Person v. Pyron
| Decision Date | 18 March 2020 |
| Docket Number | NO. 03-19-00063-CV,03-19-00063-CV |
| Parties | Mary Catherine Person, Appellant v. Martha Pyron, Appellee |
| Court | Texas Court of Appeals |
FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-17-003095, THE HONORABLE TIM SULAK, JUDGE PRESIDING
Mary Catherine Person appeals from orders disposing of cross-motions for summary judgment on claims and counterclaims arising from her neighbor's erection of a fence located on land allegedly acquired by Person under the doctrine of adverse possession. We will affirm.
BACKGROUND
Person and Martha Pyron are next-door neighbors, with Person owning the residential lot immediately west of Pyron's. Person has owned her lot since 2005. During Person's tenure on the property, Pyron's lot was owned by Allison Goldring until 2007 and by Bonnie Gilson from 2007 to 2016. Pyron purchased her lot from Gilson in 2016. Person and Pyron disagree on the boundary between the backyards of their respective lots. Their disagreement arises from the successive erection of three fences.
The first fence (Goldring Fence) was erected by Goldring sometime after 2001 but before Person purchased the lot next door. At the time, there was a chain-link fence that generally followed the property line. Rather than remove that fence and risk runaway pets, Goldring elected to erect her new fence along a parallel line on her own property, leaving a narrow strip of land between the fences. In deposition testimony, Goldring averred that the neighboring owner was aware that the placement of the Goldring Fence did not reflect the property line and that Goldring did not intend to forfeit ownership of any part of what is now Pyron's lot. The chain-link fence was subsequently removed, leaving just the Goldring Fence separating the two yards.
The next fence (Gilson Fence) was a joint enterprise between Gilson and Person. As Gilson described it, "[T]he fence that was there [i.e., the Goldring Fence] was slatted so that you could see in between each slat." She explained that "our dogs started to have altercations through the open parts of the fence." In 2015, the two women "agreed to put in a solid fence" and to split the cost. When it came to the placement of the fence, Gilson recalled, "[I] think it was our assumption that we would just put the fence where the old fence was." She continued, "[A]t some point along the way . . . I knew that the fence was on my [side of] the property, but I didn't care."
The newest fence (Pyron Fence) arose from concerns about possible encroachment when Person began construction of a deck in 2016. Pyron apparently informed Person that the Gilson Fence did not reflect the actual property line and then contracted for a land survey and construction of a new fence (i.e., the Pyron Fence) that would accurately reflect the legally recorded property line. The survey revealed that the new deck encroached ontoPyron's lot in two places, and Pyron asked Person to eliminate the encroachment. Person declined to do so.
PROCEDURAL HISTORY
Person sued Pyron in Travis County district court, claiming trespass under a theory of adverse possession and seeking an injunction ordering Pyron to remove her fence. Pyron counterclaimed for trespass and sought declaratory relief, injunctive relief, and damages. See Tex. Civ. Prac. & Rem. Code § 37.004(c) (). Both parties moved for final summary judgment. See Tex. R. Civ. P. 166a. Following a hearing on the motions, the district court granted Pyron's motion for summary judgment, denied Person's motion, and declared, "The true and valid property line between the properties . . . is and shall be shown as on the survey dated January 9, 2018." The court then ordered Person to:
remove all encumbrances, fences, fence poles, decking, or any other encumbrance that she (and or [sic] any agents or contractors who may have worked for her) has/have caused to exist on Defendant's property . . . including but not limited to the front yard fence and the portions of her deck that are protruding onto Defendant's property as shown by the Survey.
The court declined to award attorney's fees to Pyron and declined Person's request for findings of fact and conclusions of law. Person now challenges the two orders disposing of the cross-motions for summary judgment.
DISCUSSION
Person contends the district court erred by granting Pyron's motion for traditional summary judgment and denying her own. See Tex. R. Civ. P. 166a. When both parties move forfinal summary judgment on overlapping issues and the trial court grants one and denies the other, we review all the evidence, resolve all issues, and render the judgment the trial court should have rendered. See Texas Workers' Comp. Comm'n v. Patient Advocates, 136 S.W.3d 643, 648 (Tex. 2004); CU Lloyd's of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998) (per curiam).
Person's Motion for Summary Judgment
Person first alleges error in the district court's summary-judgment dismissal of her claim for injunctive relief from trespass. Because it is dispositive of this issue, we will begin with Person's theory of adverse possession. 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." See Tex. Civ. Prac. & Rem. Code § 16.021(1). To prevail with a theory of adverse possession, a plaintiff must prove: (1) actual and visible possession of the disputed property; (2) that is adverse and hostile to the claim of the owner of record title; (3) that is open and notorious; (4) that is peaceable; (5) that is exclusive; and (6) involves continuous cultivation, use, or enjoyment for the duration of the applicable statutory period. See Kazmir v. Benavides, 288 S.W.3d 557, 561 (Tex. App.—Houston [14th Dist.] 2009, no pet.). In this case, Person must prove continuous adverse use for at least ten years. See Tex. Civ. Prac. & Rem. Code § 16.026(a) ().
Person's claim of trespass fails as a matter of law because this record precludes her from proving the second and sixth elements of...
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