RICHARD PICKAR AND LAREE PICKAR v. GERALD F. BERGER AND PATRICIA MARY STACY--Appeal from 138th District Court of Cameron County

   NUMBER 13-04-183-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

RICHARD PICKAR AND LAREE PICKAR, Appellants,

v.

GERALD F. BERGER AND PATRICIA MARY STACY, Appellees.

 On appeal from the 138th District Court

of Cameron County, Texas.

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

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

This is an appeal of a final judgment in favor of appellees, Gerald F. Berger and Patricia Mary Stacy, and granting them title to a disputed parcel of land. In three issues presented, appellants, Richard and Laree Pickar, claim (1) the doctrine of res judicata bars the litigation of appellees=adverse possession defense, (2) the evidence was legally insufficient to support the verdict, and (3) the evidence was factually insufficient to support the verdict. We affirm.

I. ANALYSIS

1. Res Judicata

In the first issue presented, appellants assert that res judicata bars appellees from claiming adverse possession of the land parcel in question. Appellants claim that the trial court severed an action initiated by appellees against a third party, Ira Martin, from the current case. Martin purchased a plot of land from appellees and later sold the land, including the parcel in question, to appellants. Appellants contend that the adjudication of the severed case in favor of Martin and against appellees bars appellees from claiming adverse possession in the current case, and, furthermore, the deed from appellees to Martin should have barred appellees= adverse possession claims on the grounds of estoppel by deed.

The determination of whether the doctrine of res judicata prevents a trial court from hearing a claim that has been previously adjudicated is a mixed question of law and fact. Pinebrook Props., Ltd. v. Brookhaven Lake Prop. Owners Ass=n, 77 S.W.3d 487, 495 (Tex. App.BTexarkana 2002, pet. denied); see Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 820 (Tex. App.BSan Antonio 1996, no writ). When a trial court decides an issue involving both factual determinations and legal conclusions, appellate courts generally use the abuse of discretion standard of review. Pinebrook Props., Ltd., 77 S.W.3d at 495. In applying this standard, the appellate court generally defers to the factual findings made at the trial level as long as they are supported in the record, and will review the legal determinations de novo. Pony Express, 921 S.W.2d at 820.

Res judicata is a general term for the conclusive effects given to final judgments. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). Within this general doctrine are the two principal categories of claim preclusion (also known as res judicata), and issue preclusion (also known as collateral estoppel). For the doctrine of res judicata to bar further litigation of a claim, there must be proof of the following: (1) the existence of a prior final judgment on the merits by a court of competent jurisdiction; (2) the identity of parties or those in privity with them; and (3) a second action based on the same claims that were raised or could have been raised in the first action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). For the doctrine of collateral estoppel to bar re-litigation of an issue, it must be proved that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action, (2) those facts were essential to the judgment in the first action, and (3) the parties who litigated the issue in the first action were cast as adversaries. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994).

A party asserting the doctrine of res judicata as a defense has the burden of establishing evidence that proves it applies, which includes the judgment and pleadings from the previous suit. Scurlock Oil Co. v. Smithwick, 787 S.W.2d 560, 562 (Tex. App.BCorpus Christi 1990, no writ). Similarly, the doctrine of collateral estoppel requires proof by the asserting party of applicability through evidence including court documents. City of Houston v. Houston Chronicle Pub. Co., 673 S.W.2d 316, 321 (Tex. App.BHouston [1st Dist.] 1984, writ ref=d n.r.e.).

Appellants present no evidence to show that any issue or claim relating to the case at hand has been previously adjudicated before a Texas court. Appellants assert that a trial court order granting summary judgment in favor of Martin and against appellees establishes that appellees have no claim to the land parcel in question, yet they have provided no evidence of the existence of this separate proceeding. Appellants have not produced, at either the trial or appellate level, a judgment or pleadings of the case that could establish the applicability of res judicata or collateral estoppel. Therefore, appellants have failed to meet the burden required to bar the litigation of ownership of the disputed land parcel. See id.; see also Scurlock Oil Co., 787 S.W.2d at 562.

Furthermore, appellants claim that the deed in which appellees grant the entire plot to Martin bars appellees from raising a claim of adverse possession. We construe this argument as asserting a claim of estoppel by deed. See McLaren v. Beard, 811 S.W.2d 564, 568 (Tex. 1991). However, this claim of estoppel by deed was not asserted in any pleadings before the trial court and is being raised for the first time on appeal. Claims not made to the trial court generally cannot be raised for the first time on appeal. Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 885 (Tex. 2001). Therefore, appellants have waived their ability to raise this argument here.

Accordingly, we overrule appellants= first issue.

 2. Legal and Factual Sufficiency

In the second and third issues presented, appellants claim that the evidence is legally and factually insufficient to support to trial court=s judgment. Appellants assert that appellees= actions, specifically those of appellee, Gerald Berger, were insufficient to warrant a judgment on the grounds of adverse possession. They argue that appellees= use of the land parcel in question was sporadic and irregular and that visible appropriation had not occurred.

An appellate court reviews the trial court=s findings of fact during a bench trial in the same manner as a jury=s findings would be reviewed. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In reviewing the legal sufficiency of the evidence, only the evidence and inferences that tend to support the challenged findings are to be considered. Id. All evidence and inferences to the contrary are to be disregarded. Id. A challenge of legal sufficiency cannot be sustained if there is more than a scintilla of evidence to support the findings. Id.

When performing a factual sufficiency review, the evidence must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). The court of appeals must consider and weigh all of the evidence, and can only set aside a verdict if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong or unjust. Id.

Adverse possession is defined as Aan 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.@ Tex. Civ. Prac. & Rem. Code Ann. _ 16.021(1) (Vernon 2004); see Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990). A person must bring suit no later than ten years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property. Tex. Civ. Prac. & Rem. Code Ann. _ 16.026 (Vernon 2004).

Although adverse possession must be hostile to the rights of the record owner, there is no requirement that the person adversely possessing the land know of those rights or have an intent to dispossess the record owner. Calfee v. Duke, 544 S.W.2d 640, 642 (Tex. 1976). The possession must simply be visible, open and notorious. Id. Adverse possession does not require actual, express notice be provided to the record holder, and constructive notice may be presumed from the nature and extent of the acts of the person adversely possessing the land. Tex-Wis. Co. v. Johnson, 534 S.W.2d 895, 899 (Tex. 1976).

Viewing the evidence that would support the decision of the trial court, we conclude that the ruling in appellees= favor was legally sufficient. The evidence shows that appellee Berger planted and maintained an oak tree on the property, cut down a palm tree, built a deck extending several feet into the disputed parcel of land, paid taxes on the land, watered the grass through means of a sprinkler system he had installed, and questioned or drove off trespassing persons. Evidence shows that appellee Berger had cultivated and maintained the disputed land from the time that Martin purchased it on January 23, 1992, until this suit was brought on July 15, 2002. Although appellees believed the parcel in question was their own property, the law does not require intent to dispossess the record owner of the property adversely possessed. See Calfee, 544 S.W.2d at 642.

As appellees visibly appropriated and possessed the land in a peaceable manner that constructively gave notice to appellants, and the ten-year statutory requirement for adverse possession was met, appellants= legal sufficiency challenged is overruled.

As for appellants= factual sufficiency challenge, we see there was evidence that appellants planted flowers around the palm tree stump and occasionally watered foliage on the disputed land. The scant evidence showing possession by appellants fails to make the trial court=s conclusion so beyond the great weight and preponderance of the evidence as to create a clearly wrong or unjust decision. Dow Chem. Co., 46 S.W.3d at 242.

Accordingly, appellants= third issue is overruled.

 II. Conclusion

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 18th day of August, 2005.