MEMORANDUM OPINIONBefore Chief Justice Valdez and Justices Longoria and Hinojosa Memorandum Opinion by Chief Justice ValdezAppellants Noe and Maribel Reyes (collectively Reyes), acting pro se, appeal the trial court’s summary judgment in favor of appellee Uriel De Alba.[1] By three issues, Reyes contends that Alba is not entitled to summary judgment because Alba did not negate at least one element of his cause of action, the trial court only reviewed the pleadings on file, and the judgment does not state that the trial court granted summary judgment “after reviewing the pleadings on file.” By a fourth issue, Reyes contends that the trial court erroneously granted relief on his unlawful ouster claim. We reverse and remand.I. BackgroundReyes lived on property adjacent to property owned at the time by John Wyckoff, Christine Goetz, and James K. Wyckoff (the original owners). On April 24, 2014, Alba purchased the property (the disputed property) from the original owners. Before his purchase of the disputed property, the original owners paid the taxes on the property, and after his purchase, Alba paid the taxes.On July 11, 2014, Reyes filed a suit against Alba for unlawful ouster on the basis that he had acquired ownership of the disputed property through adverse possession. Reyes alleged, among other things, that he had planted trees and other plants on the disputed property and that Alba had improperly removed those trees and plants on May 15, 2014. On August 18, 2016, Alba filed a traditional motion for summary judgment contending that Reyes could not establish each element of his adverse possession claim. Specifically, Alba argued that Reyes’s possession, if any, was neither hostile nor exclusive. The trial court granted the summary judgment, and this appeal followed.II. Traditional Summary JudgmentBy his first issue, Reyes contends that Alba did not negate the exclusive and hostile elements of Reyes’s cause of action for adverse possession because his affidavit raises a question of fact. Alba responds that a letter purportedly written by Reyes offering to purchase the property from John Wyckoff conclusively shows that Reyes did not have exclusive and hostile possession of the disputed property. Standard of Review In a traditional motion for summary judgment, the movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a; Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). If the movant’s motion and summary judgment proof facially establish a right to judgment as a matter of law, the burden shifts to the non-movant to raise a material fact issue sufficient to defeat summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). We review a summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.—Dallas 2000, pet. denied).When reviewing a summary judgment, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).[T]he question on appeal . . . is not whether the summary judgment proof raises [a] fact issue[,] . . . but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. . . . [T]he judgment sought should be granted, and if granted should be affirmed, only if the summary judgment record establishes a right thereto as a matter of law.Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). Applicable Law Adverse possession allows a party to take ownership of real estate from the record owner without express consent or compensation. Tran v. Macha, 213 S.W.3d 913, 915 (Tex. 2006) (per curiam). “Under Texas law, 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.’” Id. at 914 (citing Tex. Civ. Prac. & Rem. Code § 16.021(1) (West, Westlaw through 2017 1st C.S.)). In addition, the possession must be actual, visible, continuous, notorious, distinct, and must unmistakably indicate the adverse possessor’s assertion of a claim of exclusive ownership. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990). A record property owner must sue no later than ten years after the day the cause of action accrues to recover the property from an adverse possessor who cultivates, uses, or enjoys the property.[2] Tex. Civ. Prac. & Rem. Code § 16.026 (West, Westlaw through 2017 1st C.S.). C. DiscussionAlba moved for summary judgment claiming that he had sufficient evidence to conclusively negate, as a matter of law, that Reyes’s possession of the disputed property was hostile and exclusive.[3] To support his claim that Reyes’s possession was neither hostile nor exclusive as a matter of law, Alba attached a letter purportedly written by Reyes to John Wyckoff offering to purchase the disputed property in 2006. Alba also attached an affidavit from John Wyckoff authenticating the letter.John Wyckoff states in his affidavit that he “received a letter from Noe Reyes . . . on September 14, 2006,” wherein Reyes “offered to purchase the Property from me as the owner of the Property.” The letter dated September 14, 2006 states: Mr. Wyckoff,Here is a sketch of both of our properties. It is basically the same sketch I sent you some time back. I will try to get a broader sketch of where we are in respect to the other roads later. I could probably get approved for a loan from my bank to purchase all of your acreage if you would be interested in selling me this land. Perhaps a better idea for both of us is to have you finance the acreage for me, which of course, would earn you interest. But if you do not want to sell your property then maybe we can work on a lease for at least five acres that I can work on. Please think about it.Thank you, Noe Reyes[[4]]To support the trial court’s grant of summary judgment, Alba cites case law providing that a claim of adverse possession is defeated when an adverse possessor acknowledges during the ten-year period that title belongs to another. According to Alba, in the letter, Reyes acknowledged that John Wyckoff owned the disputed property because he asked to purchase the property. Thus, Alba argues Reyes’s adverse possession claim has been defeated as a matter of law. We disagree.Although it may well be that the letter can be construed in a way to support Alba’s claim that Reyes offered to buy the disputed property, in response to the traditional motion for summary judgment, Reyes denied that he wrote the September 14, 2006 letter, and he attached his affidavit denying that he had written the letter.[5] Specifically, in response to the traditional motion for summary judgment, Reyes stated that although he had sent a letter to John Wyckoff on June 11, 2004, he had not offered to purchase the disputed property. In his affidavit attached to his supplemental response, Reyes said,I deny the authenticity of a letter produced by Mr. John Wyckoff and deny the contents of said letter. The letter that I did send him only provided notice as to what I had been and was doing on his property. Such as that I was appropriating his land in an adverse and hostile fashion. That I was using the land for my own use. I never mentioned a bank, financing or a lease as the letter indicates. Additionally[,] the signature on the letter is not legible. The letter provided by John Wyckoff is not the same letter I sent him.Alba’s summary judgment relies on the authenticity of the September 14, 2006 letter and Wyckoff’s affidavit claiming that Reyes wrote it to support his assertion that Reyes’s possession of the disputed property was neither hostile nor exclusive. However, as stated above, Reyes provided an affidavit denying that he wrote the letter. Thus, the competing affidavits regarding the September 14, 2006 letter create a genuine issue of material fact regarding whether Reyes’s alleged possession of the disputed land was exclusive and hostile. Centeq Realty, Inc., 899 S.W.2d at 197. Accordingly, we conclude that Alba failed to establish as a matter of law that he was entitled to a traditional summary judgment, and summary judgment was improper. See Valence Operating Co., 164 S.W.3d at 661. We sustain Reyes’s first issue.[6]D. Unlawful OusterBy his fourth issue, Reyes contends that the trial court erroneously granted summary judgment in favor Alba on his unlawful ouster claim because Alba did not request such relief. We agree.“It is settled that ‘[a] court cannot grant summary judgment on grounds that were not presented.’” Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 609 (Tex. 2012); see G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (per curiam) (“Granting a summary judgment on a claim not addressed in the summary judgment motion therefore is, as a general rule, reversible error.”). Here, Alba did not move for summary judgment on Reyes’s unlawful ouster claim.[7] Therefore, the trial court granted more relief than requested, and the summary judgment is erroneous on that basis. See Fed. Deposit Ins. Corp., 361 S.W.3d at 609; see also G & H Towing Co., 347 S.W.3d at 297. We sustain Reyes’s fourth issue.[8]III. ConclusionWe reverse the trial court’s judgment and remand for further proceedings./s/ Rogelio ValdezROGELIO VALDEZ Chief JusticeDelivered and filed the 25th day of October, 2018.
