### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-06-00315- CV

Cindy S chlapp er, A ppellan t

v. Rand For est, Buck Child ers, R obert Ste wart Leonard, Dorothy Stewart Uz ell, Betty Ste wart Hanson , Mike K euhl, Flagship Marine Corporation, Shoreline Developm ent, and H arbor Ve ntures, Inc., Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -GN-0 5-0 0003 3, H ONO RAB LE GISELA D. TRI ANA-DO Y AL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This appea l arises from a rea l estate title dispute am o ng owner s and occupie rs of neig hboring trac ts of l and. Appellant C indy Schlapper , the undi sputed owner of a trac t of l and in Travis Count y near L ake Travis, appeals pro se the district court’s judgment in favor of appellees Rand For est, Buc k Childers, Robert Stewart L eonar d, Dorothy Stewart Uzell, Be tty Stewart Hanson, Mike Keuhl, Flag ship Marine Corporation, Shoreline Deve lopment, and Har bor Venture s, I nc., on her va rious claims ag ainst them and its a war d of title to two disputed neig hboring trac ts to Harbor
Venture s. I n four issues, Schlapper contends that the district court misconstrued the deeds in her chain of title an d err ed in sever ing Harbor Venture s’s claims for declar atory and inj unctive relief, in enter ing a judgme nt on all of her claims in favor of appellee s, and in denying her attorney ’s fee s and costs. F or the re asons that follow, we aff irm the district court’s judg ment.F ACTUAL AND P ROCEDURAL BACK GR OUND Appellant Schlapper owns a .416 acr e trac t near L ake Travis. She also claims a fee simple interest i n al l o r a p ortion of three neig hboring trac ts, which are located direc tly acr oss a paved road from Schlapper ’s trac t and which allow acc ess to L ake Travis. Schlapper ’s trac t and the three neig hboring trac ts all origina ted from a common 128.5 acr e tra ct owned by A. K. and A nnie
Stewart. Schlapper bases her claim to a fee simple interest i n t h e t h re e neig hboring trac ts on lang uag e in t h e d ee d s i n the chain of title to her .416 acr e trac t. The parties do not dispute Schlapper ’s title to the .416 acr e trac t, but appellee Har bor Venture s asser

ts owner ship to the three neig hboring trac ts. Ha rb o r Venture s claims that it owns the three trac ts throug h a chain of
convey ance s and that Schlapper possesses only an ingr ess/eg ress ease ment over the trac ts to provide

acc ess to L ake T ravis. No other pa rties claim an ow nership intere st in the three disputed tra cts. 1 2

The Controver sy

The parties’ dispute o v er the trac ts resulted from competing claims to use of the
proper ty

. Some time during or after 2003, Har bor Ventures bega

n constru ct i o n o perations on the

The district court sever ed Har bor Venture s’s claim for decla ratory relief reg ardi n g the 1 extent of the rig hts convey ed by the acc ess ease ment and its rel ated claim for perma nent injunctive relief. Those issues wer e tried separ ately , and the district court enter ed a defa ult judgme nt in favor of Har bor Venture s. This Court d i s m i ssed Schlapper ’s appea l of that final judgme nt for want of prosec ution. See generally Schlapper v. Harbor Ventures , No. 03-07-00246- CV (Tex. App.—Austin Nov. 14, 2007) (mem. op.), available at http:// www.3r dcoa.c ourts.state.tx .us/opinions/ pdfOpinion.asp? OpinionI D=16351.

Be cause the Stewarts had previously g rante d the L ower Colorado River Authority a 2 perpe tual ease ment for the r ight to “inunda te, submerg e, and ove rflow” the 128.5 ac re trac t be low the 715 contour line, as descr ibed in the instrument rec orded in volume 643 , p age 2 4 o f t he deed rec ords of Travis County (“the L CRA ease ment”), one of the three disputed trac ts usually lies under the wate rs of L ake T ravis. 2thr ee t ra ct s . Schlapper objected to their prese nce on the trac ts and in 2005 filed suit ag ainst the 3
individual appellee s asser ting various cause s of action, most based on her contention that she owns all or part of the trac ts on which the operations wer e being conducte d. I n her orig inal petition, Schlapper claimed to be “the owner in fee simple of a strip of an unimproved, orig inal land

. . . North of, adjac ent to and immediately below” her undisp u t ed

. 4 1 6 acr e trac t, subject to the L CRA

ease ment. Har

bor Venture s, asser

ting that it owned the tract s cl ai m ed by Schlapper , intervene d seeking to establish and quiet title, decla ratory relief reg arding the exis tence and extent of the rig hts
gra n t ed t o S chlappe r by the lang uag e in the 1944 deed to her prede cessor s convey ing an ingr ess/eg ress e aseme nt, temporary and per manent injunctions, and other r elief.
I n seven amende d petitions, Schlapper claimed t o o wn all or part of the three 4 dispu t ed trac ts, claiming at various times to own “par t of a larg er unimproved trac t that is in

ease ment [si c] to L CRA,” “a part (a partition) of a 4.0 acr e estate of land,” and “more than one-third of the approxi mately 2.72 acr es” a cross the r oad fr om her .416 a cre trac t, and alter nately ref err ing
to the claimed proper

ty as “my land,” “my ease ment,” “my conserv at i o n ea s ement,” and “the partition.” I n her amende d petitions, Schlapper also added Har bor Venture s, Flag ship Marine, and Shoreline Deve lopment as defe ndants. The district court struck Schlappe r’s seventh amende d

The rec ord is not clea

r, but it appea

rs that Har

bor Ventures co n d u ct ed opera tions that 3 included construction of marina equipment. I t further appea rs that Har

bor Venture s lease d all or part of the three disputed trac t s to appellee Flag ship Marine Corporation, which conducte d barg e construction, and that Har bor Venture s and/or Flag ship Marine eng ag ed Shoreline Deve lopment to perf orm work in connec tion with the construction. I t also appea rs t hat appellees R and Forest and Buc k Childers are principals in Har bor Ve n t u re s , appellee Mike Keuhl is a principal in Flag ship Marine, a nd Shoreline De velopment is a sole propr ietorship owned by For est. The re cord doe s not contain the first, four th, or fifth ame nded petitions. 4 3petition as unt imely filed, and the case was tried on Schlapper ’s s ix th am en d ed petiti on, in which

she claimed to own the three disputed trac ts direc tly acr oss the road from her .416 acr e trac t and

asser ted cause s of action for suit to quiet t i tle, slander of title, fra ud, neg lige nt misrepre sentation, nuisance , civil conspirac y , conver sion, assault, titl e by limit ations, and injunctive re lief.

The Trial
I n a brie f trial to the benc h, the par ties offe red e vidence and Schlappe r testified.
Schlap per’s Evidence Schlapper offe red deeds in the chain of t itle to her undisputed .416 acr e tract. The
two deeds she primarily relied on as proof of her owner ship interest in the three disputed trac ts wer e the 1944 deed convey

ing the .416 acr e trac t to her prede cessor s in interest and the 1 9 9 1 d eed
convey ing the same tra ct to Schlapper

.
The 1944 Dee d The 1944 deed convey

ing the .416 acr e trac t to Schlapper ’s prede cessor s in interest descr ibed the tra ct as follows:

. . . all that cer

tain trac t or parc el of land ly ing and being situated in Travis County , Texas, a part of the J ohn McDona ld Survey No. 102, and being part of a trac t of land sold by F. J

. Clifto n an d wi fe, Susan R. Clifton to A. K. Stewart and wife, Annie Stewart, by deed dated Octob er 2 0 , 1916 rec orded in Book 307, pag es 386-387, of Travis County Dee d Records, to w hich ref ere nce is he re made; and the trac t here in convey ed bein g m o re p articula rly descr ibed by metes and bounds as follows, to wit: BEG I NNI NG at t h e N. E

. corner of a trac t of land sold by me this day to Her man Peavey and wife, L ois Peavy , for the N. W. corne r of this t ra ct

. Thenc e S. 78 deg

. 54 min. E. 85 ft. to an iron stake for the N. E. corne r of this trac t; Thenc e
4S. 2 8 deg

. 15 min. W. 210.5 ft. to an iron stake for a corne r of this trac t; Thenc e

N. 88 deg

. 17 min. W. 91 ft. to an iron stake for corne r of this trac t; Thenc e N. 27 deg

. 40 min. E. 230.9 ft. to the place of beg inning. Acc ording to survey made by O.P. Schoolfield, L icense d State L and Survey or, in September, 1944. The de ed also c ontains the following lang uag e:

I n connec tion with the g rant in fee simple of the trac t of land above descr ibed, it is understood and ag ree d that t h e gra n t o rs here in here by g ive and g rant unto the g rante e, his heirs and assig ns, a perpe tual ease ment o n an d ac ross the land ly ing immediately Nor t h and adjac ent to the trac t here in convey ed and betwee n prolong ations of the East and West bounda ry lines of the trac t he rein conveyed and betwee n said trac t of land and the contour line which 670 fee t above mean sea level as established by the United States Geolog ical Survey Be nch Marks; said ease ment shall be for the purposes of ingr ess and eg ress from the trac t of land here in convey ed to L ake T ravis. The g rante e, her heirs and assig ns, shall have the rig ht to construct roads and walkwa

y s, one or both or more of eac h, on and acr oss sa id la nd and shall have the rig ht to cut the underbr ush and to trim the tree s situated there on, and to do an y ac t or thing on said land which will in any wise beautify or impr o v e t h e appe ara nce of either the land acr oss which said ease ment is g rante d or the trac t of land above convey ed; and that the fore g oing ease ment, restric tion, covena nt and ag ree ments shall be deeme d covena nts running with the land [and] shall be binding upon the g rantors he rein, their he irs and assig ns.

This convey ance is subject to the rese rvations contained in ease ment g rante d to L ower Colorado River Authority

.
The 1991 Dee d The 1991 de ed conve y ing the trac t to Schlapper c ontains the following provisions:

This convey ance is made and acc epted subject to any and all co n d i tions, ease ments, covena

nts, restric tions and rese rvations, if any , rel at i n g to the here in descr ibed proper

ty ; to the extent, and only to the extent, that the same may still be in forc e and eff

ect, shown of rec ord in the office of the County Clerk of Travis County , Texas.

. . .

5Gra ntor, for the consideration and s u b j ec t t o the rese rvations from and exceptions to convey ance and war ranty , g rants, sells, and convey s to Gra ntee the proper ty , toge ther with all and si ng ular the rig hts and appurtenanc es t here to in any wi se belong ing, to have and hold it to Gra ntee, Gra ntee’ s heirs, executors, administrators, succ essors, or a ssigns for ever . Schlapper also offe red a plat o f the are a, which the district court admitted for demonstrative p urposes only , a Fe dera l Emerg ency Manag ement Ag ency flood plain map, which indicated the 715 contour li ne, photogra phs of t he dis puted t rac ts and of the construction activity , and ae rial views of

the disputed trac ts and surrounding are a. Schlapper testified that the lang uag e in the 1944 deed to her prede cessor s g rante d her

an owner ship interest in “80 acr es” of the 128.5 acr e trac t, subject t o t h e “f lowag e ease ment” previously g rante d to the L CRA be low the 715 contour line. Citi ng the lang uag e in the 1944 deed refer ri n g t o “all that cer tain trac t,” she stated that the phrase ref ers to “the upper half of the
J ohn McDona ld sur

vey . . . . That 80 acr es.” Schla pper testified that when she purcha sed her trac t, she wa s told that she was also g etting the proper ty “in front” of her

trac t and that “the only

way to buy it” was to “buy the land that it’s attache d to,” so she boug ht her trac t and “that’s how [she has] that land.” She further testified that owner ship in the 80 acr es was also g rante d to four other people who purcha sed near

by trac ts, cre ating joint owner ship among her and her neig hbors. She added that she and her neig hbors “had this proper ty in front of them, eac h one down to the lake,” but since “y ou can’ t subdivide an ea sement,” the y ag ree d that eac h one had a cer tain “spot.” Schlapper also testified that owner s h i p i n t h e 80 acr es passed to her as an “appur tenanc e—attac hed to the land in her deed,” so there is “no separ ate deed for it.” She denied that she has an ingr ess/eg ress ease ment over the disputed trac ts. She also stated that she had alway s
6considere d the 80 acr es her land, that she had “a reputa tion on that land,” and that th e d ee ds on

which Har

bor Venture s relies are “invalid” a nd “all of a

sudden appe ar[ed].” Reg arding her othe r claims, Schlapper testified that appellee s had remove d larg e, valuable “wa terfa ll rocks” from “[her] land” a nd had polluted it and destroy ed veg etation.

Harbor Venture s’s Evidence
Har bor Venture s offe red into evidenc e an abstrac t of ti t l e, deeds, and wills as evidenc e of the chain of title to the three disputed trac ts. Har bor Venture s first offe red a 1919 deed
convey ing the 128.5 acr es to A. K. and Annie Stewart an d fa m ily wills showing that the entire
128.5 acr e tract passed by devise a nd desce nt from Stewar

t to his wife, then to their son, and then to his three children, a

ppellees D orothy

Stewart Uzell and B etty

Stewart Ha

nson and their br other Arthur L eonar d Stewart, J r. Har bor Venture s then offe red deeds showing that Arthur Stewa

rt, J r., later convey ed his interest in the 128.5 acr es to Uzell and Hanson, that in 1997 Uzell and Hanson deede d one of the dispute d t ra cts to Har bor Venture s, and that Har bor Venture s subsequently
convey ed that trac t to Tamir Enterpr ises, L td., which convey ed it to Wil liam C. Davidson, Trustee , in 2000. Har

bor Venture s also offe red deeds, deeds of trust, a secur ity ag ree ment, and an assig nment of lien showing that also in 2000, Uzell and Hanson convey ed the other two disputed trac ts to Davidson, who, in 2003, convey ed all three disputed trac ts to Har bor Venture s, subject to a deed of
trust an d s ec u ri ty ag ree ment in favor of Gordon M. Griff in, Trustee of the Griff

in Family Trust, which Gr iffin later

assig ned to appe llee Robert M. L eonar d. 5

Schlapper

filed suit ag ainst “Robert L eonar d aka/dba Robert Stewar

t.” L eonar d filed an 5 answe r stating that his name is Robert M. L eonar d and specific ally deny ing that he is Robert Stewart, 7The Court’s Ruling Finding no evidenc e to suppo r t Schlapper ’s cause s of action, the district court enter ed

an interlocutory p ar t i al j u d g ment in favor of appellee s and awa rded Har bor Venture s title to 6

two disputed trac ts. The district court sua spont e order ed that a separ ate trial be conducte d on 7
Har bor Venture s’s reque sts for decla r a to r y ju d g me n t c o n c e r

ning the ingr ess/eg ress ease ment g rante d
to Schlapper by the lang uag e in the 1944 deed and for perma n en t i n j u n ct ive relief

. No party 8
reque sted finding s of fa ct and c onclusions of law, a nd the district court e ntere d none. The district
court subsequently sever ed Har bor Venture s’s claims for decla ratory and injunctive relief , and the judgme nt in this matter be came final. This appe al followed. 9

transac ts business as Robert Stewart, or is related to Rober

t Stewart. The district court had previously dismiss ed all claims except the fra ud claim ag ainst all the 6 individual defe ndants except L eonar d. Schlapper subsequently added additional cause s of action in amende d petitions. T h e i n t erlocutory partial judgment ordered that Schlapper take nothing on all cause s of ac tion not previously dismiss ed. Although the district court found that Schlapper does not own the underw ater trac t, it did 7 not awar d title to that tract. The district c ourt denied Schlappe r’s motion to modify the judg ment, and title to the underw ater trac t is not at iss ue in this appea l. The interlocutory judgme nt d i s posed of the rema inder of the claims Har bor Venture s 8 asser ted in its plea in intervention.

T h i s C o u r t h a s p r e v i o u s l y a d d r e s s e d s e v e r a l p r e l i m i n a r y 9 p r o c e d u r a l i s s u e s i n t h i s a p p e a l

. S e e g e n e r a l l y S c h l a

p p e r v
. F o r e s t , No. 03-06-00315- CV (Tex.Ap p . — Au s tin Dec

. 14, 2006) (mem. op.), available at http:// www.3r dcoa.c ourts.state.tx .us/opinions/ HTML opinion.asp? OpinionI D=15487; Schlapper v. Forest , No. 03-06-00315- CV (Tex. App.—Austin J une 21, 2007) (mem. op.), avail a b l e at http:// www.3r dcoa.c ourts.state.tx .us/opinions/ HTML opinion.asp? OpinionI D=15974; Schlapper v. Forest , No. 03-06-00315- CV (Tex. App.—Austin Sept. 5, 2007, o rd er ), available at http:// www.3rdcoa.c ourts.state.tx .us/opinions/ HTML opinion.asp? OpinionI D=16233; Schlapper v. Forest, 272 S.W .3d 676 (Tex. App.—Austin 2008, pet. denied). 8ANALYSIS

Dee d Construction

I n her first issue, S ch lapper contends that the district court misconstrued and misint erpr eted the lang uag e of t h e d ee ds in her chain of title and failed to apply well-settled rules of deed construction. A deed is subj ec t to the same rules of interpre tation and construction as a
contra ct. See Luckel v. W hite , 819 S.W .2d 459, 461-62 (Tex. 1991). The const ru ct i o n of an unambig uous deed is a question of law, which we revie w de novo . Id. at 4 6 1

. I n co n d u cting a de novo revie w, we exercise our own judgme nt and g ive no defe renc e to the trial court’s decision. Quick v. City of Austin , 7 S.W .3d 109, 1 1 6 (T ex . 1998). The primary duty of a court when construing an unambig uous deed is to ascert ain the parties’ intent as expressed in the deed’ s four

corne rs. Luckel , 819 S.W .2d at 461. I n apply i n g t h e “f o u r corne rs” rule, we must not look at isolated terms but are to consider the instrument as a whole and attempt to harmonize and g ive eff ect
to all provisions. Plainsman Tradi ng Co. v. Crews , 898 S.W .2d 786, 789 (Tex. 1995). “We give the lang uag e its plain, g rammatica l meaning unles s d oing so would clea rly defe at the parties’ intentions.” Tana Oil & Gas Corp. v. Cernosek , 188 S.W .3d 354, 359 (Tex. Ap p . — Au s tin 2006, no pet.). Schlapper ’s contention that the district court misconstrued the deeds is depende nt on her proposed interpre tation of lang uag e in the 1944 deed convey i n g t h e . 4 1 6 acr e trac t to her prede cessor s in interest and in the 1991 deed convey ing the same trac t to her. Fr om the 1944 deed, Schlapper cites three provisions. First, she re fer s to the g ranting lang uag e and dr aws a distinction betwee n the terms “tra ct of land” and “tra ct here in con v ey ed

. ” Acc ording to Schlapper , “tra ct of

9land” ref

ers to the three disputed trac ts, “tra ct here in convey ed” ref ers to the .416 acr e trac t, and the

use of the word “and” immediately befor e the metes and bounds descr iption of the “tr act here in
convey ed” means that the three disputed trac ts wer e convey ed with the .416 trac t. Schlapper further relies on the la

ng uag e g ranting “a pe rpetua l ease ment” ac ross the disputed trac ts, arg uing tha t this lang uag e convey s an ingr ess/eg ress ease ment to the g rantor Stewarts rathe r than to the g rante es who

wer e her prede cessor s in interest. I n s u pport of this contention, Schlapper notes that g ranting lang uag e say s “his” heirs and, since the g rante es wer e fema le, the g rant must nece ssarily be to
g rantor A. K. S tewar

t. Final l y , Schlapper relies on the clause that provides: “This convey ance is subject to the rese rvations contained in ease ment g rante d to L ower Colorado River Authority .” She contends that this lang uag e makes it clea r that the g rantors rese rved only an ease ment and not a fee simple interest in the three disputed tracts.

I n her 1991 deed, Schlapper points to the lang uag e convey ing the proper

ty to her “tog ether with all

. . . appurte nance s there to

. . . .” Schlapper asser ts that beca

use the disputed trac ts abut her undisputed .416 acr e tract, they are appurte nance s attache d to her tra ct, and she t here fore al s o o wns them in fee simple, subject to the L CRA ease ment. She urg es this Court to follow th e “strip and g ore” doctrine, citing case s dealing with land abutting public roadw ay s and railroa d rig ht of wa y which apply

that doctrine. The parties do not contend that the deeds in question are ambig uous, but they advanc e conflictin g i n t erpretations. After revie wing the deeds and apply ing the rules of construction, we
ag ree that the deeds are , in rele vant part, unambig uous. Turning firs t to the 1944 deed, we 1 0

The issue of any ambig uity in the lang uag e g ranting Schlapper an ingr ess/eg ress ease ment 1 0 over the disputed tracts is not befor e us, and w e have not considere d it. 10conclude that the pl ain l anguag e of the deed doe s not support Schlapper’ s rea ding of it. The deed does not distinguish betwe en t he “tra ct of land” and “the trac t here in convey ed.” Under the unambig uous terms of the deed, they are one and the same. Nor does the word “and” indicate that
two trac ts are conveyed. Giving it its o rd i n ar y , grammatical meaning , we conclude that the word “and” is mere ly the conjunction introducing the metes and bounds descr iption of the .416 acr e trac t being conveyed. See Gym- N-I Playgrounds, Inc. v. Snider , 220 S.W .3d 905, 908-09 (Tex. 2007)

. I n addition, the plain lang uag e of the deed unambig uously convey s an ingr ess/eg ress ease ment to the
g rante es. Striving to harmonize all par ts of the dee d, we c onclude that to re ly on the sing le use of the word “h i s ” t o co n clude otherwise contra venes the plain meaning of the deed as a whole. See Plainsman Tradi ng , 898 S.W .2d at 789.

L ikewise, we conclude that Schl ap p er’s proposed construction of the clause
convey ing the trac t “subjec t to” the L CRA ease ment is unconvincing

. The phrase “subjec t to” limit s and define s t h e n at u re and extent of the estate convey ed but does not cre ate aff irmative rig hts. Cockrell v. Texas Gulf Sulphur Co. , 299 S.W .2d 672, 676 (Tex. 1956). Apply ing the plain meaning of the term, we conclude that, in the 1944 deed, the term “subjec t to” mere ly provided notice to the
g rante es of L CRA’s outstanding interest and does not indicate that the g rantors convey ed their fe e simple interest in the three disputed tracts.

We further conclude that the disputed trac ts d i d not pass to Schlapper throug h the
1991 deed as an appurtenanc e to the undi sputed .416 acr e tract. For the courts to construe a deed

so as to convey an adjac ent trac t as an appurte nance , the appurte nant trac t must be smaller than the
trac t convey ed and of no benef it or importance to the g rantor. Angelo v. Biscamp , 441 S.W .2d 524,

11526-27 (Tex. 1969). Be cause the “strip and g ore” d o ctrine applies only when it is

unclea r whether the deed convey s the strip at issue, Anderson v. S h aw , No. 03-08-00352- CV,
2010 T ex . App. L EXI S 4578, at *20 (Tex. App.—Austin J une 18, 2010, no pet.) (mem. op.), and beca use we conclude that the 1991 deed unambig uously convey s to Schlapper only the undisputed
.416 acr e tra ct, the doctr ine is inapplicable he re.

Be cause the plain lang uag e of the deeds clea rly conv ey ed to Schlapper only the
.416 acr e trac t and not a fee simple interest in the disputed trac ts, we conclude that the district court did not misconstrue the deeds or misapply the rules of deed construction. We overr ule Schlapper ’s first issue.

Severance
I n her second issue, Schlapper asser ts that the district court err ed in sever ing Har bor
Venture s’s claim for decla ratory relief regard ing the extent of the rig hts g rante d to Schlapper by the lang uag e in the 1944 d ee d convey ing an ingr ess/eg ress ease ment, and its rela ted claim for injunctive relief

. Rule 41 of the Te x as Rules of Civil P roce dure provides that “[a]ny claim aga inst a party may be sever ed and proce eded with separ ately .” Tex. R. Civ. P. 41. Severa nce of claims under
R u l e 41 rests within the sound discretion of the trial court. Liberty Nat’l Fire Ins. Co. v. A ki n , 927 S.W .2d 627, 629 (Tex. 1996). A trial court proper ly exercises its discretion in sever ing claims if (1) the controve rsy involves more than one cause of action, (2) the sever ed claim is one that would be the proper subject of a lawsui t if independe ntly asser ted, and (3) the sever ed claim is not so interwove n with the rema ining action that they involve the same fac ts and issues. F.F.P. Operating

12Partners v. Duene z , 237 S.W .3d 680, 693 (Tex. 2007). We will not reve rse a trial court’s decision
to sever claims absent an abuse of discretion. Id. A trial court commits an abuse of discretion when it acts “without ref

ere nce to a

ny g uiding r ules and princ iples.” Downer v. Aquam arine Operators,
Inc. , 701 S.W .2d 238, 241-42 (Te x . 1985).

After revie wing the rec ord, we conclude that the district court’s sever ance of Har bor
Venture s’s claims met the standards of Rule 4 1 of the Texas Rules of Civil Procedur e. See
Tex. R. Civ. P. 41. The pleading s clea rl y es t ab lish that the controve rsy involved two or more
separ ate and distinct cause s of action, eac h of which could be proper ly tried if asser ted i n d epende ntly

. See Coalit ion of Citi es for Affordable Util. Rates v. Public Util. Comm’n of Tex. , 798 S.W .2d 560, 564 (Tex. 1990). T h e rec ord further shows that the sever ed claims are not so interwove n with the rema ining action that they involve the same fac ts and issues. The issues befor e

us are owner ship of the disputed trac ts and Schlapper ’s deriva ti v e ca u s es of action. The sever ed issues conce rned the extent of the rig hts aff orded Schlapper under t he acce ss ease ment over those
trac ts. The matter befor e us and the sever ed matters there fo re i n v o l ve differ ent fac tual and leg al issues, and “the sever ance did not result in duplicitous trials of interwove n or identical is s u es wh i ch m ight make sever ance inappropria te.” McG uire v. Commercial Union Ins. Co. of N. Y

. , 431 S.W .2d 347, 351 (Tex. 1968). Be cause we conclude that the di stri ct co u rt did not abuse its 1 1

Schlapper arg

ues that the rule that a court should construe the lang uag e of the deeds as a 1 1 whole prec luded sever ance . Whil e Schlapper corr ectly states the rule of construction, the intent of the rule is to ensure that a court does not look at terms in isolation and g ives eff ect to all parts of the convey ance . Plainsman Trading Co. v. C rews , 898 S.W .2d 786, 789 (Tex. 1995). On t he re co rd befor e us, we cannot conclude that the order g ranting sever ance preve nted the district court’s proper application of this rule of construction. 13discretion in sever ing Har bor Venture s’s claims for decla ratory and injun ct i ve relief , we overr ule Schlapper ’s sec ond issue. 1 2

Legal and F actual Suf

fi ciency
We construe Schlapper ’s third issue as a challeng e to the leg al and fac tual sufficie ncy of the evidenc e. When a trial court does not issue finding s of fac t and conclusions of law, we imply all finding s nece ssary to support the j udg ment. Sixth R MA Partners v. Sibl ey , 111 S.W .3d 46, 52 (Tex. 2003)

. When the appellate rec ord includes the repor ter’s and cler

k’s rec ords, as in this case , the t rial court’s finding s, express or i mplied, are not conclusive and may be c h al l en ged on appea l fo r ev identiary sufficie ncy . Id. We revie w a trial court’s finding s of fac t for lega l an d fac tual sufficie ncy

of the e vidence by

the same standa

rds applied to a jur

y verdic t. Ortiz v. Jones , 917 S.W .2d 770, 772 (Tex. 19 9 6 ). We revie w a trial court’s conclusions of l aw de novo and will uphold the conclusio n s i f t h e judgme nt can be sustained on any leg al theory supported by the evidenc e. BMC Software Belgium, N.V. v. Marchand , 83 S.W .3d 789, 794 (Tex. 2002). Although

a trial court’s conclusions of law may not be challeng ed for fac tual sufficie ncy , we may revie w the leg al conc lusions drawn fr om the fac ts to determine whe ther the c onclusions are corr ect. Id.

I n revie wing the leg al sufficie ncy of the evidenc e, we view the evidenc e in the light most fa vorable to the judgme nt, cre diting favor able evidenc e if a rea sonable fac t f inder could, and disreg arding contra

ry evidenc e unless a r easona ble fa ct finder

could not. City of Keller v. W ilson ,

Even if we wer e to conclude that the order of sever ance was issued in e rror , there would 1 2 be no prac tical eff

ect to reve rsing it since final judgme nt has been enter ed and all appea ls exhausted o n t h e sever ed claims, and on the non-seve red claims, final judgme nt has been enter ed and i s under revie w in this appea l. See Barnes v. Uni ve r s i t y F ed. Credit Union , No. 03-09-00003- CV, 2010 Tex. App. L EXI S 4069, at *12 (Tex. App.—Austin May 27, 2010, no pet.) (me m. op.). 14168 S.W .3d 802, 807 (Tex. 2005). The test is “whe ther the evidenc e at trial would enable rea sonable

and fair- minded people to rea ch the [j udg ment] un d er re view.” Id. at 827. I n revie wing fac tual

s u ff i ciency of the evidenc e, we consider and weig h all of the evidenc e in the rec ord, and we m ay

o v erturn a judgment onl y if it is so ag ainst the gre at weight and preponde ranc e of the evidence as to be clea rly wrong and manife stly

unjust. Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986).
I n support of her evidentiar y sufficie ncy arg uments, Schlapper urg es three g rounds: (1) appellee s disclaimed all the land she claims t o o wn and are liable to Schlapper for trespass; (2) Flag ship Marine and Shoreline Deve lopment appea red but f a il e d to a n s w e r a n d a d mitted trespass;

an d (3 ) Har

bor Venture s failed to show rig ht, title, or interest in the disputed trac ts and lacke d standing to intervene

.

Schlapper first states that “[d] efe ndants disclaimed all land and asked to be dismiss ed from the title cause s,” and asser ts that the district court should have found that Schlapper is the 1 3

owner of the disputed proper ty and that the defe ndants wer e liable to her for damag es for trespass. The rec ord does not support Schlapper ’s contentions. Only the individual defe ndants filed pleading s disclaiming owner ship of any of the disputed proper ty , and the rec ord shows that Har bor Venture s offe red evidenc e that established its chain of title and owner ship to the three disputed t rac ts,
prec luding any rec overy by Schlapper for trespass on those trac ts. See Coastal Oil & Gas Corp.
v. Garza Ene rgy Trust , 268 S.W .3d 1, 9 (Tex. 2008) (“‘ [T] he g ist of an action of trespass to r ealty is the injury to the rig ht of possession.’”) (quoting Pentagon Enters. v. Southwestern Bell Tel. Co. , 540 S.W .2d 477, 478 (Tex. Civ. App.—Houston [ 14th Dist.] 1976, writ ref ’d n.r.e .)).

The rec ord contains an order g ranting in part the motion to di s m i s s fi l ed b y For est, 1 3 Childers, Uzell, Hanson, and Kue hl but does not contain the motion itself. 15S ch l ap per also maintains that Flag ship Marine and Shoreline Deve lopment wer e

“prope rly serve d” but “ defa ulted and admitted the trespass.” Schlapper failed to r aise this issue in the district court and proce eded to trial ag ainst Flag shi p M ar ine and Shoreline Deve lopment. There fore , Schlapper has waived the rig ht to asser t this arg ument on appea l. See W al-Mart Stores,
Inc. v. McKenzie , 997 S.W .2d 278, 280 (Tex. 1999) (per curia m). Even if she had not waived the issue, howeve r, the rec ord shows that Flag ship M ar i n e an d Shoreline Deve lopment
appea red, announce d rea dy and participa ted in the trial by and throug h their attorney

. “‘Tr aditionally
any sort of appea

ranc e will defe at a defa ult.’” Fowler v. Epps , No. 03-08 -0 0 0 5 5 -CV,
2010 Tex. App. L EXI S 1027, at *14 (Tex. Ap p . —Austin Fe b. 10, 2010, pet. filed) (mem. op.) (quoting Hock v. Salaices , 982 S.W .2d 591, 593 (Tex. App.—S an An t o nio 1998, no pet.)). We conclude that the par

ties’ par ticipation at trial prec luded def ault. Moreove r, bec ause w e conc lude that Har bor Venture s offe red evidenc e that proves it holds title to the three disputed trac ts, Schlapper is not entitl ed to damag es for trespass. See Coastal Oil & Gas , 268 S.W .3d at 10. Schlapper next claims that the deeds relied on by Har bor Venture s are fra

udulent, that Uzell and Hanson h ad no title to convey to Har bor Venture s, and that Har bor Venture s lacke d standing

. Be cause we conclude that Har bor Venture s offe red evidenc e establishing its chain of title and owner ship to the t h re e disputed trac ts, including the transfe r of title to their prede cessor s in interest, Uzell and Hanson, Har bor Venture s had standing , as owner of the three d i s p u ted trac ts,
to intervene to asser

t its owner ship rig hts. See Tex. Bus. Org s. C o d e An n . § 2.101(1), (3) (West Pamph. 2009).

16Ba sed on the rec ord befor e us, we conclude that the evidenc e was sufficie nt to allow

rea sonable and fair- minded people to r eac h the judgme nt r eac hed by the district c ourt. See City of Keller , 168 S.W .3d at 827. We there fore hold that the evidenc e was leg ally sufficie nt to support the district court’s judg ment. I n addition, after revie wing all of t he evidence in the record, we cannot
say that the district court’s judgme nt is so ag ainst the g reat weig ht and preponde ranc e of the evidenc e

as to be clea

rly wrong and manifestly unjust. See Cain , 709 S.W .2d at 176. We there fore hold that the evidenc e was fac tually sufficie nt to support the district court’s judgme n t

. W e overr ule 1 4 Schlapper ’s third issue.

Attor ney’s F ees and Costs

I n her fourth issue, Schlapper claims that the district court err ed in deny ing her attorney ’s fee s and costs. An awa rd of attorney ’s fee s m u s t b e based on some statutory or
contra ctual author ity

. New Amsterdam Cas . Co. v. Texas Indus., I nc. , 414 S.W .2d 914, 915 (Tex. 1967); Tex. Civ. Prac. & R em . C o d e An n . § 38.001 (West 2008). When a st atute provides that a trial court “may ” awa

rd at t o rney ’s fee s, such an awa rd is discretionar

y , and we revie w the awa rd under an abuse of discretion standard. Bocque t v. Herring , 972 S.W .2d 19 , 2 0 -2 1 (Tex. 1998). Simi larly , we revie w an awa rd of costs to the preva iling party under Rule 131 of the Texas Rules of

Although Schlapper claims in her third issue that the district cour t er red in enter ing a 1 4 judgme nt ag ainst her on “all” cause s of action, in her briefing , Schlapper addre sses only those issues rela ted to her title, trespass, and fra ud cause s of action and her reque st for attorney ’s fee s. Schlapper a ls o a sserted cause s of action for neg lige nt misrepre sentation, nuisance , civil con s p ir a c y , c o n v e r s io n , assault, and injunctive relief

. After revie wing the rec ord, we conclude that the evidenc e was leg ally and fac tually sufficie nt to support the district court’s judgme nt on these additional cause s of action. 17Civil Procedur e under an abuse of di scre tion standard. See Furr’s Supermarke ts, Inc. v. Bethune ,

53 S.W .3d 375, 376 (Tex. 2001).

On a p peal, Schlapper does not asser t a specific basis to support an awa rd of attorney ’s fee s. At trial, she soug ht attorney ’s fe es under Chapters 16 and 37 of the Texas Civil Practice and Remedies Code. Be cause the rec ord shows that Schlapper was not the preva iling party , we conclude that the district court did not abuse its discretion in denying Schlapper ’s reque st for attorney ’s fee s under sect i o n 1 6

. 034. See Tex. Civ. Prac. & Rem. Code Ann. § 16.034 (West Supp. 2009). 1 5
Fur ther, beca use the district court sever ed Har bor Venture s’s claim for decla ratory relief

, leaving no claim for decla

ratory relief befor e it in this matter, section 37.009 is not applicable , and we conclude that the district court did not abuse its discretion in failing to awa rd Schlapper attorney ’s fee s under that section. See id. § 37.009 (West 2008).

Schlapper contends that the district court also err ed in failing to awa rd her costs under Rule 799 of the Texas Rules of Civil Procedur e, which g overns judgme nts by defa ult in trespass to try t i t l e ca s es. Tex. R. Civ. P. 799. Be cause no defa ult judgme nt was enter ed in this case , Rule
799 is not applicable , and the district court did not abuse its discretion by failing to awa rd Schlapper
costs under that rule. Be cause Schlapper did n ot succe ssfully prosec ute her action, we further conclude that she is not entitled to costs under Rule 131, and the distri ct co u rt did not abuse its discretion in deny ing her reque st for costs. See Cysco Enters. v. Hardeman , No. 03-02-00230- CV,
2002 Tex. App. L EXI S 8955, at *18-19 (Tex. App.—Austin Dec

. 19, 2002, no pet.) (not desig nated for publica tion). We overrule Schlapper ’s fourth issue.

Although this statute was am en ded in 2009, the amendment does not apply here

. See 1 5 Act of June 19, 2009, 81st L eg ., R.S., ch. 901, 2009 Tex. Gen. L aws 2431. 18CONCLUSION Having overr

uled all of Schlapper ’s issues, we aff irm the district court’s judgme nt. 1 6

__________________________________________ J an P. Patterson, J ustice
Be fore J ustices Patterson, Pember ton, and Waldrop Affir med Filed: Aug ust 24, 2010

Schlapper has filed three motions which ar e pending befor e this Court: (1) Ver ified 1 6 Motion to Suspend Rules and Make a preliminary Ruling: Ex pedite: and Motio n fo r I n j u nctive Relief and Sanctions in Monetary Relief; (2) Ver ified Mot i o n for Ex traordina ry Relief, Ver ified M o ti o n to Suspe nd Appellate Rules, Ver ified Motion for I njunction, Ver ified Motion f o r Pr e li mi n a

r y Opinion, Ver if

i ed Motion to Ex pedite as Urg ent, Ver ified Motion to Ex tend Time; and (3) Appellant’s Ve rified Motion to Ex pedite Appe al. We deny these motions. 19