In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-24-00264-CV
WILLARD J. HALL JR., INDIVIUDALLY AND AS TRUSTEE OF THE
WILLARD HALL JR. TRUST, Appellant
V.
AMERICOMMERCE HOLDINGS, LLC AND AMERICOMMERCE, LLC,
Appellees
On Appeal from the 58th District Court
Jefferson County, Texas
Trial Cause No. A204527
MEMORANDUM OPINION
Appellant Willard J. Hall Jr., Individually and as Trustee of The Willard Hall
Jr. Trust (collectively referred to as “Hall”) challenges the trial court’s Final
Judgment awarding Appellees AmeriCommerce Holdings, LLC and
AmeriCommerce, LLC (collectively “AmeriCommerce”) superior title to two
sections of property that Hall contends he claimed by adverse possession. In issue
1
one, Hall argues the trial court erred in granting a partial direct verdict awarding
AmeriCommerce superior title to the 15-foot strip of property (hereafter referred to
as “the strip”) because the evidence created a fact issue as to whether he adversely
possessed the strip through the open and continuous placement of traffic cones. In
issue two, Hall complains that the jury’s finding that he did not adversely possess
the fenced area for a period over ten years is against the great weight and
preponderance of the evidence. In issue three, Hall argues the trial court erred in
denying his Plea to the Jurisdiction based on laches because AmeriCommerce’s
predecessors delayed in asserting its rights. In issue four, Hall contends the trial court
erred in its findings, conclusions, and Final Judgment by awarding AmeriCommerce
superior title to the strip and fenced area and by declaring Hall’s Correction Deed
void. For the reasons explained below, we affirm the trial court’s judgment.
BACKGROUND
This case involves a dispute between neighboring property owners–Hall and
AmeriCommerce–concerning two sections of property in downtown Beaumont,
Texas. Hall owns 278 Pearl Street, the building on the left below. AmeriCommerce
owns 268 Pearl Street, the building on the right below, as well as 296 Pearl Street,
the empty lot on the left below.
2
AmeriCommerce’s empty lot at 296 Pearl Street previously contained a building
(hereafter referred to as “the Johns Building”) that was demolished in 2008.
The parties’ first dispute concerned a fenced area behind Hall’s and
AmeriCommerce’s adjoining buildings, which is depicted below.
3
4
After the demolition of the Johns Building, Hall installed the wooden fence with
brick posts to protect the back of his property because thieves had stolen his air
conditioning units. In the 1980s, Hall’s father installed the chain link fence located
to the left of the wooden fence, and that fence contained barbed wire, a locked gate,
and a “Private Property” sign. Prior to trial, the trial court granted AmeriCommerce
temporary relief and allowed it to put air conditioning units inside the fenced area
with the “Private Property” sign.
The parties’ second dispute concerned the strip adjoining 278 and 296 Pearl
Street, which was formerly the site of an external stairwell that adjoined Hall’s
5
building at 278 Pearl Street (hereafter referred to as “the Hall Building”) and the
Johns Building. The strip is located in AmeriCommerce’s empty lot at 296 Pearl
Street (hereafter referred to as “the empty lot”), and the survey below depicts the
strip as the red line between the Hall Building and the empty lot. The red area on the
survey depicts Hall’s fenced area’s encroachment on the empty lot. The empty lot
continues behind the Hall Building and connects to AmeriCommerce’s building at
268 Pearl Street (hereafter referred to as “the AmeriCommerce Building”). The
yellow area below depicts Hall’s fenced area’s encroachment on the
AmeriCommerce Building.
6
Below is a picture of the strip with the cones Hall placed there to put the world
on notice that he was adversely possessing the strip.
In September 2019, AmeriCommerce filed suit against Hall and obtained a
temporary restraining order ordering Hall to remove the cones on the strip and
anything else he had placed outside the fenced area on the empty lot.
AmeriCommerce’s causes of action included a declaratory judgment and trespass to
7
try title, and AmeriCommerce sought a judgment awarding it superior title and
denying Hall’s adverse possession claim. Hall filed an Answer generally denying
AmeriCommerce’s allegations, asserting among other things, that as trustee of The
Willard Hall Jr. Trust (“the Trust”) he adversely possessed some of the property,
AmeriCommerce’s claims to possession or ownership were barred by the applicable
statute of limitations, and the affirmative defense of laches. Hall filed a counterclaim
and asserted that as trustee of the Trust he obtained ownership of the Hall Building
by deed dated July 1, 2019, from himself and that a Correction Deed filed on August
22, 2019, includes a corrected legal description showing he acquired by adverse
possession certain additional property–the strip and fenced area–adjacent to his
building. Hall asserted that he had adversely possessed the property at issue for a
period of more than ten years.
Hall alternatively pleaded that the Johns Building’s stairwell easement
reverted to his ownership under color of title when the building was demolished.
Hall filed a Trial Amendment asserting that his adverse possession counterclaim
under color of title, which has a three-year statute of limitations, had been tried to
jury without objection. Hall argued that he had perfected title by adverse possession
by having used and enjoyed the strip for more than ten years.
Hall filed a Motion for Summary Judgment on his adverse possession claims
based on limitations and color of title. The trial court denied Hall’s Motion for
8
Summary Judgment. Hall filed a Plea to the Jurisdiction on laches. The trial court
conducted a jury trial, during which the jury heard testimony from Edward Wayne
Sturrock (“Sturrock”), the owner of AmeriCommerce, Hall, and David Brian Austin
(“Austin”), the previous owner of the AmeriCommerce Building.
Sturrock testified that AmeriCommerce bought the AmeriCommerce
Building from Austin on May 15, 2019. On September 10, 2019, AmeriCommerce
purchased the empty lot that connected to the back of the AmeriCommerce Building
from Stonefield Investment Fund II (“Stonefield”). Prior to purchasing the
AmeriCommerce Building, Sturrock talked with Austin, reviewed Austin’s
drawings and surveys, and conducted his own survey. Sturrock testified that “part of
the property there’s an enclosed area in the back. There’s a fence that - - the hurricane
fence there essentially sits on the property line that - - that is the backside of the
building.” Sturrock explained that his property line goes right through somewhere
where that brick column of the wooden fence is located as shown on Plaintiff’s
Exhibit 8. Sturrock walked the property with Austin multiple times and discussed
the location of the air conditioning units and the water, which were both inside the
fenced area, and Austin stated that he owned the fenced area which had shared
access. Sturrock testified that Austin said he had a key to the fenced area and could
access it anytime they needed, and Austin mentioned the air conditioning units had
been stolen before.
9
After Sturrock began construction on the AmeriCommerce Building, he
learned that Hall claimed ownership to the fenced area located on
AmeriCommerce’s property and refused to allow AmeriCommerce access. Sturrock
explained that he also purchased the empty lot where the Johns Building was
demolished and paid the taxes for the empty lot, which is where the strip is located.
Sturrock testified that it was “very clear that Mr. Hall did not pay taxes on the
property.” Sturrock explained that Stonefield, the previous owner, did not pay the
taxes or demolition lien on the empty lot, and Sturrock was successful in getting the
City of Beaumont to waive the demolition lien so he could develop the property.
Sturrock stated there “was no indication[]” that Hall claimed to own the strip located
on the empty lot. Sturrock testified that if Hall had owned the strip on the empty lot,
Hall “shouldn’t be sticking the city with the taxes of . . . that property.”
Sturrock testified that Hall did not maintain the Hall Building, which is in
disrepair, and that “there’s all kinds of problems with things kind of falling down
right where that wall is.” Sturrock explained that “[t]here were occasionally like
cones” on the strip, and Sturrock stated that to him or anybody else the temporary
cones were there to warn of something, which was “very clearly the falling debris
that had piled up along the line of the wall[]” that “was potentially a safety concern.”
Sturrock stated that when he didn’t see the cones, he assumed someone had taken
them, the wind had blown them over, or something along those lines. Sturrock first
10
learned that Hall was using the cones to claim ownership of the strip after he and
Hall had the dispute about the fenced area during his construction on the
AmeriCommerce Building. Sturrock testified that when he asked artificial
intelligence (“AI”) what the cones would signify, AI stated, “that they’re a
temporary barrier and that they could never mark something as permanent.” Sturrock
explained a picture of the strip showed five temporary cones on the strip, and
Sturrock believed the cones, in almost all circumstances, “mean caution, you know,
that you should be careful and if you choose to walk through the very large gaps
between the cones, that - - you know, that you may be in danger.” Sturrock thought
the cones might indicate a “tripping hazard of some sort.”
Sturrock also took pictures of Hall spraying purple spray paint on the strip,
and Sturrock believed it was “either [an] old wive[]s’ tale law or real law that nobody
can currently find, purple could potentially demarcate private property[.]” Sturrock
drew AmeriCommerce’s logo through the purple line to break the line if the law was
real. Sturrock explained that after Hall continued to disrupt his construction efforts
on the AmeriCommerce Building and refused access to the fenced area, Sturrock
attempted to resolve the dispute by having his attorney send Hall a letter requesting
immediate and permanent access to the fenced area, which Sturrock maintained that
AmeriCommerce owned. Sturrock filed suit against Hall, and the trial court granted
AmeriCommerce temporary relief allowing AmeriCommerce to access the fenced
11
area and ordering Hall to remove the cones he placed on the strip. Sturrock explained
he continued his construction efforts, including installing air conditioning units in
the fenced area.
Sturrock testified that the fenced area is not exclusive because both
AmeriCommerce and Hall have access, and so did Austin when he owned the
property because the prior air conditioning units that were stolen were in the fenced
area. Sturrock explained that access to the fenced area was necessary to maintain the
AmeriCommerce Building, and that is why he purchased the empty lot because it
joined his properties in the back allowing him to service his building. Sturrock
disputes Hall’s adverse possession claim of the strip, which is part of Sturrock’s plan
to build a parking lot or another building. Sturrock explained that in 2020,
AmeriCommerce, LLC transferred ownership of the AmeriCommerce Building and
the empty lot to AmeriCommerce Holdings, LLC, which is currently known as
Pretzelbots 268, LLC.
Sturrock agreed that he did not personally speak with Hall about the fenced
area prior to or right after purchasing the AmeriCommerce Building. Sturrock agreed
that prior to the purchase, he observed the fenced area had a gate and no trespassing
sign, but he understood that Austin owned the fenced area. Sturrock explained that
he gave Austin approximately $200,000 in AmeriCommerce stock in exchange for
the building. In addition to talking with Austin about the AmeriCommerce Building,
12
Sturrock also reviewed the survey and printout from the Jefferson County Appraisal
District, obtained a title policy, and validated that Austin paid the tax records.
AmeriCommerce had a survey of the AmeriCommerce Building and a survey of the
empty lot which included the AmeriCommerce Building.
Sturrock testified that Austin owned part of the fenced area, had shared access
to the fenced area, and both Austin and Hall had consumed part of the empty lot
when Stonefield owned it to work on their buildings. Sturrock explained that prior
to AmeriCommerce purchasing the properties, Stonefield owned the majority of the
fenced area that was located on the empty lot, and Austin owned a significant portion
of the fenced area that is important to the operation of the AmeriCommerce Building.
Sturrock testified that Hall only owns about two feet behind the Hall Building and
that the gate of the fence that has a “Private Property” sign was on Austin’s property.
Sturrock testified that the “Private Property” sign is on AmeriCommerce’s private
property. Sturrock explained that the fenced area was just a backyard where the air
conditioning units, electrical service, and other vital areas of the buildings were
located. Sturrock testified that Hall used the fenced area for maintaining the Hall
Building and had had a table in the area as well.
Sturrock knew that at some point Austin and Hall had “bad blood” in the
middle of their agreement that changed their relationship, but he did not know at
what times Austin had a key or access to the fenced area. Sturrock did observe that
13
the gate was left unlocked multiple times, and he had his attorney send Hall a letter
to be cordial and gain access to the shared fenced area Hall had locked. Sturrock
testified that Austin had lost the key to the gate of the fenced area.
Concerning AmeriCommerce’s purchase of the empty lot, Sturrock explained
that he had no knowledge of the dealings between Hall and Stonefield and did not
know if Stonefield gave Hall permission to put up the fence. It was Sturrock’s
understanding that Stonefield asserted its property line. Sturrock agreed that Hall
had put the temporary cones on the strip prior to AmeriCommerce purchasing the
empty lot in September 2019. Sturrock also agreed that Google Map pictures taken
in December 2011, January 2012, June 2016, and May 2018, showed the cones were
present, and Sturrock testified that he also observed rocks, glass, and other “kinds of
stuff on the ground[]” in the Google Map pictures. Other than what Austin had
reported to him, Sturrock did not have personal knowledge of the condition of the
empty lot from 2008 until Sturrock started looking to purchase it in late 2018.
Sturrock had no evidence that prior to 2018 the cones were not on the strip for a
lengthy period.
Sturrock knew that the Johns Family had owned the empty lot where the Johns
Building was demolished, and he agreed that Theodore R. Johns Sr. (Johns), an
attorney, sent Hall a letter on April 2, 2008, asking Hall to refrain from placing any
chattel, appendages, or other property upon the empty lot that would in effect
14
encroach or adversely affect the boundary lines, access, or egress of said property or
attempt to acquire to create any easements. Sturrock agreed that the Johns’s letter
included the fenced area, and that if the evidence showed Hall put the fence up in
April 2008, Hall would have done so in direct contradiction to the letter’s
instructions. Sturrock was unsure if the cones would have met the language in the
letter to affect the boundary line.
Two or three weeks before AmeriCommerce purchased the empty lot,
Sturrock checked the deed records, and after June 2019, he knew that Hall had filed
a deed transferring the Hall Building to the Trust. Sturrock also knew that Hall had
filed a Correction Deed and self-described the property to include the fenced area
and strip that Hall claimed ownership to, and that the Correction Deed was filed after
the disputes occurred because Hall “was trying to - - to make his own case.”
Although Sturrock knew about the Correction Deed, he did not think it was valid
because he and Hall were already in the lawsuit.
Hall, an attorney, explained that he purchased the Hall Building from his
mother in 2006. Hall testified that the Johns Building was demolished in 2008.
Concerning the fenced area, Hall explained that he put up the wooden fence with the
brick posts after the Johns Building was demolished to protect the back of his
property because thieves had stolen his air conditioning units. After Hall put up the
fence, he told Austin the fence was to protect both their properties and asked Austin
15
to pay half of the cost. When Austin declined to pay, Hall stated that he told Austin
that he was not going to allow Austin access to the fenced area, and he told Austin
that Austin had an easement to the fire escape attached to Austin’s building if Austin
maintained it. Hall testified that he told Austin that the fenced area belongs to Hall,
Austin would be locked out, and Austin had ten years to kick Hall out or the fenced
area would revert to Hall. Hall claimed that Austin never came into the fenced area,
and Hall never gave Austin a key to the fence with barbed wire and a locked gate
that Hall’s father put up in the 1980s. Hall told Austin he would have to ask
permission to access the fenced area. After a 2008 hurricane blew the fence down
and the cones on the strip away, Hall promptly rebuilt the fence and claimed that the
“No Trespassing, Keep Out” sign on the fence remained throughout the period he
claimed to adversely possess the property.
Hall explained that the trial court allowed Sturrock to put his air conditioning
units inside the fenced area with the “Private Property” sign. Hall testified that he
was seeking a declaration that the fenced area belonged to him by the law of adverse
possession and intended to have Sturrock move his three air conditioning units. From
2008 to May 2019, Hall and his staff continuously used and maintained the fenced
area, which had an umbrella and picnic table, but Hall claimed it became
uninhabitable after Sturrock installed his air conditioning units. Hall testified that
the Johns Family did not give him permission to put up the fence and he adversely
16
possessed the portion of the fenced area in the empty lot that the Johns Family
previously owned.
In July 2019, Hall transferred the Hall Building to the Trust, which his mother
created, to pay back money he had borrowed from the Trust in 2017. In August 2019,
Hall filed the Correction Deed, which was on file prior to AmeriCommerce
purchasing the empty lot, and included the fenced area and strip he claimed to have
acquired by adverse possession. Hall explained that AmeriCommerce bought the
AmeriCommerce Building from Austin in 2019, and prior to that time, the building
was empty, not well maintained, and occupied by vagrants at one point. The
Correction Deed includes the Affidavit of Reverand William Roberts, who averred
that from September 2008 until October 2018, Hall adversely possessed the fenced
area and the strip by using fencing, keep out or no trespassing signs, and traffic
cones. Hall testified that AmeriCommerce filed its suit more than ten years after he
put up the fence and locked the gate.
Hall explained that after the Johns Building was demolished in 2008, the
external stairwell between the Hall Building and the Johns Building was removed,
causing him to lose access to the third floor of his building and install a trap door
from the second to third floor. Hall testified that the strip is located where the
stairwell had been, and he wanted the option to be able to install a new stairwell to
access his third floor. Hall explained that the Hall Building had shared a wall with
17
the demolished Johns Building and the stairwell was part of a party wall agreement.
Hall testified that in 1919, the two buildings were sold and the Johns Family’s
predecessors who bought the Johns Building received a deed that did not contain
conveyance language; instead, the deed provided that the partition brick wall
between the building and the stairway entrance “are to remain as they are now for
the . . . common use as now used of both parties benefitted thereby, during the life
of the building now standing on the property herein conveyed.” The deed further
states, “TO HAVE AND TO HOLD the above[-]described premises, together with
all and singular the rights and appurtenances thereto in anywise belonging [] unto”
the Johns Family’s predecessors.
Hall testified that the deed his predecessors received for the Hall Building
contained conveyance language that states, “together with all of the rights in the
party wall agreement as to adjoining walls and stairway easement provided for in
deed of even date herewith[,]” and the deed further states, “TO HAVE AND TO
HOLD the above described premises, party wall rights and easements, together with
all and singular the rights, privileges, powers, and appurtenances thereto in anywise
belonging” unto the Johns Family’s predecessors. Hall claimed that the conveyance
language in his predecessors’ deed conveyed the right to the stairwell and the
easement to Hall and his predecessors back in 1919, and that when the Johns
18
Building was torn down, the stairwell easement automatically reverted to Hall
because he had no access to his third floor.
Hall stated that the strip was extremely necessary to access the third floor of
his building, and he put the cones on the strip right where the stairwell was located
after the Johns Building was demolished to put the world on notice that he was
adversely possessing the strip. Hall’s evidence proving the cones were continuously
on the strip include pictures showing the cones on the strip in 2008, 2011, 2012,
2016, 2018, and 2019. Hall testified that for a day or two the cones would
occasionally be blown over by a storm, moved by skateboarders, or disappear, but
that he would put the cones back in place and maintained the cones continuously
from 2008. Hall testified that he also maintained the strip and used the strip to
maintain his building and to “[q]uite frequently[]” load and unload items, which was
“real quick, real easy, very necessary.” Hall never observed anybody disregard the
cones, which were visible. Hall testified that he exclusively used the strip.
Hall testified that the back of the Hall Building was completely exposed after
the Johns Building was demolished, and Hall told the Johns Family that he wanted
to fence some of the property. Hall explained that the April 2008 letter Johns sent
advised him not to put anything on the empty lot, but Hall fenced some of the empty
lot, put cones on the strip, and told the Johns Family that they had ten years to kick
19
him out. Hall claimed that neither the Johns Family nor Stonefield, which acquired
the empty lot from the Johns Family, ever tried to kick him off the empty lot.
David Brian Austin, the prior owner of the AmeriCommerce Building,
testified that Hall called and told him that Austin’s air conditioning unit had been
stolen, and Hall asked if he could put up a fence and gate to protect Hall’s air
conditioning unit and other items. Austin stated that Hall told him that Austin would
have a key and access to the fenced area. Austin stated that Hall did not give him an
invoice or ask him to pay for the fence or gate or tell Austin that he was taking
Austin’s property and that Austin had ten years to kick him out. Hall only asked for
Austin’s permission to put up the fence. Austin explained that he would remember
if Hall said he was taking Austin’s property because he would have taken some kind
of action. Austin understood that Hall was putting up a fence and that Austin would
have access when needed, but he did not recall going back to his property because
he did not need to. Austin did not remember if he got a key to the fence because he
did not know if he ever saw Hall after the fence was built. Austin agreed that Hall
fenced in part of his property and part of the empty lot.
At the close of evidence, AmeriCommerce moved for a partial directed verdict
regarding title to the strip. Hall argued that the evidence raised a fact issue on
whether his open and continuous placement of the cones for more than ten years put
the prior owners–the Johns Family and Stonefield–of the empty lot on notice of his
20
adverse possession claim. Hall also argued he established adverse possession of the
strip by color of title under the three-year statute.
At the conclusion of the evidence and after both parties rested, the trial court
granted AmeriCommerce’s Motion for Partial Directed Verdict on Hall’s adverse
possession claim as to the strip as well as Hall’s claim for a stairway easement and/or
a reversion of that easement to record title to the strip. Concerning Hall’s adverse
possession claim, the trial judge stated that if he drove up and saw the cones Hall
put out, it would not occur to him that Hall was trying to take it because there are
cones out; rather, the trial judge would have thought it would keep him from hitting
or parking next to the Hall Building. Concerning the stairway easement, the trial
judge stated that it is “basically abandoned because nobody is using it, and it’s not
granted because it’s not there. It’s just not there. I can’t give you an easement that’s
not there. The building is gone.” The trial judge’s understanding of the 1919 deed to
AmeriCommerce’s predecessor provided that the easement went away with the
Johns Building. The trial court found that the evidence did not raise a fact issue on
Hall’s adverse possession claim and that the language contained in the deeds and
party wall agreements relating to a stairway easement affirmatively proved that Hall
is not entitled to a stairway easement or a reversion of that easement in record title.
The trial court denied Hall’s questions relating to adverse possession of the strip and
the stairway easement and only submitted the issue over the fenced area to the jury.
21
The jury found that Hall did not hold the fenced area in peaceable and adverse
possession for a period of at least ten years before September 13, 2019. Following
the trial, the trial court denied Hall’s Plea to the Jurisdiction, noting it had considered
the pleadings, briefing, evidence, and arguments of counsel.
The trial court signed a Final Judgment incorporating the jury’s finding that
Hall did not hold the fenced area in peaceable and adverse possession for a period
of at least ten years before September 13, 2019. The trial court noted it had granted
AmeriCommerce’s Motion for Partial Directed Verdict on Hall’s claimed adverse
possession of the strip, claim of a stairway easement, and a reversion of that
easement based on the language of certain deeds. Based on the jury’s finding and its
partial directed verdict, the trial court awarded AmeriCommerce superior title to the
strip and fenced area and stated that any claim by Hall, either individually or as
Trustee, whether by adverse possession or easement, or reversion of an easement, is
void and of no force and effect and is an improper cloud in AmeriCommerce’s title
and is hereby removed from the following property–268 Pearl Street and 296 Pearl
Street–as described in Exhibits “A” and “B[.]” The trial court found that the
Correction Deed is an improper cloud on the title of AmeriCommerce’s title and is
void and of no force and effect. The trial court ordered that AmeriCommerce is the
record title owner of the property described in Exhibits “A” and “B[.]”
22
The trial court issued Findings of Fact and Conclusions of Law based on the
jury’s verdict. The trial court found that because the jury found that Hall,
individually and as Trustee, did not own the disputed property by adverse
possession, AmeriCommerce’s title to the same property is superior to Hall’s and
superior to the Correction Deed. The trial court concluded that the Correction Deed
is an improper cloud on AmeriCommerce’s title and is void and of no force and
effect. Hall filed a Motion for New Trial, which was overruled by operation of law.
ANALYSIS
Directed Verdict
In issue one, Hall argues the trial court erred in granting a partial direct verdict
awarding AmeriCommerce superior title to the strip because the evidence created a
fact issue as to whether he adversely possessed the strip through the open and
continuous placement of traffic cones. Hall alternatively argues that the strip, which
was previously a shared easement, reverted back to Hall’s ownership under color of
title when the Johns Building was demolished.
“We review a trial court’s grant of directed verdict de novo, using the legal
sufficiency standard appellate courts apply to no-evidence summary judgments.” See
City of Baytown v. Schrock, 645 S.W.3d 174, 178 (Tex. 2022) (citing City of Keller
v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)); Carias v. Owens, No. 09-21-00201-CV, 2022 WL 4102783, at *2 (Tex. App.—Beaumont Sept. 8, 2022, pet. denied)
23
(mem. op.). A directed verdict is proper if the record reflects: (1) a complete absence
of evidence of a vital fact; (2) the court is barred by rules of law or evidence from
giving weight to the only evidence offered to prove a vital fact; (3) the evidence
offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence
conclusively establishes the opposite of the vital fact. City of Keller, 168 S.W.3d at
810. “The final test for legal sufficiency must always be whether the evidence at trial
would enable reasonable and fair-minded people to reach the verdict under review.”
Id. at 827.
When no evidence supports a vital fact or the evidence fails to state a claim
as a matter of law, a trial court properly grants a directed verdict. See City of
Baytown, 645 S.W.3d at 178. We consider all the evidence in the light most
favorable to the nonmovant and resolve all reasonable inferences arising from the
evidence admitted at the trial in the nonmovant’s favor, disregarding evidence and
inferences to the contrary. See id. We may consider any reason why the directed
verdict should have been granted. See Gomer v. Davis, 419 S.W.3d 470, 476 (Tex.
App.—Houston [1st Dist.] 2013, no pet.). “In reviewing a trial court’s granting of a
directed verdict, we must determine whether there is more than a scintilla of
evidence to raise a fact issue on each element of the plaintiff’s claim.” Rohrs v.
Hartz, No. 09-19-00196-CV, 2021 WL 2677422, at *9 (Tex. App.—Beaumont June
24
29, 2021, no pet.) (mem. op.) (citing Coastal Transp. Co. v. Crown Cent. Petroleum
Corp., 136 S.W.3d 227, 233 (Tex. 2004)).
A party seeking to establish title to land by adverse possession has the burden
of pleading and proving every fact essential to his claim. Rhodes v. Cahill, 802
S.W.2d 643, 645 (Tex. 1990). Adverse possession is defined as “an actual and visible
appropriation of real property, commenced and continued under a claim of right that
is inconsistent with and is hostile to the claim of another person.” Tex. Civ. Prac. &
Rem. Code Ann. § 16.021(1). The possession must be actual, visible, continuous,
notorious, distinct, hostile, and of such a character “as to indicate unmistakably an
assertion of a claim of exclusive ownership in the occupant.” Rhodes, 802 S.W.2d at
645 (citation omitted). Hall claimed adverse possession based on the three-year and
ten-year statutes. See Tex. Civ. Prac. & Rem. Code Ann. §§ 16.024, 16.026.
“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. Id. § 16.026(a). To establish
adverse possession, a person must prove by the preponderance of the evidence that
the possession of the disputed property by the person, or by the person’s
predecessors in interest, was (1) actual and visible; (2) adverse and hostile to the
claim of the owner of record title; (3) open and notorious; (4) peaceable; (5)
exclusive; and (6) involved continuous cultivation, use, or enjoyment for ten years.
25
See Kazmir v. Benavides, 288 S.W.3d 557, 561 (Tex. App.—Houston [14th Dist.]
2009, no pet.). In determining whether a party has proved adverse possession, the
court must consider the nature of the land and the use to which it was put. See
Mohnke v. Greenwood, 915 S.W.2d 585, 593 (Tex. App.—Houston [14th Dist.]
1996, no writ).
The party claiming adverse possession must show he used the land for a
purpose to which is adaptable, and in the same manner an ordinary owner would use
the land. Kazmir, 288 S.W.3d at 561. “When a person in possession of land is shown
to have used and enjoyed it as an owner of land usually does, the natural inference
is that possession was taken and held for such person as owner and that is, therefore,
inconsistent with and hostile to the claim of another.” Kinder Morgan North Tex.
Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 440 (Tex. App.—Texarkana 2006, no pet.)
(citation omitted). “It is well settled, that, where a party relies upon naked possession
alone as the foundation of his adverse [possession] claim, it must be such an actual
occupancy as the law recognizes as sufficient, if persisted in for a long enough period
of time, to cut off the true owner’s right of recovery.” Rhodes, 802 S.W.2d at 645.
To establish his adverse possession claim, Hall must demonstrate that he
actually and visibly appropriated the land for ten or more consecutive years, such
that his use of the land gave the true owner of the land reasonable notice of his hostile
claim. See id.; Masonic Bldg. Ass’n of Hous., Inc. v. McWhorter, 177 S.W.3d 465,
26
472 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Hall’s possession of the land
must “indicate unmistakably an assertion of a claim of exclusive ownership in the
occupant.” Rhodes, 802 S.W.2d at 645 (citation omitted).
Applying the law to the facts in this case, the trial court had no choice but to
grant the partial directed verdict as a matter of law as there is no evidence–or
insufficient evidence–upon which any reasonable juror could find that Hall
adversely possessed the strip. The trial court found that the evidence presented did
not raise a fact issue on Hall’s adverse possession claim. We hold that Hall’s
placement of cones on the strip did not “indicate unmistakenly an assertion of a claim
of exclusive ownership” that would provide reasonable notice to the true owner of
Hall’s hostile claim of right. See id. Accordingly, we hold that the trial court did not
err in granting a partial directed verdict awarding AmeriCommerce superior title of
the strip because the placement of traffic cones is not sufficient to establish adverse
possession.
We note that Hall alternatively argues that the strip was a previously shared
or common easement that reverted to Hall’s ownership under color of title after the
Johns Building was demolished. Hall claims he raised a fact issue as to whether he
adversely possessed the strip under color of title for at least three years. Hall
contends that there was sufficient evidence for the jury to determine whether there
was a defect in the deeds conveying the strip to Hall and AmeriCommerce’s
27
predecessors in interest that rendered it intrinsically unfair to deny him the continued
easement by adverse possession after three years. Hall does not cite to any legal
authority to support his alternative argument regarding color of title. We hold that
Hall’s alternative argument is inadequately briefed. See Tex. R. App. P. 38.1(i). We
overrule issue one.
Factual Sufficiency
In issue two, Hall complains that the jury’s finding that he did not adversely
possess the fenced area behind 268 and 278 Pearl Street–the AmeriCommerce and
Hall Buildings–for a period of at least ten years is against the great weight and
preponderance of the evidence. Hall contends that the evidence shows he openly
fenced the area and continuously and exclusively held and used the fenced area
adversely or hostile to the claimed owner for a period of over ten years.
In a factual sufficiency review, we examine all the evidence, and we will set
aside the judgment if it is so contrary to the overwhelming weight of the evidence as
to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986);
see also Unimex Logistics, LLC v. Tim Neff Towing, Inc., No. 09-16-00275-CV,
2018 WL 2339623, at *4 (Tex. App.—Beaumont May 24, 2018, no pet.) (mem. op.)
(citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)). The jury may
believe one witness and disbelieve another, and the jury may resolve inconsistencies
in any testimony. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).
28
The jury heard conflicting evidence concerning whether Austin gave Hall
permission to build the fence behind the AmeriCommerce Building. Hall testified
that after he built the fence, he told Austin that he did so to protect both of their
properties and asked Austin to pay half the cost. Hall testified that after Austin
declined to pay, Hall told Austin he would be denied access to the fenced area.
Austin testified that Hall called him and told him that Austin’s air conditioning unit
had been stolen, and Hall asked for Austin’s permission to put up a fence and gate
to protect his air conditioning unit and other items. Austin stated that Hall told him
he would have a key and access to the fenced area, and Austin denied that Hall asked
him to pay for the fence. Sturrock also testified that Austin owned a significant
portion of the fenced area and had shared access to the backyard, and Sturrock noted
that Hall and Austin had “bad blood” in the middle of their agreement and did not
know at what time Austin had a key or access to the fenced area.
It was within the jury’s province to believe Austin’s and Sturrock’s testimony
over Hall’s. See McGalliard, 722 S.W.2d at 697. Joint use of the fenced area does
not prove adverse possession because “‘possession must be of such character as to
indicate unmistakably an assertion of a claim of exclusive ownership in the
occupant.’” Tran v. Macha, 213 S.W.3d 913, 914 (Tex. 2006) (emphasis in original)
(quoting Rhodes, 802 S.W.2d at 645); see also Martin v. McDonnold, 247 S.W.3d
224, 236 (Tex. App.—El Paso 2006, no pet.). Austin’s permitting Hall to put up the
29
fence shows Hall’s use was not hostile or exclusive and is not such adverse
possession as will serve as notice of a claim of right. See Othen v. Rosier, 226 S.W.2d
622, 626-27 (Tex. 1950) (citations omitted). Such permissive use did not exclude
Austin’s right to his property and is presumed to be with the consent of the owner
and not adverse. See id. (citations omitted). Based on Austin’s and Sturrock’s
testimony, the jury’s finding that Hall did not adversely possess the fenced area
behind the AmeriCommerce Building was not so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust. See Cain, 709 S.W.2d at
176.
The jury also found that Hall did not adversely possess the fenced area behind
the Hall Building. The evidence shows that the wooden fenced area behind the Hall
Building had an umbrella and picnic table and included part of the empty lot
AmeriCommerce purchased from Stonefield. Sturrock explained that he had no
knowledge of the dealings between Hall and Stonefield and did not know if
Stonefield gave Hall permission to put up the fence, but Sturrock understood that
Stonefield asserted its property line. Sturrock testified that the Johns Family
previously owned the empty lot and that Johns told Hall in the April 2008 letter to
refrain from placing any chattel, appendages, or other property upon the empty lot
that would in effect encroach or adversely affect the boundary lines, access, or egress
of said property or attempt to acquire to create any easements.
30
Hall testified that the Johns Family did not give him permission to put up the
fence and he adversely possessed the portion of the fenced area in the empty lot that
the Johns Family previously owned. That said, Hall testified that after the demolition
of the Johns Building completely exposed the Hall Building, he told the Johns
Family that he wanted to fence some of the property. Hall testified he received the
April 2008 letter after he told the Johns Family that he was thinking of putting a
fence up because he was in “a bad way because he couldn’t access my third floor.”
Hall testified that despite receiving the letter, he fenced a portion of the empty lot.
Hall claimed he told the Johns Family that they had ten years to kick him out, and
that both the Johns Family and Stonefield failed to kick him out.
The jury considered Hall’s testimony claiming that the Johns Family did not
give him permission to put up the fence. The jury also considered Hall’s testimony
that he put up the fence after the Johns Building was demolished to protect the back
of his property, which was exposed, and not as a hostile claim of right to the Johns
Family’s property. The jury heard Hall testify that he knew Judge Johns and his sons,
who were colleagues in his generation of lawyers, “fairly well.” Hall claimed that he
told the Johns Family the same thing he told Austin–that they had ten years to kick
him out, and the jury chose to disbelieve Hall’s testimony as was their right. The
jury could have also chosen to believe Sturrock’s testimony that he understood
Stonefield asserted its property line.
31
Based on the testimony, the jury could have reasonably concluded that Hall’s
possession of the fenced area on the empty lot did not “indicate unmistakably an
assertion of a claim of exclusive ownership” that would provide reasonable notice to
the Johns Family of Hall’s hostile claim of right. See Rhodes, 802 S.W.2d at 645.
We hold that the jury’s finding that Hall did not adversely possess the fenced area
on the empty lot was supported by factually sufficient evidence. We overrule issue
two.
Plea to the Jurisdiction
In issue three, Hall complains the trial court erred in denying his Plea to the
Jurisdiction based on laches because AmeriCommerce’s predecessors delayed in
asserting their rights.
Whether a court has subject matter jurisdiction is a question of law we review
de novo. Tex. Dep’t. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004); see Farmers Tex. Cnty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 240 (Tex.
2020) (citation omitted). A court may not decide a case unless it has subject matter
jurisdiction. Miranda, 133 S.W.3d at 226. A plea to the jurisdiction challenges the
trial court’s power to exercise subject matter jurisdiction. Id.; City of Waco v.
Kirwan, 298 S.W.3d 618, 621-22 (Tex. 2009).
Laches is an equitable remedy that, on proper findings, prevents a party from
prevailing on a claim because of a lapse of time resulting in a claim becoming stale.
32
Bluebonnet Sav. Bank, F.S.B. v. Grayridge Apartment Homes, Inc., 907 S.W.2d 904,
912 (Tex. App.—Houston [1st Dist.] 1995, writ denied). To prevail on a defense of
laches, Hall must show, among other things, that AmeriCommerce’s predecessors
delayed in asserting their rights. See Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex.
1998). To do so, Hall has the burden of proving (1) an unreasonable delay in
asserting a legal or equitable right, and (2) a good faith change of position by another
to his detriment because of the delay. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76,
80 (Tex. 1989). Hall’s assertion as to AmeriCommerce’s predecessors in title is
contingent upon a determination of whether AmeriCommerce’s predecessors failed
to assert their rights to Hall’s alleged adverse possession claim, because it would not
be equitable to invoke any such failure if Hall did not establish his adverse
possession claim. Since Hall failed to establish his adverse possession claim, there
is a material fact issue as to whether AmeriCommerce’s predecessors unreasonably
delayed in asserting a legal or equitable right. Therefore, we hold that Hall failed to
establish laches and that the trial court did not err in denying Hall’s Plea to the
Jurisdiction because Hall did not establish that he owned the strip and fenced area
through adverse possession. We overrule issue three.
Trial Court’s Findings, Conclusions, and Final Judgment
In issue four, Hall argues the trial court erred in its findings, conclusions, and
Final Judgment which awarded AmeriCommerce superior title to the strip and
33
fenced area and declared Hall’s Corrected Deed void. We have already determined
that the trial court did not err in granting a partial directed verdict awarding
AmeriCommerce superior title to the strip and that the jury’s finding that Hall did
not adversely possess the fenced area was supported by factually sufficient evidence.
We conclude the trial court did not err in awarding AmeriCommerce superior title
to the strip and fenced areas. Moreover, the trial court found that based on its
granting of a partial directed verdict and the jury’s finding, Hall’s Correction Deed
is an improper cloud on AmeriCommerce’s title and is void and of no force and
effect. Hall’s filing the Correction Deed was a mere attempt to award himself the
strip and fenced area based on a limitations defense he failed to establish at trial. We
overrule issue four.
CONCLUSION
Having overruled all of Hall’s issues, we affirm the trial court’s judgment.
AFFIRMED.
JAY WRIGHT
Justice
Submitted on February 3, 2026
Opinion Delivered August 27, 2026
Before Golemon, C.J., Wright and Chambers, JJ.
34