                                  NUMBER 13-12-00647-CV

                                     COURT OF APPEALS

                           THIRTEENTH DISTRICT OF TEXAS

                              CORPUS CHRISTI - EDINBURG


GLEN JONES,                                                                               Appellant,

                                                        v.

JIMMY D. HAND,                                                                             Appellee.


                        On appeal from the 97th District Court
                            of Montague County, Texas.


                                  MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Benavides and Longoria
           Memorandum Opinion by Chief Justice Valdez

      Appellant, Glen Jones, challenges a take-nothing judgment in favor of appellee,

Jimmy D. Hand. By four issues, Jones contends that the trial court included two improper

jury questions in its jury charge, and the evidence is insufficient to support the jury’s

verdict. We affirm.1


      1   This case is before the Court on transfer from the Second Court of Appeals in Fort Worth pursuant
                                       I.     PERTINENT FACTS

       Jones testified that he purchased property known as “Lot 7” in 1971 with a co-

owner.2      Jones stated that in 1972, on property adjacent to “Lot 8” that he believed

belonged to him, he built a pump house, “terraced the property,” and stored his boat.

According to Jones, no one disputed his right to use the pump house, terraces, or boat

storage from 1972 until a dispute over the property with Hand arose. Jones stated that

he had used the pump house for over thirty years before the dispute arose. When he

built the pump house, Jones believed that he owned the property underneath it.

       Jones testified that Hand had built a rock wall that Jones believed encroached on

his property and that Hand threatened to extend the wall to prevent Jones from accessing

the pump house. Jones believed that the wall had negatively affected the fair market

value of his property by about $15,000. Jones stated that he was asking the jury to award

him “the area around the pump house and where [he stored the] boat.”

       On cross-examination, Jones acknowledged that the survey admitted into

evidence showed that the boundary between Lot 7 and Lot 8 went through the pump

house. Jones agreed that according to Hand’s survey, the disputed property belonged to

Hand. Jones stated that the pump shed had not been functioning for approximately

eighteen or twenty years. Jones explained that he had moved the storage tank and pump

out of the pump house at that time due to a flood and that the structure was an “empty

building.” Jones still considered the structure an improvement to his property.




to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
       2   Jones purchased the co-owner’s share of Lot 7 in 1976.


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      When Hand’s attorney asked what improvements the county tax records showed,

Jones stated that it did not show a couple of decks he considered improvements and it

only showed “[t]he lot and residence.” Hand’s attorney asked, “So you're not being taxed

on the improvements known as the pump house; is that correct,” and Jones replied, “No,

sir, that would be correct. Nor the—where I’ve terraced my lot, I don’t guess they’ve taxed

me on that either where I’ve built up rock work. I don’t guess they’re taxing me on that.”

Jones acknowledged that when he built the pump house, the terraces, and wood deck

addition to the property, he did not inform the local taxing authority. Hand’s attorney

asked, “Have you ever gone to the Montague County Appraisal District and tell them that

you are claiming some of [Hand’s] property?” Jones responded, “I didn’t know I was

claiming any of his property, really.” Jones testified that he was attempting to claim some

of Hand’s property through adverse possession. Hand’s attorney asked, “And isn’t that

property that is below—immediately underneath the pump house?” Jones replied, “I

would guess from this description on the—I think it would be west of the pump shed.

West, on the southwest side of the property.” Hand’s attorney asked Jones to review his

petition, and Jones complied. Hand’s attorney then asked if the petition identified the

property he was claiming by adverse possession by metes and bounds, and Jones said,

“By metes and bounds, I don’t believe it does, sir.” Jones stated he did not have a survey

of his property prior to building the pump house.

      Hand testified that he purchased Lot 8 in 1988. Hand stated that he had discussed

the pump house with Jones and that “it was fine” with him. Hand said, “[H]e could leave

[the pump house] there or whatever.” Hand clarified that he had not informed Jones that

the pump house was on Hand’s property. On cross-examination by his attorney, Hand



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testified that he had “offered” to Jones the use of “the landing” located on Hand’s property

“any time he wanted to.” Hand said that he also told Jones that Jones could use the boat

dock located on Hand’s property.

       Eventually, Hand decided to construct a “rock wall” on the boundary of Lot 8 and

Lot 7, in part, because Jones had been starting fires to clear brush on his land. Hand

informed Jones of his intent to build the wall, and Jones was concerned because the

property line “went right through, dead-center through [Jones’s] pump house.” However,

when he was planning the wall, Hand told Jones that they could move the wall around

Jones’s pump house. When asked, “Did [Jones] ever assert a right to any of the property

under the pump house even though he knew that it encroached upon your property,”

Hand responded, “No, sir.” Hand denied that when he offered to move the rock wall

around the pump house that he was “conceding any of his property” to Jones. Hand

directed the contractor to “turn” the end of the rock wall so that it did not go through the

pump house. Hand testified that Jones did not continuously use the pump house “from

1972 when he built that pump house until the time that [Hand] did [a] walk through of the

property line prior to building” the rock wall. When asked if Jones had used the pump

house after Hand built the rock wall, Hand replied, “No, sir.” Hand testified that he had

always paid the taxes on Lot 8 and that no one else had ever paid taxes on Lot 8.

                                 II.    DIRECTED VERDICT

       By his fourth issue, which we address first, Jones contends that he was entitled to

a directed verdict. Specifically, Jones states that “[t]here was no evidence to oppose [his]

adverse possession of the Area of Dispute, as demonstrated by the testimony and the

Exhibits entered into evidence by both parties.”



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        We review the denial of a motion for a directed verdict by a legal sufficiency

standard of review. McFarland v. Sanders, 932 S.W.2d 640, 643 (Tex. App.—Tyler 1996,

no writ). When a party with the burden of proof challenges the legal sufficiency of an

adverse finding, we must determine whether the complaining party has demonstrated on

appeal that the evidence conclusively established, as a matter of law, all vital facts in

support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2011) (per

curiam).    Evidence is conclusive “only if reasonable people could not differ in their

conclusions, a matter that depends on the facts of each case.” City of Keller v. Wilson,

168 S.W.3d 802, 816 (Tex. 2005). Therefore, a judgment contrary to a jury verdict is

proper only when the law does not allow reasonable jurors to decide otherwise. 3 Id. at

823.

        To support his claim that he was entitled to a directed verdict, Jones points to

“facts” that he claims were “undisputed” at trial, which include the following: (1) “That the

structure (generally described as a ‘pump house’ in testimony) was constructed in 1972”;

(2) “That not only was the structure placed and used in its current position, but that [Jones]

also constructed retaining walls and stored his boat on that piece of property”; (3) “It must

be noted that even [the Hands] own witnesses acknowledged (along with one of the

surveyors), that there was evidence that the boat was still on the disputed tract after the

year 2000”; (4) “That the structure remained in place, unchallenged by any third party, for

the sixteen (16) years prior to the purchase of the adjacent tract by [Hand and his wife],



        3 In his brief, Jones does not state the elements of adverse possession or provide any authority
supporting his bare assertion that the evidence is insufficient. Also, Jones has not explained the applicable
standard of review in a case such as this—when the party with the burden of proof at trial challenges the
legal sufficiency of the jury’s finding that he did not prove the elements of his cause of action by a
preponderance of the evidence.


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and up to the date of filing of this cause”; and (5) “That [Jones] openly used, against any

third party, the structure and storage area and used and repaired the retaining walls for

over ten years prior to the purchase of the adjacent tract by [Hand].”4 Jones neither

explains how these facts entitled him to a directed verdict nor provides any citation to

pertinent authority requiring this Court to reverse the judgment on the basis of insufficient

evidence. See TEX. R. APP. P. 38.1(i); see also Dow Chem. Co., 46 S.W.3d at 241

(establishing that we must determine whether Jones has demonstrated on appeal that

the evidence establishes as a matter of law that he owned the property pursuant to

adverse possession).           Without any argument regarding the elements of adverse

possession and how the above-quoted facts entitled Jones to a directed verdict, we

cannot reverse the verdict without making Jones’s argument for him. See TEX. R. APP. P.

38.1(i); Ferguson v. DRG/Colony N., Ltd., 764 S.W.2d 874, 887 (Tex. App.—Austin 1989,

writ denied) (explaining that when an appellant fails to provide argument that is sufficient

to make an appellate complaint viable, the appellate court will not perform an independent

review of the record and applicable law in order to determine whether the error

complained of occurred).

       Nonetheless, in order to determine that Jones owned the disputed property under

adverse possession within the three-year statute of limitations, Jones must have

conclusively established that he owned the property “under title or color of title.” At trial,

the evidence conclusively established that title to the disputed property belonged to Hand

and no evidence was presented that Jones ever had title or color of title to the disputed

property. To find that Jones owned the property by adverse possession under the five-


       4   Jones does not cite the record wherein these facts were presented at trial.


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year statute of limitations, the jury had to find that Jones had paid “applicable taxes on

the property each and every year; and . . . claim[ed] the property under a duly registered

deed.” Again, the only deed presented showed that Hand owned the disputed property.

Jones did not claim he had ever paid taxes on the disputed property, and Hand presented

evidence that he had paid the taxes. Therefore, the evidence does not conclusively

establish, as a matter of law, that Jones adversely possessed the disputed property

pursuant to the three or five-year statutes of limitations. See Dow Chem. Co., 46 S.W.3d

at 241.

      Finally, regarding the ten-year statute of limitations for adverse possession, to be

an actual and visible appropriation of the land, Jones had to conclusively establish that

his possession of the land was “unmistakably an assertion of a claim of exclusive

ownership in the occupant.” BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 70 (Tex.

2011) (citing Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990) (quoting Rick v. Grubbs,

147 Tex. 267, 214 S.W.2d 925, 927 (1948); McDonnold v. Weinacht, 465 S.W.2d 136,

141 (Tex. 1971)). Here, Jones did not testify that he had ever excluded the previous

owners from the disputed property or that he asserted exclusive ownership over it. And,

although Jones testified that he did not ask the previous owner permission to build the

pump house, the jury was free to disbelieve this bald assertion given that the previous

owner did not testify and no other evidence regarding whether Jones had permission to

build the pump house was presented. Based on the evidence presented, we cannot

conclude that reasonable people could not differ in their conclusions regarding whether

Jones asserted exclusive ownership over the disputed property. See City of Keller, 168

S.W.3d at 816; Templeton v. Dreiss, 961 S.W.2d 645, 669 (Tex. App.—San Antonio 1998,



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writ denied) (providing that the exclusiveness of the claimant’s possession is ordinarily a

fact issue to be determined by a jury).

       In addition, “mere occupancy of land without intention to appropriate is not hostile.”

Tran v. Macha, 213 S.W.3d 913, 915 (Tex. 2006) (per curiam). Here, there was evidence

that Jones believed that the property at issue belonged to him and evidence supporting

a finding that he did not intend to appropriate his neighbor’s land. Therefore, based on

the evidence presented, we cannot conclude that reasonable people could not differ in

their conclusions regarding whether Jones merely occupied the land.             See Ellis v.

Jansing, 620 S.W.2d 569, 571–72 (Tex. 1981) (finding that there was no evidence of

adverse possession where claimant’s predecessor possessed strip of neighbor's property

but “never claimed or intended to claim any property other than that described in his deed,

or what he thought was contained in his deed, and he never intended to claim any

property owned by the abutting property owners”). We overrule appellant’s fourth issue.

                               III.    JURY CHARGE ERROR

       By his first issue, Jones contends that “‘notice’ was improperly restricted by the

Court’s Charge” that stated, “‘Adverse Possession’ means an actual and visible

appropriation of real property, commenced and continued under a claim of right, that is

inconsistent with and is hostile in the claim of Jimmy D. Hand during the 3, 5, and/or 10-

year period.” Specifically, Jones argues that the instruction “failed to permit the jury to

determine whether or not the three (3), five (5), or ten (10) year periods of limitations had

started and/or been completed prior to 1988” when Hand purchased the property.




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A.      Standard of Review

        We review the trial court’s jury charge for an abuse of discretion. Tex. Dep’t of

Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); see also Thota v. Young, 366

S.W.3d 678, 687 (Tex. 2012) (applying and discussing the abuse of discretion standard

of reviewing jury charge error). We may not reverse a judgment based on charge error

unless the error is harmful. Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 749–50

(Tex. 1980). Error is harmful with relation to the jury charge only if it probably caused the

rendition of an improper judgment. Penrod v. Schecter, 319 S.W.3d 737, 745 (Tex.

App.—El Paso 2009, pet. denied) (citing TEX. R. APP. P. 44.1; Wal–Mart Stores, Inc. v.

Johnson, 106 S.W.3d 718, 723 (Tex. 2003)).

B.      Improper Definition of Adverse Possession

        For purposes of this opinion, we will assume, without deciding, that the definition

of adverse possession given in the court’s jury charge is erroneous. Thus, the question

before this Court is whether the error probably caused the rendition of an improper

judgment.5 See id. As stated above, there was no evidence that Jones ever had title, or

color of title, to the disputed property or that Jones ever paid taxes on the disputed

property.6 Therefore, the complained-of definition could not have caused the rendition of

an improper judgment regarding whether Jones acquired adverse possession of the

property pursuant to the three or five year statutes of limitations.




        5   Jones does not explain how the error in the jury charge, if any, was harmful.
        6The jury answered, “No” to the question, “Did Glen Jones, Plaintiff, have record title to the disputed
property as identified?” Jones does not challenge the jury’s finding that he did not have record title to the
disputed property.


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       Regarding the ten-year statute of limitations, the jury, as explained above, may not

have found that Jones exhibited exclusive possession of the disputed property. Thus, the

complained-of definition could not have caused the rendition of an improper judgment

regarding whether Jones acquired adverse possession of the property pursuant to the ten

year statute of limitations. We overrule Jones’s first issue.

C.     Instruction on Encroachments

       By his second issue, Jones contends that the trial court erroneously gave the jury

an instruction on the affirmative defense of encroachments because Hand failed to plead

it. Hand counters that although not pled, the issue of encroachments was tried by

consent; therefore, the trial court did not err in including the instruction in the jury charge.

       Even assuming, without deciding, that the trial court erred in including the definition

of encroachments in the jury charge, we cannot conclude that it caused the rendition of

an improper judgment.7 See Penrod, 319 S.W.3d at 745. This is so because there was

no evidence that Jones ever had title, or color of title, to the disputed property, there was

no evidence that Jones ever paid taxes on the disputed property, the jury could have

reasonably found that Jones had not claimed “exclusive ownership” of the disputed land

until Hand built the rock wall, and the jury could have reasonably found that Jones’s

possession of the disputed property was not hostile because he merely occupied the land

without more. We overrule Jones’s second issue.

                                       IV.      ATTORNEY’S FEES

       By his third issue, Jones contends that the trial court improperly awarded attorney’s

fees to Hand’s trial counsel. Specifically, Jones argues that Hand’s attorney failed to


       7   Jones does not explain how the error, if any, was harmful.


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testify that his attorney’s fees were “reasonable and necessary.” Jones has not provided

a clear and concise argument with citation to authority regarding his attorney’s fees

issues. Thus, we are unable to reverse on this basis.8 See TEX. R. APP. P. 38.1(i);

Ferguson, 764 S.W.2d at 887. We overrule Jones’s third issue.

                                           V.       CONCLUSION

        We affirm the judgment.

                                                                    ____________________
                                                                    ROGELIO VALDEZ
                                                                    Chief Justice


Delivered and filed the
13th day of March, 2014.




         8 There are several factors that the jury must consider when determining whether attorney’s fees

are reasonable and necessary. Those factors include the following: (1) “the time and labor required, the
novelty and difficulty of the questions involved, and the skill required to perform the legal service properly”;
(2) “the likelihood . . . that the acceptance of the particular employment will preclude other employment by
the lawyer”; (3) “the fee customarily charged in the locality for similar legal services”; (4) “the amount
involved and the results obtained”; (5) “the time limitations imposed by the client or by the circumstances”;
(6) “the nature and length of the professional relationship with the client”; (7) “the experience, reputation,
and ability of the lawyer or lawyers performing the services”; and (8) “whether the fee is fixed or contingent
on results obtained or uncertainty of collection before the legal services have been rendered.” O and B
Farms, Inc. v. Black, 300 S.W.3d 418, 423 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). Jones has
neither cited these factors nor argued that Hand’s trial attorney failed to address these factors. Moreover,
upon our review of the record, although Hand’s attorney did not specifically state that the attorney’s fees
were “necessary and reasonable,” he did explain in detail his hourly rate, why he was entitled to charge
that rate per hour, what he did in the case, why he did it, and the required amount of hours he expended
on each required task. See id. Hand’s trial counsel also testified regarding his experience and ability, the
novelty of the issues involved in the case, and the fee customarily charged in the locality for similar legal
services. See id.


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