### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00063
- CV

Mary Catherine Person, Appellant

v. Martha Pyron, Appellee

FROM THE 345TH DISTR ICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 17
- 003095 , THE HONORABLE TIM SULAK, JUDGE PRESIDI NG

M E M O R A N D U M O P I N I O N
Mary Cather ine Person appeals from order s dispos ing of cross - motions for summary judgment on claims and counterclaims arising from her neighbo r ’ s erection of a fence located on land allegedly acquired by Per son under the do c trine of adverse possession

. We will affirm.

BACKGROUND

Person and Martha Pyron are next

- d oor neighbo rs, with Person owning t he residential lot immediately west of Pyron ’ s . Person has owne d her lot s ince 2005

. During
Person ’ s tenure on the propert y, P yron ’ s lot was owned by Allison Goldring until 2007 and by Bonnie Gilson from 2 007 to 2016 . Pyron purch ased her lot from Gilson in 2016. Person and Pyron disagree on the boundary between th e backyards of their respective lots

. Their disagreeme nt arises from the successive erection of three fences

.2 T he first fence ( Goldring Fence) was erected by Goldring s omet ime after 2001 but before Person purchased the lot next door

. At the time , there was a chain

- li nk fenc e that generally follow ed t he property lin e . Ra ther than remove that fence and risk runaway pe ts, Goldring elected to erect her new fence along a parallel line on her own proper ty , leaving a

n arrow strip of land between the fences

. In d ep osition te stimony, Goldring averred that the neighboring ow ner was aware that the placement of the Goldring Fence did not reflect the property line and that Goldring d id not intend to forfeit ownership of any part o f what is now Py ro n ’ s lot

. The c hain

- link fence was subseq uently removed, leaving ju st the Goldri ng Fence separating the two yards.

The next fence ( Gilson Fence ) was a joint enterprise between Gilson and Person.
As Gilson describe d it , “ [T]he fence that was there [i.e., the Goldring Fenc e] w a s slatted so that
you could see in between each slat. ” She explained that “ our dogs start ed to have altercations through the open part s of the fence. ” In 2015, t he two women “ agreed to put in a solid fence ” and to split the cost. When it came to t he placement of th e fence, Gilson recalled, “ [I] think i t

was ou r 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 ( Pyr on Fence ) arose from conce rns ab o ut possible encroachment when Person began construction o f a deck in 201 6

. Pyron apparently informed
Person that the Gilson Fence did not reflect th e ac tual property line and then contra cted for a land survey and constructi on of a new fen ce ( i.e., the Py r on F e nc e) that would accurately reflect the legally recorded property li ne . The survey revealed that the new deck encroached onto3

Pyron ’ s lo t in two places , and Pyron asked Pe rson to eliminate the encroachment

. Pers on declined to do so.

PROCEDURAL HIS TOR Y

Person sued Pyron in Travis County distric t court , claiming trespass under a theory of adverse possession and seeking an injunction ordering Pyron to remove her f ence . Pyron counter claimed for trespass and sough t declaratory re lief, injunctiv e r eli ef , and damages.
See Tex. Civ. Prac. & Re m . Code § 37.004 (c) ( creating cause of action for “ the determination of the proper boundary line between adjoining propert ies ” ). Both parties moved for final summar y judg ment

. See Tex. R. Civ. P. 166a

. F ollowi ng a hearing o n the motions, the district cou rt granted Pyron ’ s motion for summary judgment, denied Person ’ s motion, and declared , “ T he true and valid property line between the propert ies . . . is and shall be shown as on the survey dated January 9 , 2018

. ” The court then o rdered Person to :

remove a ll encumbrances , fences , fence poles , d ecking , or any other encumbrance that she (and or [sic] any agents o r c ontra ctor s who may have worked for her) h a s/have caused to e xist on Defen dant ’s property .

. . includin g b ut not limite d to the front yard fence a nd the p ortions of her deck that are prot ruding onto Defendant ’s property as shown by the Surve y .
The court decline d to award atto r ney ’ s fees to Pyron a nd declined Person ’ s request for findings of fact a nd conclus ion s of law. Pe rson now challenges the two orders disposing of the

cross - motions for summary jud gment.

DISCUSSION

Person contends the district court erred by granti ng Pyron ’ s motion for tradit ional summary judg ment and denying her own. See Te x. R. C iv. P. 166a. When both parties move for4

final summa ry judgm ent on overlapping issues and the trial court grants one and denies the other, we review all the evidence, resolve all issues, and render the ju dgment the trial c ourt should have rend ered. See T

exas Wo rkers ’ 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 co urt ’ s summary - j udgme nt dismissal of
h er claim for injun ctive relie f fro m trespass. Be ca use it is dispositive of th is issue , we will begin wi th Person ’ s theory of adverse possession. Adverse possession is “ an actual and visible appropriation of real prope rty, commenced and c ontinued under a claim of right tha t is inconsistent with and is h os tile to the claim of another person

. ” See Tex. Civ. Prac. & Rem

. Code § 16.021( 1). To prevail with a theory of a dverse possession, a plaintiff must prove: (1) actual and visible pos sess ion of the dispute d property; (2) th at is adverse and hostile to th e claim of the owner of record title; (3) that is open and notorious; (4) that is p eaceable; (5) that is exclusive; and (6) involves continuous cultivation, use, or enjoy ment for the du rati on of the applicab le statutory perio d

. See Kazmir v. Benavides , 28 8 S.W.3d 557, 561 (Tex. App.

— Houston [14 th Dist.] 2009 , no pet. )

. In this case, Person mus t prove continuous adverse use for at least ten years. See Tex. Civ. Prac. & R em. Code § 16.0 26(a ) ( “ A perso n must bring suit not lat er than 10 years after the day th e cause of action accru es to recover real property he ld in peacable and adverse possession by another who culti vates, uses , or enjoys the property. ” )

.

Person ’ s claim of trespass fai ls a s a matter of law because t his recor d precludes her from proving th e second and sixth elements of her theory of adverse po ssession

. With respect to the nature of Person ’ s possession of the disputed strip o f land, Goldring attested that5

she never inten ded to relinquish her right to that land when she erected the Goldring Fence. She further averre d tha t she knowingly allowed the owner of the n eighboring lot to use that part of her lot

. Si milarly, Bonnie Gilson testified that she was awar e of Person ’ s u se o f the property an d did not oppose it , recalling , “[A]t some point along the way . . . I knew that the fence was on my [sid e of] the property, but I didn’t care.” Because Goldring and Gilson knowingly permitted
Person to use the now - disp uted strip of l and , Person ’ s possessi on was neithe r “ in consistent with ”

nor “ hostile to ” to the rights of the actual title ho l d er . See id. § 16.021( 1).

A n inceptively permissive use

— like Per son ’ s use here

— does not become hostile until the land user pu ts the title ho lder o n notice of the adverse clai m of r ight. See Galindo

v. Alexander , 248 S.W.2d 171, 173 ( Tex. App.

— San Anton io 1952 , writ ref ’ d n.r.e. )

. On this record , Person ’ s possession did not become adverse until Pyron informed Person of the reco rded property l ine an d Person asserte d a possessory rig ht t o part of Pyr on ’ s lot

. These events occurred sometime in 2016 o r 201 7

. Thus, whi le Person may have demonst rated continuous enjoyment of the disputed property for several years, she cannot show co ntinuous advers e poss ession for a
per i o d of ten years, as requ ir ed to prevail with this legal theory

. See Kazmir , 28 8 S.W.3d at 561

. Because Person ’ s claim of trespass is predicated exclusively on her theory of adverse possession,
t he district court did not err in denyi ng her motion f or summary judgme nt.

P yron ’ s Motion for Summary Judgm ent

I n 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, w hich the district
court grante d

. The basis for Per son ’ s alternate argument is not entirely c lear , a s it is not6

expressly set forth separately in her brief

. Even a ssum ing she has not waived the issue due to
in adequate briefing, see Tex. R. App. P. 38.1, we w ould reject her chall enge .

The ch allenged order affords Pyron two type s of relief: a dec laratio n that the boundary between the two lots is as reflected in the 201 8 survey, an d an injunction ordering
P erson to remove any encumbrances or enc roachments, including parts of her d eck. On this record, there is no genuine dispute t hat Pyron is entit led to th is relief. She produced the warranty dee d reflecting her ownership of her lot and the 2018 survey showing the boundary between the two lots

. Pe rson did not c hall enge th e accura c y of the deed or the land survey. Thus, Pyron established her right t o the declaration included in the judgment.

The same evidence also supports the injunctive relief afforded in the judgment.
Th e 2 018 s urvey documents multiple structure s encro ac hing f rom P erson ’ s property onto Py ron ’ s . Pyron also submitted photos showin g th ose encroachments

. P erson did not refute any of this evidence and does not deny that her structur es protrude a cross the bound ary n ow declared to be the legally accur ate ref le ction of th e property line

. T hus, because a property owner is generally enti tled to exclusive enjoyment of her prem ises, Clearpoint Cr ossing Prop. Owners
Ass ’ n & Cullen ’ s LLC v. Chambers , 569 S.W.3d 195, 201 (Tex. App.

— Houston [ 1 st Dist. ] 2018 , p et. den ie d ) , an d bec ause P y ron ’ s evidence le aves no gen uine question of fact with resp ect to the
Pearson ’ s encroachment onto Pyron ’ s premises , Pyron is entitled to the injunctive relief afforded in the judgment

. S ee Tex. C iv. Prac. & Rem . Code § 37.011 (a llowing c ourt p resid ing over claim for declaratory r elief to afford “ supplemental reli ef ” “ whene ver ne cessary or proper ” )

. The district court therefore did not err in granting Pyron ’ s motion for summa ry judgment or in affording the relie f included in the order g ra nting the m otion

.7 CONCLUSION Having rejected Person ’ s c hallenge s to the dist rict court ’ s orders, we affirm those orders.

__________________________________________ Edward Smith , Justice Before Chief Justice Rose, Justices Triana and Smith Affirmed Filed: March 18, 2020