adverse.” Brooks, 578 S.W.2d at 673.

Evidence is replete in the summary judgment record that residents of LaTour and

Canterbury “mutually” used Tract 1 for ingress and egress to the parking area. As

Templer acknowledged in his deposition:

Q. So approximately in the middle of that parking lot, whether they park
on the north or the south, whether they park on the Canterbury or the
LaTour side, cars have used that middle area to access the striped
parking spots?
A. For both sides, yes, sir.
...
Q. But whether they’re using the Canterbury spots on the north or the
LaTour spots on the south, cars have used the middle area to access
the parking spots?
A. Mutually, yes, sir.
Q. And to your knowledge, how long has that been the case?

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 A. Since Canterbury was built I assume . . .
...
Q. Is there any area of land that LaTour uses to access that parking lot
that Canterbury and its residents do not use?
A. I don’t think so.

Other witnesses confirmed Templer’s observations of joint use of Tract 1. LaTour’s theory

appears to acknowledge that Tract 1 has been used jointly, but takes that position that

“50 years of using it” somehow transforms joint use into exclusive use.

The evidence shows the parties have always engaged in peaceable joint use of

Tract 1 as the way into and across the parking lot and for access to parking spaces along

the south and north ends of the lot. Accordingly, we hold the summary judgment record

does not contain conclusive proof of LaTour’s exclusive and hostile use of Tract 1. We

conclude the district court erred by rendering a declaratory judgment that LaTour

possessed a prescriptive easement over Tract 1.

IV. Did the district court err in granting LaTour’s no evidence motion for summary
judgment?

Appellants next argue that the district court erred in granting LaTour’s no evidence

motion for summary judgment. As we have determined earlier in this opinion that the

district court erred in granting traditional summary judgment motions regarding Tracts 1

and 2, it may be unnecessary to address this issue. However, we briefly consider this

argument because of the effect it may have on remand.

No-evidence motions for summary judgment are an improper procedural remedy

for plaintiffs attempting to prove their claims are conclusively established by the evidence.

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See Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 679 (Tex. App.—Houston [14th Dist.]

2003, no pet.) (holding that “[A] party may never properly move for no-evidence summary

judgment to prevail on its own claim or affirmative defense for which it has the burden of

proof . . .”). In its no-evidence motion, LaTour alleged Austin Street could not present any

evidence of permissive use of the parking lot or interruption of LaTour’s adverse use of

the parking lot.7 We hold that exclusivity (i.e., non-permissive use) and continuous use

are elements LaTour was required to prove conclusively as a part of its summary

judgment burden. Wells, 443 S.W.3d at 489. Appellants therefore did not possess any

burden of proving permissive use or interruption of adverse use. We hold that the district

court erred in granting LaTour’s no-evidence motion for summary judgment.

V. Did LaTour waive its right to complain about the jury’s adverse findings by
moving for the court to render judgment on the verdict?

We next examine LaTour’s cross-issues on appeal. Via two issues, LaTour

complains the district court erred in rendering a take-nothing judgment on LaTour’s claims

of trespass and request for attorney’s fees. We hold that LaTour waived complaint of

these issues by unconditionally asking the district court to render judgment on the jury’s

verdict.

7 LaTour also asserted Austin Street and Christy had no evidence of their slander of title claim and

no evidence of an exception to LaTour’s absolute privilege to assert its trespass to try title claim. With leave
of court, Austin Street and Christy filed an amended answer and counterclaim prior to the trial court’s ruling
on LaTour’s motions for traditional and no evidence summary judgment. The amended answer does not
affirmatively assert an exception to LaTour’s privilege to raise an adverse possession claim nor does the
counterclaim allege a slander of title claim. Moreover, the trial court’s final judgment is silent on these
claims. See North East Independent School District v. Aldridge, 400 S.W.2d 893, 898-99 (Tex.1966)
(“When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly
set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant
to Rule 174, Texas Rules of Civil Procedure, it will be presumed for appeal purposes that the Court intended
to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such
parties.”).

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 After the jury answered “No” to whether Appellants committed trespass and

awarded “$0” to LaTour for each item of attorney’s fees, LaTour filed a motion for the

district court to enter judgment on the verdict. LaTour’s motion was unconditional; it did

not attempt to preserve any complaint about the jury’s verdict: “Plaintiff seeks to have the

Court enter judgment based upon the jury’s Verdict, this Court’s December 6, 2018

Summary Judgment Order, the live pleadings of the parties, and the evidence and

admissions made during the trial of this cause.” The district court signed a judgment

proposed by LaTour that denied the relief for which LaTour now complains.

When a party moves for judgment on the verdict without any reservation of rights

or objections, the party is affirming that the jury’s findings find support in the evidence.

Russell v. Dunn Equipment, Inc., 712 S.W.2d 542, 545 (Tex. App.—Houston [14th Dist.]

1986, writ ref’d n.r.e.). When a party moves for judgment on the jury verdict and the court

renders judgment as requested, the party is barred from subsequently complaining on

appeal that the jury’s findings have no support in the evidence or are factually insufficient.

Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 322 (Tex. 1984). If a party

desires to obtain a judgment yet reserve the right to complain on appeal, it must expressly

say so in its motion. First Nat. Bank of Beeville v. Fojtik, 775 S.W.2d 632, 633 (Tex.

1989).

At oral argument, LaTour contended it had not waived its cross-complaint because

it filed a motion for new trial after the judgment was signed. We hold that without

conditional language in the motion to enter judgment that indicated any objection to the

verdict, the district court could have only understood LaTour to be agreeing with the

verdict at the time the judgment was signed. In Litton, the defendant in a suit alleging

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violations of the Texas Deceptive Trade Practices Act moved for the trial court to render

judgment on the verdict for the actual damages found by the jury. 668 S.W.2d at 321.

The motion did not, however, discuss the jury’s award of exemplary damages. Litton

urged that it had not waived its right to complain about the judgment because it filed a

brief challenging the adverse verdict. The Supreme Court held that “[b]y filing its motion

that the trial court render judgment on the verdict for the actual damages found by the

jury, Litton could not, on appeal, take a position inconsistent with that part of the

judgment.” Id. at 321-22. Because Litton had not requested rendition of judgment on the

award of exemplary damages, the high court held that complaint was not waived.

Here, we hold that, consistent with Litton, LaTour failed to sufficiently apprise the

district court of its right to complain on appeal when it filed the motion to render judgment

on the verdict. We therefore hold that LaTour has waived its ability to complain that the

jury’s adverse findings were unsupported by sufficient evidence. LaTour’s second and

third issues are overruled.

VI. On remand, the district court is directed to reconsider Austin Street’s remaining
issues in light of this Court’s reversal of the grant of summary judgment.

In its remaining issues, Austin Street argues the district court erred by rendering

permanent injunctive relief in favor of LaTour and ordering payment of a bond of $1,000.

These issues relate to the district court’s error in granting LaTour’s traditional motion for

summary judgment, awarding title to Tract 2 by adverse possession, and awarding a

prescriptive easement over Tract 1. Because we sustain Appellants’ complaints

regarding those issues, we vacate the district court’s orders as to injunctive relief and

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bond and remand those issues to the district court for reconsideration in light of this

Court’s order.

Conclusion

We hold that the district court erred in granting LaTour’s motion for summary

judgment and in awarding LaTour Tract 2 by adverse possession and a prescriptive

easement over Tract 1. We thus reverse the judgment of the district court as to those

issues and remand to the district court. We likewise vacate the district court’s orders in

awarding permanent injunctive relief in favor of LaTour and ordering payment of a bond

of $1,000, and remand those issues for reconsideration in light of this Court’s order.

We also overrule LaTour’s issues and affirm the portion of the district court’s

judgment that orders LaTour take nothing as to its claims for trespass and for attorney’s

fees.

Lawrence M. Doss
Justice

Quinn, C.J., concurs in the result.

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