Ronald X. Gordon v. Flora Godsey--Appeal from 234th District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 01-07-00494-CV

Case Date: 12/20/2007

Plaintiff: Alan Julian Harper

Defendant: The State of Texas--Appeal from 178th District Court of Harris County

Preview:Ronald X. Gordon v. Flora Godsey--Appeal from 234th
District Court of Harris County
Opinion issued December 20, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00494-CV
RONALD X. GORDON, Appellant
V.
FLORA GODSEY, Appellee
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Cause No. 2004-20453
MEMORANDUM OPINION
Appellant, Ronald X. Gordon, challenges the trial court's final judgment, rendered after a bench trial, in favor of
appellee, Flora Godsey, in Gordon's suit for trespass to try title. In three issues, Gordon argues that the trial court erred
in entering judgment in favor of Godsey because the judgment "does not comport to the rules that govern a trespass to
try title proceeding," the trial court's "findings of fact and conclusions of law . . . ignored the truth," and the trial court
"admitted [that it] was not familiar with a trespass to try title proceeding," establishing "constitutional error."
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We affirm.
Factual and Procedural Background
In his original petition, Gordon alleged that Godsey fraudulently "deprived [him] from inheriting" real property located
in Houston. Godsey filed a response, in which she denied committing fraudulent acts and asserted that she had
purchased the property in question "ten years ago." Godsey further asserted that she had since "paid taxes and legally
made claim to said property." Godsey requested that the trial court enter a judgment in her favor for title and
possession of the property. Gordon subsequently filed a demand for "an abstract in writing of [Godsey's] claim or title
to the real property in question." Apparently in response to this demand, Godsey provided a signed letter reasserting
her claim that she had "purchased the willed property several years ago from [her] deceased mother-in-law, Alberta
Godsey ['Alberta']." Gordon subsequently filed a "motion to show defects in [Godsey's] title," asserting that Godsey
should be "precluded from filing any evidence of [her] claim to the land at trial." Gordon also asserted in this motion
that a recorded deed showed that he, by his relatives, was in prior possession of the land and that he was entitled to
"recover possession of the land under the theory of prior possession coupled with the fact Godsey has failed to show
proof of [her] claim to the land."
The trial court conducted a bench trial and received testimony from Gordon and Godsey. At trial, both parties agreed
that Quinn E. Gordon ("Quinn") had previously owned the property in dispute. Although no reporter's record was taken
at the bench trial, (1) the trial court summarized Gordon's and Godsey's testimony in its findings of fact and
conclusions of law. As recited by the trial court in its findings and conclusions, Gordon testified that Quinn's will had
been improperly probated in the wrong county, Gordon's father inherited the property through intestacy because the
will was improperly probated, and Gordon inherited the property when Gordon's father died intestate. Gordon did not
deny that Quinn had a will at the time of his death or that Quinn left the property to Alberta in his will. Gordon's claim
to the property was based on his argument that Quinn's will had been improperly probated. Contrary to Gordon's claim,
Godsey testified that Quinn had "transferred or willed" the property to Alberta, who was Quinn's caretaker during the
last years of Quinn's life. Godsey stated that she had subsequently purchased the property from Alberta and that she
had been paying taxes on the property for years.
The trial court found that Gordon had failed to establish "a prima facia case such as to shift the burden to [Godsey] to
provide evidence of title" and that Gordon had "not proven to the court beyond a preponderance of evidence that he
has a superior claim to the property either through a common source of title or through prior possession." Thus, the
trial court concluded that "proper title in the property is now vested in [Godsey]." See Wells v. Kansas Univ.
Endowment Ass'n, 825 S.W.2d 483, 486 (Tex. App.--Houston [1st Dist.] 1992, writ denied) (stating that, in trespass to
try title action, burden of proof is on plaintiff to establish superior title "by an affirmative showing of: (1) title
emanating from the sovereignty of the soil; (2) a superior title in himself emanating from a common source; (3) title by
adverse possession; or (4) title by prior possession coupled with proof that the possession has not been abandoned" and
that "[i]f the plaintiff fails to satisfy his burden of proof of superior title, the defendant is entitled to judgment without
proving any right of title of possession"); see also Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226, 226 (1961) (stating
that "[i]t has long been the rule in this State that in a trespass to try title suit, the plaintiff must recover upon the
strength of his own title" and that "[i]f the plaintiff under the circumstances fails to establish his title, the effect of a
judgment of take nothing against him is to vest title in the defendant"). The trial court rendered final judgment in favor
of Godsey, ordering that Gordon take nothing and that Godsey receive title and possession of the property. Trespass to
Try Title
In three issues, Gordon argues that the trial court erred in entering judgment in favor of Godsey because the judgment
"does not comport to the rules that govern a trespass to try title proceeding," the trial court's "findings of fact and
conclusions of law . . . ignored the truth," and the trial court "admitted [that it] was not familiar with a trespass to try
title proceeding," establishing "constitutional error." Within these three issues, Gordon also asserts that the trial court
erred in denying his request for a pretrial order that would have precluded Godsey from presenting any evidence at
trial, that the trial court's admission that it was not familiar with trespass to try title proceedings constituted an abuse of
discretion and established "judicial bias and prejudice," and that Quinn's will was fraudulently probated in the wrong
county.
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As we have recently noted, "[i]t is the burden of the appellant to bring forward a sufficient record to show the error
committed by the trial court." See Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.--Houston [1st Dist.]
2007, no pet.). If, as here, the trial court conducts a bench trial and enters findings of fact, and if the record on appeal
does not include the reporter's record from the bench trial, we must presume that the evidence presented at trial was
sufficient to support the trial court's findings and judgment. See Nelkin v. Panzer, 833 S.W.2d 267, 268 (Tex. App.--
Houston [1st Dist.] 1992, writ dism'd w.o.j.); see also Nicholson, 226 S.W.3d at 583 ( noting that, even when there are
no findings of fact, "[w]hen there is no reporter's record made . . . , we assume that the trial court heard sufficient
evidence to make all necessary findings in support of its judgment."); In re Mott, 137 S.W.3d 870, 877 (Tex. App.--
Houston [1st Dist.] 2004, no pet.) ("It is axiomatic that the person complaining about a matter in the trial court has the
burden to furnish the reviewing court the record demonstrating the matter about which the person is complaining.");
Aguero v. Aguero, 225 S.W.3d 236, 238 (Tex. App.--El Paso 2006, no pet.) ("The failure of appellant to provide this
Court with a record prevents us from reviewing the substance of the testimony actually presented . . . to determine if it
was improperly admitted by the trial court."; "[W]ithout a record, we are unable to determine if appellant has preserved
this issue for our review.").
Gordon agrees that a review of his issues, and sub-issues, requires consideration of the "facts and evidence" presented
during the trial proceedings. Moreover, it is undisputed that the trial court entered its findings of fact, conclusions of
law, and judgment only after conducting a bench trial and receiving testimony from the parties and other documentary
evidence. Yet, Gordon has failed to provide this Court with an official reporter's record from the bench trial
proceedings, setting forth the "facts and evidence" to which Gordon refers in his briefing and on which the trial court
based its findings, conclusions, and judgment. See Tex. R. App. P. 34.6. Because Gordon has failed to provide us with
a reporter's record from the bench trial, we must presume that the evidence presented at trial was sufficient to support
the trial court's findings and judgment. See, e.g., Nelkin, 833 S.W.2d at 268. Accordingly, we overrule Gordon's issues
to the extent they relate to the sufficiency of the evidence to support the trial court's judgment. See id.
To the extent that Gordon's appeal is not wholly resolved by his failure to file a reporter's record, we also reject
Gordon's complaint that the trial court erred in denying his request for a pretrial order precluding Godsey from
presenting any evidence at trial. A defendant in a trespass to try title action "may file only the plea of 'not guilty,'
which shall state in substance that he is not guilty of the injury complained of in the petition filed by the plaintiff
against him. . . ." See Tex. R. Civ. P. 788. "When a defendant pleads 'not guilty,' the defendant admits possession of
the subject property and claims a better title." Wells, 825 S.W.2d at 486. "The burden of proof is then on the plaintiff
to establish a superior title in himself by a preponderance of the evidence." Id. "Under Texas law, if the plaintiff does
not prove his title, the suit divests him of title and vests the title in the defendant." Smith v. Brooks, 825 S.W.2d 208,
210 (Tex. App.--Texarkana 1992, no writ). Moreover, it is well-settled that, in a trespass to try title action, a plaintiff
must "prevail on the superiority of his title, not on the weakness of a defendant's title." Martin v. Amerman, 133
S.W.3d 262, 265 (Tex. 2004) (citing Land v. Turner, 377 S.W.2d 181, 183 (Tex. 1964)); see also Wells, 825 S.W.2d at
486 ("The plaintiff in an action in trespass to try title must recover, if at all, on the strength of his or her own title and
may not rely on the weakness of the defendant's title).
Here, as recited by the trial court in its findings of fact and conclusions of law, Godsey's response constituted a plea of
"not guilty" under the rules. See Tex. R. Civ. P. 788. Contrary to Gordon's arguments, after Godsey filed her plea, it
was not incumbent upon her to prove her title. See Smith, 825 S.W.2d at 210. Even if we were permitted to review the
unofficial bench trial transcript contained in the clerk's record, the trial court noted in its findings of fact and
conclusions of law that Gordon failed to present evidence establishing that Quinn's will was improperly probated, that
Gordon would have inherited the property had Quinn's will not been improperly probated, or that Gordon had prior
possession of the property and had not abandoned the property. Thus, the trial court did not err in concluding that
Gordon never made "a prima facia case such as to shift the burden to [Godsey] to provide evidence of title" and that
Gordon had "not proven . . . beyond a preponderance of evidence that he has a superior claim to the property."
Finally, nothing in the record indicates that the trial court ever stated that it was unfamiliar with trespass to try title
proceedings or that, even if the trial court had made such a comment, Gordon timely objected to any such comment on
the grounds asserted on appeal. Thus, Gordon has waived any complaint that any such comment established "judicial
bias and prejudice." See Tex. R. App. P. 33.1; see also Aguero, 225 S.W.3d at 238.
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We overrule Gordon's first, second, and third issues. (2)
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Nuchia, Jennings, and Keyes.
1. Although the clerk's record contains a copy of what purports to be an "unofficial bench trial transcript" and the trial
court, in its findings of fact and conclusions of law, makes reference to a "trial transcript," no reporter's record was
filed with this Court. See Tex. R. App. P. 34.6. The court reporter in the underlying proceedings has filed a
certification with this Court that she was the only court reporter assigned to the underlying proceedings and that no
reporter's record was taken at the bench trial. Additionally, neither party makes any citation to a reporter's record in
their briefing.
2. To the extent that Gordon has attempted to raise any additional issues, we hold that those issues have been
inadequately briefed. See Tex. R. App. P. 38.1(h). For example, Gordon asserts in his briefing that the trial court's
actions denied him "equality under the law . . in violation of [his] inherent civil rights." Gordon also makes numerous,
passing references to constitutional rights, but he fails to cite appropriate authority or provide any comprehensible
argument as to how these cited concepts apply to the instant appeal. Thus, Gordon has waived these inadequately
briefed issues. See Tex. R. App. P. 33.1.
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