Opinion issued June 23, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-14-00724-CV
                           ———————————
              RONNY PUGA AND RICKEY PUGA, Appellants
                                       V.
                         BARBARA SALESI, Appellee


                   On Appeal from the 133rd District Court
                            Harris County, Texas
                      Trial Court Case No. 2011-28575


                         MEMORANDUM OPINION

      Barbara Salesi filed a declaratory judgment action against Ronny and Ricky

Puga after a boundary dispute developed between the two neighbors. The trial

court resolved some issues by directed verdict; other issues were presented to the
jury for resolution. Salesi obtained a judgment against the Pugas for $7,217.19 in

damages and $51,169.36 in attorney’s fees.

      The Pugas appeal that judgment and contend that the trial court erred by

(1) awarding Salesi damages on her encroachment claim, (2) awarding Salesi any

attorney’s fees or, alternatively, awarding too much, and (3) failing to submit for

the jury’s determination the Pugas’ own attorney’s fee claim.

      We affirm.

                                   Background

      This is a boundary dispute between Barbara Salesi and the owners of the

property next door, Ronny and Rickey Puga. Several years before the litigation, the

Pugas repaired a sewage leak in their backyard and asked Salesi for permission to

temporarily remove the boundary fence to access underground pipes. She agreed.

The Pugas removed the chain-link fence but also allegedly removed and replaced

one of Salesi’s support posts. Salesi alleged that the Pugas also removed survey

irons that marked the property line.

      Sometime after the first encounter, the Pugas asked permission to attach a

portion of a new fence they were constructing to a different support post on

Salesi’s property. She refused. Nonetheless, according to Salesi, they attached their

fence to her post while she was at work. When she realized what had occurred, the

parties argued and a witness called the police to intervene. Ultimately, Salesi


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obtained a judgment against the Pugas for $350 to replace the post to which they

attached their new fence. Subsequently, another dispute arose when Salesi alleged

that the Pugas damaged three additional fence posts on her property.

      As tensions grew, the Pugas’ attorney sent Salesi a letter alleging that one of

her fence posts was on the Pugas’ property and threatening litigation. Salesi

investigated and concluded that, when the Pugas took down her fence to repair

their sewage line, they also removed one of her fence posts and repositioned it

within their property. She testified that she understood the attorney’s letter to be

referencing this post. Salesi responded to the Pugas’ letter by suggesting that the

parties adhere to a 2006 survey of her property1 and that the fence be moved, if

necessary, to return it to the property line shown in that survey. According to

Salesi, the Pugas never responded to her suggestion.

      Salesi filed a declaratory judgment action, seeking a declaration that the

2006 survey accurately depicted the property lines and that the Pugas were bound

by that demarcation. She also sought damages for the cost to return the fence posts

to their original location. In other words, she sought a declaration and damages to

resolve in her favor the allegation in the Pugas’ presuit letter that her fence post

was on their property.

1
      That survey was conducted by court order in a separate lawsuit in which another
      neighbor sued Barbara Salesi. The court ordered a “survey [of] both properties in
      question with special attention to the disputed boundary line . . . .” The 2006
      survey established the perimeter line of all of Salesi’s property.
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      While suit was pending, Salesi discovered that, when the Pugas were doing

the sewage line repairs, they installed an underground pipe that ran under the

chain-link fence and connected to pipes within her property. She sought damages

for rerouting the Pugas’ pipe to remove it from her property.

      Salesi filed a “motion to enforce court order,” requesting that the trial court

bind the parties to the 2006 survey. The Pugas did not respond to the motion. The

motion was granted.

      Separately, Salesi moved for the trial court to take judicial notice that the

2006 court-ordered survey “is the proper survey of [her] property and the border

and with the Pugas’ property, as well.” Salesi explained that she filed the

previously granted motion to enforce “to put the issue of where the proper property

lines are to bed” and that, after the Pugas failed to respond or to designate an

expert and the trial court granted the motion, they should not be permitted to

challenge the location of the property lines. After discussion, the trial court

confirmed that Salesi could refer to the 2006 survey during trial as “the survey that

this Court has held to be . . . the actual property lines for these properties.”

      Salesi preadmitted her trial exhibits, including the 2006 survey, without

objection. The parties also entered into a stipulation regarding Pugas’ backyard

plumbing work. They stipulated as follows: “The parties stipulate that the PVC

pipe as depicted in Plaintiff’s Ex. 8 was installed by Defendants and runs from the


                                            4
Puga property onto the Salesi property and connects to the concrete pipe that runs

through the Salesi property.”

      During trial, Salesi testified that she wanted the fence moved back to the

property line and the Pugas’ pipe disconnected and rerouted. Salesi’s contractor

testified about the cost to move the fence and reroute the pipe. He offered two

alternative routes for moving the pipe, the least expensive of which was

approximately $5,000.

      The Pugas, their contractor, and one of their former tenants testified as well.

During direct examination, the Pugas disputed moving Salesi’s fence post;

however, on cross-examination they agreed that they had testified otherwise in

their depositions.

      Attorneys for both sides testified about attorneys’ fees. Salesi’s attorney

testified that she should be awarded $40,700 in reasonable and necessary

attorney’s fees to cover pretrial through post-judgment services and an additional

$25,000 in case of appeal. The Pugas’ attorney testified that they should be

awarded $53,425.22 in fees.

      At the conclusion of the evidence, Salesi moved for a directed verdict on

two of her claims: (1) a declaration that the property boundary is where indicated




                                         5
in the 2006 survey and that all of her fence posts are within her property 2 and (2) a

liability finding on her encroachment claim based on the Puga pipe crossing the

property boundary and tying into her pipe. The trial court granted a directed verdict

on both issues.

      The single liability question in the court’s charge asked whether the Pugas

were “negligent,” and the jury found that both of them were. The second question

asked the cost to (1) replace and reposition the fence, (2) replace other fence posts,

and (3) replace and reposition the survey iron that Salesi alleged had been removed

by the Pugas. The jury awarded an amount for each, totaling $2,070.87.

      The next question was a damages question related to the directed verdict for

encroachment and asked the cost to remove and reposition the plumbing line from

Salesi’s property to be within the boundary of the Pugas’ property. The jury

answered the damages question by awarding zero dollars.

      Next, the jury was asked about Salesi’s attorney’s fees. 3 The jury awarded

$35,000 for past fees and zero dollars for appellate fees. The trial court did not

submit a jury question on the amount of reasonable and necessary attorney’s fees



2
      Specifically, it was a declaration related to the proposed jury question whether “all
      of the Plaintiff’s fence posts other than the Puga pipe post [which the Pugas
      allegedly moved while making sewer pipe repairs] are within the boundaries of
      Plaintiff’s property.”
3
      Salesi elected to have the jury determine her attorney’s fees.
                                            6
for the Pugas. The Pugas neither requested the question nor objected to its

omission.

         Finally, the jury was asked whether Rickey or Ronny Puga acted with

malice. The jury concluded that they did not and awarded no exemplary damages.

         Salesi filed a motion to disregard jury findings and for entry of final

judgment. First, she argued that the trial court should disregard the jury’s zero

damages finding with regard to the encroachment claim. She argued that she

conclusively proved through expert testimony a minimum of $5,146.32 as the cost

to remove the Pugas’ pipe from her property.

         Second, she argued that she established her attorney’s fees with undisputed

evidence and, therefore, requested that the trial court disregard the jury’s finding

and increase her fee award to $51,169.39.

         The Pugas did not respond to Salesi’s motion to disregard. There is no

written order in the record concerning the motion; however, the final judgment

reflects that the trial court did award encroachment damages and attorney’s fees in

the requested amounts. The Pugas timely appealed.

                              Encroachment Damages

         In their third issue, the Pugas contend that the trial court erred by

disregarding the jury’s decision not to award damages on Salesi’s encroachment

claim.


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A.    Standard of review

      It is within the jury’s province, as the factfinder, to resolve conflicts in

evidence and determine issues of witness credibility; however, a jury “cannot

ignore undisputed testimony that is clear, positive, direct, otherwise credible, free

from contradictions and inconsistencies, and could have been readily

controverted.” City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005).

      A trial court may disregard a jury’s finding that has no support in the

evidence. TEX. R. CIV. P. 301; Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003);

Brown v. Bank of Galveston, N.A., 963 S.W.2d 511, 513 (Tex.1998); Williams v.

Briscoe, 137 S.W.3d 120, 124 (Tex. App.—Houston [1st Dist.] 2004, no pet.). “A

trial court may disregard a jury’s negative finding and substitute its own

affirmative finding only if the evidence conclusively establishes the affirmative

finding.” Cale’s Clean Scene Carwash, Inc. v. Hubbard, 76 S.W.3d 784, 786 (Tex.

App.—Houston [14th Dist.] 2002, no pet.). We view the evidence in the light most

favorable to the finding. Tiller, 121 S.W.3d at 713; Williams, 137 S.W.3d at 124.

B.    Damages were established

      At trial, Salesi’s contractor testified that the Pugas’ underground pipe could

be rerouted off of Salesi’s property in one of two ways, the least expensive of

which would cost approximately $5,000 while the more expensive would cost over

$9,000. His work estimates were admitted into evidence without objection. He was


                                         8
not cross-examined on the cost projections. The Pugas did not designate an expert

on the issues of encroachment or damages related to Salesi’s claim. In her motion

to disregard jury findings, Salesi requested that the trial court award the lower of

the two estimate amounts as encroachment damages. The trial court awarded that

amount.

      Salesi contends that she established damages of at least the amount awarded

through undisputed expert testimony at trial. But the Pugas contend that Salesi

could not have established a right to that lower amount of damages as a matter of

law because the expert testified about two different work plans with two different

total costs, which according to the Pugas, “by definition contradict each other.”

      Salesi’s expert, however, proffered undisputed evidence that the cost of

rerouting the pipe would be at least the amount that the trial court awarded.

Although the Pugas cross-examined Salesi’s expert about the nature of the

encroachment and whether it existed before they purchased the property, they did

not challenge the expert’s testimony regarding the estimated amounts to reroute the

pipe or proffer their own evidence about the cost. Because the evidence adduced at

trial conclusively proved damages of at least the amount awarded, we conclude

that the trial court did not err by disregarding the jury’s zero damages

determination and, instead, awarding damages on the encroachment claim in the




                                          9
amount requested, which corresponded to the lesser of the two repair estimates.

See City of Keller, 168 S.W.3d at 820.

      We overrule this issue.

                       Salesi’s Claim for Attorney’s Fees

      The Pugas make four arguments challenging Salesi’s fee award. First, they

argue that there is no basis in law for an award of attorney’s fees because Salesi

did not obtain a declaratory judgment against them. Second, they argue that a

declaratory judgment action is an improper vehicle to resolve property boundaries

and, therefore, the Declaratory Judgments Act does not support the award of

attorney’s fees. Third, they argue that the fee should have been reduced to

segregate between recoverable and nonrecoverable claims. Fourth, they challenge

the award because the jury charge did not require that the fees awarded be

necessary. We turn first to whether a final judgment must contain a declaration to

entitle a movant to attorney’s fees under the Declaratory Judgments Act.

A.    Declaration in Judgment Unnecessary for Fee Award under the Act

      Salesi’s second amended petition requested a declaration that she owned the

property depicted in the 2006 survey. After both parties rested, Salesi was granted

a directed verdict on her declaratory judgment claim that her property boundaries

align with the 2006 survey and that her fence posts are within that designated




                                         10
property line. The final judgment, however, does not contain this declaratory

relief.

          Under the Declaratory Judgments Act, a trial court may exercise its

discretion to award attorney’s fees to the prevailing party, the nonprevailing party,

or neither, considering the equities in the case. See TEX. CIV. PRAC. & REM. CODE

ANN. § 37.009 (providing that trial court may award attorney’s fees that are

equitable and just in “any proceeding under this chapter”); Barshop v. Medina

Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996)

(holding that award of attorney’s fees in declaratory judgment action is within trial

court’s discretion and is not dependent on finding that party substantially

prevailed). “Moreover, the statute does not require a judgment on the merits of the

dispute as a prerequisite to a fee award.” Feldman v. KPMG LLP, 438 S.W.3d 678,

685 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (discussing Barshop and

concluding that trial court has power to award attorney’s fees under Section 37.009

even if declaratory relief claim is dismissed). Thus, the Pugas are incorrect to

contend that the absence of declaratory relief from the final judgment precludes, as

a matter of law, an attorney’s fee award in this declaratory judgment action.

B.        Boundary disputes may be resolved with declaratory relief

          The Pugas argue that Salesi cannot resolve a property boundary dispute

through a declaratory judgment action and, therefore, the Declaratory Judgments


                                         11
Act does not support the attorney’s fees awarded to her in this case. They rely on

Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004), to support their argument.

We disagree.

      Although Martin held that a boundary dispute must be resolved through a

trespass to try title action instead of a declaratory judgment, 133 S.W.3d at 265,

that opinion was later superseded by an amendment to Section 37.004, which

specifically permits resolution of boundary disputes through declaratory judgment

actions. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(c); see also Nw. Indep.

Sch. Dist. v. Carroll Indep. Sch. Dist., 441 S.W.3d 684, 689 (Tex. App.—Fort

Worth 2014, pet. denied) (explaining that “the state legislature overruled Martin by

adding Subsection (c) to Section 37.004 of the Declaratory Judgments Act” and, in

doing so, “simply removed the prohibition, based on the supreme court’s

construction of the [Declaratory Judgments] Act in Martin, against using the Act to

determine boundaries.”).

      Thus, Salesi was permitted to seek resolution of her property dispute through

a declaratory judgment action, through which attorney’s fees could be awarded.

See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.004(c) (permitting resolution of

boundary disputes through declaratory judgment action); 37.009 (allowing

recovery of attorney’s fees in declaratory judgment action).




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C.    Unsegregated Attorney’s Fees

      The Pugas also argue that the attorney’s fees awarded to Salesi were in error

because she failed to segregate her attorney’s fees. The Pugas makes two

arguments in this regard. First, they argue that the attorney’s fees incurred by

Salesi pursuing the declaratory judgment relief should have been segregated from

the fees incurred pursuing her negligence claim. Second, they argue that Salesi

could only recover fees incurred before the court granted her motion and accepted

the 2006 survey because, from that point forward, there was no dispute over the

boundary line.

      Assuming without deciding that Salesi was required to segregate her fees

and failed to do so properly, the Pugas never objected to the attorney’s fee

testimony. Additionally, the jury question on attorney’s fees asked generally about

fees incurred “as a result of this lawsuit,” and the Pugas failed to object to the

wording of the question.

      Because the Pugas failed to object to either the attorney’s testimony on

unsegregated fees or the related jury charge question, any error regarding

segregation has been waived. See, e.g., Green Int’l, Inc. v. Solis, 951 S.W.2d 384,

389 (Tex. 1997) (holding that, “if no one objects to the fact that the attorney’s fees

are not segregated as to specific claims, then the objection is waived”); Turull v.

Ferguson, No. 01-09-00067-CV, 2010 WL 2991087, at *4 (Tex. App.—Houston


                                         13
[1st Dist.] July 29, 2010), opinion supplemented on denial of reh’g, No. 01-09-

00067-CV, 2010 WL 3833944 (Tex. App.—Houston [1st Dist.] Sept. 30, 2010)

(mem. op.) (“Because the Timberoof Defendants did not object to the Turulls’

counsel’s testimony regarding segregation of fees and because there was no

objection to the wording of the charge that did not ask the jury to segregate

attorney’s fees, any error regarding segregation has been waived.”).

D.    Jury Not Asked if Attorney’s Fees were “Necessary”

      Finally, the Pugas argue that Salesi’s fee award should be reversed and no

attorney’s fees awarded because Salesi failed to obtain a jury finding that her

attorney’s fees were necessary.

      The Pugas did not object to the omission from the jury charge question of

the element requiring that attorney’s fees be necessary to be awarded. Failure to

object to the omission of a necessary element in a claim waives a complaint on

appeal that the element was not proven. See TEX. R. CIV. P. 279; Shindler v. Marr

& Assocs., 695 S.W.2d 699, 706 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d

n.r.e.) (error waived regarding omitted issue related to attorney’s fee award

because party failed to object). Further, the missing element is deemed found if

there was factually sufficient evidence on that issue at trial to support a finding.

TEX. R. CIV. P. 279. Salesi’s attorney testified that her fees were reasonable and

necessary. Because there was factually sufficient evidence on the issue and the


                                        14
Pugas failed to object to the omission of the “necessary” requirement in the jury

charge question, we hold that the Pugas waived this complaint.

      We overrule the Pugas’ first and second issues.

                     The Pugas’ Claim for Attorney’s Fees

      In their fourth issue, the Pugas contend that the trial court erred by not

submitting to the jury a question on their attorney’s fees. However, the Pugas did

not submit a proposed jury question on their attorney’s fees or object to its

omission. Accordingly, any error in the jury charge related to an award of

attorney’s fees to the Pugas was not preserved. TEX. R. APP. P. 33.1(a); TEX. R.

CIV. P. 279.

      Further, whether to award attorney’s fees to a party in a declaratory

judgment action is a question of law addressed to the trial court’s discretion based

on its determination whether a fee award would be equitable and just. TEX. CIV.

PRAC. & REM. CODE ANN. § 37.009; City of the Colony v. N. Tex. Mun. Water

Dist., 272 S.W.3d 699, 754 (Tex. App.—Fort Worth 2008, pet. dism’d).

Considering the record, the trial court may have determined that a fee award to the

Pugas would not be equitable or just given their nonprevailing status at trial. See

Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998) (stating that trial court “may

conclude that it is not equitable or just to award even reasonable and necessary




                                        15
fees”). Consequently, even if the issue had been preserved, the Pugas have failed to

demonstrate that the trial court abused its discretion by not awarding them fees.

      We overrule the fourth issue.

                                      Conclusion

      The judgment of the trial court is affirmed.




                                               Harvey Brown
                                               Justice

Panel consists of Justices Jennings, Bland, and Brown.




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