       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-19-00063-CV



                              Mary Catherine Person, Appellant

                                                v.

                                    Martha Pyron, Appellee


                FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY
         NO. D-1-GN-17-003095, THE HONORABLE TIM SULAK, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Mary Catherine Person appeals from orders disposing of cross-motions for

summary judgment on claims and counterclaims arising from her neighbor’s erection of a fence

located on land allegedly acquired by Person under the doctrine of adverse possession. We

will affirm.


                                       BACKGROUND

               Person and Martha Pyron are next-door neighbors, with Person owning the

residential lot immediately west of Pyron’s. Person has owned her lot since 2005. During

Person’s tenure on the property, Pyron’s lot was owned by Allison Goldring until 2007 and by

Bonnie Gilson from 2007 to 2016. Pyron purchased her lot from Gilson in 2016. Person and

Pyron disagree on the boundary between the backyards of their respective lots.        Their

disagreement arises from the successive erection of three fences.
                The first fence (Goldring Fence) was erected by Goldring sometime after 2001

but before Person purchased the lot next door. At the time, there was a chain-link fence that

generally followed the property line. Rather than remove that fence and risk runaway pets,

Goldring elected to erect her new fence along a parallel line on her own property, leaving a

narrow strip of land between the fences. In deposition testimony, Goldring averred that the

neighboring owner was aware that the placement of the Goldring Fence did not reflect the

property line and that Goldring did not intend to forfeit ownership of any part of what is now

Pyron’s lot. The chain-link fence was subsequently removed, leaving just the Goldring Fence

separating the two yards.

                The next fence (Gilson Fence) was a joint enterprise between Gilson and Person.

As Gilson described it, “[T]he fence that was there [i.e., the Goldring Fence] was slatted so that

you could see in between each slat.” She explained that “our dogs started to have altercations

through the open parts of the fence.” In 2015, the two women “agreed to put in a solid fence”

and to split the cost. When it came to the placement of the fence, Gilson recalled, “[I] think it

was our assumption that we would just put the fence where the old fence was.” She continued,

“[A]t some point along the way . . . I knew that the fence was on my [side of] the property, but I

didn’t care.”

                The newest fence (Pyron Fence) arose from concerns about possible

encroachment when Person began construction of a deck in 2016. Pyron apparently informed

Person that the Gilson Fence did not reflect the actual property line and then contracted for a

land survey and construction of a new fence (i.e., the Pyron Fence) that would accurately reflect

the legally recorded property line. The survey revealed that the new deck encroached onto



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Pyron’s lot in two places, and Pyron asked Person to eliminate the encroachment. Person

declined to do so.


                                 PROCEDURAL HISTORY

               Person sued Pyron in Travis County district court, claiming trespass under a

theory of adverse possession and seeking an injunction ordering Pyron to remove her fence.

Pyron counterclaimed for trespass and sought declaratory relief, injunctive relief, and damages.

See Tex. Civ. Prac. & Rem. Code § 37.004(c) (creating cause of action for “the determination of

the proper boundary line between adjoining properties”). Both parties moved for final summary

judgment. See Tex. R. Civ. P. 166a. Following a hearing on the motions, the district court

granted Pyron’s motion for summary judgment, denied Person’s motion, and declared, “The true

and valid property line between the properties . . . is and shall be shown as on the survey dated

January 9, 2018.” The court then ordered Person to:


       remove all encumbrances, fences, fence poles, decking, or any other encumbrance
       that she (and or [sic] any agents or contractors who may have worked for her)
       has/have caused to exist on Defendant’s property . . . including but not limited to
       the front yard fence and the portions of her deck that are protruding onto
       Defendant’s property as shown by the Survey.


The court declined to award attorney’s fees to Pyron and declined Person’s request for findings

of fact and conclusions of law.      Person now challenges the two orders disposing of the

cross-motions for summary judgment.


                                         DISCUSSION

               Person contends the district court erred by granting Pyron’s motion for traditional

summary judgment and denying her own. See Tex. R. Civ. P. 166a. When both parties move for


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final summary judgment on overlapping issues and the trial court grants one and denies the other,

we review all the evidence, resolve all issues, and render the judgment the trial court should have

rendered. See Texas Workers’ Comp. Comm’n v. Patient Advocates, 136 S.W.3d 643, 648 (Tex.

2004); CU Lloyd’s of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998) (per curiam).


Person’s Motion for Summary Judgment

               Person first alleges error in the district court’s summary-judgment dismissal of

her claim for injunctive relief from trespass. Because it is dispositive of this issue, we will begin

with Person’s theory of 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.” See Tex. Civ. Prac. & Rem.

Code § 16.021(1). To prevail with a theory of adverse possession, a plaintiff must prove:

(1) actual and visible possession of the disputed property; (2) that is adverse and hostile to the

claim of the owner of record title; (3) that is open and notorious; (4) that is peaceable; (5) that is

exclusive; and (6) involves continuous cultivation, use, or enjoyment for the duration of the

applicable statutory period. See Kazmir v. Benavides, 288 S.W.3d 557, 561 (Tex. App.—

Houston [14th Dist.] 2009, no pet.). In this case, Person must prove continuous adverse use for

at least ten years. See Tex. Civ. Prac. & Rem. Code § 16.026(a) (“A person must bring suit not

later than 10 years after the day the cause of action accrues to recover real property held in

peacable and adverse possession by another who cultivates, uses, or enjoys the property.”).

               Person’s claim of trespass fails as a matter of law because this record precludes

her from proving the second and sixth elements of her theory of adverse possession. With

respect to the nature of Person’s possession of the disputed strip of land, Goldring attested that


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she never intended to relinquish her right to that land when she erected the Goldring Fence. She

further averred that she knowingly allowed the owner of the neighboring lot to use that part of

her lot. Similarly, Bonnie Gilson testified that she was aware of Person’s use of the property and

did not oppose it, recalling, “[A]t some point along the way . . . I knew that the fence was on my

[side of] the property, but I didn’t care.” Because Goldring and Gilson knowingly permitted

Person to use the now-disputed strip of land, Person’s possession was neither “inconsistent with”

nor “hostile to” to the rights of the actual title holder. See id. § 16.021(1).

                An inceptively permissive use—like Person’s use here—does not become hostile

until the land user puts the title holder on notice of the adverse claim of right. See Galindo

v. Alexander, 248 S.W.2d 171, 173 (Tex. App.—San Antonio 1952, writ ref’d n.r.e.). On this

record, Person’s possession did not become adverse until Pyron informed Person of the recorded

property line and Person asserted a possessory right to part of Pyron’s lot. These events occurred

sometime in 2016 or 2017. Thus, while Person may have demonstrated continuous enjoyment of

the disputed property for several years, she cannot show continuous adverse possession for a

period of ten years, as required to prevail with this legal theory. See Kazmir, 288 S.W.3d at 561.

Because Person’s claim of trespass is predicated exclusively on her theory of adverse possession,

the district court did not err in denying her motion for summary judgment.


Pyron’s Motion for Summary Judgment

                In what she styles as an argument in the alternative, Person contends Pyron did

not satisfy her burden with respect to her own motion for summary judgment, which the district

court granted. The basis for Person’s alternate argument is not entirely clear, as it is not




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expressly set forth separately in her brief. Even assuming she has not waived the issue due to

inadequate briefing, see Tex. R. App. P. 38.1, we would reject her challenge.

               The challenged order affords Pyron two types of relief: a declaration that the

boundary between the two lots is as reflected in the 2018 survey, and an injunction ordering

Person to remove any encumbrances or encroachments, including parts of her deck. On this

record, there is no genuine dispute that Pyron is entitled to this relief. She produced the warranty

deed reflecting her ownership of her lot and the 2018 survey showing the boundary between the

two lots. Person did not challenge the accuracy of the deed or the land survey. Thus, Pyron

established her right to the declaration included in the judgment.

               The same evidence also supports the injunctive relief afforded in the judgment.

The 2018 survey documents multiple structures encroaching from Person’s property onto

Pyron’s. Pyron also submitted photos showing those encroachments. Person did not refute any

of this evidence and does not deny that her structures protrude across the boundary now declared

to be the legally accurate reflection of the property line. Thus, because a property owner is

generally entitled to exclusive enjoyment of her premises, Clearpoint Crossing Prop. Owners

Ass’n & Cullen’s LLC v. Chambers, 569 S.W.3d 195, 201 (Tex. App.—Houston [1st Dist.] 2018,

pet. denied), and because Pyron’s evidence leaves no genuine question of fact with respect to the

Pearson’s encroachment onto Pyron’s premises, Pyron is entitled to the injunctive relief afforded

in the judgment. See Tex. Civ. Prac. & Rem. Code § 37.011 (allowing court presiding over

claim for declaratory relief to afford “supplemental relief” “whenever necessary or proper”).

The district court therefore did not err in granting Pyron’s motion for summary judgment or in

affording the relief included in the order granting the motion.



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                                        CONCLUSION

       Having rejected Person’s challenges to the district court’s orders, we affirm those orders.



                                             __________________________________________
                                             Edward Smith, Justice

Before Chief Justice Rose, Justices Triana and Smith

Affirmed

Filed: March 18, 2020




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