Supak v. Zboril

• Decision Date: 23 August 2001
• Citation: 56 S.W.3d 785
• Parties: <!--56 S.W.3d 785 (Tex.App.-Houston 2001) LYDIA MARESH SUPAK and THE ESTATE OF EUGENE KUBENA, Appellants v. RAYMOND W. ZBORIL, ADELE ZBORIL, and BURLESON COUNTY, Appellees NO. 14-00-00052-CV Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 785

56 S.W.3d 785 (Tex.App.-Houston [14th Dist.] 2001)

LYDIA MARESH SUPAK and THE ESTATE OF EUGENE KUBENA, Appellants v RAYMOND W. ZBORIL, ADELE ZBORIL, and BURLESON COUNTY, Appellees

NO. 14-00-00052-CV

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

August 23, 2001.

On Appeal from the 21st District Court Burleson County, Texas Trial Court Cause No. 19,698

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Justices Edelman and Frost and Senior Chief Justice Murphy.^*

OPINION

Frost ,Justice

The underlying dispute in this appeal is whether the co-owners of a strip of rural land impliedly dedicated that land for public use as a road. Challenging a judgment against them, the landowners argue that the evidence is legally and factually insufficient to support the jury's finding of an implied dedication, and that the trial court erred in ordering them to pay attorneys' fees. We affirm the trial court's judgment in part, and, because the trial court lacked jurisdiction over one of the parties, we vacate the judgment in part.

I. Factual and Procedural Background

A. The Zboril/Supak Lawsuit

In 1988, Raymond and Adele Zboril purchased an 82-acre tract of land near Farm to Market Road 111 in Burleson County. To access FM 111 from their property, the Zborils traveled over a strip of land that was jointly owned by Lydia Supak and Eugene Kubena. Three days after the Zborils' purchase, however, Supak requested that they stop using this roadway. When the Zborils ignored her request, Supak, with Kubena's permission, built a fence across the road. Shortly thereafter, the Zborils filed suit against Supak and Kubena, seeking (1) a declaration that the Zborils had acquired an easement by prescription in the roadway and (2) an injunction to prevent Supak and Kubena from interfering with the Zborils' use of the alleged easement. Supak and Kubena counterclaimed, alleging a cloud on their title and seeking damages for trespass. Following a jury trial, the court entered judgment that the general public had acquired an easement by prescription over the land in question. On appeal, this court reversed and remanded, concluding that there was insufficient evidence of a ten-year period during which the general public's use of the roadway was exclusive and adverse. Supak v. Zboril, No. A14-91-00004-CV (Tex. App. Houston [14th Dist.] Jan. 16, 1992, no writ) (not designated for publication), 1992 WL 5569.

B. The Supak/Burleson County Lawsuit

In November 1990, after the trial court's judgment in the first lawsuit (but before a notice of appeal had been filed), the commissioners court for Burleson County, at the request of the Zborils' attorney, designated the roadway as County Road 151.¹ In November 1992, Supak and Kubena filed a separate suit against Burleson County, seeking a declaration that the county's designation was void for lack of notice and damages for trespass or, in the alternative, a taking of their property without compensation. Burleson County filed a counterclaim seeking a declaratory judgment that the road had been impliedly conveyed or dedicated or, in the alternative, that the county had acquired the road through adverse possession. As an additional alternative, the county, under a theory of quantum meruit or implied contract, sought payment for maintenance it claimed to have performed on the road.

C. Eugene Kubena's Death

In December 1993, the Supak/Burleson County lawsuit was consolidated with the remanded Zboril/Supak lawsuit. At that time, Supak filed a suggestion of death on behalf of Eugene Kubena. The suggestion of death did not identify a personal representative for Kubena's estate. No administrator, executor, or heir of Kubena's estate ever made a formal appearance or was otherwise made a party to the consolidated lawsuit. In fact, the attorney representing Supak and Kubena continued to file pleadings on behalf of "Plaintiff Eugene Kubena" as late as December 1998.

D. Trial of the Consolidated Cases

Trial of the consolidated cases began in August 1999. The jury found that both Supak and Kubena, or their predecessors, impliedly dedicated all or a portion of the roadway for public use before 1983. In its judgment, the trial court (1) awarded all real property comprising the roadway and the adjoining property up to the landowners' fence lines to Burleson County pursuant to an implied dedication, (2) declared that the roadway and surrounding property belongs to the county, and (3) ordered Supak and "the Estate of Eugene Kubena" to pay attorneys' fees to both Burleson County and the Zborils.

II. Issues Presented for Review

Appellants present four questions on appeal: (1) whether the evidence is legally sufficient to sustain the jury's finding of an implied dedication, (2) whether the evidence is factually sufficient to support that finding, (3) whether the trial court erred in awarding attorneys' fees to Burleson County, and (4) whether the trial court erred in awarding attorneys' fees to the Zborils.

III. Sufficiency of the Evidence

A. Legal Sufficiency

Appellants first argue the evidence is legally insufficient to support the jury's finding that the roadway was impliedly dedicated for public use. A legal sufficiency point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of a vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). We consider all the evidence in the light most favorable to the jury's verdict, indulging every reasonable inference in favor of the prevailing party. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998). If the record contains any evidence of probative force to support the jury's finding, the legal insufficiency challenge must be overruled. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).

In response to the first two questions, the jury found that Supak and Kubena, or their predecessors, impliedly dedicated all or a portion of the roadway for public use before 1983.² The jury was instructed that a dedication is implied if:

1. The acts or inaction of the landowners induced the belief that the landowners intended to dedicate the roadway to public use;

2. The landowners owned the land and therefore were competent to dedicate the roadway;

3. The public relied on these acts and have been served by the dedication; and

4. There was an offer and acceptance of the dedication by the public, although no formal, written, or official offer and acceptance is required.

See Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex. 1984) (setting forth the essential elements of an implied dedication). Appellants attack all but the second of these elements.

1. Intent To Dedicate

Appellants first assert there is no evidence that the landowners' actions induced the belief that they intended to dedicate the road to public use. The theory of implied dedication requires evidence that the landowner intended to devote his or her property to public use. See O'Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, 882-83 (1960). However, direct evidence of the landowner's subjective intent is not necessary. Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957, 958 (1952). Evidence of a landowner's intent to dedicate may be shown "by express words, overt acts, or even by such inaction on the part of the owner as would justify a conclusion that he intended to dedicate his land to public use." Id., 251 S.W.2d at 959 (quoting Brown v. Kelley, 212 S.W.2d 834, 837 (Tex. Civ. App. Fort Worth 1948, no writ)). Whether an intent to dedicate has been shown is a question of fact. Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex. 1978).

Conduct that has been found to constitute evidence of a landowner's intent to dedicate includes permitting the county to maintain the road and fencing off the roadway from the landowner's remaining property. See Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985); Owens, 251 S.W.2d at 959. In addition, evidence of long and continued public use raises a presumption of dedication when the origin of the public use and ownership of the land at the time the public use began are "shrouded in obscurity" and no evidence exists to show the landowner's intent in allowing the initial public use. O'Connor, 339 S.W.2d at 882.

The Zborils and Burleson County presented considerable evidence to support the intent element. One witness testified that she and others had used the road, without asking permission and without objection from Supak, Kubena, or their predecessors, at least as far back as 1921. No evidence was presented as to the landowners' intent at that time.³ Other witnesses testified that they and others had used the road freely and without asking permission for over fifty years. Supak herself testified that "tons of people" went up and down the road. Several witnesses further testified that, for as long as they could remember, the road has been separated from the adjoining property by fences along either side, and its location has never changed. Furthermore, there was testimony from former county employees that they had worked on and maintained the road since at least 1960. We find this evidence more than sufficient to establish an implied intention to dedicate the roadway for public use.

2. Public Reliance and Public Purpose

Next, appellants complain there is no evidence that the public relied on the dedication or that the dedication served a public purpose. We disagree. Evidence of long, continued, unquestioned use of a road supports a jury finding that the public relied on an implied dedication of that road. Graff v. Whittle, 947 S.W.2d 629, 638 (Tex. App. Texarkana ...