Opinion issued June 23, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00724-CV
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RONNY PUGA AND RICKEY PUGA, Appellants
V.
BARBARA SALESI, Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Case No. 2011-28575
MEMORANDUM OPINION
Barbara Salesi filed a declaratory judgment action against Ronny and Ricky
Puga after a boundary dispute developed between the two neighbors. The trial
court resolved some issues by directed verdict; other issues were presented to the
jury for resolution. Salesi obtained a judgment against the Pugas for $7,217.19 in
damages and $51,169.36 in attorney’s fees.
The Pugas appeal that judgment and contend that the trial court erred by
(1) awarding Salesi damages on her encroachment claim, (2) awarding Salesi any
attorney’s fees or, alternatively, awarding too much, and (3) failing to submit for
the jury’s determination the Pugas’ own attorney’s fee claim.
We affirm.
Background
This is a boundary dispute between Barbara Salesi and the owners of the
property next door, Ronny and Rickey Puga. Several years before the litigation, the
Pugas repaired a sewage leak in their backyard and asked Salesi for permission to
temporarily remove the boundary fence to access underground pipes. She agreed.
The Pugas removed the chain-link fence but also allegedly removed and replaced
one of Salesi’s support posts. Salesi alleged that the Pugas also removed survey
irons that marked the property line.
Sometime after the first encounter, the Pugas asked permission to attach a
portion of a new fence they were constructing to a different support post on
Salesi’s property. She refused. Nonetheless, according to Salesi, they attached their
fence to her post while she was at work. When she realized what had occurred, the
parties argued and a witness called the police to intervene. Ultimately, Salesi
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obtained a judgment against the Pugas for $350 to replace the post to which they
attached their new fence. Subsequently, another dispute arose when Salesi alleged
that the Pugas damaged three additional fence posts on her property.
As tensions grew, the Pugas’ attorney sent Salesi a letter alleging that one of
her fence posts was on the Pugas’ property and threatening litigation. Salesi
investigated and concluded that, when the Pugas took down her fence to repair
their sewage line, they also removed one of her fence posts and repositioned it
within their property. She testified that she understood the attorney’s letter to be
referencing this post. Salesi responded to the Pugas’ letter by suggesting that the
parties adhere to a 2006 survey of her property1 and that the fence be moved, if
necessary, to return it to the property line shown in that survey. According to
Salesi, the Pugas never responded to her suggestion.
Salesi filed a declaratory judgment action, seeking a declaration that the
2006 survey accurately depicted the property lines and that the Pugas were bound
by that demarcation. She also sought damages for the cost to return the fence posts
to their original location. In other words, she sought a declaration and damages to
resolve in her favor the allegation in the Pugas’ presuit letter that her fence post
was on their property.
1
That survey was conducted by court order in a separate lawsuit in which another
neighbor sued Barbara Salesi. The court ordered a “survey [of] both properties in
question with special attention to the disputed boundary line . . . .” The 2006
survey established the perimeter line of all of Salesi’s property.
3
While suit was pending, Salesi discovered that, when the Pugas were doing
the sewage line repairs, they installed an underground pipe that ran under the
chain-link fence and connected to pipes within her property. She sought damages
for rerouting the Pugas’ pipe to remove it from her property.
Salesi filed a “motion to enforce court order,” requesting that the trial court
bind the parties to the 2006 survey. The Pugas did not respond to the motion. The
motion was granted.
Separately, Salesi moved for the trial court to take judicial notice that the
2006 court-ordered survey “is the proper survey of [her] property and the border
and with the Pugas’ property, as well.” Salesi explained that she filed the
previously granted motion to enforce “to put the issue of where the proper property
lines are to bed” and that, after the Pugas failed to respond or to designate an
expert and the trial court granted the motion, they should not be permitted to
challenge the location of the property lines. After discussion, the trial court
confirmed that Salesi could refer to the 2006 survey during trial as “the survey that
this Court has held to be . . . the actual property lines for these properties.”
Salesi preadmitted her trial exhibits, including the 2006 survey, without
objection. The parties also entered into a stipulation regarding Pugas’ backyard
plumbing work. They stipulated as follows: “The parties stipulate that the PVC
pipe as depicted in Plaintiff’s Ex. 8 was installed by Defendants and runs from the
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Puga property onto the Salesi property and connects to the concrete pipe that runs
through the Salesi property.”
During trial, Salesi testified that she wanted the fence moved back to the
property line and the Pugas’ pipe disconnected and rerouted. Salesi’s contractor
testified about the cost to move the fence and reroute the pipe. He offered two
alternative routes for moving the pipe, the least expensive of which was
approximately $5,000.
The Pugas, their contractor, and one of their former tenants testified as well.
During direct examination, the Pugas disputed moving Salesi’s fence post;
however, on cross-examination they agreed that they had testified otherwise in
their depositions.
Attorneys for both sides testified about attorneys’ fees. Salesi’s attorney
testified that she should be awarded $40,700 in reasonable and necessary
attorney’s fees to cover pretrial through post-judgment services and an additional
$25,000 in case of appeal. The Pugas’ attorney testified that they should be
awarded $53,425.22 in fees.
At the conclusion of the evidence, Salesi moved for a directed verdict on
two of her claims: (1) a declaration that the property boundary is where indicated
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in the 2006 survey and that all of her fence posts are within her property 2 and (2) a
liability finding on her encroachment claim based on the Puga pipe crossing the
property boundary and tying into her pipe. The trial court granted a directed verdict
on both issues.
The single liability question in the court’s charge asked whether the Pugas
were “negligent,” and the jury found that both of them were. The second question
asked the cost to (1) replace and reposition the fence, (2) replace other fence posts,
and (3) replace and reposition the survey iron that Salesi alleged had been removed
by the Pugas. The jury awarded an amount for each, totaling $2,070.87.
The next question was a damages question related to the directed verdict for
encroachment and asked the cost to remove and reposition the plumbing line from
Salesi’s property to be within the boundary of the Pugas’ property. The jury
answered the damages question by awarding zero dollars.
Next, the jury was asked about Salesi’s attorney’s fees. 3 The jury awarded
$35,000 for past fees and zero dollars for appellate fees. The trial court did not
submit a jury question on the amount of reasonable and necessary attorney’s fees
2
Specifically, it was a declaration related to the proposed jury question whether “all
of the Plaintiff’s fence posts other than the Puga pipe post [which the Pugas
allegedly moved while making sewer pipe repairs] are within the boundaries of
Plaintiff’s property.”
3
Salesi elected to have the jury determine her attorney’s fees.
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for the Pugas. The Pugas neither requested the question nor objected to its
omission.
Finally, the jury was asked whether Rickey or Ronny Puga acted with
malice. The jury concluded that they did not and awarded no exemplary damages.
Salesi filed a motion to disregard jury findings and for entry of final
judgment. First, she argued that the trial court should disregard the jury’s zero
damages finding with regard to the encroachment claim. She argued that she
conclusively proved through expert testimony a minimum of $5,146.32 as the cost
to remove the Pugas’ pipe from her property.
Second, she argued that she established her attorney’s fees with undisputed
evidence and, therefore, requested that the trial court disregard the jury’s finding
and increase her fee award to $51,169.39.
The Pugas did not respond to Salesi’s motion to disregard. There is no
written order in the record concerning the motion; however, the final judgment
reflects that the trial court did award encroachment damages and attorney’s fees in
the requested amounts. The Pugas timely appealed.
Encroachment Damages
In their third issue, the Pugas contend that the trial court erred by
disregarding the jury’s decision not to award damages on Salesi’s encroachment
claim.
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A. Standard of review
It is within the jury’s province, as the factfinder, to resolve conflicts in
evidence and determine issues of witness credibility; however, a jury “cannot
ignore undisputed testimony that is clear, positive, direct, otherwise credible, free
from contradictions and inconsistencies, and could have been readily
controverted.” City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005).
A trial court may disregard a jury’s finding that has no support in the
evidence. TEX. R. CIV. P. 301; Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003);
Brown v. Bank of Galveston, N.A., 963 S.W.2d 511, 513 (Tex.1998); Williams v.
Briscoe, 137 S.W.3d 120, 124 (Tex. App.—Houston [1st Dist.] 2004, no pet.). “A
trial court may disregard a jury’s negative finding and substitute its own
affirmative finding only if the evidence conclusively establishes the affirmative
finding.” Cale’s Clean Scene Carwash, Inc. v. Hubbard, 76 S.W.3d 784, 786 (Tex.
App.—Houston [14th Dist.] 2002, no pet.). We view the evidence in the light most
favorable to the finding. Tiller, 121 S.W.3d at 713; Williams, 137 S.W.3d at 124.
B. Damages were established
At trial, Salesi’s contractor testified that the Pugas’ underground pipe could
be rerouted off of Salesi’s property in one of two ways, the least expensive of
which would cost approximately $5,000 while the more expensive would cost over
$9,000. His work estimates were admitted into evidence without objection. He was
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not cross-examined on the cost projections. The Pugas did not designate an expert
on the issues of encroachment or damages related to Salesi’s claim. In her motion
to disregard jury findings, Salesi requested that the trial court award the lower of
the two estimate amounts as encroachment damages. The trial court awarded that
amount.
Salesi contends that she established damages of at least the amount awarded
through undisputed expert testimony at trial. But the Pugas contend that Salesi
could not have established a right to that lower amount of damages as a matter of
law because the expert testified about two different work plans with two different
total costs, which according to the Pugas, “by definition contradict each other.”
Salesi’s expert, however, proffered undisputed evidence that the cost of
rerouting the pipe would be at least the amount that the trial court awarded.
Although the Pugas cross-examined Salesi’s expert about the nature of the
encroachment and whether it existed before they purchased the property, they did
not challenge the expert’s testimony regarding the estimated amounts to reroute the
pipe or proffer their own evidence about the cost. Because the evidence adduced at
trial conclusively proved damages of at least the amount awarded, we conclude
that the trial court did not err by disregarding the jury’s zero damages
determination and, instead, awarding damages on the encroachment claim in the
9
amount requested, which corresponded to the lesser of the two repair estimates.
See City of Keller, 168 S.W.3d at 820.
We overrule this issue.
Salesi’s Claim for Attorney’s Fees
The Pugas make four arguments challenging Salesi’s fee award. First, they
argue that there is no basis in law for an award of attorney’s fees because Salesi
did not obtain a declaratory judgment against them. Second, they argue that a
declaratory judgment action is an improper vehicle to resolve property boundaries
and, therefore, the Declaratory Judgments Act does not support the award of
attorney’s fees. Third, they argue that the fee should have been reduced to
segregate between recoverable and nonrecoverable claims. Fourth, they challenge
the award because the jury charge did not require that the fees awarded be
necessary. We turn first to whether a final judgment must contain a declaration to
entitle a movant to attorney’s fees under the Declaratory Judgments Act.
A. Declaration in Judgment Unnecessary for Fee Award under the Act
Salesi’s second amended petition requested a declaration that she owned the
property depicted in the 2006 survey. After both parties rested, Salesi was granted
a directed verdict on her declaratory judgment claim that her property boundaries
align with the 2006 survey and that her fence posts are within that designated
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property line. The final judgment, however, does not contain this declaratory
relief.
Under the Declaratory Judgments Act, a trial court may exercise its
discretion to award attorney’s fees to the prevailing party, the nonprevailing party,
or neither, considering the equities in the case. See TEX. CIV. PRAC. & REM. CODE
ANN. § 37.009 (providing that trial court may award attorney’s fees that are
equitable and just in “any proceeding under this chapter”); Barshop v. Medina
Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996)
(holding that award of attorney’s fees in declaratory judgment action is within trial
court’s discretion and is not dependent on finding that party substantially
prevailed). “Moreover, the statute does not require a judgment on the merits of the
dispute as a prerequisite to a fee award.” Feldman v. KPMG LLP, 438 S.W.3d 678,
685 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (discussing Barshop and
concluding that trial court has power to award attorney’s fees under Section 37.009
even if declaratory relief claim is dismissed). Thus, the Pugas are incorrect to
contend that the absence of declaratory relief from the final judgment precludes, as
a matter of law, an attorney’s fee award in this declaratory judgment action.
B. Boundary disputes may be resolved with declaratory relief
The Pugas argue that Salesi cannot resolve a property boundary dispute
through a declaratory judgment action and, therefore, the Declaratory Judgments
11
Act does not support the attorney’s fees awarded to her in this case. They rely on
Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004), to support their argument.
We disagree.
Although Martin held that a boundary dispute must be resolved through a
trespass to try title action instead of a declaratory judgment, 133 S.W.3d at 265,
that opinion was later superseded by an amendment to Section 37.004, which
specifically permits resolution of boundary disputes through declaratory judgment
actions. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(c); see also Nw. Indep.
Sch. Dist. v. Carroll Indep. Sch. Dist., 441 S.W.3d 684, 689 (Tex. App.—Fort
Worth 2014, pet. denied) (explaining that “the state legislature overruled Martin by
adding Subsection (c) to Section 37.004 of the Declaratory Judgments Act” and, in
doing so, “simply removed the prohibition, based on the supreme court’s
construction of the [Declaratory Judgments] Act in Martin, against using the Act to
determine boundaries.”).
Thus, Salesi was permitted to seek resolution of her property dispute through
a declaratory judgment action, through which attorney’s fees could be awarded.
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.004(c) (permitting resolution of
boundary disputes through declaratory judgment action); 37.009 (allowing
recovery of attorney’s fees in declaratory judgment action).
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C. Unsegregated Attorney’s Fees
The Pugas also argue that the attorney’s fees awarded to Salesi were in error
because she failed to segregate her attorney’s fees. The Pugas makes two
arguments in this regard. First, they argue that the attorney’s fees incurred by
Salesi pursuing the declaratory judgment relief should have been segregated from
the fees incurred pursuing her negligence claim. Second, they argue that Salesi
could only recover fees incurred before the court granted her motion and accepted
the 2006 survey because, from that point forward, there was no dispute over the
boundary line.
Assuming without deciding that Salesi was required to segregate her fees
and failed to do so properly, the Pugas never objected to the attorney’s fee
testimony. Additionally, the jury question on attorney’s fees asked generally about
fees incurred “as a result of this lawsuit,” and the Pugas failed to object to the
wording of the question.
Because the Pugas failed to object to either the attorney’s testimony on
unsegregated fees or the related jury charge question, any error regarding
segregation has been waived. See, e.g., Green Int’l, Inc. v. Solis, 951 S.W.2d 384,
389 (Tex. 1997) (holding that, “if no one objects to the fact that the attorney’s fees
are not segregated as to specific claims, then the objection is waived”); Turull v.
Ferguson, No. 01-09-00067-CV, 2010 WL 2991087, at *4 (Tex. App.—Houston
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[1st Dist.] July 29, 2010), opinion supplemented on denial of reh’g, No. 01-09-
00067-CV, 2010 WL 3833944 (Tex. App.—Houston [1st Dist.] Sept. 30, 2010)
(mem. op.) (“Because the Timberoof Defendants did not object to the Turulls’
counsel’s testimony regarding segregation of fees and because there was no
objection to the wording of the charge that did not ask the jury to segregate
attorney’s fees, any error regarding segregation has been waived.”).
D. Jury Not Asked if Attorney’s Fees were “Necessary”
Finally, the Pugas argue that Salesi’s fee award should be reversed and no
attorney’s fees awarded because Salesi failed to obtain a jury finding that her
attorney’s fees were necessary.
The Pugas did not object to the omission from the jury charge question of
the element requiring that attorney’s fees be necessary to be awarded. Failure to
object to the omission of a necessary element in a claim waives a complaint on
appeal that the element was not proven. See TEX. R. CIV. P. 279; Shindler v. Marr
& Assocs., 695 S.W.2d 699, 706 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d
n.r.e.) (error waived regarding omitted issue related to attorney’s fee award
because party failed to object). Further, the missing element is deemed found if
there was factually sufficient evidence on that issue at trial to support a finding.
TEX. R. CIV. P. 279. Salesi’s attorney testified that her fees were reasonable and
necessary. Because there was factually sufficient evidence on the issue and the
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Pugas failed to object to the omission of the “necessary” requirement in the jury
charge question, we hold that the Pugas waived this complaint.
We overrule the Pugas’ first and second issues.
The Pugas’ Claim for Attorney’s Fees
In their fourth issue, the Pugas contend that the trial court erred by not
submitting to the jury a question on their attorney’s fees. However, the Pugas did
not submit a proposed jury question on their attorney’s fees or object to its
omission. Accordingly, any error in the jury charge related to an award of
attorney’s fees to the Pugas was not preserved. TEX. R. APP. P. 33.1(a); TEX. R.
CIV. P. 279.
Further, whether to award attorney’s fees to a party in a declaratory
judgment action is a question of law addressed to the trial court’s discretion based
on its determination whether a fee award would be equitable and just. TEX. CIV.
PRAC. & REM. CODE ANN. § 37.009; City of the Colony v. N. Tex. Mun. Water
Dist., 272 S.W.3d 699, 754 (Tex. App.—Fort Worth 2008, pet. dism’d).
Considering the record, the trial court may have determined that a fee award to the
Pugas would not be equitable or just given their nonprevailing status at trial. See
Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998) (stating that trial court “may
conclude that it is not equitable or just to award even reasonable and necessary
15
fees”). Consequently, even if the issue had been preserved, the Pugas have failed to
demonstrate that the trial court abused its discretion by not awarding them fees.
We overrule the fourth issue.
Conclusion
The judgment of the trial court is affirmed.
Harvey Brown
Justice
Panel consists of Justices Jennings, Bland, and Brown.
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