Mohnke v. Greenwood

• Decision Date: 11 January 1996
• Docket Number: No. 14-94-01032-CV,14-94-01032-CV
• Parties: Pauline MOHNKE, Appellant, v. Wanda M. GREENWOOD, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 585

915 S.W.2d 585

Pauline MOHNKE, Appellant, v. Wanda M. GREENWOOD, Appellee.

No. 14-94-01032-CV.

Court of Appeals of Texas Houston (14th Dist.).

Jan. 11, 1996.

Michael Donald Stull, Houston, Victoria H. Gallagher, Tomball, for appellant.

William T. Green, III, Houston, for appellee.

Before YATES, FOWLER and O'NEILL, JJ.

OPINION

O'NEILL, Justice.

This is an appeal by Pauline Mohnke and her family (the "Mohnkes") ¹ from a trial before the court that resulted in a take-nothing judgment in favor of appellee, Wanda M. Greenwood ("Greenwood"). At issue is the ownership of an approximate 0.016 acre strip of land in Harris County, Texas. The Mohnkes raise twelve points of error on appeal. We affirm.

I. BACKGROUND

In 1967, the Mohnkes purchased an approximate 99 acre tract of land. At that time a barbed wire fence surrounded the property. The fence was put up in 1961 to replace a fence that had been there since before 1930. In connection with their purchase, the Mohnkes hired Robert M. Atkinson, Sr. ("Atkinson") to prepare a survey. The survey set the boundary of the property at the fence line. The Mohnkes used the land to graze cattle. In the late 1960's the Mohnkes planted Loblolly pines inside the perimeter of the barbed wire fence.

In 1988, Greenwood purchased a 5.5 acre tract that abutted the Mohnkes' land to the east. In connection with her purchase Greenwood, too, had the land surveyed. Greenwood's surveyor, Thomas G. Robinson ("Robinson"), marked a different boundary, which showed that the barbed wire fence was encroaching onto the Greenwood property. Greenwood tore down that part of the barbed wire fence that encroached on her land, and constructed a wooden fence approximately eight feet to the west of where the barbed wire fence had stood.

The Mohnkes brought suit against Greenwood to establish the correct boundary and for adverse possession. They also claimed the boundary was established by acquiescence. Greenwood responded that the true boundary was where she placed her fence that there was no boundary by agreement and that a cause of action did not lie for adverse possession. After a trial to the bench, the court rendered judgment in favor of Greenwood. Both parties submitted proposed findings of fact and conclusions of law. On August 24, 1994, the court signed findings and conclusions supporting the judgment in favor of Greenwood.

Appellants bring twelve points of error contending that the evidence was legally and factually insufficient to support the trial court's findings. Appellants also assert error in the trial court's alleged failure to make additional findings of fact and conclusions of law, and in his failure to award them attorney's fees.

II. STANDARD OF REVIEW

Findings of fact in a case tried to the court have the same force and dignity as a jury's verdict. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.). However, a trial court's findings of fact are not conclusive when a complete statement of facts appears in the record, as it does here. See Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.--Houston [14th Dist.] 1985), writ ref'd n.r.e. per curiam, 699 S.W.2d 199 (Tex.1985). A trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing the evidence supporting a jury's verdict. Criton Corp. v. Highlands Ins. Co., 809 S.W.2d 355, 358 (Tex.App.--Houston [14th Dist.] 1991, writ denied); Zieben v. Platt, 786 S.W.2d 797, 799 (Tex.App.--Houston [14th Dist.] 1990, no writ).

When confronted with both legal and factual sufficiency points, we must first examine the legal sufficiency point. Texmarc Conveyor Co. v. Arts, 857 S.W.2d 743, 745 (Tex.App.--Houston [14th Dist.] 1993, writ denied). An appellant attacking the legal sufficiency of an adverse finding on an issue on which it has the burden of proof must demonstrate on appeal that the evidence conclusively establishes all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); Smith v. Central Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex.App.--Houston [14th Dist.] 1989, writ denied). In reviewing a "matter of law" point, the reviewing court employs a two prong test. The court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner, 767 S.W.2d at 690. If there is no evidence to support the finding, the reviewing court must then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. If the proposition asserted by the appellant is established as a matter of law, the point of error will be sustained.

When a party who has the burden of proof attacks the factual sufficiency of the evidence to support an adverse finding, he must demonstrate that the finding is against the great weight and preponderance of the evidence. Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex.App.--Amarillo 1988, writ denied). In reviewing such a challenge, the appellate court must examine the entire record, Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986), and set aside the verdict only if it is so contrary to the overwhelming weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); Zieben, 786 S.W.2d at 799. The findings of fact must be upheld if there is more than a scintilla of evidence to support them. Stedman v. Georgetown Sav. & Loan Ass'n, 595 S.W.2d 486, 488 (Tex.1979).

When undertaking a factual sufficiency review, the court of appeals may not set aside fact findings merely because it could have drawn different factual findings and legal conclusions from the evidence. First Baptist/Amarillo Found. v. Potter County Appraisal Dist., 813 S.W.2d 192, 196 (Tex.App.--Amarillo 1991, no writ). The appellate court cannot retry the case or otherwise substitute its judgment or opinion for that of the trier of fact. Baptist Memorial Hosp. Sys. v. Smith, 822 S.W.2d 67, 81 (Tex.App.--San Antonio 1991, writ denied). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and the appellate court should not act as a thirteenth juror in assessing the evidence and the credibility of the witnesses. Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.).

III. REQUEST FOR ADDITIONAL FINDINGS AND CONCLUSIONS

In their first point of error, appellants argue that the trial court erred in not making additional findings of fact and conclusions of law. Appellee responds that this point is waived because appellants did not make a proper request for additional findings and conclusions. We agree.

The trial court signed the Final Judgment in favor of Greenwood on July 15, 1994. The appellants became concerned that their proposed findings of fact and conclusions of law and proposed judgment had been misfiled and had therefore not been considered by the court. Because of this concern the appellants, on July 27, 1994, filed a motion to reconsider. The motion requested the court to "reconsider the Judgment which the court entered on July 15, 1994, taking into account the proposed Findings of Fact and Conclusions of Law filed by BOTH parties to the suit." Approximately one month later, on August 24, 1994, the trial court signed its Findings of Fact and Conclusions of Law. The record reflects no request by appellants for additional findings or conclusions.

While the trial court is required to make additional findings of fact and conclusions of law on ultimate issues when they are timely requested, it is not required to do so when there is no request after the judge has issued his findings and conclusions. Finch v. Finch, 825 S.W.2d 218, 221 (Tex.App.--Houston [1st Dist.] 1992, no writ); Lutz v. Lutz, 508 S.W.2d 955 (Tex.Civ.App.--Houston [1st Dist.] 1974, no writ). We decline to recognize appellants' motion to reconsider, filed before the court issued its findings, as a proper request for additional findings. Point of Error Number One is therefore waived.

IV. DETERMINATION OF BOUNDARY

In their second point of error, appellants challenge the trial court's finding that their survey did not conclusively establish the true boundary as the barbed wire fence. Although appellants challenge the trial court's finding as a matter of law and request this court to reverse and render, the point of error asserts that the finding was against the great weight and preponderance of the evidence, a factual insufficiency point. We will therefore address appellants' second point of error in terms of both legal and factual sufficiency.

The trial court concluded that the Mohnkes failed to meet their burden of establishing the true boundary of the property in dispute. The court made the following findings of fact to support this conclusion:

1. The survey prepared by Mr. Atkinson (the father of Plaintiffs' expert witness) ² in 1967 did not locate any rods or monuments as the basis of its survey.

2. The 1967 survey set monuments or rods along the existing fence line.

3. The 1967 survey relied on one prior recorded deed which also did not refer to any monuments or rods.

4. Plaintiffs' expert witness, Mr. Atkinson, did not participate in the preparation of the 1967 survey.

5. Defendant's surveyor, Mr. Robinson, relied on prior recorded documents including a plat of the property (Defendant's Exhibit 3).

6. The 1967 survey was a fence survey, that is, it was based on the fence line.

Appellants claim that the court's findings and conclusions are erroneous because they are based upon the survey prepared by Robinson, appellee's expert, which fails to follow the law of legal preferences. Appellee acknowledges that the law of legal preferences...