Virginia Gregory v. Karen MacAllister ( 2006 )

  





NUMBER 13-05-230-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

VIRGINIA GREGORY, Appellant,

v.

KAREN MACALLISTER, Appellee.

On appeal from the County Civil Court at Law No. 1

of Harris County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Castillo, and Wittig Memorandum Opinion by Justice Wittig ⁽¹⁾

Virginia Gregory appeals an adverse jury verdict concerning three hundred fifty- four feet of back yard. Gregory defended the suit for possession of real property and trespass to try title claim on the basis of the ten years adverse possession statute. Her next door neighbor Karen MacCallister, appellee, was plaintiff. Gregory also counterclaimed for damages resulting from a water leak which she also lost at trial. In three issues, Gregory challenges the factual sufficiency, any award of attorney's fees, and the lack of the ten day notice requirement for recovery of attorney's fees. We will affirm the judgment of the trial court.

1. Factual Sufficiency

The parties are familiar with the procedural and factual background of the case which will not be reiterated. Tex. R. App. P. 47.4. Gregory and MacCallister were neighbors. After receiving an unusually large water bill, MacCallister investigated but could not find the leak. The water line was located on the other side of her fence. Gregory informed MacCallister the leak was on her side of the fence. After fixing the leak, MacCallister went about to have her fence removed from its encroachment onto her property. This lawsuit ensued. The jury found in favor of MacCallister on her claim and against Gregory on her counter claim. The jury also awarded MacCallister attorney's fees separately for both trial and appeal.

In her first issue Gregory argues that the jury's refusal to find in her favor on the limitations issue is against the great weight and preponderance of the evidence. In conducting a factual sufficiency review, we view all the evidence in a neutral light to determine whether the contested finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761-62 (Tex. 2003).

Gregory argues MacCallister's predecessor in title "knowingly gave up the disputed area" when he built a new fence several feet inside his property line. Accordingly he knowingly abandoned the disputed area and there was no need to put Gregory on notice of the adverse possession claim. No authority is cited for this proposition. Later Gregory's predecessor filed a complaint with the city because of a rain spout on Gregory's side of the fence causing water drainage damage. The city cited Gregory's neighbor and ordered the MacCallister predecessor to stop damaging the property. Gregory cites Flack v. First Nat. Bank of Dalhart, 148 Tex. 495, 226 S.W.2d 628, 632 (Tex.1950) (the rule more precisely stated, knowledge will be imputed and may be implied from circumstances when the matters known in which he is interested are sufficient to require an honest and prudent person to investigate the rights of others, and diligent investigation will lead to discovery of any conflicting right). However, this case involves priority of liens and who owned some unbranded cows. Id. at 630.

Gregory also cites BarclaysAmerican/Business Credit, Inc. v. E & E Enterprises, Inc., 697 S.W.2d 694 (Tex.App.--Dallas 1985)(no writ). ⁽²⁾ This UCC case is not particularly helpful to appellant. Discussing the type of notice required, the court held the purpose of the section is to protect the rights of an account debtor vis-a-vis an assignee of the original creditor and concluded that, to fully protect those rights, actual notice of the assignment is required. Id. at 699. Neither is this case in point.

Appellant Gregory's argument is based upon her factual claim that MacCallister's predecessor knowingly abandoned his property and necessarily had notice of an adverse claim because of the city's action in ordering the removal of the rain spout. Therefore this 1992 action by the city meant MacCallister was already time barred when she filed suit in 2004. See TEX. CIV. PRAC. & REM.CODE ANN. § 16.026(a), (Vernon 2005) (suit must be brought not later than 10 years after cause of action accrues to receive property held in peaceable and adverse possession). Accordingly, Gregory's title to the disputed area matured at least two years before suit and the jury's finding is against the great weight and preponderance of the evidence.

MacCallister disagrees. She first points out that occupation of the disputed area was not exclusive because her water pipes and meter were on her deeded land, mainly on the Gregory side of the fence. The fence was erected to protect MacCallister's predecessor's daughter from Gregory's predecessor's dogs. The MacCallister predecessor did not abandon any property because he is the one that took down the old fence in the later 1980's and moved the new fence back a few feet. Rather, she argues, Gregory mistakenly believed she could own the several feet of property left outside the replacement fence. There was never any appropriation of the real property, and Gregory's entry upon the property was permissive. Gregory did use the property for growing grass and a garden, hardly hostile activities, citing Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985) (mowing the grass and planting flowers does not constitute a hostile character of possession sufficient to give notice of an exclusive adverse possession nor does maintaining a hedge). We agree. See also Terrill v. Tuckness, 985 S.W.2d 97, 109 (Tex.App.--San Antonio 1998, no pet) (test for hostility 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). Whether possession is hostile and continuous are questions of fact. Id.

The trial court correctly instructed the jury on the question of a "casual fence." Texas courts distinguish between casual fences and those that designedly enclose a land area. Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex. 1990) (if fence existed before the claimant took possession of the land and the claimant fails to demonstrate the purpose for which it was erected, then the fence is a "casual fence"). The only evidence of the purpose of the fence was to protect children from dogs.

Viewing all the evidence in a neutral light, we cannot conclude that the contested finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. Golden Eagle Archery, Inc., 116 S.W.3d at 761-62. This issue is overruled.

2. Attorney's Fees

In her issues two and three, Gregory argues no attorney's fees should be awarded, and in any event no proper notice was given on this claim. Gregory correctly suggests that attorney's fee are not recoverable in a trespass to try title case. Musquiz v. Marroquin, 124 S.W.3d 906, 913 (Tex.App.--Corpus Christi 2004, pet denied) (attorney's fees are not recoverable when the real essence of the suit is one in trespass to try title); Southwest Guar. Trust Co. v. Hardy Road 13.4 Joint Venture, 981 S.W.2d 951, 957 (Tex.App.--Houston [1^st Dist.] 1998, pet denied) (attorney's fees are not available in a suit to quiet title or to remove cloud on title). However, MacCallister points out that other statutory authority allows recovery of attorney's fees. TEX. CIV. PRAC. & REM.CODE ANN. § 16.034, (Vernon 2005) (suit for possession of real property); see Clements v. Corbin, 891 S.W.2d 276, 281 (Tex.App.-Corpus Christi 1994 (writ denied)(prevailing party in suit for possession between record title holder and one claiming by adverse possession may be entitled to attorney's fees).

Gregory counters that the required ten day written notice to the person unlawfully in possession was not given. TEX. CIV. PRAC. & REM.CODE ANN. § 16.034(b) (Vernon 2005). Gregory argues notice was infirm because it was not sent until October 29, 2004, twenty days before trial and therefore eight months late. The record confirms that the 2004 letter was indeed late. However, MacCallister, through her attorneys, sent a certified letter October 10, 2003, requesting "Ms. Gregory immediately remove the fence from the MacAllister property." Further, Gregory made no objections at trial to either the admission of evidence concerning attorney's fees or the submission of the matter to the jury other than fees were not statutorily authorized. Error, if any, was waived. McShane v. Bay Area Healthcare Group, Ltd., 174 S.W.3d 908, 917, (Tex.App.--Corpus Christi 2005, pet filed) (to preserve error, objection must be made or error, if any, is waived); Greenberg Traurig of New York, P.C. v. Moody, 161 S.W.3d 56, 81 (Tex.App.--Houston [14th Dist.] 2004, no pet) (to preserve error, a party must timely object to the submission of an improper question, instruction, or definition); see also TEX. R. CIV. P. 274. Gregory's two issues addressing attorney's fees are overruled.

The judgment of the trial court is affirmed.

   DON WITTIG,

Justice

Memorandum Opinion delivered and

filed this the 19th day of October, 2006.  

1. Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon Supp. 2004).

2. Gregory provides no pin cite.