KB Tex. Invs., LLC
v.
Spiller

This case is not covered by Casetext's citator
Court of Appeals For The First District of TexasJan 26, 2017
NO. 01-16-00068-CV (Tex. App. Jan. 26, 2017)

NO. 01-16-00068-CV

01-26-2017

KB TEXAS INVESTMENTS, LLC, Appellant v. RODERICK SPILLER AND ANN MARIE MCGILL, Appellee


On Appeal from the 165th District Court Harris County, Texas
Trial Court Case No. 2013-36071

MEMORANDUM OPINION

KB Texas Investments, LLC, appellant, sued Roderick C. Spiller and Ann Marie McGill, appellees, to remove an encroaching fence, driveway, and concrete slab, formerly a garage, and to settle a boundary dispute between two lots in Harding Heights, Harris County, Texas. Following a jury verdict in favor of Roderick and Ann Marie, the trial court signed a judgment, indicating appellees had adversely possessed the disputed strip of land for the required period, and therefore owned the land. In two issues on appeal, KB Texas asserts the judgment is not supported by legally sufficient evidence, and as a result, it is entitled to a remand to determine its attorney's fees. In one cross-point, Roderick and Ann Marie argue KB Texas lacks standing because it is not the legal entity named in this lawsuit.

We affirm.

Background

The majority of facts in this case are not disputed. The lawsuit concerned a boundary approximately 7.5 feet wide and 100 feet long along the north side of lot 35 and the south side of lot 36, in Harding Heights, Harris County, Texas. In August of 1941, Roderick and Ann Marie's great aunts, Sarah and Georgie, purchased a pre-existing house on lot 35 with an existing shed, dirt driveway, and fence sequentially along the southern boundary of lot 36. That same month, the aunts upgraded the shed to a garage by having the "utility man . . . straighten it up and fix it stable so she could drive in." In 2005, Roderick and Ann Marie, successors-in-title to the aunts, tore down the garage, poured concrete over the dirt driveway, and replaced the damaged fence with a new wooden fence. Roderick, Anne Marie, and Mamie Spiller, Roderick's mother, disagreed about the length of the original fence. A 2005 surveyor had described the garage as a "ruinous wood shed." According to Roderick, he took down the garage because children were playing near the garage after a hurricane or storm damaged it. The record does not indicate who built the original shed, driveway, and fence on lot 35, or when, or why they were built, but collectively they occupied the border between lot 35 and lot 36.

In 1944, KB Texas's predecessors in title purchased lot 36. Mamie Spiller lived in a house on lot 36 before and for a time after her aunts purchased lot 35. In 1961, Henry Lee and Willie Mae Baker acquired and moved onto lot 36, and his daughters, Janet and Brenda, lived on the property afterwards. The Bakers were "kind of" family. As far as Mamie Spiller was aware, no one sued her aunts about the improvements or told them to remove the improvements. On the other hand, according to Roderick's testimony, Mr. Baker's daughters disputed ownership of the boundary. Baker's daughters said that their father had purchased the land between the bushes and the utility pole from Roderick's aunts, which was to the right or north of the driveway. Roderick, instead, said Baker had not purchased the strip, and Roderick still owned the property up to the utility pole.

According to KB Texas's motion for new trial, the parties stipulated to both chains of title. Roderick and Ann Marie have not contested chain of title on appeal.

The improvements are noted on surveys provided from 2005 and 2012, listed in appendix A to this opinion. The 2005 survey showed the garage 2.4 feet onto lot 36 for a length of 20.4 feet, and the driveway wholly on lot 35, and did not show the fence. The 2012 survey showed the garage 6.7 feet, the driveway 2.1 feet, and the fence 7.5 feet onto lot 36. According to the 2012 survey, the garage and driveway covered 36.7 feet of the border, and the fence covered 63.3 feet for a total of 100 feet. The 2012 survey, along with a verbal description of the boundary was incorporated into the court's judgment.

A. Driveway

During the aunts' period of possession, the driveway was bordered by bushes, flowers, and the fence on the right or north side, a culvert underneath the right apron, and a water meter on the left or south. According to Mamie Spiller, the aunts would drive straight down the driveway into the garage.

On the stand, Mamie Spiller indicated the driveway's position to the jury by comparing older and newer photographs of bordering bushes and flowers. Mamie Spiller said neither the driveway nor the bushes bordering the right or north side of the driveway have ever been moved. First, Mamie verified a 1960 photograph showing her daughter and another picture of Mamie's aunt: both were standing on the dirt driveway with bushes to the right or north.

In another picture, the bushes were still present years later. Roderick later confirmed, in testimony, that the bushes continue to border the driveway, and Ann Marie also identified a picture around 2003-04 showing the same bushes. Ann Marie said on cross-examination, "the bushes are there and haven't gone anywhere since the 50's. It's impossible for that driveway to be anywhere else because of those bushes."

Because Mr. Baker's daughters, a predecessor-in-title to KB Texas and the aunts' neighbors, would run up as the aunts drove in, Mr. Baker planted the bushes beyond the fence and along the driveway to prevent Mr. Baker's daughters from running up to the driveway. Aunt Georgie consented to Mr. Baker's planting.

Mamie next pointed to flowers against the fence, but in-line with the bushes in a photograph of the concrete driveway. Ann Marie later confirmed the location of the flowers, which were planted by the aunts and a renter. The aunts planted and maintained sunflowers between the fence and the driveway. A later renter of this property planted canna flowers on the east edge of the fence, on the right or north side of the driveway. Ann Marie trimmed the flowers until she had the new fence, when she let them grow. Because of the locations of the bushes and flowers, Mamie, on cross-examination, said the driveway was in the same location as when her aunts lived there, and differed now "because there's concrete."

Roderick claimed the concrete driveway lies on top of the original dirt driveway because of the position of the culvert underneath it and water meter to the left of it. Roderick testified he put the concrete over the dirt driveway because his car flooded. Roderick also said the new driveway could not be further to the right or north because a concrete culvert was underneath the edge of the driveway's apron on the right or north side. According to Roderick, only the city can move culverts. In pictures before and after the concrete driveway's installation, Roderick identified a water meter to the left or south of the driveway.

Ann Marie also identified a picture of the culvert under the right apron of the driveway, agreeing the concrete drive is "in the same place with layers in between."

B. Trial

After discussions between KB Investments, LLC, Roderick, and Ann Marie did not resolve the boundary dispute, on June 18, 2013, KB Investments filed suit to remove the encroaching fence, driveway, and concrete slab. After suit was filed, Lot 36 was transferred to KB Texas Investments, LLC, from KB Investments, LLC, executed on April 28, 2014 and filed on December 9, 2014. On December 16, 2014, KB Investments LLC, amended Plaintiff's First Amended Original Petition to list the plaintiff as KB Texas Investments, LLC. The Texas entity did not seek leave of court to substitute into the case or otherwise request court permission to change the plaintiff. Roderick and Ann Marie did not challenge the change in plaintiff.

The jury found that Roderick, Ann Marie, and their predecessors in privity, the aunts, committed a hostile act to possess the disputed strip of land on August of 1941, and subsequently used the strip continuously and uninterrupted until June 18, 2013, when KB Texas filed suit. The trial court accepted the verdict, and rendered a judgment subsequent to Roderick and Ann Marie's motion for judgment against "KB INVESTMENTS, LLC, dba KB TEXAS INVESTMENTS, LLC."

KB Texas filed both a judgment not withstanding the verdict and a motion for new trial. The trial court denied both motions, and KB Texas timely appealed.

Substitution

As a threshold matter, Roderick and Ann Marie object to KB Texas's standing to challenge the judgment because KB Texas never sought the trial court's permission to substitute into the case. Roderick and Ann Marie assert this claim for the first time on appeal. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993) (standing may be raised for first time on appeal). Because a warranty deed shows the transfer between the two entities, and KB Texas admits KB Investments, LLC, and KB Texas Investments, LLC, are separate entities, we presume they are separate for the purpose of this analysis.

We have previously held that a plaintiff may substitute itself without leave of court if trial would not be delayed. Mercure Co., N.V. v. Rowland, 715 S.W.2d 677, 679-82 (Tex. App.—Houston [1st Dist.] 1986, writ ref'd n.r.e.). In Mercure, Century initially sued two defendants in its own name, but in its fourth amended pleading changed the plaintiff to "Mercure Company, N.V." Id. at 678. We held that the intentional omission of Century from the pleading dismissed Century from the suit as allowed under the Texas Rule of Civil Procedure: First, because an amended pleading supersedes earlier pleadings under Texas Rule of Civil Procedure 65; second, because parties may be dropped and added on their own initiative under Rule 41; and third, because Rule 37 allows the addition of parties unless the time or manner causes unreasonable delay. Id. at 679-80 (citing TEX. R. CIV. P. 37, 41, 65). Therefore, a plaintiff may reasonably amend its pleadings to dismiss parties, including plaintiffs, from suit. Id. at 679-82; see also Sherman v. Boston, 486 S.W.3d 88, 93 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (citing Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 375-76 (Tex. App.—Fort Worth 2003, pet. denied) (summarizing cases for this general rule)).

Appellees assert that KB Texas Investments, LLC, is a separate legal entity from KB Investments, LLC, which never sought leave of court to substitute in when it first appeared on August 5, 2015, in Plaintiff's Second Amended Original Petition. Appellant conversely and correctly asserts that the Texas entity first appears on December 16, 2014, in Plaintiff's First Amended Original Petition. Lot 36 was transferred to KB Texas Investments, LLC, from KB Investments, LLC, after suit. Roderick and Ann Marie did not allege, in a motion before the trial court or in their point of error, that the substitution caused delay, but that the only error was a failure to seek leave of the trial court to substitute into the case. The parties proceeded from December of 2014, after KB Texas's substitution, through trial and judgment in October of 2015, without confusion over who KB Texas was or why they were involved in the lawsuit.

Applying Mercure, KB Texas's addition to the amended petition added it to the lawsuit, and KB Investments, LLC's, omission from the petition dismissed it from the lawsuit. See Mercure, 715 S.W.2d at 679-80. This addition and subtraction, without leave of the trial court, was permissible and the record provides no evidence of delay. See id.

We overrule Roderick and Ann Marie's challenge to KB Texas's standing to bring this appeal.

Misnomer

Roderick and Ann Marie do not specifically object that the trial court's judgment was entered against, "KB INVESTMENTS, LLC, dba KB TEXAS INVESTMENTS, LLC," and not "KB Texas Investments, LLC," but we will briefly address the issue insofar as they impliedly do, and insofar as the issue bears upon standing or voids the judgment. See Tex. Ass'n of Bus., 852 S.W.2d at 444-45 (explaining standing "is never presumed and cannot be waived"); In re Greater Hous. Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325-26 (Tex. 2009) (explaining that misnomer does not automatically invalidate a judgment). Returning to Mercure, only Century was named in the final order, not Mercure, the substituting plaintiff. 715 S.W.2d at 680. As the Mercure court held, Mercure could appeal because Mercure was now the plaintiff of record. Id. Century had been dismissed by omission from Mercure's fourth amended pleading. Id. Because an entire omission from a final order did not prevent Mercure from bringing their appeal, KB Texas's misnomer as a dba does not prevent them from bringing this appeal. See id.

The Mercure court's holding concerning the right to appeal is consistent with the common law of misnomer holding that a misnomer in a judgment does not automatically invalidate a judgment. See In re Greater Hous. Orthopaedic Specialists, Inc., 295 S.W.3d at 325-26. Misnomer occurs when "a party misnames itself or another party, but the correct parties are involved." Id. at 325. The judgment is not void where no one is misled or placed at a disadvantage as a result of the error. Id. at 326. Where "the plaintiff misnames itself, the rationale for flexibility in the typical misnomer case—in which a plaintiff misnames the defendant—applies with even greater force." Id.

The parties proceeded for ten months without confusion over KB Texas's involvement in the lawsuit. While, "KB INVESTMENTS, LLC, dba KB TEXAS INVESTMENTS, LLC," was not KB Texas's proper name, the judgment held that Roderick and Ann Marie adversely possessed the disputed strip of land. The judgment defined the land with specificity and attached a plat of the land. Roderick and Ann Marie have not asserted they were misled or disadvantaged as a result of the misnomer. Because the record indicates that no one was mislead or placed at a disadvantage as a result of the misnomer, the judgment is not void. See id.

Legal Sufficiency

In its appeal, KB Texas argues the evidence is legally insufficient to support the jury verdict for the adverse possession element of hostility because Roderick and Ann Marie had permission for the improvements and because they failed to establish who built the original shed, driveway, and fence, when they built the improvements, and why. According to KB Texas, these original improvements remained with tacit approval of the rightful owners, until the garage was taken down and the fence and driveway were replaced by new improvements, in 2005. While KB Texas concedes the post-2005 fence and driveway do meet the hostility requirement, KB Texas asserts neither were present for the statutorily required 10 years. TEX. CIV. PRAC. & REM. CODE ANN. § 16.026 (Vernon 2002).

KB Texas also argues each of these three improvements, individually, are legally insufficient to support the jury verdict. KB Texas argues the garage is not a permanent structure that can support an adverse possession claim; the original dirt driveway did not encroach on lot 36; and that the original fence cannot serve as a basis for adverse possession because it is a casual fence that encloses nothing.

A. Legal Principles

1. Standard of Review

"The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In performing a legal-sufficiency review, we must credit favorable evidence if reasonable fact finders could credit it and disregard contrary evidence unless reasonable fact finders could not disregard it. Id. A "no evidence" issue must be sustained when (a) the record discloses a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidenced offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. Id. at 810-11. A legal sufficiency challenge of a finding fails when more than a scintilla of evidence supports the finding. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005). "'More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair minded people to differ in their conclusions.'" Id. at 388 (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).

2. 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" throughout the statutorily required period. TEX. CIV. PRAC. & REM. CODE ANN. § 16.021(1) (Vernon 2002); Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990); Estrada v. Cheshire, 470 S.W.3d 109, 122 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). Section 16.026 of the Texas Civil Practice and Remedies Code sets a 10-year statute of limitations on recovering "real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property." TEX. CIV. PRAC. & REM. CODE ANN. § 16.026(a); Masonic Bldg. Ass'n v. McWhorter, 177 S.W.3d 465, 472 (Tex. App.—Houston [1st Dist.] 2005, no pet.). "Adverse possession does not have to continue in the same person if privity of estate exists between each holder and his successor." McWhorter, 177 S.W.3d at 472.

"The 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." Id. A claimant needs to show that he acted in a way that visibly appropriated the disputed property in a manner that gave notice to any other person that he claimed a right in the property. Perkins v. McGehee, 133 S.W.3d 287, 291- 92 (Tex. App.—Fort Worth 2004, no pet.) (citing Parker v. McGinnes, 842 S.W.2d 357, 360 (Tex. App.—Houston [1st Dist.] 1992, writ denied)).

"'Hostile' use does not require the intention to dispossess the rightful owner," or even knowledge that there is a rightful owner. Tran v. Macha, 213 S.W.3d 913, 915 (Tex. 2006); Kazmir v. Benavides, 288 S.W.3d 557, 564 (Tex. App.—Houston [14th Dist.] 2009, no pet.). "But there must be an intention to claim the property as one's own to the exclusion of all others." Tran, 213 S.W.3d at 915; Kazmir, 288 S.W.3d at 564. "The belief that one is the rightful owner and has no competition for the ownership of the land is sufficient intention of a claim of right." Kazmir, 288 S.W.3d at 564-65 (citing Calfee v. Duke, 544 S.W.2d 640, 642 (Tex. 1976) (finding legally sufficient evidence of hostile intent necessary for adverse possession where claimants believed they were purchasing everything within fences around lot)); cf. Tran, 213 S.W.3d at 915 (landowner's sharing use of driveway, which she believed to be on her lot, but which was on adjacent owners' lot, with owners of adjacent lot, was not inconsistent with or hostile to adjacent owners' ownership, as required for adverse possession).

A claimant shows exclusive intent when he or she makes use of the land as an ordinary person would. "The character and situation of the land, and the uses to which it is adapted, and may be and is actually put, must be considered in determining whether an occupation is exclusive or not." Richards v. Smith, 4 S.W. 571, 573 (Tex. 1887); Kazmir, 288 S.W.3d at 564-65; see McWhorter, 177 S.W.3d at 472. "When a person in possession of land is shown to have used and enjoyed it as an owner of land usually does, the natural inference is that possession was taken and held for such person as owner and that is, therefore, inconsistent with and hostile to the claim of another." Kinder Morgan North Texas Pipeline, L.P. v. Justiss, 202 S.W.3d 427 (Tex. App.—Texarkana 2006). While pure maintenance, such as cutting weeds, does not suffice, cultivation, such as gardening, may contribute to an adverse possession claim. TEX. CIV. PRAC. & REM. CODE ANN. § 16.026(a); City of Dallas v. Etheridge, 253 S.W.2d 640, 643 (Tex. 1952) (holding cutting of weeds is insufficient); Coleman v. Waddell, 249 S.W.2d 912, 913 (Tex. 1952) (holding enclosed garden sufficient); but see Sims v. Cage, 523 S.W.2d 486, 489-90 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref'd n.r.e.) (holding gardening insufficient in rural context).

Whether adverse possession has been established is ordinarily a question of fact. Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985).

B. Analysis

1. Hostility

KB Texas argues that Roderick and Ann Marie could not, as a matter of law, satisfy the hostility element of adverse possession because Roderick and Ann Marie had permission from their neighbors, the Bakers, for the garage, driveway, and fence, and because we do not know who built the improvements, when they built them, and why they built them. Roderick and Ann Marie assert the earlier owners of both lots disagreed about the boundary line. Roderick and Ann Marie also suggest we need not know the "who, when, or why" of the original improvements, as long as the subsequent owners visibly and exclusively used the property.

(1)Permission

KB Texas calls the Court's attention to Mamie Spiller's testimony to show no one disputed the property boundary until 2005. According to Mamie Spiller, during the period her aunts lived on lot 35, no one sued her aunts about the improvements or told them to remove the improvements. In fact, the Bakers, KB Texas's predecessors, were "kind of" family, which we interpret to mean that KB Texas asserts as evidence of friendliness rather than hostility. Because neither owner disputed the boundary, KB Texas asserts, Mamie Spiller's testimony provides no evidence of acts that would signal hostility to the property owners. McWhorter, 177 S.W.3d at 472. Therefore, KB Texas argues, "it cannot be said that [Roderick and Ann Marie] proved that their exclusive use of the disputed strip was a hostile act that unmistakably indicated an intention to claim the disputed strip."

Roderick and Ann Marie suggest instead, that a dispute arose between later owners, specifically the daughters of Henry Lee Baker and Roderick Spiller, himself. According to Roderick's testimony, Baker's daughters said that their father had purchased the land between the bushes and the utility pole, which was to the right or north of the driveway. Instead, Roderick said Baker did not purchase the strip, and Roderick still owned the property up to the utility pole. This testimony, while self-serving, is some evidence of a border dispute.

Reviewing the evidence in the light most favorable to the verdict, a jury could have chosen whom to believe; so this testimony is sufficient to overcome KB Texas's no evidence claim as to permission. See Haggar Clothing Co., 164 S.W.3d at 388. Additionally, the lack of evidence of a dispute is not conclusive as a matter of law because a party may mistakenly, but still adversely possess property. See Kazmir, 288 S.W.3d at 564-65; Frazier v. Donovan, 420 S.W.3d 463, 468 (Tex. App.—Tyler 2014, no pet.) (acknowledging that mistaken belief of ownership can be sufficient for adverse possession).

We overrule this sub-issue.

(2)Who, When, Where

The parties agree that when the aunts purchased lot 35, the garage, driveway, fence, and house were already there. KB Texas asserts that use of improvements alone, without proving their origin, is not enough to support an adverse possession claim, citing Tran v. Macha as follows:

The court of appeals held that Haliburton adversely possessed the strip by building a driveway and garage on it. But nothing in the record shows she did either. To the contrary, both were in place before she bought Lot 5, and nothing shows who built them or when. We agree

that building a structure on property may be sufficient evidence of adverse possession. But the record here shows only that Haliburton used the driveway and garage, not that she built them.

213 S.W.3d at 915 (citations omitted). KB Texas does not dispute that the aunts, and subsequent owners, exclusively used lot 35's structures, insofar as they encroach onto lot 36. KB Texas, instead, asserts the improvements cannot be a basis for Roderick and Ann Marie's adverse possession claim because they have not proven that the original builders added them with hostile intent. Roderick and Ann Marie's subsequent use does not matter. Roderick and Ann Marie assert the correct holding of the Tran case focuses on evidence of a claimant's exclusive use of the property, not only on the origin of the improvements. Id. at 914-15.

While KB Texas concedes the post-2005 fence and driveway met the hostility requirement, it asserts neither stood for the statutorily required 10 years. TEX. CIV. PRAC. & REM. CODE ANN. § 16.026 (Vernon 2002).

To understand the holding in Tran, one must understand its facts. "Neighboring relatives shared the use of a driveway for many years, thinking it belonged to one of them when in fact it belonged to the other." Id. at 914. The land in the area was subdivided into lots 55 feet wide in the 1920s, but construction in the 1930s and '40s mistakenly used 50 feet wide lots. Id. As a result, each house was shifted to the east side of its lot, until a driveway was built on a 20-foot strip of land belonging to another lot to its west. Id. The driveway led to a garage built on both lots. Id. A sister, Haliburton, and brother separately purchased the adjoining lots, and both presumed the driveway and garage were on the sister's lot. Id. A survey completed during a sale of the sister's house revealed the error. Id.

The Tran court reminded us that "good fences make good neighbors," not those who are "happy to share:" meaning for adverse possession, the parties' intentions must be very clear. Id. at 915. Because the sister shared the improvements with her brother, including the driveway and garage, she was not unmistakably hostile to his use of the improvements or the boundary. Id. at 914-15. As further evidence of her intent, the court noted the sister also did not require her brother to get express permission before entering the boundary to use the improvements. Id. at 915.

The Supreme Court of Texas cites to Robert Frost's poem Mending Wall:

There where it is we do not need the wall.
He is all pine and I am apple orchard.
My apple trees will never get across
And eat the cones under his pines, I tell him.
He only says, "Good fences make good neighbors".


Considering the KB Texas's Tran quote in context of the court's efforts to distinguish between exclusive use and sharing, the quote emphasizes the following: the improvements were not unmistakable evidence of the sister's intent to use them exclusively or with hostility because she did not build the driveway or garage. See id. at 914-15. The court did not foreclose the exclusive use of the improvements, but also considered that the sister shared them, rather than used them exclusively. See id. Consequently, KB Texas's assertion that use of an existing structure, without an explanation of their origin, cannot form a basis for adverse possession is incorrect. See id.

Unlike Tran, Roderick and Ann Marie did not share their garage, driveway, or fence with anyone else. The aunts also planted sunflowers in between the fence and the driveway. A later renter of lot 35 planted canna flowers on the edge of the fence. Therefore, a jury may have held that the exclusive use of the improvements and gardening was evidence of intent hostile to everyone else's use. See Tran, 213 S.W.3d at 915 (improvements); Coleman, 249 S.W.2d at 913 (gardening).

Because KB Texas does not contest Roderick and Ann Marie's exclusive use of the improvements, but only suggests they could not serve as a basis for adverse possession as a matter of law, KB Texas fails to sustain his issue under the applicable "no evidence" standard. City of Keller, 168 S.W.3d at 810-11 ("the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact").

KB Texas's sub-issue concerning the origin of the garage, driveway, and fence is overruled.

2. Improvements

(1)Garage

KB Texas reasserts, as above, that the garage cannot support an adverse possession claim without an explanation of its origin and purpose. Tran, 213 S.W.3d at 915. Additionally, KB Texas argues, without authority or explanation, the garage was not the right kind of structure because a surveyor testified that the garage was a "ruinous wood shed," not a permanent structure built on a concrete slab. Roderick and Ann Marie counter, while we do not know the original purpose of the shed, we know the purpose of the car garage it became when the aunts reinforced the shed in 1941. According to Roderick, an appellee, the garage was damaged by a hurricane prior to the surveyor's 2005 examination, and he eventually took it down because children were playing nearby.

Repairing and repurposing an existing structure can be evidence of adverse possession if it is an obvious improvement. Sufficient improvements include obvious increases to the value of the land that tend to make it productive. See Pierson v. McClintock, 78 S.W. 706, 706-07 (Tex. Civ. App.—Galveston 1904, no writ) (acknowledging farming improvements were sufficient for adverse possession); Perkins v. McGehee, 133 S.W.3d 287, 292 (Tex. App.—Fort Worth 2004, no pet.) (holding repair and improvement of a fence along with grazing and removal of trees and brush was sufficient evidence of actual and visible use); see also Karisch v. Allied-Signal, Inc., 837 S.W.2d 679, 680 (Tex. App.—Corpus Christi 1992, no writ) (citing Dubin v. Carrier Corp., 731 S.W.2d 651, 653 (Tex. App.—Houston [1st Dist.] 1987, no writ), disapproved on other grounds by Sonnier v. Chisholm-Ryder Co., Inc., 909 S.W.2d 475 (Tex. 1995)) (affirming that improvements include permanent enhancements to the value of the land). In other words, if the possessor is improving the land's value or productivity, then the possessor is cultivating, using, or enjoying the property—a basis for adverse possession. TEX. CIV. PRAC. & REM. CODE ANN. § 16.026(a)-(b) (recovery includes improvements). Yet, "[t]he mere fencing of land or erecting other improvements thereon will not constitute such possession, if unaccompanied by actual occupancy or open use." Niday v. Cochran, 93 S.W. 1027, 1028 (Tex. Civ. App.—Galveston 1905, no writ). Therefore, repurposing an existing structure can be evidence of adverse possession when the improvement obviously increases the land's value or productivity and is coupled with possession.

Because the aunts hired a handyman to repurpose the shed into a car garage, and used the car garage where they lived without sharing it, the garage can serve as a basis for adverse possession. See Tran, 213 S.W.3d at 915 (sharing defeats adverse possession). A stable car garage is more valuable than an unstable shed because the owner can park on the property, rather than in the street. The improvement of the shed to a car garage would have been visible to a neighbor who saw the condition of the shed before the repairs, and the aunts parking in the garage afterwards. See Niday, 93 S.W. at 1028. Therefore, repurposing the shed into a car garage both increases the value of the land and its productive use, and its use would be obvious.

As to the condition of the structure, KB Texas provides no legal authority to show that the shed was not sufficiently permanent to support adverse possession. Thus, KB Texas waives the argument. See TEX. R. APP. P. 38.1(i); Howeth Investments, Inc. v. City of Hedwig Vill., 259 S.W.3d 877, 902 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (providing no legal authority waives argument).

KB Texas's sub-issue concerning the garage is overruled.

(2)Driveway

KB Texas argues the driveway cannot support an adverse possession claim because the original driveway did not encroach on lot 36. KB Texas offers the testimony of Ann Marie, appellee, the surveyor, and the surveys, to show the dirt driveway was wholly on lot 35, according to the 2005 survey, and only the newer concrete driveway encroached on lot 36, according to the 2012 survey.

KB Texas also suggests, "Logic itself compels the conclusion that no portion of the driveway was on Lot 36; for if it were, one would drive headlong into the side of the garage." Mamie Spiller had testified that her aunt would drive straight down the driveway into the garage. Because of Mamie's testimony and because the 2005 survey showed the garage encroaching only 2.4 feet onto lot 36, KB Texas asserts the driveway must have been wholly on lot 35 or the aunts would have driven into the side of the garage.

Roderick and Ann Marie counter that the earlier dirt driveway encroached on lot 36, because it was in the same place as the concrete driveway illustrated in the 2012 survey. In summary, they assert, the driveway was and is bordered by bushes, flowers, and the fence on the right side, and a water meter on the left. They also assert the driveway was limited on how far right it could extend because of a culvert that ran underneath its right apron. Therefore, Roderick and Ann Marie conclude the 2005 survey was erroneous.

Mamie Spiller, Roderick, and Ann Marie indicated the driveway's position to the jury through photographs of and testimony concerning the bushes, flowers, water meter, and the culvert. Mamie Spiller compared older and newer photographs of bordering bushes on the stand. Roderick later confirmed, in testimony, the bushes continue to border the driveway, and Ann Marie also identified a picture around 2003-04 showing the same bushes. Ann Marie said on cross-examination, "the bushes are there and haven't gone anywhere since the 50's. It's impossible for that driveway to be anywhere else because of those bushes."

Mamie next pointed to sunflowers and canna flowers against the fence at the eastern edge of the fence and to the right or north of the driveway, which the aunts and a later tenant planted. Ann Marie later confirmed where the flowers were and that she continued to trim them until she had the new fence, when she let them grow. Because of the locations of the bushes and flowers, Mamie, on cross-examination, said the driveway was in the same location as when her aunts lived there, and differed now "because there's concrete."

Roderick claimed the concrete driveway lies on top of the original dirt driveway because the culvert lies in the same place underneath the driveway, and the water meter remains to the left of the driveway. Roderick testified he put the concrete over the dirt driveway because his car flooded. According to Roderick, only the city can move culverts, so implicitly the dirt and concrete driveways must be in the same location. In pictures before and after the concrete driveway's installation, Roderick identified a water meter to the left or south of the driveway.

Ann Marie also identified a picture of the culvert under the right apron of the driveway, agreeing the concrete drive is "in the same place with layers in between."

Because Roderick and Ann Marie presented some evidence to the jury that the old and new driveway were in the same location, Roderick and Ann Marie presented some evidence in support of their adverse possession claim. See Haggar Clothing Co., 164 S.W.3d at 388.

KB Texas's sub-issue as to the driveway is overruled.

(3)Fence

KB Texas argues that the fence, as a matter of law, cannot serve as a basis for adverse possession because the fence does not fully enclose any of the property, and we do not know the fence's origin. While KB Texas does point to disagreement among Roderick, Ann Marie, and Mamie Spiller, concerning the length of the original and new fence, KB Texas's main concern is that the fence was not a "designed enclosure" capable of supporting an adverse possession claim. Roderick and Ann Marie conversely suggest whether the fence encloses the property is relevant in rural grazing land disputes and irrelevant in residential neighborhood disputes. Because the distinction between types of fences is to determine presence and notice of hostile intention, issues essentially already discussed, we do not find the fence distinction dispositive. Rhodes, 802 S.W.2d 643, 646 (Tex. 1990); see Tran, 213 S.W.3d at 914-15.

KB Texas relies upon a distinction between types of fences: "casual fences" and fences that "designedly enclose" an area. Rhodes, 802 S.W.2d at 646. "If the 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.'" Id. Thus, KB Texas concludes that "if the occupant of the land does not prove who built the fence and the original builder's purpose for building the fence, the fence is a 'casual fence' and will not support a claim of adverse possession."

The Rhodes distinction between casual and enclosed fences arose to settle land disputes because unenclosed land was grazing commons. Id. (relying on McDonnold v. Weinacht, 465 S.W.2d 136, 141 (Tex. 1971) ("Unenclosed land has always been regarded as commons for grazing livestock in Texas, and it is well settled that the use of unenclosed land for grazing livestock does not, of itself, constitute adverse possession."). Even grazing one's livestock within a bounded area was not unmistakable evidence of a claim because the fence might not be sufficiently permanent, or others might have built the fences bounding the area. McDonnold, 465 S.W.2d at 142. Thus a fence must either be built by the adverse possessor or the possessor must "[make] it his fence" by changing its character or substantially improving it, indicating the area was enclosed by design of the possessor. Id. at 144 (citing Butler v. Hanson, 455 S.W.2d 942, 946 (Tex. 1970)); accord Rhodes, 802 S.W.2d at 646.

The distinction between casual and enclosed fences is conceptually useful in rural grazing land disputes, but after Tran, unnecessary in residential neighborhood disputes. The Rhodes court asked about the origin, substantial modification, or enclosed status of the fence to determine if a fence unmistakably indicates a claim of exclusive ownership. Rhodes, 802 S.W.2d at 645-46. The Tran court asks about the origin and use of an improvement, not its enclosed status, to answer the same question of notice and intent. See Tran, 213 S.W.3d at 914-15. Because residential neighborhood properties often lack complete fences to ease driveway or sidewalk access, the evolution from Rhodes into the neighborhood context is represented in Tran. Id.

The distinction between "casual fences" and fences that "designedly enclose" an area focuses on the same questions of origin, notice, and intention previously discussed. See Rhodes, 802 S.W.2d at 645-46. We previously overruled KB Texas's sub-issue concerning the origin of the fence, and the same ultimate question is presented here. As such, we decline to rule whether the fence is a "casual" or "designedly enclosed" fence.

Because KB Texas only suggests the fence could not serve as a basis for adverse possession as a matter of law, KB Texas fails to sustain its sub-issue under the applicable "no evidence" standard. City of Keller, 168 S.W.3d at 810-11 ("the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact").

We overrule KB Texas's first issue.

Attorney's Fees

We do not reach KB Texas Investment's second issue. See TEX. R. APP. P. 47.1.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley


Justice Panel consists of Chief Justice Radack and Justices Higley and Huddle.

Tran v. Macha, 213 S.W.3d 913, 915 n.1 (Tex. 2006) (quoting Robert Frost, North of Boston, Mending Wall (1915)).