Lisa Ann Hoffman and David Hoffman v. Cecilia Mena, Sheila L. Adams, and JP Morgan Chase Bank, N.A.
03-19-00409-CV
| Tex. App. | Jun 17, 2021Background
- Adjacent residential lots platted in 1917: Hoffmans own Lots 3–4 (south); Mena owns Lots 5–6 (north). Dispute concerns the rear sideline between their properties and an existing chain‑link fence.
- Mena built a wooden fence inside the chain‑link fence decades earlier; after Hoffmans bought in 2000 they removed most chain‑link fabric with Mena’s prior knowledge and the Hoffmans gardened and maintained the strip between fences for years.
- Surveys: McMinn (1993) found iron‑rod monuments and drew the boundary roughly at the chain‑link fence; Bryson (2000, 2017) largely concurred; Way (2017) placed a new rod (Way rod) and adjusted the line slightly toward the chain‑link fence.
- Hoffmans sued asserting title/trespass and adverse possession of the strip; Mena counterclaimed for declaratory relief and fees. Trial court granted partial summary judgment denying Hoffmans’ adverse‑possession claim, held after bench trial that the true boundary is as shown on the 1993 McMinn survey, declared joint ownership of the chain‑link fence, and awarded Mena attorney’s fees.
- On appeal the court affirmed the no‑evidence summary judgment (hostility element), upheld the declaratory judgment adopting McMinn’s boundary over Way’s adjustment, and modified the attorney‑fee award downward to the amount supported by billing records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Validity/specificity of Mena’s no‑evidence MSJ on adverse possession | Mena’s no‑evidence motion was conclusory and failed to specify challenged elements | Motion specifically identified hostile, actual/visible, open/notorious, exclusive elements | Motion sufficiently specific; no evidence of hostility existed; MSJ affirmed |
| 2. Whether Hoffmans raised more than a scintilla of evidence of hostile adverse possession | Hoffmans point to gardening, removal of chain‑link fabric, belief fence was boundary, and affidavits | Mena showed permissive use, contemporaneous consent to gardening and fence fabric removal; legal conclusions insufficient | Gardening and prior consent are not hostile; evidence insufficient on hostility; summary judgment affirmed |
| 3. Sufficiency of evidence declaring 1993 McMinn survey as true boundary (vs Way) | Hoffmans argue McMinn relied on unconnected rods and Way more closely approximated original intent | Mena: McMinn found long‑established monuments; surrounding facts and tolerances supported McMinn; Way’s diagonal movement not shown to be better evidence | Factfinder could credit McMinn; legal and factual sufficiency upheld for McMinn survey as boundary |
| 4. Fence ownership and attorney fees | Hoffmans: fence location/1‑inch encroachment defeats joint‑ownership finding and challenges fee award | Mena: chain‑link roughly on the common line; only half a gate post encroached; counsel proved fees (but billing records supported lower amount) | Trial court correctly declared joint ownership; attorney fee award modified to amount shown in billing records and, as modified, affirmed |
Key Cases Cited
- Community Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671 (Tex. 2017) (standard for de novo review of summary judgment and affirming if any ground meritorious)
- Tran v. Macha, 213 S.W.3d 913 (Tex. 2006) (building a structure may support adverse possession; mere belief insufficient)
- Masonic Bldg. Ass'n of Hous., Inc. v. McWhorter, 177 S.W.3d 465 (Tex. App.—Houston [1st Dist.] 2005) (hostility test: acts must reasonably notify true owner of hostile claim)
- Bywaters v. Gannon, 686 S.W.2d 593 (Tex. 1985) (maintenance, mowing, gardening generally do not establish hostile possession)
- Blaylock v. Holland, 396 S.W.3d 720 (Tex. App.—Dallas 2013) (same principle: mowing/planting not sufficient for hostile exclusive possession)
- TH Invs., Inc. v. Kirby Inland Marine, L.P., 218 S.W.3d 173 (Tex. App.—Houston [14th Dist.] 2007) (when original monuments are lost, consider surrounding facts; use best evidence the case is susceptible to establish corners)
- Taylor v. Higgins Oil & Fuel Co., 2 S.W.2d 288 (Tex. App.—Beaumont 1928) (longstanding rule about using surrounding facts to locate original footsteps/monuments)
- McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex. 1993) (nonmovant must expressly present issues in written response to avoid summary judgment)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal and factual sufficiency standards and deference to factfinder's credibility choices)
- Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019) (fee claimant must prove reasonable hours and rate; evidence must support lodestar calculations)