Hestia Management, LLC, Hestia Investments, Ltd., and Troy Tucker v. Bernard Klimist and Laura Stuart

NUMBER 13-24-00431-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

HESTIA MANAGEMENT, LLC,
HESTIA INVESTMENTS LTD., AND
TROY TUCKER, Appellants,

v.

BERNARD KLIMIST AND
LAURA STUART, Appellees.

ON APPEAL FROM THE 135TH DISTRICT COURT
OF CALHOUN COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Cron
Memorandum Opinion by Justice West
The trial court granted summary judgment in favor of appellees Bernard Klimist

and Laura Stuart (the Klimists) 1 on their claims for trespass to real property and trespass

to try title and granted their motion for summary judgment rejecting appellants Hestia

Management, LLC, Hestia Investments, Ltd. (together, Hestia) and Troy Tucker’s

(Tucker) adverse possession affirmative defense. Hestia and Tucker argue they

established a genuine issue of material fact as to each element of adverse possession.

Because we agree, we reverse and remand.

I. BACKGROUND

The Klimists have owned a .727 acre lot in Port O’Connor, Texas, since 1997.

Tucker has owned—via his businesses—an adjoining .299 acre lot since 2005. 2 The rear

boundaries of the lots are situated along the Louisiana and Texas Intracoastal Waterway,

and each lot contains a house. Tucker attested by affidavit that sometime in 2006, he

constructed a stone retaining wall between the properties as depicted below:

1 We note that while the caption on appellee’s trial court live pleading bears the name “Laura

Stuart,” the body provides “Laura Klimist.”

2 In 2007, Tucker’s company, Edde Drilling Company, Inc., purportedly sold the lot to another one

of Tucker’s companies, Hestia Management, LLC. In 2009, a correction deed was executed rectifying the
grantee from Hestia Management, LLC to Hestia Management, Ltd.

2
In 2020, Tucker replaced the stone retaining wall with a concrete retaining wall.

The Klimists disputed the location of the retaining wall. Surveys from each party revealed

the retaining wall encroaches the Klimists’ lot by up to nine and a half inches in some

areas.

The Klimists filed a lawsuit against Tucker and Hestia for trespass to real property

and trespass to try title (fashioned as a declaratory judgment action). 3 Tucker and Hestia

3 Tucker and Hestia did not raise whether the trespass to try title claim at issue could be adjudicated

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answered, asserting adverse possession as an affirmative defense. Subsequently, the

Klimists filed a traditional motion for summary judgment on their trespass to real property

claim and Tucker and Hestia’s affirmative defense. The Klimists attached the following as

summary judgment evidence: (1) deeds related to the lots at issue and a neighboring lot;

(2) a March 2020 letter wherein Bernard informed Tucker and Hestia that he had a

surveyor mark the property line, and he planned to erect a fence; (3) surveys from both

parties showing the retaining wall encroachment; (4) a neighboring lot survey, and

(5) Bernard’s affidavit.

Tucker responded and attached the following as summary judgment evidence:

(1) his own affidavit, (2) photos of the former stone and current concrete retaining walls,

(3) Calhoun County subdivision regulations, and (4) the Klimists’ survey. Tucker attested

that he originally erected the retaining wall to “protect [his p]roperty from erosion” and

“mark the boundary between the two properties.” He also attested that he “intended the

retaining wall to serve, in part, as notice to the world that all the land up to and underneath

the wall belonged to” his company. He further attested that he exclusively used the

disputed property for more than ten years, the Klimists could see the retaining wall, 4 and

the Klimists never contested such use until 2020. He additionally attested that “[t]he

retaining wall is essential to the structural integrity of [his] house.” He attached photos of

the former stone retaining wall and the current concrete retaining wall that depict a lower

grade on the Klimist side of the retaining wall and a higher grade on the Tucker side.

as declaratory judgment action, and thus we do not address it.

4 To the extent such statement is objectionable, that issue is not before us.

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Additionally, structures on the Tucker lot appear near the retaining wall, including

(1) columns upholding stairs and an elevated deck and (2) a house.

The Klimists replied and attached a new affidavit from Bernard, photos of the lots,

and plans related to Tucker and Hestia’s backyard pool.

Ultimately, the trial court entered an order granting the Klimists’ motion; denying

Tucker and Hestia’s affirmative defense “as a matter of law;” and adjudicating the property

boundary line, relief unavailable under the trespass to real property claim moved upon. 5

And later, for unknown reasons, the trial court entered a “FINAL DECLARATORY

JUDGMENT” that again denies Tucker and Hestia’s affirmative defense and adjudicates

the property boundary line but also finds there is a trespass. This appeal followed.

II. STANDARD OF REVIEW & APPLICABLE LAW

“We review grants of summary judgment de novo.” First United Pentecostal

Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). In de novo review, we

exercise our own discretion and grant no deference to the trial court’s decision. Vaughn

v. Vaughan, 710 S.W.3d 412, 418 (Tex. App.—Eastland 2025, pet. denied) (citing Quick

v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998)). If a plaintiff moves for summary

judgment in which the defendant has pled an affirmative defense, the plaintiff is entitled

to summary judgment if he demonstrates there is no genuine material factual issue on

each element of his claim, unless the defendant demonstrates a genuine material fact

issue regarding each element of his affirmative defense. Fortitude Energy, LLC v. Sooner

5 To the extent the trial court may have erroneously granted more relief than requested, Tucker

and Hestia did not raise such issue, and we do not address it. See G & H Towing Co. v. Magee, 347 S.W.3d
293, 298 (Tex. 2011) (holding that “[w]hen a trial court grants more relief than requested and, therefore,
makes an otherwise partial summary judgment final, that judgment, although erroneous, is final and
appealable[; t]he court of appeals should treat such a summary judgment as any other final judgment,
considering all matters raised and reversing only those portions of the judgment based on harmful error”).
5
Pipe LLC, 564 S.W.3d 167, 180 (Tex. App.—Houston [1st Dist.] 2018, no pet.); Barrand,

Inc. v. Whataburger, Inc., 214 S.W.3d 122, 143 (Tex. App.—Corpus Christi–Edinburg

2006, pet. denied); Bauer v. Jasso, 946 S.W.2d 552, 555 (Tex. App.—Corpus Christi–

Edinburg 1997, no writ). Where a genuine issue of material fact is raised by the

nonmovant on each element of his affirmative defense, summary judgment is precluded.

Barrand, Inc., 214 S.W.3d at 143; Bassett v. Am. Nat. Bank, 145 S.W.3d 692, 699 (Tex.

App.—Fort Worth 2004, no pet.). To determine if a genuine issue of material fact exists,

“we take as true all evidence favorable to the non-movant, indulge every reasonable

inference in favor of the non-movant, and resolve any doubts in the non-movant’s favor.”

Parker, 514 S.W.3d at 219. “The evidence raises a genuine issue of material fact if

reasonable and fair-minded jurors could differ in their conclusions in light of all of the

summary judgment evidence presented.” City of Stephenville v. Belew, 692 S.W.3d 347,

361 (Tex. App.—Eastland 2024, pet. denied) (citing Goodyear Tire & Rubber Co. v.

Mayes, 236 S.W.3d 754, 755 (Tex. 2007)).

To prevail on trespass to try title, the plaintiff must prove “the title he claims to the

disputed property by: (1) a regular chain of conveyances from the sovereign; (2) a

superior title out of a common source; (3) title by limitations (i.e., adverse possession); or

(4) prior possession that has not been abandoned.” Seager v. Fry, 707 S.W.3d 452, 464

(Tex. App.—Eastland 2025, no pet.). To prevail on trespass to real property, the plaintiff

must prove “(1) entry (2) onto the property of another (3) without the property owner’s

consent or authorization.” Keenan v. Robin, 709 S.W.3d 595, 600 (Tex. 2024) (quoting

Env’t Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 414, 419 (Tex. 2015)). As

a claim of superior title against the owner of record, adverse possession is an affirmative

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defense to trespass to real property and trespass to try title. See TEX. CIV. PRAC. & REM.

CODE ANN. § 16.030(a) (“If an action for the recovery of real property is barred [by the

limitations statute related to adverse possession], the person who holds the property in

peaceable and adverse possession has full title, precluding all claims.”); Rife v. Kerr, 513

S.W.3d 601, 616 (Tex. App.—San Antonio 2016, pet. denied) (treating adverse

possession as an affirmative defense to trespass to try title); Bauer, 946 S.W.2d at 555

(treating adverse possession as an affirmative defense to trespass to real property); see

also AIC Management v. Baker, No. 01-02-01074-CV, 2003 WL 22724629, at *1 (Tex.

App.—Houston [1st Dist.] Nov. 20, 2003, pet. denied) (mem. op.) (treating adverse

possession as an affirmative defense); Griffin v. Watley, No. 07-99-0285-CV, 2001 WL

257801, at *2 (Tex. App.—Amarillo Mar. 15, 2001, no pet.) (mem. op.) (same).

Adverse possession is “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). Relevant

to this case, under the ten-year limitations statute, “a person must bring suit not later than

10 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(a). If an action for the recovery of real property is barred by the

foregoing statute, “the person who holds the property in peaceable and adverse

possession has full title, precluding all claims.” Kazmir v. Benavides, 288 S.W.3d 557,

561 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing TEX. CIV. PRAC. & REM. CODE

ANN. § 16.030(a)).

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To prevail under the ten-year limitations statute, a person must prove that his or

his predecessor’s possession of the disputed property was actual and visible; adverse

and hostile; open and notorious; peaceable; exclusive; and involved continuous

cultivation, use, or enjoyment for ten years. See Castillo v. Luna, 640 S.W.3d 256, 260

(Tex. App.—Houston [14th Dist.] 2021, pet. denied); NAC Tex Hotel Co. v. Greak, 481

S.W.3d 327, 331–32 (Tex. App.—Tyler 2015, no pet.); Kazmir, 288 S.W.3d at 561; Kinder

Morgan N. Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 438 (Tex. App.—Texarkana

2006, no pet.); see also Barbosa v. Galan, No. 04-23-00020-CV, 2024 WL 946238, at *2

(Tex. App.—San Antonio Mar. 6, 2024, pet. denied) (mem. op.); Fletcher v. Merritt, No.

13-22-00186-CV, 2023 WL 5520822, at *4 (Tex. App.—Corpus Christi–Edinburg Aug. 28,

2023, no pet.) (mem. op.). “Whether adverse possession has been established is

ordinarily a question of fact.” Estrada v. Cheshire, 470 S.W.3d 109, 123 (Tex. App.—

Houston [1st Dist.] 2015, pet. denied) (citing Bywaters v. Gannon, 686 S.W.2d 593, 595

(Tex. 1985)); Kazmir, 288 S.W.3d at 561 (citing same).

III. DISCUSSION

Tucker and Hestia argue that they established a genuine issue of material fact as

to each element of their adverse possession affirmative defense, precluding summary

judgment on the Klimists’ claims. For the reasons below, we agree.

A. Actual and Visible

“Actual” and “visible” are not defined by the adverse possession statute. See TEX.

CIV. PRAC. & REM. CODE ANN. § 16.021. We therefore give them their ordinary meaning.

See Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 563 (Tex. 2014). “Actual” means

“existing in fact or reality.” See Actual, MERRIAM-WEBSTER, https://www.merriam-

8
webster.com/dictionary/actual (last visited November 10, 2025); see also McDuff v.

Brumley, No. 07-17-00248-CV, 2022 WL 3154818, at *5 (Tex. App.—Amarillo Aug. 8,

2022, pet. denied) (mem. op.). “Visible” means “capable of being seen.” See Visible,

MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/visible (last visited

November 10, 2025); see also McDuff, 2022 WL 3154818, at *5.

Here, Tucker’s affidavit avers that the stone retaining wall existed, beginning in

2006. The affidavit further provides that the Klimists could see the retaining wall, and a

photo attached to the affidavit depicts the visibility of the stone retaining wall. Thus, a

reasonable factfinder, accepting Tucker and Hestia’s evidence as true, could conclude

that Tucker and Hestia’s possession was actual and visible. See Actual, MERRIAM-

WEBSTER, https://www.merriam-webster.com/dictionary/actual (last visited November 10,

2025); Visible, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/visible

(last visited November 10, 2025); see also McDuff, 2022 WL 3154818, at *5.

B. Adverse and Hostile

“Hostile” refers to possession that is “inconsistent with the rights of the true owner,”

and it does not require that the possessor and the true owner were hostile to one another

personally. Villarreal v. Guerra, 446 S.W.3d 404, 413 (Tex. App.—San Antonio 2014, pet.

denied) (citing Tran v. Macha, 213 S.W.3d 913, 915 (Tex. 2006)). Hostile possession

“does not require an intention to dispossess the rightful owner, or even [knowledge] that

there is one.” Kazmir, 288 S.W.3d at 564; Tran, 213 S.W.3d at 915; see also W. Harbour,

LLC v. Orleans Harbour Homeowners Ass’n, No. 14-23-00249-CV, 2024 WL 4850326, at

*10 (Tex. App.—Houston [14th Dist.] Nov. 21, 2024, pet. filed) (mem. op.). There must

merely be “an intention to claim property as one’s own to the exclusion of all others.” Tran,

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213 S.W.3d at 915; Kazmir, 288 S.W.3d at 564; see also W. Harbour, LLC., 2024 WL

4850326, at *10.

Here, Tucker’s affidavit provides that he erected a stone retaining wall in 2006 on

the disputed area, and the wall remained there continuously until he replaced it with a

concrete wall in 2020. A photo attached to the affidavit depicts higher grade and

residential improvements on Tucker and Hestia’s side of the retaining wall. The affidavit

further provides that Tucker built the retaining wall to prevent erosion and establish the

property boundary, and the retaining wall supports the structural integrity of Tucker and

Hestia’s house. Tucker and Hestia’s conduct did not need to demonstrate that they knew

the disputed area belonged to the Klimists or anyone else. See Tran, 213 S.W.3d at 915;

Kazmir, 288 S.W.3d at 564; see also W. Harbour, LLC, 2024 WL 4850326, at *10. Their

conduct must have merely demonstrated an intention to exclude others from using the

area disputed. See Tran, 213 S.W.3d at 915; Kazmir, 288 S.W.3d at 564; see also W.

Harbour, LLC, 2024 WL 4850326, at *10. Accepting Tucker’s evidence as true, a

factfinder could reasonably and fairly conclude that a stone retaining wall preventing

erosion of land and structurally supporting nearby residential improvements is sufficient

to satisfy the hostile and adverse element. See Villarreal, 446 S.W.3d at 413 (citing Tran,

213 S.W.3d at 915).

i. Counterargument

The Klimists cite various cases as support for their argument that appellees failed

to raise a genuine issue of material fact as to the element of hostile possession. See

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Castillo, 640 S.W.3d at 260; Tran, 213 S.W.3d at 915; Ellis v. Jansing, 620 S.W.2d 569,

571 (Tex. 1981). These cases, however, are distinguishable.

In Castillo, the court of appeals reversed the trial court’s adverse possession

finding following a trial where the claimant testified that (1) her dad used to park a car in

a garage partly existing on the disputed area, and (2) she and her siblings, when living

with their parents, would host friends and family who would park on the disputed area.

640 S.W.3d at 262. The appellate court held such evidence failed to establish that the

disputed area was continuously used for the full ten-year statutory period. Id. at 264–65.

Taking Tucker’s evidence as true in this case, we conclude that there was evidence that

the retaining wall existed at all times from 2006 until the present.

In Tran, the appellate court found that the adverse possession claim failed because

the litigants’ predecessors in interest were relatives who “shared use” of the disputed

area. Id. Taking Tucker’s evidence as true in this case, the parties did not “share” the

disputed land because Tucker attested that he held exclusive and uncontested

possession. And notably, the Tran court provided that while “building a structure on

property may be sufficient evidence of adverse possession . . . . the record here shows

only that [the claimant’s predecessor] used the driveway and garage, not that she built

them.” Id. at 915. Here, Tucker attested that he built the encroaching retaining wall.

And in Ellis, the Texas Supreme Court held that where a claimant testified that he

did not intend to claim any property other than that described in his deed, there was no

evidence of adverse possession. 620 S.W.2d at 571. In contrast, Tucker’s affidavit

provides that he “intended the retaining wall to serve, in part, as notice to the world that

all the land up to and underneath the wall belonged to” his company.

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Thus, we reject the Klimists’ argument.

C. Open and Notorious

Our jurisprudence long ago established that the focus of the open and notorious

element is notice: “[i]f there is no verbal assertion of claim to the land brought to the

knowledge of the landowner, the adverse possession must be so open and notorious and

manifested by such open or visible act or acts that knowledge on the part of the owner

will be presumed.” Orsborn v. Deep Rock Oil Corp., 267 S.W.2d 781, 787 (Tex. 1954).

Today, our test is “whether the 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 asserted to the property.” Greak, 481

S.W.3d at 332 (citing Masonic Bldg. Ass’n of Houston, Inc. v. McWhorter, 177 S.W.3d

465, 472 (Tex. App.—Houston [1st Dist.] 2005, no pet.)); Bernal v. Chavez, 198 S.W.3d

15, 19 (Tex. App.—El Paso 2006, no pet.); Cherokee Water Co. v. Freeman, 145 S.W.3d

809, 817 (Tex. App.—Texarkana 2004, pet. denied). Here, Tucker proffered photos

clearly depicting the retaining wall, differing grade on each side, and adjoining residential

improvements. His affidavit provided that the retaining wall structurally supports his

house, has remained in place since 2006, and he continuously used and maintained the

disputed area exclusive of others. Thus, a rational and fair-minded factfinder, accepting

Tucker and Hestia’s evidence as true, could conclude that Tucker and Hestia’s

possession sufficiently provided reasonable notice to the Klimists of a hostile claim and

was thus open and notorious. See id.

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i. Counterargument

The Klimists cite McAllister v. Samuels and argue that because Tucker’s retaining

wall encroachment is a mere nine and a half inches wide, it did not provide reasonable

notice as a matter of law. See 857 S.W.2d 768, 777 (Tex. App.—Houston [14th Dist.]

1993, no writ). In McAllister, an encroachment of nine inches was found insufficient to

provide reasonable notice. Id. However, the encroachment was a mere fence and the

adverse use alleged was grazing. Id. When the sole encroachment is a fence and the use

asserted is grazing, Texas law requires that a successful adverse possession claim

include proof that the fence was a designed enclosure rather than a causal fence. Wells

v. Johnson, 443 S.W.3d 479, 490 (Tex. App.—Amarillo 2014, pet. denied) (citing Rhodes

v. Cahill, 802 S.W.2d 643, 646 (Tex. 1990)). Under such inquiry, if the fence existed

before the claimant took possession of the disputed area and he fails to demonstrate the

purpose for which it was erected, then the fence is a casual fence. Id. In McAllister, the

evidence demonstrated that the parties’ predecessors in interest erected the encroaching

fence by agreement for the purpose of keeping children and pets out. 857 S.W.2d at 772,

777. In contrast, the present case does not involve a mere fence but a retaining wall. It

was not built by agreement. And taking Tucker and Hestia’s evidence as true, it was built

by Tucker for the purpose of preventing erosion and marking the property boundary.

Furthermore, the Klimists conceded on appeal that the casual fence doctrine is

inapplicable in the present case. See Seager, 707 S.W.3d at 470 (citing McDonnold v.

Weinacht, 465 S.W.2d 136, 142 (Tex. 1971) (holding the casual fence doctrine applies

only “when the sole claim of a right to ownership is through grazing”)); see also Kothmann

ex rel. Kody Kothmann 1992 Irrevocable Tr. v. Menzies, No. 04-21-00451-CV, 2022 WL

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2960225, at *4 (Tex. App.—San Antonio July 27, 2022, no pet.) (mem. op.) (same); KB

Tex. Invs., LLC v. Spiller, No. 01-16-00068-CV, 2017 WL 372164, at *10 (Tex. App.—

Houston [1st Dist.] Jan. 26, 2017, no pet.) (mem. op.) (holding the casual fence doctrine

does not apply to residential neighborhood disputes). 6

The Klimists also cite Bywaters and assert that Tucker and Hestia failed to provide

“notice of hostile intent.” See 686 S.W.2d at 594. In Bywaters, a hedge was originally

planted by the developer on the edge of a lot. Id. After that lot was purchased by the

claimant, the hedge grew out and veered onto the neighboring lot. Id. The claimant

averred adverse possession over the area containing the hedge. Id. The Bywaters court

found that maintaining, clipping, preserving, watering, and nurturing the existing hedge

was insufficient to establish adverse possession. Id. at 595. However, in Julien v. Baker,

our sister court distinguished Bywaters by highlighting that the Julien claimant presented

sufficient evidence of hostile intent where she personally planted a hedge encroaching

the neighboring lot for the purpose of marking the property line. 758 S.W.2d 873, 877

(Tex. App.—Houston [14th Dist.] 1988, writ denied). Similarly in the present case, Tucker

attested that he erected the encroaching retaining wall for the purpose of marking the

property’s boundary. See id.

The Klimists cite Hoffman v. Mena, asserting that the mere erection of a fence

“does not disclaim or negate [one’s] ownership of . . . property outside the fenced area

No. 03-19-00409-CV, 2021 WL 2460637, at *4 (Tex. App.—Austin June 17, 2021, no pet.)

(mem. op.). However, the Hoffman court rejected the claimant’s adverse possession claim

6 The Klimists cite Johns v. Grantom which also involves the casual fence doctrine, and thus we

do not address it herein. See No. 14-21-00266-CV, 2023 WL 4357432, at *1 (Tex. App.—Houston [14th
Dist.] July 6, 2023, no pet.) (mem. op.).
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because the claimant had not created the wooden fence at issue between the parties’

properties. See id. Instead, the evidence showed that the record owner built the fence,

and she built the fence prior to the claimant’s moving in next door and for the purpose of

keeping the previous neighbor’s dog from seeing and attacking her rabbit. Id. Taking

Tucker and Hestia’s evidence as true in the present case, Tucker built the retaining wall

to prevent erosion and mark the property boundary. See id.

Thus, we reject the Klimists’ arguments.

D. Peaceable

“Peaceable possession” refers to “possession of real property that is continuous

and is not interrupted by an adverse suit to recover the property.” TEX. CIV. PRAC. & REM.

CODE ANN. § 16.021(3). Here, Tucker’s affidavit avers that the stone retaining wall

remained continuously from the time he erected it in 2006 until the time he replaced it

with a concrete retaining wall in 2020. Tucker’s affidavit further provides that the Klimists

never expressed a concern about the property boundary until 2020. Thus, a reasonable

and fair-minded factfinder, accepting Tucker and Hestia’s evidence as true, could

conclude that Tucker and Hestia held the disputed area in peaceable possession. See id.

E. Exclusive

Joint use is insufficient; a claimant’s possession of property “must be of such

character as to indicate unmistakably an assertion of a claim of exclusive ownership in

the occupant.” Tran, 213 S.W.3d at 914 (quoting Rhodes v. Cahill, 802 S.W.2d 643, 645

(Tex. 1990)); Seager, 707 S.W.3d at 469. Here, Tucker’s affidavit provides that he has

possessed the disputed area in the manner discussed supra exclusively and that his

possession was never challenged or complained of. Tucker’s affidavit further provides

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that the first time Klimist expressed concern about the property line was in 2020 when

Tucker was replacing the stone retaining wall with the concrete retaining wall. Thus, a

rational and fair-minded factfinder, accepting Tucker and Hestia’s evidence as true, could

conclude that Tucker and Hestia possessed the disputed area exclusively.

F. Continuous cultivation, use, or enjoyment for ten years

“The character of use required to establish adverse possession varies with the

nature of the land and with its adaptability to a particular use.” Kazmir, 288 S.W.3d at 561.

“The adverse possession claimant need only use the land for some purpose to which it is

adaptable, and in the same manner an ordinary owner would use the property.” Id.

Here, Tucker’s affidavit provides that he built the stone retaining wall in 2006 and,

for more than ten years, he continuously used and maintained the disputed area. It further

provides that the retaining wall was built to prevent erosion and mark the property

boundary. A photo attached to the affidavit shows differing grades on each side of the

retaining wall with a higher grade on the Tucker side. The affidavit also provides that the

retaining wall supports the structural integrity of the house. The photo additionally depicts

near the retaining wall (1) columns supporting stairs and an elevated deck, and (2) a

house. Further, Tucker’s lot is .299 acres and contains a house on it; the Klimists’ lot is

.727 acres and contains a house on it. Both properties sit along the Louisiana and Texas

Intracoastal Waterway in Port O’Connor. A rational and fair-minded factfinder, accepting

Tucker and Hestia’s evidence as true, could determine that the erection of a retaining wall

that prevents erosion and supports residential improvements is a use for which an

ordinary owner may employ on residential waterfront lots and thus that Tucker and Hestia

continuously cultivated, used, or enjoyed the disputed area for ten years. See id.

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IV. CONCLUSION

We find Tucker and Hestia raised a genuine issue of material fact as to each

element of their adverse possession affirmative defense to the Klimists’ claims. See

Parker, 514 S.W.3d at 219; Belew, 692 S.W.3d at 361. The trial court erred by granting

summary judgment in favor of the Klimists. See Fortitude Energy, LLC, 564 S.W.3d at

180; Barrand, Inc., 214 S.W.3d at 143; Bassett, 145 S.W.3d at 699; Bauer, 946 S.W.2d

at 555. Thus, we reverse the trial court’s judgment and remand the case for further

proceedings.

JON WEST
Justice

Delivered and filed on the
11th day of December, 2025.

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