Justice Patrick Pirtle
In a 2-1 decision, the Amarillo Court of Appeals has upheld a trial court judgment awarding title by adverse possession to 345.9 acres of land in Wilbarger County. The case, McDuff v. Brumley (No. 07-17-00248-CV), attracted our interest for two reasons: (1) the impassioned dissent by Senior Justice Patrick Pirtle, in which he stated that “our legal system failed [the McDuffs] on every level, from the justice of the peace court on up”; and (2) the decision of the Texas Supreme Court that reversed and remanded the court of appeals’ original holding in favor of the McDuffs.
In 2004, the Brumleys sued the McDuffs to “quiet title” to the disputed tract. In their pleading, however, they alleged facts indicative of a 10-year adverse possession claim. The McDuffs responded by pleading “not guilty,” as required to defend a trespass-to-try-title suit, and by filing a counterclaim to quiet title to the property. After a trial that featured a lot of conflicting evidence and faulty memories, the trial court instructed the jury to consider only whether the Brumley’s had acquired the property by adverse possession. The McDuffs objected to the charge because the Brumleys’ suit was to quiet title, requiring proof of ownership that the Brumleys could not produce. The jury returned a verdict in favor of the Brumleys. The McDuffs appealed to the Amarillo Court of Appeals, which held that trial court erred by submitting a jury charge on adverse possession when the Brumleys had pleaded an action to quiet title. Consequently, because the Brumleys could not establish that they held title to the property, an essential element of such an action, their pleadings did not support the judgment.
SCOTX granted the Brumleys’ petition for review. In an opinion by Justice Bland, the court reversed the court of appeals and remanded for consideration of the McDuffs’ legal and factual insufficiency claims. Brumley v. McDuff, 616 S.W.3d 826 (Tex. 2021). The court held that the Brumleys’ pleadings supported the submission of the adverse possession question to the jury because they met the special pleading requirements applicable to trespass-to-try title actions under TRCP 783. Because the substance of the Brumleys’ petition asserted a trespass-to-try-title action, the court of appeals erred in basing its decision on a “formal” pleading defect.
On remand, the majority found that the evidence was legally and factually sufficient to support the jury verdict in favor of the Brumleys. As we have seen, Justice Pirtle lambasted the majority for concluding that the Brumleys had presented any evidence, much less the clear and satisfactory proof, of “any visible non-grazing appropriation of the land of such a character that it would cause the true owners, the McDuffs, to have notice of a hostile claim. At best, the McDufs might be aware of persons occasionally using the property for recreational purposes; however, because this use would not be inconsistent with the purposes for which the McDuffs had leased the property, such incidental usage would not rise to the level of putting them on notice of an adverse possession claim. Furthermore, such use would not rise to the level of ‘consistent and continuous’ possession. Nothing about a graded dirt road, a used-tire water trough, or repaired or replaced fencing was of such a character as to put the McDuffs on notice that someone was making a hostile claim of ownership to the entire 345.9 acres.”
Justice Pirtle suspected that “what actually happened in this case is that [the McDuffs] and their out-of-town lawyer got ‘home-towned’ in a complex real property dispute that was tried as a suit to quiet title, but which the Texas Supreme Court construed to be a suit in trespass-to-try-title—the significance being the trial court’s evidentiary rulings left the distinct impression that the [Brumleys] were the record title holders.” In fact, the McDuffs were the record title holders, while all the Brumleys had was a special warranty deed granted by somebody who didn’t have title to begin with. Though we don’t know whether Justice Pirtle’s suspicions are on target, there certainly seems to be something odd about this case. In any event, it is arguable the court of appeals has appreciably lowered the evidentiary bar in an adverse possession claim. Landowners beware.
