Heredia v. Zimprich

• Court: Texas Court of Appeals
• Writing for the Court: ANN CRAWFORD McCLURE, Chief Justice
• Citation: Heredia v. Zimprich, 559 S.W.3d 223 (Tex. App. 2018)
• Decision Date: 14 August 2018
• Docket Number: No. 08-15-00327-CV,08-15-00327-CV
• Parties: Juan HEREDIA and Flor Flores, Appellants, v. Michael ZIMPRICH, Appellee.

559 S.W.3d 223

Juan HEREDIA and Flor Flores, Appellants,

v.Michael ZIMPRICH, Appellee.

No. 08-15-00327-CV

Court of Appeals of Texas, El Paso.

August 14, 2018

Hon. James D. Lucas, Hon. Mark T. Davis, El Paso, for Appellants.

Hon. Michael Zimprich, for Appellee Zimprich, Michael.

Daniel Luevano, for Appellee Luevano, Daniel.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice

Juan Heredia and Flor Flores appeal a judgment finding in favor of Michael Zimprich on his trespass to try title claim and establishing the boundary between the parties' adjoining properties. We affirm.

FACTUAL SUMMARY

The dispute in this case is the correct boundary line between a residential property and a commercial property located in Socorro, Texas. Appellee, Michael Zimprich, filed a trespass to try title suit alleging that Appellants, Juan Heredia and Flor Flores¹ (collectively referred to as the Heredias), had built a wall inside of the boundary line on his property, and he sought to have it removed.

Prior to 2006, Antonio Martinez owned an undivided .6042-acre parcel of property known as Tract 5V, Block 27, Socorro Grant. A residence and a commercial building were located on the undivided parcel located at the corner of Dini Rozi Road and Socorro Road. The commercial property was located at 11685 Socorro Road and the residence behind it is located at 576 Dini Rozi Road.

The Socorro Road Commercial Property

In May 2005, Martinez sold a portion of the property with the commercial building on it to Carolina Aleman. In the latter part of 2005, Daniel and Margarita Luevano purchased the note on the Socorro Road commercial property from Martinez. On March 20, 2006, a professional registered land surveyor, Carlos Jiminez, surveyed the property and prepared a plat and description of the Dini Rozi Subdivision. The City of Socorro approved the Dini Rozi Subdivision plat on June 15, 2006, but the plat was not recorded in the real property records. The Subdivision Plat reflects that the previously undivided parcel is divided into two lots, with the Socorro Road commercial property designated Lot 1 and the Dini Rozi residential property designated Lot 2.

In February 2007, Aleman stopped making payments on the note, and the Luevanos accepted a deed in lieu of foreclosure. The Luevanos did not want to own the Socorro commercial property, so Mr. Luevano began looking for an investor to purchase it. Zimprich agreed to purchase the property, but they were unable to close the transaction because the title company required a survey. Mr. Luevano located the Dini Rozi Subdivision plat and took it to the title company, but the title company required that it be recorded. Mr. Luevano subsequently became aware that there was a problem with the metes and bounds, and the title company required that correction deeds be executed.

The Dini Rozi Residential Property

On April 26, 2006, Martinez sold the residential portion of the property to Marcella Betts. Betts sold the property to the Heredias on February 6, 2007, and in March 2007, the Heredias constructed a wall between their property and the Socorro commercial property then owned by Aleman. Mr. Heredia testified that they had a survey done when they bought the property and they built the wall along the boundary line between the properties. The Heredias did not introduce this survey into evidence.

The warranty deed dated February 6, 2007 contained the following description of the Heredias' property:

A 0.3209 acre portion of Tract SV, more or less, Block 27, SOCORRO GRANT, El Paso County, Texas, being more particularly described by Metes and Bounds as shown In Exhibit ‘A’ attached hereto and made a part hereof for all purpose [sic] intended.

Exhibit A attached to the warranty deed and referenced therein contained the following description of the property:

A portion of Tract 5V, Block 27, SOCORRO GRANT, in El Paso County, Texas, according to the resurvey of said SOCORRO GRANT made by El Paso County, Texas, for tax purposes, and being more particularly described by metes and bounds as follow [sic]:

Beginning at a set iron rod at the common boundary line of Tract 5V and Tract 5U, Block 27, also lying on the northerly right-of-way line of Dina [sic] Rozi Drive (50' R.O.W.) and being the POINT OF BEGINNING of the herein described parcel;

THENCE, leaving said northerly right-of-way line and along common boundary line, South 27°07'00", East a distance of 116.71 feet to a point;THENCE, leaving said common boundary line, South 62°30'00" West, a distance of 120.00 feet to a point;

THENCE, North 25°53'36" West, a distance of 117.54 feet to a point;

THENCE, North 62°53'00" East, a distance of 117.52 feet to the POINT OF BEGINNING of the herein described parcel and containing 0.3209 acres of land, more or less.

Based on this deed, the front property line length is 117.52 feet and the back property line is 120.00 feet. This legal description varies from the Dini Rozi Subdivision Plat because the Plat reflects that the front and back property line lengths are 109.45 feet.

Mr. Heredia testified that in March 2007, he and his wife went to the City of Socorro to apply for the permit to obtain water and gas utilities. The City of Socorro told them that they had to submit a survey and "do a lot split with the City of Socorro" because a lot split had not been recorded. On August 1, 2007, the Heredias signed the Dini Rozi Subdivision Plat thereby agreeing to the plat and its description of the two properties. When Mr. Luevano approached them later and presented the Correction Deed for their signature, the Heredias believed that it was related to the discussion they had in March 2007 with the City of Socorro. Mr. Luevano represented to them that the Correction Deed was for a lot split.

The Correction Deed contains the following description of 576 Dini Rozi:

A 0.3209 acre portion of Tract 5V, more or less, Block 27, SOCORRO GRANT, El Paso County, Texas, being more particularly described by Metes and Bounds as shown In Exhibit ‘B’ attached hereto and made a part hereof for all purpose [sic] intended.

Exhibit B to the Correction Deed is signed by the surveyor, Carlos Jiminez, and is dated June 5, 2007. It states the following:

METES AND BOUNDS DESCRIPTION576 Dina [sic] Rozi DriveExhibit "B"

FIELD NOTE DESCRIPTION of a parcel of land being a Portion of Tract 5V, Block 27, Socorro Grant, (To be known as Lot 2, Block 1, Dini Rozi Subdivision), El Paso County, Texas and being more particularly described by metes and bounds as follows:

COMMENCING FOR REFERENCE at a found iron rod located at the common boundary line of Tracts 5U and 5V, same being the southerly right-of-way line of Dina [sic] Rozi Drive (50' R.O.W.) and being the POINT OF BEGINNING of the herein described parcel;

THENCE, leaving said southerly right-of-way line and along said common boundary line, South 27°07'00" East, a distance of 116.71 feet to a set iron rod for corner;

THENCE, leaving said common boundary line, South 62°30'00" West, a distance of 109.45 feet to a set iron rod for corner;

THENCE, North 27°07'00" West, a distance of 117.44 feet to a set iron rod for corner;

THENCE, North 62°53'00" East, a distance of 109.45 feet to the POINT OF BEGINNING of the herein described lot and containing 12,813.45 square feet or 0.2941 Acres of land more or less.

The Correction Deed stated on the first page that the land conveyed was .3209 acres, but the size of the lot was actually .2941 acres as a result of the metes and bounds correction. The Correction Deed recites that Marcella Betts and the Heredias signed the Correction Deed before a notary on October 30, 2007. The Heredias testified that they signed the Correction Deed but a notary was not present. When the correction deed was filed among the deed records, it had been notarized by a notary public from New Mexico. Mr. Luevano could not recall how the correction deed came to be notarized.

On January 17, 2008, Zimprich purchased the Socorro commercial property from Luevano. Zimprich made improvements to the property consisting of septic lines on the parcel in dispute. By the same token, the Heredias made improvements on the disputed portion of the parcel for approximately three years before Zimprich filed suit in 2011 alleging a trespass to try title claim and seeking judgment that the Heredias remove the rock wall. The Heredias filed a counterpetition alleging a suit to quiet title and a third party claim against Mr. Luevano for fraud.²

After trial began, the Heredias refinanced their home and signed a deed of trust, filed of record under Document No. 201150034302 in the real property records of El Paso County, Texas, containing the same legal description as that contained in the Correction Deed and with the same boundaries as those listed on the Dini Rozi Subdivision Plat. Zimprich asserted in his second amended petition that the Heredias should be estopped from disputing the metes and bounds of their property because they had signed the Dini Rozi Subdivision Plat and the Correction Deed.

The trial court determined that Zimprich is the owner of the parcel in question and the wall constructed by the Heredias is on the Zimprich property. The court ruled in favor of the Heredias on their fraud claim against Mr. Luevano, finding that he committed fraud by failing to inform the Heredias that the Correction Deed was conveying land away from their homestead. In addition to establishing the metes and bounds of the Heredias' property, the trial court ordered Zimprich to pay for the removal and rebuilding of the wall on the correct property line, to pay for costs associated with relocating water, sewer, and electric lines that belong to the Heredias' property, and to reimburse the Heredias for the costs of landscaping completed on the disputed parcel. The court also ordered Mr. Luevano to pay damages to the Heredias in the amount of $11,250.

Zimprich and the Heredias filed notices of appeal from the trial court’s judgment,...