MEMORANDUM OPINION

No. 04-22-00694-CV

Jayme Bobette ESTES, Appellant/Cross-Appellee v. Terry LEIFESTE, Individually and as Trustee of the Leifeste 2001 Descendants Trust, Appellee/Cross-Appellant

From the 452nd District Court, Mason County, Texas Trial Court No. 215999 Honorable Robert Rey Hofmann, Judge Presiding

Opinion by: Liza A. Rodriguez, Justice

Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Liza A. Rodriguez, Justice

Delivered and Filed: August 7, 2024

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

This appeal arises from a real property dispute between neighboring landowners. The dispute involves ownership of less than an acre of land (“the disputed property”) in Mason County, Texas. Jayme Bobette Estes is the record title owner of the disputed property. Terry Leifeste, appearing both in his individual capacity and in his capacity as trustee of a family trust, claims he acquired the disputed property by adverse possession. Leifeste sued Estes for trespass to try title, 04-22-00694-CV

declaratory judgment, trespass, negligence, and wrongful fence removal. Estes moved for summary judgment on Leifeste’s claims. The trial court granted Estes’s motion for summary judgment thereby denying Leifeste recovery on his claims. The trial court likewise denied Estes’s

motion for sanctions and attorney’s fees. Both Leifeste and Estes appeal. We affirm the denial of sanctions and attorney’s fees and reverse the summary judgment denying Leifeste recovery on his claims.

BACKGROUND

Leifeste 1 and Estes own adjoining tracts of land in Mason County, Texas, which are bordered on the north by the Llano River. These tracts have been owned by Leifeste’s and Estes’s

respective families since the 1800s. Historically, a fence demarcating the boundary between the two tracts extended south-north in a straight line until it met the banks of the Llano River at a ninety-degree angle. Leifeste’s predecessors in interest owned the tract to the west of the boundary fence and Estes’s predecessors in interest owned the tract to the east of the boundary fence. During a major drought in the 1930s, a portion of the boundary fence—the part closest to the river—was

moved downstream or eastward so that it intersected with the river at a forty-degree angle. The disputed property is the triangle of land immediately west of the modified boundary fence.

Leifeste contends that the boundary fence was modified by agreement and that Estes’s predecessor in interest was compensated for it. According to Leifeste, the modified boundary fence has been the “eastern boundary line [of his tract of land] since [the 1930s] and certainly all of [his]

78 years.”

In early July 2021, Estes hired a contractor to remove the modified boundary fence. On

July 27, 2021, Leifeste filed suit against Estes, seeking a determination that he owns the disputed 04-22-00694-CV property by adverse possession and a declaration that the modified boundary fence is the actual

boundary between his tract and Estes’s tract. Leifeste also alleged claims against Estes for trespass, negligence, and wrongful fence removal. ^[2] Estes filed an answer, denying all of Leifeste’s claims and alleging she was the rightful owner of the disputed property.

Summary Judgment Proceedings

In her amended motion for summary judgment, Estes raised both no-evidence and traditional grounds for denying Leifeste’s claims and accompanied her motion with evidence. The no-evidence grounds challenged (1) elements of Leifeste’s adverse possession claim, (2) damages, and (3) the wrongful fence removal claim. The traditional grounds argued, among other things, that Leifeste’s ownership of the disputed property was barred because of the statute of frauds and because of the agreement between the parties’ predecessors in interest. Leifeste, in turn, filed a

summary judgment response accompanied by evidence. Leifeste also moved to strike some of the evidence Estes submitted in support of her summary judgment motion.

After a hearing, the trial court granted Estes’s summary judgment motion denying all of Leifeste’s claims. The trial court’s order did not specify the grounds on which its summary judgment ruling was based.

Motion for Sanctions and Attorney’s Fees

Estes filed an amended motion for sanctions and attorney’s fees, arguing the trial court’s summary judgment ruling disposing of Leifeste’s claims established that his claims were groundless and brought in bad faith. Estes argued she was entitled to attorney’s fees under both section 16.034 and chapter 10 of the civil practice and remedies code. Estes attached evidence to 04-22-00694-CV

her motion, which consisted of an affidavit from her counsel and counsel’s billing records. In opposing the motion for sanctions and attorney’s fees, Leifeste moved to strike Estes’s evidence, alleging she failed to comply with the discovery rules.

The trial court held a bench trial on the remaining issues in the case, including Estes’s motion for sanctions and attorney’s fees. The trial court granted Leifeste’s motion to strike Estes’s evidence and denied Estes’s motion for sanctions and attorney’s fees.

After the trial court signed a final judgment incorporating its rulings, Estes timely filed a notice of appeal, and Leifeste timely filed a notice of cross-appeal.

SUMMARY JUDGMENT PROCEEDINGS

We begin our analysis by addressing an evidentiary ruling related to the summary judgment.

Evidentiary Ruling

In his second issue, Leifeste argues the trial court abused its discretion by denying his

motion to strike 3 two affidavits from Estes’s counsel, Rick B. Yeager. In his motion to strike, Leifeste argued that two of Yeager’s affidavits—Exhibit “D” and Exhibit “G”—should be excluded based on rule 3.08(a) of the Texas Rules of Disciplinary Procedure.

1. Applicable Law

We review a trial court’s evidentiary rulings related to a summary judgment for an abuse of discretion. Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017). A trial court abuses its discretion when it acts without reference to any guiding rules and principles. Id. (citing

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).

04-22-00694-CV

Rule 3.08(a) prohibits an attorney from appearing both as a witness and as counsel in the same matter, subject to a few exceptions. See TEX. DISCIPLINARY RULES PROF’L CONDUCT R. ^[3].08, reprinted in TEX. GOV’T CODE ANN., tit. ^[2], subtit. G, app. A (Tex. State Bar R. art. X, § 9). Rule

3.08(a) provides:

A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client, unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;

(3) the testimony relates to the nature and value of legal services rendered in the case;

(4) the lawyer is a party to the action and is appearing pro se; or (5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.

Id.

The comments to rule 3.08 state that if “the lawyer’s testimony concerns a controversial or contested matter, combining the roles of advocate and witness can unfairly prejudice the opposing

party.” Id. cmt. ^[4]. “[T]he appearance of a testifying advocate tends to cast doubt on the ethics and propriety of the judicial system.” Aghili v. Banks, 63 S.W.3d 812, 818 (Tex. App.—Houston [14th

Dist.] 2001, pet. denied). Thus, unless one of rule 3.08(a)’s exceptions applies, a lawyer who represents a client as an advocate before a court is considered “incompetent” to provide evidence in that matter. Id. at 819. “When an attorney who represents a party is an affiant in support of a motion for summary judgment, he or she is a witness.” Id. at 817-18; see Mauze v. Curry, 861 04-22-00694-CV

S.W.2d 869, 870 (Tex. 1993) (concluding counsel improperly testified as an expert witness in violation of rule 3.08 when, to defeat a summary judgment, he signed an affidavit opining that the defendant lawyer in a malpractice case was negligent and caused damages).

2. Analysis

In his first affidavit, which is dated August 9, 2021, and labeled Exhibit “D,” Yeager testified that he is a “Registered Professional Engineer (inactive), licensed real estate broker, patent attorney, and rancher.” He claimed that he had reviewed aerial photographs of the boundary fence and disputed area from various years between 1955 and 2016 as well as satellite images showing

heavy brush and vegetation in the disputed area. He further claimed that he had inspected the disputed area and opined that he “would have agreed to deviating a boundary [] to [the] terminal post without compensation, and without transfer of ownership because it would permit a more

robust fence that required less maintenance.” Yeager also testified, “Like most of its neighbors, the area between Leifeste’s river portion fence and river shows little evidence of continuous or frequent cattle grazing. Specifically, I did not observe [] cattle in that area; and there was no discernible cattle trails or vehicle road through the gate.”

The use of the disputed property for grazing and the visibility of the modified boundary

fence were potentially important to Leifeste’s adverse possession claim. As Estes’s counsel, Yeager was an inappropriate person to testify about these facts. Plus, none of rule 3.08(a)’s exceptions apply. Accordingly, the trial court abused its discretion by denying Leifeste’s motion to strike Exhibit “D.” See Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538, 543-44 (Tex. App.—

Houston [14th Dist.] 2007, pet. denied) (holding parties’ counsel was “an inappropriate person to present any facts” regarding the ultimate issue in the case and, thus, trial court abused its discretion by admitting counsel’s affidavit); Reliance Capital, Inc. v. G.R. Hmaidan, Inc., No. 14-05-00061- 04-22-00694-CV

CV, 2006 WL 1389539, at *4 (Tex. App.—Houston [14th Dist.] May 18, 2006, no pet.) (holding trial court abused its discretion by admitting affidavit in which party’s counsel testified about an ultimate issue in the case). Because the trial court should have excluded Exhibit “D,” we do not consider it in our analysis.

In his second affidavit, which is dated November 29, 2021, and labeled Exhibit “G,”

Yeager testified about the number of hours he spent working on this case, the “high” market value of the disputed property, the reason for the contingent fee structure, and the legal costs associated with defending this legal action. Thus, the testimony Yeager provided in Exhibit “G”’ relates to uncontested issues and the nature and value of legal services rendered in the case. The trial court could have reasonably determined that some of the exceptions enumerated in rule 3.08(a) applied to the testimony contained in Exhibit “G.” Accordingly, the trial court did not abuse its discretion by denying Leifeste’s motion to strike Exhibit “G.”

Summary Judgment Standards

“After adequate time for discovery, a party . . . . may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim . . . on which the adverse party would have the burden of proof at trial.” TEX. R. CIV. P. 166a(i). “The motion must

state the elements as to which there is no evidence.” Id. To defeat a no-evidence motion for summary judgment, “the respondent is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.” Id. cmt. 1997. We affirm a

no-evidence summary judgment only if the respondent failed to produce more than a scintilla of probative evidence raising a genuine issue of material fact on a challenged element of the cause of action. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

04-22-00694-CV

“The standard of review for a traditional motion for summary judgment is whether the successful movant at the trial level carried [her] burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law.” Bell v. Petsch, No. 04-

22-00371-CV, 2023 WL 5603195, at *2 (Tex. App.—San Antonio Aug. 30, 2023, pet. filed)

(citation omitted); see TEX. R. CIV. P. 166a(c). Thus, to be entitled to a traditional summary judgment, Estes, as the defendant, had to either conclusively negate at least one of the essential elements of each of Leifeste’s claims, or conclusively establish all elements of an affirmative defense. See Bell, 2023 WL 5603195, at *2. “Evidence is conclusive only if reasonable people could not differ in their conclusions.” Id. (citation omitted). We affirm a traditional summary judgment only if the movant established there are no genuine issues of material fact, and she is entitled to judgment as a matter of law on a ground expressly set forth in the motion. Joe v. Two

Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004).

We review both traditional and no-evidence summary judgments de novo. Id. When

reviewing both no-evidence and traditional summary judgments, we consider the evidence in the light most favorable to the respondent and indulge all reasonable inferences and resolve any doubts in his favor. Id. at 157.

Adverse Possession

In his first issue, Leifeste argues the trial court erred by granting summary judgment on his

adverse possession claim because genuine issues of material fact existed as to the elements of adverse possession. He further argues that neither the statute of frauds nor the agreement between the parties’ predecessors in interest precludes his adverse possession claim.

1. Applicable Law 04-22-00694-CV

“The doctrine of adverse possession is based on statutes of limitation for the recovery of real property.” Wells v. Johnson, 443 S.W.3d 479, 488 (Tex. App.—Amarillo 2014, pet. denied)

(citing TEX. CIV. PRAC. & REM. CODE §§ 16.021–.037). “[I]n the context of a dispute concerning possession of real property, the rightful owner of the property must institute suit within a specified

period of time (three, five, ten or twenty-five years depending on various statutory factors and conditions) or subsequently be barred from recovery.” Id.

After the specified time period elapses, “[n]ot only are suits for the recovery of possession by the rightful owner barred, adverse possession provisions also operate to vest the adverse claimant with title to the property.” Id. “If an action for the recovery of real property is barred

under [Chapter 16 of the Texas Civil Practice and Remedies Code], the person who holds the property in peaceable and adverse possession has full title, precluding all claims.” TEX. CIV. PRAC.

& REM. CODE § 16.030(a). The ten-year and twenty-five-year statutes of limitation, which are

relevant to the present case, provide: “[a] person must bring suit not later than” either 10 years or 25 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, 16.027.

Adverse possession requires “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.” BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 69 (Tex. 2011) (quoting TEX.

CIV. PRAC. & REM. CODE § 16.021(1)). Thus, to prevail on a claim of adverse possession, a claimant must establish (1) the actual and visible possession of the disputed property; (2) that is adverse and hostile to the claim of the owner of record title; (3) that is open and notorious; (4) that is peaceable; (5) that is exclusive; and (6) that involves continuous cultivation, use, or enjoyment 04-22-00694-CV throughout the statutory period. Bell, 2023 WL 5603195, at *2; see also Villarreal v. Guerra, 446

S.W.3d 404, 410 (Tex. App.—San Antonio 2014, pet. denied).

“The possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.” Marshall, 342 S.W.3d at 70 (citation omitted).

“The test for hostility is whether acts performed by the claimant on the land, and the use made of the land, were of such a nature and character as to reasonably notify the true owner of the land that a hostile claim was being made to the property.” Villarreal v. Chesapeake Zapata, L.P., No. 04-

08-00171-CV, 2009 WL 1956387, at *3 (Tex. App.—San Antonio July 8, 2009, no pet.). Open and notorious possession carries with it an indicium of ownership and, in that sense, operates as notice to the true owner that title to his property is being claimed by the party who is openly using or profiting from the disputed property. Felts v. Whitaker, 129 S.W.2d 682, 687-88 (Tex. App.—

Fort Worth 1939), aff’d, 155 S.W.2d 604 (Tex. [Comm’n Op.] 1941). In that regard, the nature of the possession must be so obvious as to afford grounds for a presumption of knowledge or notice, and it must be sufficiently “open, exclusive and visible” as to excite an inquiry, for the term of the limitations period. Id. at 688.

“[W]here lands have been designedly enclosed and used continuously for grazing purposes for the statutory period, such is sufficient notice of hostile claim to support a claim of adverse possession.” Mixon v. Clark, 518 S.W.2d 402, 406 (Tex. App.—Tyler 1974, writ ref’d n.r.e.).

However, “a casual or incidental enclosure” combined with “occasional or casual grazing” within the enclosure will not support a claim of adverse possession. Id. “In determining whether the fence

is or is not a casual fence, [courts] must look to the whole fencing pattern and the use made of the fence, as well as all the other facts and circumstances.” Id.

- 10 - 04-22-00694-CV Generally, adverse possession is a question of fact. Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex. 1990). At trial, a party seeking to establish title to land by virtue of adverse possession has the burden of proving every fact essential to that claim by a preponderance of the evidence. Id. at 645. 2. Summary Judgment Evidence With respect to adverse possession, Estes’s no-evidence motion asserted there was no evidence of: (1) actual and visible possession, (2) adverse and hostile possession, (3) open and notorious possession, and (4) continuous cultivation, use, or enjoyment for the required statutory period. Jayme Bobette Estes’s Affidavit and Deposition Testimony The summary judgment evidence included both affidavit and deposition testimony from Jayme Bobette Estes. In her affidavit, Estes, who was sixty years old and had inherited her tract, testified that she roamed the property as a child. Estes did not recall any cattle being present on the disputed property, which was hard to access because of heavy brush; nor did she recall animals accessing the river from the disputed property. Estes further testified that she began living on her tract full time in April 2017. Estes acknowledged that Leifeste had discussed the disputed property with her. Sometime in 2017 or 2018, Leifeste informed Estes that they “needed to fix the paperwork/deed on [their] fence line so that [their] kids would not have to deal with it when [they] were gone.” Leifeste “explained that [his predecessor in interest] had been given access to the river to water animals and that [was] why the fence line between [their tracts] was not straight [but] angled into [her] property.” Leifeste also told her that “back in the 1930s” her grandfather had agreed to give his grandfather “access” to the disputed property, and her grandfather had been “compensated for the - 11 - 04-22-00694-CV original river frontage.” But, according to Estes, no one in her family had told her about this arrangement, “even though [] Leifeste insist[ed] he had [had] conversations with [her] aunt (Mildred Hall) regarding the fixing of the paperwork/deeds.” Estes also testified that a huge flood downed fences and left debris on her land in 2018. Estes stated that after the 2018 flood the modified boundary fence was “completely in the dirt” and “not visible in some areas.” She did not recall seeing any purple fence posts before the 2018 flood. In her deposition testimony, Estes testified that she owned and operated a public campground on her tract, which was “at least” fifty to seventy-five yards from the disputed property. She further testified that the modified boundary fence had been there for her entire life, that she had never crossed it, that she had never used the land on the other side of the modified boundary fence, and that she had never told her campers that they could cross that boundary fence. Contrary to her affidavit, Estes testified that purple painted fence posts were in fact along the disputed boundary fence. Pat Estes’s Affidavit Estes’s husband, Pat Estes, testified by affidavit that he and his wife had moved to their Mason County land full time in 2017. Prior to that, they had visited the land numerous times each year since 2001. After Leifeste approached him and his wife about the fence line and “fixing the paperwork,” he went to the disputed area and observed the fence in question. He described the disputed property as “heavily wooded, and hard to get to” and he “did not notice any fence posts painted purple.” This was the first time he and Estes “knew the fence line was not straight.” He further testified that “[a]fter the October 2018 flood, [they] had a lot of damage and debris in the - 12 - 04-22-00694-CV wooded area in question” and the “fence line along the disputed area was flat to the ground and covered in debris.” Donnie Hopson’s Affidavit In his affidavit, Donnie Hopson testified that he was the owner of a construction company that provides land improvements. Estes hired him to clear brush and debris near the river on the western portion of her property. Upon commencing the work, he noticed “a diagonal fence was down and covered in dirt and flood debris.” Hopson surmised that “the fence had been down since at least a major flood in October 2018.” While doing his work, Hopson cleared around a large cedar post located on higher ground near the river, but he did not see any purple paint on that post. He acknowledged that “[s]ome landowners use purple paint to provide no trespassing notice.” He added that he “salvaged numerous metal t-posts from the downed diagonal fence and stacked them against a tree” and he “did not notice any purple paint on those posts or on trees.” Frank Falk’s Deposition Testimony 4 In his deposition, Frank Falk testified that he was familiar with the modified boundary fence and the disputed property. According to Falk, he leased Estes’s tract for hunting in 1961 or 1962. Thereafter, from 1986 to the present, Falk lived in a mobile home on Estes’s tract. Falk, who used to work at the campground on Estes’s tract, told the campers that they could not cross the boundary fence between the properties. According to Falk, the boundary fence had been “at that angle” since he first visited Estes’s land in 1961, “except for after the flood, when the flood took it out.” He also testified that the part of the fence near the river “was down” following “a big flood