Donald A. Neal and Deborah A. Neal v. Mark W. Machaud and Jo Anne Machaud--Appeal from 25th Judicial District Court of Guadalupe County

MEMORANDUM OPINION

No. 04-06-00037-CV

Donald A. NEAL and Deborah A. NEAL,

Appellants

v.

Mark W. MACHAUD and Jo Anne MACHAUD,

Appellees

From the 25th Judicial District Court, Guadalupe County, Texas

Trial Court No. 03-2036-CV

Honorable Dwight E. Peschel , Judge Presiding

Opinion by: Karen Angelini , Justice

Sitting: Catherine Stone , Justice

Karen Angelini , Justice

Rebecca Simmons, Justice

Delivered and Filed: December 13, 2006

AFFIRMED

This is an appeal from a claim brought by Mark W. and Jo Anne Machaud, ("the Machauds"), pursuant to the Uniform Declaratory Judgments Act, seeking a declaration that there exists no discrepancy or conflict in the common boundary between the Machaud property and the property owned by Donald A. and Deborah A. Neal, ("the Neals"); and further, a declaration that the Neals have no valid claim or basis for valid claim to all or any portion of the Machauds'property. The trial court granted summary judgment in favor of the Machauds, enjoined the Neals from maintaining certain encroachments across the boundary line, and awarded the Machauds attorney's fees.

The Neals appeal, raising the following issues: the trial court erred in granting the Machauds summary judgment; the Neals' summary judgment evidence raises an issue of fact precluding summary judgment; (1) the summary judgment, establishing the boundary line and issuing an injunction regarding encroachments, is not sufficiently definite as to the subject matter and is unenforceable; and, the award of attorney's fees was improper in this boundary line dispute.

Procedural and Factual Background

This case arises from a dispute between neighbors regarding improvements, belonging to the Neals, that are allegedly encroaching onto the Machauds' adjoining property, and have, according to the Neals, somehow resulted in a change to the common boundary line. In 1998, the Neals purchased property from Dorothy M. Cofield and, thereafter, resided alongside Mr. and Mrs. Dodd, who had lived on the adjoining property since 1980. In February or March of 2003, Mrs. Dodd, who was then widowed, entered into an earnest money contract to sell her property to the Machauds. (2)Shortly after, Mrs. Dodd also executed a warranty deed conveying to the Neals that portion of her property that adjoined the Neals' property and contained the encroachments. When the Machauds learned of this, they objected, believing that this conveyance adversely impacted the value of the property they were seeking to acquire. Mrs. Dodd claimed she signed the deed under duress and eventually, the Neals executed an affidavit stating that this deed had been destroyed and had not been recorded. The Machauds closed on the property and took possession; however, several months later when they began erecting a fence on what they believed to be their property, they were threatened with legal action by the Neals' attorney. The Neals maintained that, notwithstanding the deed that was executed by Mrs. Dodd and later destroyed, sometime between 1998, when the Neals acquired their property, and 2003, when the Machauds acquired their property, "[t]he true boundary line between the properties of the parties hereto was established by agreement between [the Neals] and Mr. Dodd" and that the improvements belonging to the Neals "were contained within their boundary line and did not encroach onto [the Machauds'] property." (3)

On or about December of 2003, the Machauds, in an effort to settle the dispute regarding their property, filed a declaratory action pursuant to section 37.004 (a) of the Civil Practices and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. 37.004 (a) (Vernon 1997). More than two years later, the Machauds moved for summary judgment, asserting that there was no genuine issue of material fact and that they were "entitled to summary judgment as a matter of law on each and every claim set forth." In support of their motion, the Machauds presented a number of affidavits by persons who either surveyed the property or who were familiar with previous surveys of the property. The Neals filed their response on July 5, 2005, and attached an affidavit by Mr. Neal, which stated that the boundary was set by oral agreement between him and Mr. Dodd. On July 11, 2005, the day of the hearing on the motion for summary judgment, the Neals filed their First Amended Original Answer, which likewise referred to the prior existing agreement with Mr. Dodd regarding the boundary.

The trial court granted the summary judgment, specifically finding the following:

On the claim seeking a declaration that there exists no discrepancy or conflict in the common boundary between the property owned by [the Machauds] described in Exhibit "B" and that owned by [the Neals] described in Exhibit "C", the Court finds in favor of Plaintiffs, Mark W. Machaud and Jo Anne Machaud, and against Defendants, Donald A. Neal and Deborah A. Neal, and DECLARES, ORDERS, ADJUDGES AND DECREES that the common boundary between said properties is located as depicted in Exhibit "D";

* * *

On the claim of seeking a declaration that [the Neals] have no valid claim or basis for valid claim to all or any portion of [the Machauds'] property described in Exhibit "B" and as depicted in Exhibit "D", the Court finds in favor of Plaintiffs, Mark W. Machaud and Jo Anne Machaud, and against Defendants, Donald A. Neal and Deborah A. Neal, and DECLARES, ORDERS, ADJUDGES AND DECREES that [the Neals] have no valid claim or basis for any valid claim to the property belonging to [the Machauds] described in Exhibit "B" and depicted in Exhibit "D".

Standard of Review

To obtain a traditional summary judgment, a party moving for summary judgment must show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a (c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing the grant of a summary judgment, we must indulge every reasonable inference and resolve any doubts in favor of the respondent. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 549. In addition, we must assume all evidence favorable to the respondent is true. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 548-49. A plaintiff moving for summary judgment on his claims for affirmative relief must show he is entitled to prevail on each and every element of his cause of action. Ortega-Carter v. American Int'l Adjustment Co., 834 S.W.2d 439, 441 (Tex. App.--Dallas 1992, writ denied). When moving for summary judgment, the plaintiff is not initially required to conclusively disprove affirmative defenses pled by the defendant. See Nicholson v. Memorial Hosp. Sys., 722 S.W.2d 746, 749 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). If the party opposing a summary judgment is relying upon an affirmative defense, he must present sufficient summary judgment evidence to raise an issue of fact on each element of that defense to avoid summary judgment. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). When the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the judgment if any of the theories raised in the motion for summary judgment are meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

Summary Judgment Evidence

In support of their motion, the Machauds presented the following evidence: the warranty deed with vendor's lien from Mrs. Dodd to the Machauds (exhibit "A"); the warranty deed with vendor's lien from Mrs. Cofield to the Neals (exhibit "B"); a 1995 survey of the Neal property by Wetmore Land Surveying, Inc. (exhibit "E"); a 2001 preliminary plat of the Neal property by Bettersworth & Associates (exhibit "F"); a 2003 survey of the Machaud property by Tri-County Land Surveying (exhibit "G"); and, affidavits by Gloria Kinz, Kenneth Reininger, Benny Logan and Ms. Cofield.

On appeal, the Neals contend that the affidavits of the lay witnesses contain conclusory statements. (4)

We disagree. A conclusory statement is one that does not provide the underlying facts to support the conclusion. See Harris Cty. v. Smyly, 130 S.W.3d 330, 336 (Tex. App.--Houston [14th Dist.] 2004, no pet.). Logical conclusions based on stated underlying facts are not per se improper. Rizkallah v. Conner, 952 S.W.2d 580, 587-88 (Tex. App.--Houston [1st Dist.] 1997, no writ); accord Montemayor v. Chapa, 61 S.W.3d 758, 764 (Tex. App.--Corpus Christi 2001, no pet.).

A review of each of the lay witnesses' affidavits reflects that, in each affidavit, the witness is stating his or her personal knowledge regarding the history of the property; as such, the statements are not conclusory. See id. Specifically, Mr. Logan's statement that he reviewed exhibits "E", "F" and "G" and they appeared to reflect the location of the boundary line was based upon his earlier statements that he previously owned the property, now known as the Machaud property, and that he commissioned a survey of the property in 1977. Similarly, Ms. Cofield's statement that she was aware of the encroachments but did not believe she had any claim to any portion of the adjoining property was based on previous statements contained in her affidavit. Specifically, Ms. Cofield stated that she previously owned the property, now known as the Neal property, and that she was aware that several improvements, belonging to her at the time, were actually encroaching onto to what was then the Dodd property. These statements are supported by the underlying facts and are not conclusory. See Smyly, 130 S.W.3d at 336.

The Neals further contend that the affidavits do not establish the correct boundary lines as a matter of law. With respect to Ms. Kinz, the Neals specifically argue that she is not a surveyor and does not express an opinion as to the location of the boundary line. However, Ms. Kinz's affidavit was clearly presented to authenticate the plat and field notes mentioned and therefore, the fact that she owned the company performing the survey and was aware that her company did, in fact, perform the survey in question is sufficient. See Tex. R. Evid. 901. The Neals also assert, on appeal, that Mr. Logan's affidavit is comprised of hearsay and is inadmissible. However, under Rule 802 of the Texas Rules of Evidence, inadmissible evidence admitted without objection is not denied probative value merely because it is hearsay. Tex. R. Evid. 802; see Einhorn v. LaChance, 823 S.W.2d 405, 410 (Tex. App.--Houston [1st Dist.] 1992, writ dismissed w.o.j.) (affidavit containing unobjected to hearsay shall not be denied probative value). The Neals failed to present this objection to the trial court and obtain a ruling; therefore, it is waived. See Tex. R. App. P. 33.1 (a); Denison v. Haeber Roofing Co., 767 S.W.2d 862, 865 (Tex. App.--Corpus Christi 1989, no writ).

Next, the Neals assert that the statements in Mr. Reininger's affidavit are conclusory; further, they argue that Reininger's affidavit is unreliable expert testimony in that it does not state where the boundary line is, does not describe any monuments found as a result of his investigation, and is not "properly based on expert opinion." We disagree.

Mr. Reininger's affidavit stated he is an engineer and surveyor licensed to engage in such professions in the State of Texas and that he had been hired by Mr. Neal to conduct a survey to determine the exact location of the common boundary between the Neals' property and the adjoining property, owned at that time by Mrs. Dodd. Reininger stated he conducted the survey but the Neals were unhappy with the result, insisting, instead, that the boundary was located further south onto Mrs. Dodd's property. Mr. Reininger stated in his affidavit that he could not find any legal basis for this claimed variance despite a diligent search in the official records of Guadalupe County and after examining preexisting monuments and/or markers located on the properties in question. Mr. Reininger further stated that Mr. Neal requested he move the pins along a line defined by Mr. Neal and that he then survey this line. Mr. Reininger swore under oath that this was done at Mr. Neal's request but that "the preliminary plat attached to Plaintiff's Motion for Summary Judgment as Exhibit 'F' [was] a true and correct copy of the preliminary plat based upon an on the ground survey conducted under [his] supervision in August of 2001."

Notwithstanding the Neals' assertions, we do not find these statements to be conclusory or otherwise improper. See Smyly, 130 S.W.3d at 336; Rizkallah, 952 S.W.2d at 587-88 (providing that logical conclusions based on stated underlying facts are not per se improper). Further, although the Neals argue that in order to establish their case as a matter of law, the Machauds were required to present expert testimony by a surveyor stating the specific location of the common boundary between the Neal and the Machaud properties, they present no authority in support of this position. Tex. R. App. P. 38.1 (h). Instead, the Neals maintain that although "early Texas cases held that a surveyor could not testify as to his opinion as to where the boundary line was located . . . because this would invade the province of the jury," Rule 704 of the Texas Rules of Evidence now provides that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." See Tex. R. Evid. 704 (providing that an expert may state an opinion on a mixed question of law and fact). But see Southern Pine Lumber Co. v. Whiteman, 104 S.W.2d 635, 640 (Tex. Civ. App.--Eastland 1937, writ dism'd) (holding that it was not permissible for a surveyor to testify that he had correctly located the disputed boundary line). We do not find this a compelling argument to require a surveyor to testify as an expert as to the location of the boundary line in every case involving similar disputes.

The issue of whether expert testimony is necessary in a particular case is a question of law subject to de novo review in the appellate courts. See FFE Trans. Servs. Inc. v. Fulgham, 154 S.W.3d 84, 89-90 (Tex. 2004). In the present case, the Machauds were seeking a declaration that there was no discrepancy in the boundary between the Machaud property and the Neal property and that the Neals had no valid claim to any portion of the Machaud property. In order to prevail, the Machauds had to establish, as a matter of law, that their deed accurately depicted their property and that there was no variance as alleged by the Neals. A de novo review of the record reflects that there were three surveys of the Neal and Machaud properties and that in each survey, the boundary lines were depicted virtually identically. Further, previous owners of both properties testified that they were aware of the encroachments and permitted them, although no one ever asserted a claim to another's property or dispossessed another or otherwise excluded another from any portion of their property.

Moreover, Mr. Reininger stated he is an engineer and surveyor licensed in the State of Texas, that he was hired by the Neals to perform a survey on their property, and that he, in fact, supervised the on the ground survey of the Neal property. This testimony was sufficient to permit him to testify as an expert with respect to the properties in question. And, although the Reininger affidavit does not specifically state where the common boundary line is, it does state where it is not. Reininger emphatically stated that the boundary line, which the Neals assert is the common line between the properties, is unsupported by any legal basis despite a diligent search of county records and physical monuments and markers located on the property in question. Further, Reininger stated that exhibit "F", which depicts the survey of the Neal and Machaud properties, and identifies various monuments used to survey the property, is a true and correct copy of the preliminary plat based upon an on the ground survey conducted under his supervision. In sum, the evidence presented in support of the Machauds' motion established as a matter of law that the Machauds' property lines had been the same since the property was purchased by Benny Logan in 1974 and later conveyed to first, the Dodds and, finally, the Machauds. Similarly, the Neals' property lines had been the same since the property was owned by the Williamsons and later conveyed, first, to Ms. Cofield in 1995, and in 1998, to the Neals. Moreover, all three surveys attached to the Machauds' motion depict the common boundary between the two properties at the same location. The evidence presented was such that scientific, technical, or other specialized knowledge was not required to assist the trier of fact to understand the evidence. Tex. R. Evid. 702.

We find the evidence presented conclusively established the Machauds' entitlement to summary judgment. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 549. The Neals' first point is overruled.

The Neals contend in their next issue that they raised an issue of fact regarding the agreed boundary line that precludes summary judgment. (5) We disagree.

Here, the only evidence the Neals presented in support of their response is an affidavit by Mr. Neal that states the following:

Mr. Dodd and I had many conversations about the locations of our houses, my driveway, my air conditioning unit, the laterals to my septic tank and other elements that are presently in dispute in this case. Mr. Dodd and I had an agreement and understanding that the boundary line between our two properties was in a location that was between the area of my driveway and slab, the air conditioner slab to my house and my electric line and the Dodds' improvements, including the Dodd house and sprinkler system. On many occasions, Mr. Dodd and I discussed the location of these improvements and were in agreement that our respective improvements were on our land and that there were no encroachments over and onto the other's property.

Although Mr. Neal claimed that he and Mr. Dodd had an oral agreement regarding the boundary, no written document supports the purported conveyance. See Tex. Prop. Code Ann. 5.021 (Vernon 2004). The Neals cite to Wall v. Carrell, 894 S.W.2d 788, 797 (Tex. App.--Tyler 1994, writ denied), in support of their position that "[w]hen there is uncertainty, doubt or dispute as to where the true division line between the lands of the party may be, they may fix it by parol agreement between the respective owners, even if they were mistaken as to the true line." In the present case, however, there is no doubt or uncertainty as to where the true division line lies. The deeds and surveys clearly indicate its location. The Neals attempted to create uncertainty by asserting the existence of an oral agreement between Mr. Dodd, who is deceased, and Mr. Neal, and submit that this raises a genuine issue of material fact. However, Wall clearly provides that "[a]lthough acquiescence and recognition may be evidence of an agreement fixing a boundary and may support a inference or presumption that there has been such an agreement, this presumption will not apply . . . when the true boundary is established conclusively by undisputed evidence." Id. at 798. "When there is no doubt as to the true location of the boundary line, mere proof of acquiescence in an erroneous line will not support a verdict." Id.

Accordingly, the Neals have failed to present summary judgment evidence sufficient to raise an issue of fact and avoid summary judgment. See Brownlee, 665 S.W.2d at 112. We overrule this issue.

The Neals further assert that the judgment is not sufficiently definite as to the location of the line or encroachments to be enforceable. Specifically, they argue that there is no field note description referred to or included in the judgment that purports to show the boundary line, the plat attached to exhibit "D" is not supported by explanatory detail sufficient to locate the boundary line, and the encroachments are not clearly defined. The Neals maintain, therefore, that the judgment is void under the statute of frauds. We disagree.

In filing this suit, the Machauds were not seeking to create new boundaries but merely to uphold the existing boundary as depicted by their deed. Attached to the final summary judgment are the following: the warranty deed with vendor's lien from Mrs. Dodd to the Machauds, along with the field notes (exhibit "B"); (6) the warranty deed with vendor's lien from Mrs. Cofield to the Neals, along with field notes (exhibit "C"); (7) and the 2003 Tri-County Land survey of the Machauds' property (exhibit "D"). The trial court found the Machauds' deed accurately depicted the Machauds' property and that the Neals had no valid claim to any of it. Further, the judgment itself refers to the exhibits describing both the Machaud and the Neal properties and declares that the common boundary between the two is as depicted in exhibit "D". (8) The judgment also refers to the encroachments depicted in exhibit "D" and generally describes them.

Nevertheless, the Neals submit that the Holland plat, attached to the final judgment, is not supported "by any explanatory detail sufficient to locate the boundary line on the ground by reference to it." However, the coordinates in the field notes attached to the deeds sufficiently locate the boundary lines. Accordingly, the judgment, along with the exhibits referred to, reflects the true common boundary and is sufficiently definite on its face such that the Machauds' property, and thereby the Neals', can be identified with reasonable certainty. The Neals' third issue is overruled.

The Neals further complain that the trial court erred in awarding the Machauds attorney's fees pursuant to the Declaratory Judgments Act and cite to Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004), in support of their position. The Neals submit on appeal that this case was a trespass to try title suit and as such, no attorney's fees should have been awarded. However, the record reflects that the Machauds' Original Petition was filed pursuant to the Declaratory Judgments Act and sought attorney's fees pursuant to this statute; further, their motion for summary judgment clearly requested the recovery of attorney's fees. The record further reflects that the Neals never objected to this case being filed or tried pursuant to the Declaratory Judgments Act and, never objected to the request for attorney's fees in the motion for summary judgment. As such, the Neals have failed to provide a record demonstrating that this issue was properly preserved. See Tex. R. App. P. 33.1 (a); Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999). Instead, the Neals argue, without presenting any authority, that this issue cannot be waived because Amerman does not permit the recovery of attorney's fees in boundary line disputes.

While we recognize that Amerman clearly provides that attorney's fees under the Uniform Declaratory Judgments Act are not appropriate in a suit "that is in the nature of a trespass to try title," we do not interpret Amerman to relieve a party of the burden of presenting his or her objection to the trial judge and affording the judge an opportunity to rule on the matter. Tex. R. App. P. 33.1 (a);Amerman, 133 S.W.3d at 267; Farmers Tex. County Mut. Ins. Co. v. Griffin, 868 S.W.2d 861, 870 (Tex. App.--Dallas 1993, writ denied) (holding that an issue not raised at trial cannot be considered for the first time on appeal).

The Neals' fourth issue is overruled.

CONCLUSION

Accordingly, the judgment of the trial court is affirmed.

Karen Angelini , Justice

1. The Neals also argue that the evidence is legally and factually insufficient to establish the boundary line. In reviewing the grant of a summary judgment, we do not examine the sufficiency of the evidence. Instead, we review de novo the record and consider whether the evidence raises a genuine issue of material fact. Reynosa v. Huff, 21 S.W.3d 510, 512-13 (Tex. App.--San Antonio 2000, no pet.).

2. It is unclear from the record exactly when the earnest money contract was entered into; however, Mrs. Dodd stated in her deposition that she had already entered into an earnest money contract with the Machauds when she signed the deed conveying part of her property to the Neals.

3. In fact, the deed from Mrs. Dodd to the Neals that was later destroyed would have established the Neals' entitlement to the disputed property.

4. While the Neals did not object to the affidavits being conclusory at trial, this court has previously held that "[a] conclusory statement in an affidavit is a defect in substance rather than a defect in form and is therefore not waivable." Trejo v. Laredo Nat'l Bank, 185 S.W.3d 43, 51 (Tex. App.--San Antonio 2005, no pet.) (citing Moritz v. Bueche, 980 S.W.2d 849, 854 (Tex. App.--San Antonio 1998, no pet.)).

5. The Machauds argue by way of cross point that if the trial court granted the Neals leave, or is deemed to have granted them leave, to file their late amended original answer, this constitutes an abuse of discretion. Assuming without deciding that the Neals' pleading was timely filed, we, nevertheless, find that summary judgment was properly granted.

6. The field notes for the Machauds' property are referred to as exhibit A on page 2 of this deed and clearly identify pins used to mark the property lines.

7. The field notes for the Neals' property are likewise attached to the Neals' deed and clearly identify the pins used to mark the property lines.

8. The specific language of the judgment has previously been set forth on page 4 of this opinion.