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Serafine v. Blunt

Court of Appeals of Texas, Third District, Austin

May 19, 2017

Mary Louise Serafine, Appellant
Alexander Blunt, Ashley Blunt, Scott Lockhart, Austin Drainage and Foundation, LLC d/b/a/ Austin Drainage and Landscape Development, Viking Fence Company, Ltd., and Viking GP, LLC, Appellees


          Before Justices Puryear, Pemberton, and Goodwin


          David Puryear, Justice

         Mary Louise Serafine appeals the trial court's final judgment (a) ordering that she take nothing on all of her claims against appellees; (b) denying her motion for attorney's fees and sanctions under the Texas Citizens Participation Act (TCPA), see Tex. Civ. Prac. & Rem. Code § 27.009(a); (c) awarding $10, 000 in sanctions to appellee Viking Fence Company, Ltd.; and (d) establishing the legal boundary between Serafine's and the Blunts' real properties. For the following reasons, we will affirm the judgment except for the portion denying Serafine's motion for attorney's fees and sanctions under the TCPA, which portion we reverse and remand to the trial court with instructions to determine and award Serafine (1) an appropriate sanction against the Blunts, see id. § 27.009(b); and (2) reasonable attorney's fees incurred in successfully defending against the portion of the Blunts' counterclaims that were previously dismissed by this Court in Serafine's interlocutory appeal, see id. § 27.009(a).

         BACKGROUND [1]

         Since 2012, Serafine has pursued litigation[2] against her former neighbors, Alexander and Ashley Blunt, over their replacement of a residential chain-link fence between their real properties. Serafine's claims against the Blunts can be distilled thus: (1) the new wooden fence "encroaches" on her land by a few inches of concrete, concealed under the grass, at three posts; and (2) the Blunts trespassed upon and damaged her land by digging a trench on or immediately adjacent to her land and by installing a drainage system that, in her view, will destroy the lateral support of her land. Serafine also sued the Blunts' fencing contractor (Viking Fence Company and Viking GP) (collectively, Viking) and drainage contractor (Scott Lockhart and Austin Drainage and Foundation, LLC, d/b/a Austin Drainage and Landscape Development) (collectively Lockhart) for their respective involvement in the fence replacement. Serafine's petition alleged theories of negligence, nuisance, trespass, and adverse possession, among others. The Blunts counterclaimed for tortious interference with their Austin Drainage contract and for fraudulent filing of a lis pendens. Serafine moved to dismiss both counterclaims under the TCPA; the trial court denied her motion; and this Court reversed in part, rendering dismissal of a portion of the first counterclaim and all of the second one and remanding to the trial court for consideration of whether attorney's fees and sanctions should be awarded. See Serafine v. Blunt, 466 S.W.3d 352, 364 (Tex. App.-Austin 2015, no pet.) (remanding case to trial court "to consider" award under section 27.009). On remand, the trial court denied Serafine's motion for attorney's fees and sanctions. Serafine's claims were tried to a jury in 2015, after which the jury unanimously decided against Serafine on every claim. Post trial, the court determined the boundary line between the properties, granted Viking's motion for sanctions, and rendered final judgment denying Serafine relief on all of her claims. Serafine raises several issues on appeal.


         Adverse possession

         In her first issue, Serafine contends that the evidence is legally and factually insufficient to support the jury's finding against her on her adverse-possession claim, on which she had the burden of proof. See Valdez v. Moerbe, No. 03-14-00731-CV, 2016 WL 1407800, at *6 (Tex. App.-Austin Apr. 6, 2016, pet. denied) (mem. op.) ("One seeking to establish title to land by virtue of the limitations statutes has the burden of proving each and every fact essential to that claim."); City of Austin v. Chandler, 428 S.W.3d 398, 407-08 (Tex. App.-Austin 2014, no pet.) (outlining standards for legal and factual sufficiency of evidence supporting finding that is adverse to party who has burden of proof on issue). She supports her argument with evidence in the record purportedly showing that a "boundary" indicated by a few railroad ties and the disputed chain-link fence (replaced by the Blunts) had been in place for over 30 years and had been "observed by others" yet "undisturbed" by anyone. She further contends that the evidence established adverse possession of the disputed property because of her "peaceable, open, and notorious possession" of it for 30-plus years and that she has a "recorded deed" and has "paid taxes" on the disputed property. See Tex. Civ. Prac. & Rem. Code §§ 16.025 (noting elements of adverse possession under 5-year statute as requiring claimant to continuously (1) claim title under duly registered deed; (2) pay taxes on property; and (3) cultivate, use, or enjoy property), .026-.027 (noting elements of adverse possession under 10- and 25-year statutes as requiring claimant to cultivate, use, or enjoy property in continuous and hostile manner); see also id. § 16.021(1) ("'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 to the claim of another person.").

         With respect to adverse possession under the five-year statute, however, it is not enough that Serafine paid taxes on her property or that she held the deed to her property; adverse possession under the five-year statute requires proof of taxes paid and recorded title to the disputed property. See N.J. Williams Family P'ship, Ltd. v. Winn, No. 03-07-00724-CV, 2010 WL 142879, at *7 (Tex. App.-Austin Jan. 15, 2010, no pet.) (mem. op.) ("Unless the tax records distinguish the property in controversy from the property to which a taxpayer owns record title, the presumption is that the taxpayer has paid taxes on his own property."); Welch v. Matthews, 642 S.W.2d 829, 832 (Tex. App.-Tyler 1982, no writ). Serafine points to no evidence in the record that she paid taxes for or held title to the disputed property other than her conclusory testimony that she "held a deed" and "paid taxes on the property each year." It was the jury's province to weigh or reject this testimony, and Serafine has not demonstrated that the entirety of the evidence at trial established adverse possession as a matter of law or that the jury's finding was against the great weight and preponderance of the evidence. See Chandler, 428 S.W.3d at 407.

         With respect to adverse possession under the 10- and 25-year statutes' requirement that possession be "hostile, " courts have long held that casual fences and incidental uses of property are insufficient to meet the requirements of an adverse-possession claim, especially when the fence at issue existed at the time the claimant began using the land. See N.J. Williams Family P'ship, 2010 WL 142879, at *6 ("Unless the claimant establishes that he built the fence for the purpose of enclosing the property at issue, the fence is a 'casual fence' rather than one that 'designedly encloses' the property, " and use of property inside such fence is "not evidence of adverse possession."); Anderson v. Shaw, No. 03-08-00352-CV, 2010 WL 2428132, at *10 (Tex. App.-Austin June 18, 2010, no pet.) (mem. op.) ("The mere presence or maintenance of a fence that existed at the time the claimant began using the land is insufficient to show a designed enclosure."). Serafine also points to evidence showing her "installation" in the grass of two railroad ties in 1977 and landscaping and gardening activities of hers in the disputed area at various times over the years. The jury was free to consider this evidence as well as other testimony that the railroad ties and landscaping were more akin to temporary or decorative features rather than an expression of hostile use of the property sufficient to establish a boundary line. See Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985) (holding that maintenance of hedge as alleged boundary marker is not sufficiently hostile to establish adverse possession). Based on this record, we conclude that the evidence did not conclusively establish Serafine's adverse possession and that the jury's finding on the issue was not against the great weight and preponderance of the evidence. Accordingly, we overrule Serafine's first issue.

         Lis pendens

         In her second issue, Serafine asserts that the trial court erred as a matter of law in expunging the notice of lis pendens at a post-trial hearing on November 10, 2015, after the jury had unanimously found against her on all of her property claims and in conjunction with the court's determination of the legal boundary line between the properties.[3] See Tex. Prop. Code § 12.0071(c)(2) ("The court shall order the notice of lis pendens expunged if the court determines that: . . . (2) the claimant fails to establish by a preponderance of the evidence the probable validity of the real property claim."). Her complaint is two-fold: (1) the trial court "ignored statutory procedure" by "sua sponte" expunging the lis pendens because appellees did not file a written motion to expunge or provide the 20-day statutory notice for a hearing, see id. § 12.0071(d) ("Notice of a motion to expunge under Subsection (a) must be served on each affected party on or before the 20th day before the date of the hearing on the motion."); In re Estate of Sanchez, No. 04-11-00332-CV, 2012 WL 1364979, at *7 (Tex. App.-San Antonio, Apr. 18, 2012, pet. denied) (mem. op.) (holding that trial court erred in sua sponte expunging lis pendens four days after it was filed, in absence of any filed motion to expunge and proper notice to each affected party); and (2) the statute merely requires a real-property claim to have "probable validity, " but the trial court "conflated" that language with whether the claim is "successful, " see Tex. Prop. Code § 12.0071(c)(2) (stating that court shall expunge lis pendens if claimant fails to establish "probable validity of claim" by preponderance of evidence). She asserts that these errors warrant vacation of the expungement and a clarification that the expungement is void retroactively. The Blunts respond that Serafine has waived this issue by failing to make a timely, specific objection before the trial court. See Tex. R. App. P. 33.1. We agree. At the hearing, the Blunts' counsel orally requested the trial court to expunge the lis pendens. Although Serafine was present, she did not object to the request or to the court's ruling. Accordingly, Serafine has waived her complaints about the propriety of the trial court's expungement of the lis pendens, and we accordingly overrule her second issue.

         Boundary-line determination

         In her third issue, Serafine contends that (1) the evidence was factually insufficient to support the trial court's fixing of the boundary between Serafine's and the Blunts' properties at the "Carson line, "[4]see Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (noting that trial court's fact findings may be overturned only if they are so against great weight and preponderance of evidence as to be clearly wrong and unjust), or, alternatively, (2) the court erred in not conducting a hearing on the matter. The boundary dispute was submitted to the bench post trial by agreement of the parties. The court made specific findings, including the following: (1) Serafine had not established an alternative boundary through adverse possession; (2) the survey method used by Serafine's expert, James Grant, was unreliable; and (3) Holt Carson's method was "specific, ...

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