Ronny Puga and Rickey Puga v. Barbara Salesi
01-14-00724-CV
| Tex. App. | Feb 17, 2015Background
- Plaintiff Barbara Salesi sued Ronny and Rickey Puga claiming negligence, trespass/encroachment, damage to survey markers and fence posts, and sought damages, attorney’s fees, and a declaratory determination regarding boundary/title.
- Parties stipulated that a PVC pipe installed by Puga crossed Salesi’s property; contractors provided competing cost estimates to remove/reroute the pipe and to reset fence posts and a survey iron.
- The trial jury awarded limited damages for fence posts and survey iron and $35,000 for attorney’s fees; it awarded $0 for cost to remove the plumbing line.
- Post-trial the court disregarded some jury findings (motion to disregard) and entered judgment awarding $7,217.19 in damages and $51,169.36 in attorney’s fees to Salesi; the judgment did not adjudicate title, possession or boundaries.
- Appellants (the Pugas) appeal, arguing the trial court erred in awarding attorney’s fees (procedural and statutory grounds), erred in substituting its own determination for the jury on encroachment damages, and erred by refusing to submit Puga’s attorney’s-fee question to the jury.
Issues
| Issue | Plaintiff's Argument (Salesi) | Defendant's Argument (Puga) | Held / Disposition in trial record |
|---|---|---|---|
| 1. Availability of attorney’s fees | Fees recoverable under Section 37.009 (UDJA) and Texas Property Code provision referenced in pleadings | No statutory basis shown: cited "5.06" does not exist; 5.006 (restrictive covenants) not pled or proved; UDJA inapplicable because this was tort/negligence, not a boundary-only declaratory suit | Trial court awarded fees; appellants contend award was error and seek reversal |
| 2. Sufficiency / necessity of attorney’s fees under UDJA | Fees awarded as equitable and just; jury found fees reasonable ($35,000) | Even if UDJA applies, fees must be both reasonable and necessary; verdict only found reasonableness (no finding of necessity); trial court abused discretion by awarding full fees without required findings | Trial court entered larger fee judgment after motion to disregard; appellants argue reversal or reduction is required |
| 3. Damages for encroachment (PVC plumbing) | Plaintiff sought cost to remove/re-route pipe based on contractor estimates; court granted motion to disregard jury’s $0 and awarded a contractor estimate | Defendant argues two inconsistent estimates exist; no undisputed, clear evidence to support vacating the jury’s $0; trial court improperly substituted its determination for jury factfinding | Jury awarded $0; trial court awarded an encroachment amount post-trial; appellants argue this was error and request reversal |
| 4. Puga’s right to jury determination of his attorney’s fees (if UDJA applies) | Plaintiff pursued UDJA relief and obtained fees; court treated her as prevailing on survey/order | Defendant requested submission of his fees to jury; trial judge refused (apparently relying on prior April 2012 order); refusal deprived Puga of factfinding on fees and equitableness | Trial court denied submission; appellants seek remand to determine Puga’s reasonable and necessary fees if UDJA governs |
Key Cases Cited
- Gullo v. Chapa, 212 S.W.3d 299 (Tex. 2006) (tort fees not recoverable absent statutory or contractual basis)
- Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997) (UDJA attorney-fee requirements: fees must be reasonable and necessary)
- Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) (trial court discretion under UDJA constrained by reasonableness/necessity requirements)
- Martin v. Amerman, 133 S.W.3d 262 (Tex. 2004) (boundary disputes are trespass-to-try-title actions; precludes tort-fee recovery absent statute)
- Ragsdale v. Progressive Voters League, 801 S.W.2d 880 (Tex. 1990) (uncorroborated, uncontradicted testimony may be taken as true only when clear, direct, and free from contradictions)
(Notes: The document summarized is the appellants’ brief arguing that the trial court erred; the appellate disposition is not included in the brief.)