The Deed was not done for just $10, and parol evidence was not barred to show that the "other valuable consideration" had not been paid

Lopez v. Rivas, 

No. 01-14-00592-CV (Tex. App. - Houston [1st Dist] Apr. 30, 2015) 

In an opinion issued April 30, 2015, a panel of the First Court holds that the parol evidence rule did not bar testimony regarding an oral promise by one sibling and his spouse to pay the other two siblings $20,000 each for their respective shares of a house valued at $60,000 that they had jointly inherited from their parents. 

The general warranty deed recited that the conveyance was done for $10 dollars and other good and valuable consideration. 

General Warranty Deed: Recitation of Consideration 

In a memorandum opinion written by Justice Huddle, the panel holds that the testimony about the nature of this "other" valuable consideration did not contradict the language in the deed, and further holds that evidence of want or failure of consideration would be admissible anyhow. 
   
As for the acknowledgment of receipt and sufficiency thereof recited in the deed, the court concludes that it pertained to the promise to pay the $20,000 each, rather than the actual payment thereof. Therefore, the trial court did not err in entering judgment against the sibling who took the house and did not compensate the others for their respective shares. 
  
The liability of the sibling's spouse is not discussed separately. Huddle adds in a footnote that the statute of frauds had not been invoked as an affirmative defense to enforcement of the oral agreement regarding the two $20,000 payments for the two siblings' shares of the property.

Opinion issued April 30, 2015

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-14-00592-CV

———————————

HUMBERTO LOPEZ, JR. AND OLGA LOPEZ, Appellants

V.

MAYRA RIVAS AND LINDA LOPEZ, Appellees

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Case No. 2011-32028

MEMORANDUM OPINION

Appellees Mayra Rivas and Linda Lopez conveyed, by a general warranty

deed, their respective one-third interests in their deceased parents’ property to their

brother and sister-in-law, Appellants Humberto Lopez, Jr. and Olga Lopez. Two

years later, Mayra and Linda sued Humberto and Olga, asserting that Humberto

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and Olga orally promised to pay them each $20,000, plus interest, for their

interests in the property in addition to the consideration of $10 recited in the deed.

After a bench trial, the trial court entered a final judgment awarding Mayra and

Linda damages in the amount of $20,000 each, plus interest. In their sole issue on

appeal, Humberto and Olga contend that the judgment must be reversed because

the parol evidence rule bars the trial court from considering Mayra and Linda’s

testimony concerning Humberto and Olga’s oral promise that contradicts the

express terms of the deed. We affirm.

Background

Humberto Lopez, Sr. and Delia Lopez were married and owned a home at

7833 Dayton Street in Houston, Texas. After their death, the Dayton Street

property devolved to their three surviving children—Mayra, Linda, and Humberto.

Each of the three siblings executed an “Affidavit of Distributees” in which they

stated that they each received a one-third interest in the property, which they

valued at $60,000.

Mayra and Linda conveyed their interests in the Dayton Street property to

Humberto and Olga by general warranty deed in April 2009. The deed recites that

Mayra and Linda granted, sold, and conveyed the Dayton Street property to

Humberto and Olga “for and in consideration of the sum of TEN AND NO/100

DOLLARS ($10.00) and other good and valuable consideration to the Grantor in

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hand paid by Humberto Lopez and Olga Lopez . . . the receipt and sufficiency of

which is hereby acknowledged.”

Two years later, in May 2011, Mayra and Linda sued Humberto and Olga,

asserting breach of agreement, fraud in a real estate transaction, restitution, and

seeking attorney’s fees.1

According to Mayra and Linda, Humberto and Olga

orally agreed but failed to pay Mayra and Linda each $20,000 within one year, plus

3.5 percent interest for their respective interests in the property. Mayra and Linda

alternatively requested that in the event the trial court could not enforce their oral

agreement, the trial court restore the ownership interests they held before executing

the deed.2

The trial court conducted a bench trial at which Mayra and Linda were the

sole witnesses. They each testified that before signing the deed, Humberto and

Olga had agreed to pay Mayra and Linda each $20,000 within one year, plus 3.5

percent interest, and that they signed the deed in reliance on this promise to pay.

 1 Mayra and Linda also asserted a vendors lien under their “foreclosure” claim and

requested that the trial court (1) order Appellants to provide an inventory of all

inherited personal property and (2) “account for such personal property” that they

“took possession of after their mother’s death [and was] no longer in Defendants’

possession . . . .”
2 Mayra and Linda also requested that (1) the trial court order Humberto and Olga to

provide Mayra and Linda with an “accounting of all rental income and expenses

from the Property since June 22, 2008, and to award [Mayra and Linda] two-thirds

of the net rental income from the property” and (2) the trial court enter a

temporary injunction enjoining Humberto and Olga “from spending or using for

their own, personal benefit any of net rental income derived from the rental or

lease of the Property.” 

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Mayra and Linda also both testified that Humberto and Olga admitted that they

were attempting to secure financing to make good on their oral promise.

Specifically, Mayra and Linda testified that they received the following letter in

which Humberto and Olga’s attorney stated:

Dear Mayra and Linda: March 2, 2011
It is my understanding that it will take several more weeks to
complete and fund the loan, as the broker is still shopping for the best
deal for them. Humberto wants to thank you for your patience and
understanding . . . . As soon as they obtain the loan, all of you will sit
down together to discuss how to amicably resolve any unresolved
issues with your mother’s estate.

The trial court admitted the letter.

On April 15, 2014, the trial court entered a final judgment in favor of Mayra

and Linda. The judgment states: “as a result of [Humberto and Olga’s] breach of

contract and fraud in a real estate transaction, [Mayra and Linda] have sustained

damages and that [Mayra and Linda] should recover damages and costs from

[Humberto and Olga] jointly and severally.” The trial court awarded Mayra and

Linda attorney’s fees and ordered Humberto and Olga, jointly and severally, to pay

Mayra and Linda $20,000 each with prejudgment interest at 3.5 percent interest

and post-judgment interest at 5 percent. Humberto and Olga filed a motion for

new trial, which was overruled by operation of law. See TEX. R. CIV. P. 329b(c).

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Discussion

In their sole issue on appeal, Humberto and Olga contend that the trial court

erred in admitting parol evidence of an oral promise to contradict or vary the terms

of the general warranty deed. They argue that this error requires reversal because

it “was the only evidence offered in support of the trial court’s judgment.”

A. Standard of Review and Applicable Law

When parties reduce an agreement to writing, the law of parol evidence

presumes, in the absence of fraud, accident, or mistake, that any prior or

contemporaneous oral or written agreements merged into the final written

agreement. See DeClaire v. G & B Mcintosh Family Ltd. P’ship, 260 S.W.3d 34,

45 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Any provisions not set out in

the writing are presumed to have been abandoned before execution of the

agreement or, alternatively, they are presumed to have never been made. Id.

Likewise, the parol evidence rule provides that the terms of a written contract

cannot be contradicted by evidence of an earlier, inconsistent agreement. Baroid

Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App.—Houston [1st

Dist.] 2005, pet. denied).

The parol evidence rule is not a rule of evidence, but a rule of substantive

contract law. Jarvis v. K & E Re One, LLC, 390 S.W.3d 631, 638 (Tex. App.—

Dallas 2012, no pet.). Its applicability is a question of law that we review de novo.

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Audubon Indem. Co. v. Custom Site–Prep, Inc., 358 S.W.3d 309, 316 (Tex. App.—

Houston [1st Dist.] 2011, pet. denied).

B. Analysis

Humberto and Olga contend that the deed expressly states that the agreedupon

consideration was $10. Therefore, they argue, the parol evidence rule bars

consideration of evidence to contradict or vary that term. They contend that the

statement in the deed that the consideration’s “sufficiency . . . is hereby

acknowledged” supports their claim that the trial court could not consider evidence

of the oral promise.3

 In contrast, Mayra and Linda contend that the trial court

properly admitted parol evidence to show the amount of consideration referenced

in the deed by the words “other good and valuable consideration.” We agree with

Mayra and Linda.

The parol evidence rule does not bar evidence of a consistent collateral

agreement. Ledig v. Duke Energy Corp., 193 S.W.3d 167, 179 n.10 (Tex. App.—

Houston [1st Dist.] 2006, no pet.). Thus, parol evidence may be used to clarify or

explain the agreement. Tex. Builders v. Keller, 928 S.W.2d 479, 481 (Tex. 1996).

In addition, we may consider parol evidence “‘to show want or failure of

consideration, and to establish the real consideration given for an instrument.’”

Audubon, 358 S.W.3d at 316 (quoting DeLuca v. Munzel, 673 S.W.2d 373, 376

 3 We note that Humberto and Olga did not raise the statute of frauds as a defense in

the trial court or on appeal.

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(Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.)); see McLernon v.

Dynergy, Inc., 347 S.W.3d 315, 335 (Tex. App.—Houston [14th Dist.] 2011, no

pet.) (“[P]arol evidence is admissible to show want or failure of consideration and

establish the actual consideration given for the instrument.”). Thus, we may

consider parol evidence “to determine if consideration exists even though the

parties have reduced their agreement to a writing which appears to be a completely

integrated agreement.” Audubon, 358 S.W.3d at 316 (internal quotations and

citations omitted).

Here, we conclude that Mayra and Linda’s testimony concerning the oral

promise was admissible to show the actual consideration given for the deed

because it did not contradict or vary the deed’s terms. The deed states that, in

addition to $10, “other good and valuable consideration” was given for the deed.

Deeds ordinarily embody such recitals of nominal consideration and “other good

and valuable consideration.” See, e.g., Averyt v. Grande, Inc., 717 S.W.2d 891,

898 (Tex. 1986); Tatum v. Tatum, No. 14-11-00622-CV, 2012 WL 1795112, at

*2–3 (Tex. App.—Houston [14th Dist.] May 17, 2012, no pet.); Troxel v. Bishop,

201 S.W.3d 290, 294 (Tex. App.—Dallas 2006, no pet.). Therefore, evidence that

establishes what the “other” consideration was is admissible to establish the true

consideration given in the consistent collateral agreement and does not contradict

or vary the terms of the deed. See ERI Consulting Eng’rs, Inc. v. Swinnea, 318

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S.W.3d 867, 875–76 (Tex. 2010) (testimony of consideration was proper under

exception to parol evidence rule because “if the parties agreed that the lease

obligation was to be additional consideration for the buyout, then such an

agreement was a consistent collateral agreement. Nothing in such an agreement

would contradict the written contracts.”); Deluca, 673 S.W.2d at 376 (parol

evidence admissible to explain provision of release concerning consideration);

Tarrant v. Schulz, 441 S.W.2d 868, 869–70 (Tex. Civ. App.—Houston [14th Dist.]

1969, writ ref’d n.r.e.) (where deed recited consideration of “$10 and other good

and valuable consideration . . . parol evidence was admissible to show the true

consideration or that there was no consideration given”).

Humberto and Olga rely on Johnson v. Driver, 198 S.W.3d 359 (Tex.

App.—Tyler 2006, no pet.), to support their contention that evidence of the oral

promise was inadmissible. In Johnson, the defendant argued that the deed, which

stated that the property was “granted, sold, and conveyed” “in consideration of ten

dollars and other valuable consideration,” evidenced a gift. Id. at 361. The court

of appeals held that the appellant could not introduce parol evidence to show that

the conveyance was a gift, rather than a sale, where appellant did not argue

ambiguity. Id. at 363–64. But, here, Mayra and Linda did not offer parol evidence

to prove that the conveyance was a gift; rather, they offered evidence to show that

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the phrase “other consideration” in the deed referred to a consistent collateral

agreement. See id. Accordingly, Johnson does not support reversal here.

Humberto and Olga also contend that evidence of the oral promise was

inadmissible because the words “the receipt and sufficiency of which is hereby

acknowledged” “memorialize[d] the grantor’s admission that the consideration,

while not disclosed, was nevertheless satisfactory.” According to Humberto and

Olga, these words also mean that Mayra and Linda acknowledged receipt of all the

consideration they were provided and, therefore, no consideration can be

outstanding. But, as Mayra and Linda point out, the consideration that was

deemed sufficient and of which receipt was acknowledged was the promise to pay

Mayra and Linda each $20,000 plus interest for their respective interests in the

property. Therefore, we conclude that the phrase “the receipt and sufficiency of

which is hereby acknowledged” does not render evidence of the oral promise

inadmissible. We hold that the trial court did not err in admitting Mayra and

Linda’s evidence of Humberto and Olga’s oral promise.

We overrule Appellants’ sole issue.

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Conclusion

We affirm the judgment of the trial court.

Rebeca Huddle

Justice

Panel consists of Justices Jennings, Higley, and Huddle.

THE STATUTE OF FRAUDS WAS  NOT RAISED IN THE ANSWER 

CASE STYLE ON APPEAL: Humberto Lopez, Jr. and Olga Lopez v. Mayra Rivas and Linda Lopez., No. 01-14-00592-CV (Tex. App. - Houston [1st Dist] Apr. 30, 2015) (Memorandum Opinion by Justice Rebeca Huddle) 

TRIAL COURT CASE INFO:  Mayra Rivas and Linda Lopez vs. Humberto Lopez, Jr. and Olga Lopez; Harris County District Clerk Cause No 2011-32028; Judgment for Plaintiffs signed by Judge Patricia J. Kerrigan, presiding judge of the 190th District Court,

Was the property purchased or merely rented by defendant who assumed payments on the mortgage?

Deed declared void ab initio. Summary judgment for original owner affirmed.

Kindsfather v. Green (Tex.App.- Houston [1st Dist.] May 22, 2008)(Taft) (real estate law, summary judgment in ownership dispute, title dispute, validity of deed, forged deed, trespass to try title, conversion, adverse possession, real esate transactions statute of frauds)

MEMORANDUM OPINION

Appellant, Ray Kindsfather (“Kindsfather”), appeals from a summary judgment rendered in favor of appellee, Frank Green (“Green”). We determine whether the trial court erred in rendering summary judgment because either (1) Kindsfather provided the court with sufficient evidence of fact issues to preclude traditional summary judgment or (2) Kindsfather produced sufficient evidence to raise a genuine issue of material fact to preclude a no-evidence summary judgment. We affirm.

Background

In November of 1987, Green acquired the property that is the subject of this suit. In May of 1995, Kindsfather moved onto the property with, he alleges, the understanding that he was purchasing the property by assuming Green’s mortgage and making a $5,000 payment to Green. In contrast, Green contends that his agreement with Kindsfather provided for Kindsfather only to rent the property, with Green maintaining ownership.

It is undisputed that Kindsfather made all of Green’s mortgage payments beginning in May of 1995 until the mortgage was paid in full in early 2005. In addition to paying the mortgage in full, Kindsfather asserts that he made at least $40,000 worth of improvements to the property.

Upon learning that the mortgage had been fully paid, Green discovered that Kindsfather was listed as the record owner of the property under a deed that purported to convey the property from Green to Kindsfather. Using this deed, Kindsfather had applied for and was given a home equity loan in 2003 in the amount of $96,000. There is a dispute as to whether there had been any contact between Kindsfather and Green from the time that Kindsfather moved onto the property until August of 2005, when Green sent Kindsfather a “notice and demand to vacate” letter.

On August 15, 2005, Green filed suit, asserting claims of trespass to try title, theft, and conversion and seeking declaratory judgment on the validity of the deed. On October 12, 2005, Kindsfather responded by general denial and also asserted the defenses of title by adverse possession, statute of limitations, laches, estoppel, unclean hands, and the statute of frauds and alleged claims of breach of contract, quantum meruit, and declaratory judgment.

Green moved for both traditional and no-evidence summary judgment. See Tex. R. Civ. P. 166a(c) (traditional); Tex. R. Civ. P. 166a(i) (no-evidence). The trial court granted the motion and issued certain declarations pursuant to Green’s request for declaratory relief. Specifically, the court declared that the special warranty deed purporting to transfer title of the property from Green to Kindsfather was forged and that, due to the forgery, the deed was invalid and void ab initio. The trial court declared that the property belonged to Green, that Green was entitled to possession of the property, and that Kindsfather had no title or interest in the property. The trial court also awarded damages in Green’s favor.

Standard of Review

To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). A plaintiff moving for summary judgment on its claim must establish its right to summary judgment by conclusively proving all the elements of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Anglo-Dutch Petroleum Int’l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

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. Tex. R. Civ. P. 166a(i). The trial court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. Id. “We review a no-evidence summary judgment by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences.” Patriacca v. Frost, 98 S.W.3d 303, 306 (Tex. App.—Houston [1st Dist.] 2003, no pet.). A trial court improperly renders a no-evidence summary judgment if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex. App.—Houston [1st Dist.] 2000, no pet.). More than a scintilla of evidence exists when the evidence “would allow reasonable and fair-minded people to differ in their conclusions.” Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003).

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

A. Traditional Summary Judgment

In his second motion for summary judgment, Green presented evidence to support his causes of action against Kindsfather, including his trespass to try title claim and Texas Theft Liability Act claim, and to establish his right to a declaratory judgment as to the validity of the deed over the property in dispute. Specifically, Green presented evidence that Kindsfather forged a deed purporting to convey the property from Green to Kindsfather and that Kindsfather refused to vacate when Green tried to remove him from the property. Green also presented evidence that Kindsfather used the forged deed to obtain a loan against the property, which resulted in a larger lien on the property and a loss of at least $30,000 in equity in the property.

1. Ownership of the Property

In his first point of error, Kindsfather contests the trial court’s granting of Green’s motion for summary judgment because Kindsfather presented evidence “that he had acquired ownership of the property through limitations, or adverse possession, or by contract.” He further argues that, if he did not establish a greater right to ownership of the property than Green’s right, he is nevertheless entitled to recover in quantum meruit for the improvements made to the property. We address each of these issues in turn.

a. Green’s Entitlement to Summary Judgment on Kindsfather’s Claims of Ownership by Deed

(1) Transfer by Deed

In his first point of error, Kindsfather argues that he “created a fact issue by showing that Green had agreed to sell [Kindsfather] the property” by transferring the property to him by deed.

Green put forth summary judgment evidence of his original deed to the property, which he filed in Harris County in November 1987, as well as Kindsfather’s 2004 deed. In addition to this evidence, Green presented an affidavit signed by the notary public who authenticated Kindsfather’s 2004 deed. In this affidavit, the notary public stated that Kindsfather was the only person who appeared before him on the day that he notarized the 2004 deed, Kindsfather’s name was the only name legible on the acknowledgment, and “Frank C. Green and” must have been added after he had placed his signature and seal on the deed.

Kindsfather does not admit or deny that he altered the deed or that Green signed the deed.
[Kindsfather asserts the Fifth Amendment to all questions regarding the forgery.] Kindsfather thus fails to raise a fact question as to whether he has a superseding deed. Therefore, no fact issue is raised as to ownership of the property by Green under the 1987 deed and Green’s evidence that the 2004 deed was forged.

(2) Transfer by Written Agreement

Kindsfather contends that his alleged agreement to purchase the property, despite the absence of a valid deed transfer, is a writing sufficient to overcome the statute of frauds and, alternatively, that he meets an exception to the statute of frauds because he made partial performance on the agreement, occupied the property, and made improvements to the property. Therefore, he argues, his assertion of a claim to the property is not barred by lack of a valid contract conveying the property to him, nor is it time-barred by the lapse of time between the creation of the contract in 1995 and his assertion of title to the property in 2004.

The statute of frauds provides that an agreement for the sale of real estate must be in writing. Tex. Bus. & Com. Code Ann. § 26.01(b)(4) (Vernon Supp. 2007). The writing must contain all of the essential elements of the agreement, “so that the contract can be ascertained from the writings without resorting to oral testimony.” Cohen v. McCutchin, 565 S.W.2d 230, 232 (Tex. 1978). Kindsfather presented no writing that could overcome the statute of frauds. Kindsfather points to the loan-assumption papers as an adequate writing to defeatthe statue of frauds, but such papers are not part of the record.

Furthermore, Kindsfather does not establish an exception to the statute of frauds. He cites Choi v. McKenzie as supporting his assertion that an exception applies. There are three elements for partial performance to act as an exception to the statute of frauds: (1) payment of consideration, (2) possession, and (3) improvements to the property that would make the transaction a fraud if not enforced. Choi v. McKenzie, 975 S.W.2d 740, 743 n.2 (Tex. App.—Corpus Christi 1998, pet. denied). Although Kindsfather contends that he made an agreement to purchase the property from Green for his assumption of the mortgage and $5,000, he admits that the $5,000 was never paid, and he does not present evidence of improvements that would make the transaction a fraud if not enforced.

In the last part of his first point of error, Kindsfather argues that he providedbenefits to Green for which he is entitled to compensation in the form of $40,000worth of improvements to the property. Kindsfather cites no authority to support thisargument, nor does he provide any record citations. We decline to consider thischallenge because it is inadequately briefed. See Tex. R. App. P. 38.1(h); Stephensv. Dolcefino, 126 S.W.3d 120, 130 (Tex. App.—Houston [1st Dist.] 2003), pet.denied, 181 S.W.3d 741 (Tex. 2005). We note that parties who represent themselvespro se must comply with all applicable laws and rules of procedure and are held to the same standards as are licensed attorneys. See Mansfield State Bank v. Cohn, 573S.W.2d 181, 184–85 (Tex. 1978); Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex.App.—Houston [1st Dist.] 1985, no writ).

There is no evidence of an agreement for the sale of the property to Kindsfather that satisfies the statute of frauds and no evidence that an exception to the statute of frauds would obviate the need for a contract of sale. Thus, Kindsfather failed to raise a fact issue as to whether Green agreed to sell him the property.

(3) Transfer by Adverse Possession

Kindsfather argues that he filed two affidavits, his own and that of Debbie Daniels, which were some evidence that Kindsfather agreed to sell him the property in return for $5,000 and Kindsfather’s assumption of the mortgage, that Green signed the assumption papers, that Kindsfather occupied the property “openly and with the intent to appropriate” it, and that Kindsfather made more than $40,000 in improvements on the property. Kindsfather contends on appeal that this evidence raises a fact issue on his defense of adverse possession.

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.” Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1) (Vernon 2002); Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990). A person seeking to establish title to land by virtue of the statute of limitations relating to adverse possession has the burden of proving every fact essential to that claim by a preponderance of the evidence. Rhodes, 802 S.W.2d at 645.

The true meaning of “hostile” in the context of adverse possession refers to whether the claim is inconsistent with the rights of the true owner. Taub v. Houston Pipeline Co., 75 S.W.3d 606, 626 (Tex. App.—Texarkana 2002, pet. denied) (noting that claim is hostile when acts performed by claimant and use made of land are of nature and character that would reasonably notify true owner of adverse claim). There is no legal requirement that personal animosity be present. However, the statute requires visible appropriation; “mistaken beliefs about ownership do not transfer title until someone acts on them.” Tran v. Macha, 213 S.W.3d 913, 914 (Tex. 2006) (citing Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985)). In other words, there must be adverse possession, not just adverse beliefs. See id.

Although the relationship between Kindsfather and Green is disputed (landlord/tenant or seller/owner), the evidence shows conclusively that Kindsfather was occupying the property with Green’s permission. Kindsfather presented evidence that he believed he was purchasing the property rather than leasing it. However, it is uncontested that Kindsfather took no action inconsistent with his agreement with Green that could be construed as “visible appropriation” (because the use was consistent with Green’s permission) from the time he took possession of the property in 1995 until at least 2003, when the special warranty deed was notarized and Kindsfather took out a loan against the property. Thus, Kindsfather presented no evidence to raise a genuine issue of material fact on his defense of adverse possession. We overrule point of error one.

B. No-Evidence Summary Judgment

Kindsfather’s second point of error states, in its entirety:

To overcome a No-Evidence Motion for Summary Judgment, it is incumbent on the nonmovant to produce more than a scintilla of evidence to raise an issue of fact on the challenged allegations. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003); Boales v. Brighton Builders, 29 S.W.3d 159 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The discussion of the facts as recited in Point One shows that Kindsfather has met this burden.

Because Kindsfather relies upon the same arguments that we overruled in our discussion of his point of error one, we overrule point of error two.

C. Off-Set for Improvements

In his third point of error, Kindsfather argues that he provided evidence of substantial improvements and repairs that he made to the property in dispute and “provided a fact issue as to his claims of unjust enrichment, quantum meruit, estoppel, and damages resulting from Green’s breach of contract.” He contends that this evidence should be used “as a recovery or set-off against Green.” We decline to consider this challenge because it contains no legal argument or references to legal authority and is, therefore, inadequately briefed. See Tex. R. App. P. 38.1(h); Stephens v. Dolcefino, 126 S.W.3d 120, 130 (Tex. App.—Houston [1st Dist.] 2003), pet. denied, 181 S.W.3d 741 (Tex. 2005). We overrule point of error three.

Conclusion

We affirm the judgment of the trial court.

Tim Taft
Justice

Panel consists of Justices Taft, Keyes, and Alcala.