Reverse, Render, and Remand; Opinion Filed March 6, 2013.




                                                   In The
                                 tiurI uf Api.uab
                           3Fif!Oitrirt nf Jexa at atta
                                           No. 05-I 1-00732-CV

    WILLIAM B. BLAYLOCK AND ELAINE C. BLAYLOCK, Appellants
                                                       V.
      THOMAS P. HOLLAND AND KIMBERLY HOLLAND, Appellees

                        On Appeal from the 193rd Judicial District Court
                                     Dallas County, Texas
                               Trial Court Cause No. 09-8910

                                                 OPINION
                          Before Justices FitzGerald, Fillmore, and Richter’
                                      Opinion by Justice Richter
       This appeal arises from a boundary dispute between adjoining landowners. William B.

Blaylock and Elaine C. Blaylock appeal the trial court’s judgment awarding title to a strip of

property originally part of the Blaylocks’ lot to Thomas P. Holland and Kimberly Holland by

adverse possession.      The dispositive issue before us is whether there is legally sufficient

evidence to support the trial court’s judgment. For the reasons that follow, we conclude there

was not. We therefore reverse the trial court’s judgment and render judgment for the Blaylocks.

In light of our disposition, we remand this cause to the trial court for consideration of the

Blaylocks’ request for attorney fees.


        The Honorable Martin E. Richter, Retired Justice, sitting by assignment.
                                                BACKGROUND

         The t3laylocks and the Hollands are neighbors whose backyards share a common rear

boundary. This dispute arose after the Hollands built a chain link fence in August of 1999. The

Blaylocks asserted that the chain link fence was on the Blaylocks’ property and on or within an

easement at the rear of the Blaylock property.
                                     2 After the Hollands refused to remove their fence,

the Blaylocks filed this lawsuit to quiet title on JuLy 17, 2009. The flollands filed a counterclaim

asserting they were entitled to possession and title to the disputed s trip by adverse possession.

         The case was tried before the court without a jury and judgment was rendered in favor of

the Hollands and against the Blaylocks.               Among other things. the trial court found that the

Hollands should be awarded title to the property on their side of the fence separating the parties’

backyards by adverse possession: that the Blaylocks brought their suit to quiet title later than ten

years after their cause of action accrued: that the disputed property had been held in peaceable

and adverse possession by the Hollands for over ten years: and that the Hollands had

continuously cultivated, used, and enjoyed the property for over ten years. The Blaylocks appeal

the trial court’s judgment,

                                                    ANALYSIS

         In their second issue, the Blaylocks challenge the legal sufficiency of the evidence to

support the trial court’s judgment with respect to adverse possession. We review a trial court’s

findings of fact for legal and factual sufficiency using the same standards applied to a jury

verdict. Ortiz    i’.   Jones, 917 S.W.2d 770, 772 (Tex. 1996). Where, as here, the Blaylocks attack

the legal sufficiency of the evidence to support an adverse finding on which they did not have the


         2
           The chain link fence was constructed up against a pre-existing wooden fence. The former property owner
of the Blaylock lot testified that the wooden fence was about three feet east of the lot’s north-south boundary line in
the rear. The wooden fence was on the Blaylock lot when the property was sold to the Blaylocks in 1993.




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burden of proof, they must show there is no evidence to support the adverse finding.             See

Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex, 1983). In evaluating a noevidence challenge,

we view the evidence in the light most favorable to the finding, disregarding all contrary

evidence that a reasonable factfinder could have disbelieved. See AutoZone, Inc. v. Re yes, 272

S.W.3d 588, 592 (Tex. 2008). If there is more than a scintilla of evidence to support a finding,

we must uphold it. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

Adverse Possession

        Adverse possession is an actual and visible appropriation of property beginning and

continuing under a claim of right that is inconsistent with and hostile to the claim of another

party. See TEX, Civ. PRAC. & REM. CODE ANN,           § 16.021( ) (West 2002). A lawsuit to recover
property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the

property must be brought no later than ten years after the day the cause of action accrues. See

TEX,   CIV. PRAC. & REM, CODE ANN. § 16.026 (West 2002).                Thus, to establish adverse

possession, the Hollands must demonstrate that they actually and visibly appropriated the

disputed property for ten or more consecutive years such that their use of the property gave the

Blaylocks notice of the hostile claim. See Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex, 1990).

        The Blaylocks argue there is no evidence that the Hollands’ use or appropriation of the

strip in question was sufficient to give notice that they were asserting a claim to the property that

was hostile to the Blaylocks’ ownership interests until they constructed the chain link fence on

the property in August 1999. The Blaylocks contend that because their suit to quiet title was

filed less than ten years after the Hollands erected the chain link fence, the trial court erred in

awarding the property to the Hollands by adverse possession. The Hollands respond that they




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have used and enjoyed the disputed strip since 1995. when they 1rst moved onto the property.

They therefore assert the trial court properly awarded them title by adverse possession.

         An adverse possession claim requires proof of actual possession of the disputed real

property that is open and notorious, peaceable, under a claim of right, adverse to the claim of the

owner, and consistent and continuous for the duration of the statutory period. See Id. at 645.

The actual possession must indicate unmistakably an assertion of a claim of exclusive ownership

in those claiming title by adverse possession. See Tran v, Macha, 213 S.W.3d 913, 914 (Tex.

2006). Moreover, there must be an intention to claim property as one’s own to the exclusion of

all others; mere occupancy of land, absent an intention to appropriate it, will not suffice. See

El/isv. Jansing. 620 S.W.2d 569, 57 1—72 (Tex. l9l). Mowing the grass, planting flowers, and

maintaining a hedge are not sufficient hostile acts to give notice of an exclusive adverse

possession. See Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985); Masonic Bldg. Ass ‘n, of

Houston. Inc. v. McWhorter, 177 S.W.3d 465, 475—76 (Tex. App.—Houston [1st Dist] 2005, no

pet.).

         Before the Hollands constnLcted the chain link fence in August of 1999, the only fence

separating the parties’ properties was the wooden fence located on the Blaylock property.

Kimberly Holland testified, however, that she believed all the land from their side of the wooden

fence belonged to them. She further stated that she and her family had used the entire yard since

they moved in. When asked to describe the type of use, she replied, “Daily use. We have—well,

we have a son and also had a nephew living with us, and we’ve had animals, so it’s been

continuous use. And through the years we’ve added things, like a swimming pool.” In response

to a question on direct examination regarding who used the three-foot public utility easement at

the back of the yard, Holland stated, “Members of like private utility companies, like TXU,




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Southwestern Hell. Many members ol my limily and friends that have been invited to activities

in my backyard, and our kids. And, of course, we’ve used the whole backyard, so I’ve had a lot

of people there.” The Hollands also offered several photographs of their backyard in 1995

depicting their yard   and   the wooden fence. This is the extent of the evidence on which the

Hollands rely to support their position that since 1995, they have manifested intent to appropriate

the disputed strip and that their use of the strip was hostile to the Blaylocks’ ownership interests.

Before August 1999, however, there was nothing about the Hollands’ actions with respect to the

strip in question that was necessarily inconsistent or adverse to the Blaylocks’ ownership. The

evidence shows that the [-lollands mistakenly thought the preexisting wooden Fence was the rear

boundary line of their property. Kimberly Holland’s testimony that the Hollands used what they

considered to be their entire backyard since they moved to the property in 1995 is no evidence of

their visible appropriation of the disputed strip and thus legally insufficient to support the trial

court’s finding of adverse possession. It was not until the HoHands erected the chain link fence

in August 1999 that their actions with respect to the disputed strip became inconsistent with and

hostile to the Blaylock’s ownership interests. See Tra,i, 213 S.W.3d at 915 (building structure on

property may be sufficient evidence of adverse possession).

Conclusion

       Based on the record before us, the evidence is legally insufficient to support the trial

court’s finding that the Hollands acquired the disputed strip of property by adverse possession

because no evidence supports the trial court’s finding that the Hollands appropriated the property

in an actual and visible manner, hostile to the true owner, for more than ten years. In light of our

conclusion, we need not address the Blaylocks’ first issue. We reverse the judgment of the trial

court and render judgment in favor of the Blaylocks. We remand the cause to the trial court for




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entry of judgment consistent with our opinion and for consideration of the B1ay1ocks request for

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                                                                 JUSTICE. ASSIGNED

I 10732RP05




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                                   (nurt uf Appaa1
                          .Fift1! Jitrirt øf au at 3attai
                                            JUDGMENT

WILLIAM B. BLAYLOCK AND ELAINE                       On Appeal from the 193rd Judicial District
C. BLAYLOCK, Appellant                               Court, Dallas County, Texas
                                                     Trial Court Cause No. 09-89 10,
No. 05-1 1-00732-CV             V.                   Opinion delivered by Justice Richter.
                                                     Justices FitzGerald and Fillmore
THOMAS P. HOLLAND AND                                participating.
KIMBERLY HOLLAND, Appellee

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED. We RENDER judgment in favor of the appellants William B. Blaylock and
Elaine C. Blaylock. We REMAI%D this cause to the trial court for entry of judgment consistent
with our opinion and for consideration of appellants’ request for attorney’s fees.

        It is ORDERED that appellants William B. Blaylock and Elaine C. Blaylock recover
their costs of this appeal from appellees Thomas P. Holland and Kimberly Holland.


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                        t h
Judgment entered this         day of March, 2013.




                                                    MARTIN RICHTER
                                                    JUSTICE. ASSIGNED
