Jose G. Melendez and Wife, Anacacia Melendez; and Paz Melendez and Wife, Alma Melendez v. Jose De Leon and Wife, Maria De Leon--Appeal from 365th Judicial District Court of Dimmit County

MEMORANDUM OPINION

No. 04-04-00405-CV

Jose G. MELENDEZ, et al.,

Appellants

v.

Jose DE LEON, and Wife, Maria De Leon,

Appellees

From the 365th Judicial District Court, Dimmit County, Texas

Trial Court No. 01-05-09456-CVA-D-AJA

Honorable Amado Abascal, III, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 4, 2005

AFFIRMED

Jose G. Melendez // filed a trespass to try title suit against Jose and Maria De Leon, seeking to establish adverse possession of a 0.005 acre strip of real property. Following a bench trial, the trial court ruled against Melendez on the adverse possession claim and awarded the De Leons $6,500 in attorney s fees. On appeal, Melendez claims (1) the evidence is legally and factually insufficient to support the trial court s findings of fact and conclusions of law; (2) the award of attorney s fees was improper; and (3) the trial court abused its discretion in not admitting the land surveyor s field notes into evidence. We affirm the trial court s judgment.

Background

In 1973, Jose Melendez acquired possession of Lot 4, Block Six, of the Alberta Addition to the City of Carrizo Springs in Dimmit County, Texas. Thereafter, the property was transferred to his son, Jesus Melendez, who later transferred the property to his brother and sister-in-law, Paz and Alma Melendez. In 1998, Melendez installed a chain link fence on a line that separated Lot 4 from the adjacent Lot 3. Melendez claims that the chain link fence was installed on the same boundary line as a pre-existing fence that had been on the property since at least 1963.

In 1995, the De Leons inspected Lot 3. They claim that, at that time, no fence existed between Lots 3 and 4. The De Leons did not purchase Lot 3 until 2000. After purchasing the property, the De Leons discovered that the chain link fence erected by Melendez in 1998 encroached five feet onto their property. The De Leons approached Melendez about the fence and the situation quickly turned into a bitter dispute between the two families.

In 2001, Melendez filed a trespass to try title action claiming to have perfected title to the 0.005 acre strip of property by adverse possession. Several members of the Melendez family testified at trial that the old fence separating Lots 3 and 4 had been in place long before the chain link fence was installed in 1998. This testimony was contradicted by the De Leons, who testified that there was no fence in that location when they inspected the property in 1995. In addition, a land surveyor testified that no fence separated Lots 3 and 4 when he inspected the area in 1992, and a neighbor testified there was no fence in that location between 1977 and 1998. The trial judge found that there was no fence on the property line between Lots 3 and 4 prior to 1998, and that Melendez had failed to establish adverse possession of the property under the ten-year statute of limitations.

Analysis

Sufficiency of the Evidence

In his first point of error, Melendez claims that the evidence is legally and factually insufficient to support the trial court s findings of fact and conclusions of law. We first address Melendez s claim that the evidence is legally insufficient to support the trial court s finding that a fence did not exist prior to 1998. We review the trial court s fact findings as we would review the legal and factual sufficiency of the evidence supporting a jury s verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In analyzing the legal sufficiency of the evidence supporting a finding of fact under a no evidence point of error, we examine the record for evidence and inferences that support the challenged finding, while disregarding all contrary evidence and inferences. Id. If there is more than a scintilla of evidence to support the findings, the no evidence challenge cannot be sustained. Id.

Here, the De Leons testified that no fence existed between Lots 3 and 4 when they inspected the property in 1995. Non-party witness, Marina Carmona, who lived on the neighboring property, testified that as far back as 1977 she could not remember any fence separating Lots 3 and 4. The land surveyor, John Howard, testified that when he surveyed the property in 1992, the old fence only reached the common corners of Lots 1, 2, 3 and 4, and thus did not run between Lots 3 and 4. Therefore, there is some evidence to support the court s finding that no fence existed between Lots 3 and 4 prior to 1998.

Melendez contends, however, that the evidence that no fence existed prior to 1998 was inadmissable. Melendez claims that his family s testimony that the old fence had been in existence since 1963 established their claim of adverse possession of the property under the ten-year statute of limitations as of 1973; therefore, any evidence regarding the existence or condition of the fence after 1973 was irrelevant and inadmissible. We disagree.

Evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. To establish adverse possession by limitations, a claimant must prove actual, visible and continuous appropriation of the property for ten or more consecutive years. Tex. Civ. Prac. & Rem. Code Ann. 16.026(a) (Vernon 2002). While the testimony that no fence was present in 1977, 1992 and 1995 does not conclusively establish that a fence was not there from 1963 forward, it does make the continuous existence of a fence less probable. Furthermore, to establish adverse possession, Melendez not only had to show that a fence continuously existed, but also that the fence encroached onto Lot 3. The only evidence as to the precise position of the old fence was the position of the new fence. Melendez claims the old fence was used as a reference point, and that the new fence was installed in exactly the same location as the old fence. Therefore, the testimony that there was no fence present in 1977, 1992 and 1995 was relevant on the ultimate issue of whether Melendez was in continuous possession of the property. Tex. R. Evid. 401. Accordingly, we hold that the evidence is legally sufficient to support the trial court s finding that the no fence existed prior to 1998, and overrule Melendez s no evidence challenge. Catalina, 881 S.W.2d at 297.

Melendez also argues that the evidence is factually insufficient to support the trial court s finding that Melendez failed to establish adverse possession of the property. 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. Tex. Civ. Prac. & Rem. Code Ann. 16.021(1) (Vernon 2002). Possession must not only be actual, but also visible, continuous, notorious, distinct, hostile (i.e., adverse), and of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990). The party seeking to establish title to land by limitations has the burden to prove by a preponderance of the evidence every fact essential to the claim, including continuous possession for ten or more consecutive years. Id.; Tex. Civ. Prac. & Rem. Code Ann. 16.026(a). Whether adverse possession has been established is normally a question of fact. Rhodes, 802 S.W.2d at 646.

When analyzing the factual sufficiency of the evidence, we consider all of the evidence in the record both for and against the finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). We will find the evidence factually insufficient only if we conclude the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. Here, the trial court found there was no fence prior to 1998, and concluded that Melendez had failed to establish adverse possession of the property for the ten-year period required to perfect title under 16.026(a), Tex. Civ. Prac. & Rem. Code Ann. Melendez claims the court s findings are against the great weight and preponderance of the evidence. Specifically, Melendez argues that there was uncontradicted evidence that the old fence existed from 1963 to 1973, and that all the statutory requirements for adverse possession during that time period were established.

The Melendez family members testified that the old fence existed between Lots 3 and 4 from 1963 to 1998, and that the new fence was erected in the same location. However, there was conflicting testimony regarding how far the old fence extended between the lots. Further, the photographs admitted into evidence did not actually show a fence between Lots 3 and 4. As noted, Marina Carmona, John Howard, and the De Leons testified that a fence did not exist in 1977, 1992, and 1995, respectively.

In a nonjury case, the trial court is the judge of the credibility of witnesses and the weight to be given their testimony. Thomas v. Thomas, 852 S.W.2d 31, 34 (Tex. App. Waco 1993, no writ). The court, as trier of fact, may believe one witness and disbelieve another, may resolve inconsistencies in the evidence, and may accept lay testimony over expert testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). The trial court was free to disbelieve the Melendez family s testimony, especially in light of the evidence from other witnesses, including a disinterested neighbor, that no fence was present after 1977. See id. We conclude the evidence is factually sufficient to support the trial court s finding that there was no fence between Lots 3 and 4 prior to 1998, and thus no adverse possession by limitations under 16.026, Tex. Civ. Prac. & Rem. Code Ann. We overrule Melendez s first point of error.

Admissibility of Evidence

In his third point of error, Melendez contends the trial court erred in excluding certain evidence consisting of written notes. The record indicates that Melendez attempted to admit a few notes into evidence through the testimony of his attorney, Alberto Ramon. The De Leons objected that the notes were hearsay and the trial court sustained the objection. On appeal, Melendez argues that the excluded notes were the field notes of John Howard, the land surveyor hired by Melendez, and that they were essential to a proper judgment. Melendez admits that it was an inadvertent error on the part of his counsel not to lay a proper predicate for admission of the notes through Howard s testimony. Nevertheless, Melendez contends that the notes were admissible because they were produced to the De Leons in response to special exceptions and during discovery.

Error is not preserved with regard to the exclusion of evidence absent an offer of proof unless the substance of the evidence is apparent from the context of the record. Tex. R. Evid.103(a)(2). Failure to make an offer of proof containing a summary of the intended testimony waives any complaint about the exclusion of that evidence on appeal. See Akin v. Santa Clara Land Co., 34 S.W.3d 334, 339 (Tex. App. San Antonio 2000, pet. denied). Melendez failed to make an offer of proof at the time the evidence was excluded, and the substance of the evidence is not apparent from the record; therefore, he has waived any complaint about the exclusion of the evidence on appeal. See id.; Tex. R. Evid. 103(a)(2). Melendez s third point of error is overruled.

Attorney s Fees

In his second issue, Melendez contends the trial court erred in awarding the De Leons attorney s fees pursuant to 16.034 of the Texas Civil Practice and Remedies Code. Under 16.034, a prevailing party is entitled to attorney s fees [i]n a suit for the possession of real property between a person claiming under record title to the property and one claiming by adverse possession, if the prevailing party recovers possession of the property from a person unlawfully in actual possession. Tex. Civ. Prac. Rem. Code. Ann. 16.034(a) (Vernon 2002). To recover attorney s fees, the person seeking possession must give a written demand for that person to vacate the premises at least 10 days before filing the claim for recovery of possession. Id. at 16.034(b). The demand must state that if the person unlawfully in possession does not vacate the premises within 10 days and a claim is filed by the person seeking possession, the court may enter a judgment against the person unlawfully in possession for costs and attorney s fees in an amount determined by the court to be reasonable. Id. at 16.034(c). Melendez claims that attorney s fees should not have been awarded to the De Leons because they failed to give the required notice.

In their counterclaim, the De Leons alleged they were entitled to attorney s fees pursuant to 16.034, and that all the conditions precedent had been met. Rule 54 of the Texas Rules of Civil Procedure provides that it shall be sufficient and adequate to plead generally that all conditions precedent have been performed or have occurred. Tex. R. Civ. P. 54. Under Rule 54, when such performance has been pled, a litigant shall be required to prove only those conditions precedent specifically denied by the opposing party. Id. Here Melendez did not specifically deny any condition precedent. Therefore, the De Leons were not required to prove compliance with the notice requirement and the trial judge did not err in awarding attorney s fees to the De Leons. See id.;Knupp v. Miller, 858 S.W.2d 945, 955 (Tex. App. Beaumont 1993, writ denied). Melendez s second issue is overruled.

Based on the foregoing reasons, the judgment of the trial court is affirmed.

Phylis J. Speedlin, Justice