Opinion
01-21-00067-CV
08-23-2022
EDWARD MUEHLNER AND JUNE MUEHLNER, Appellants v. JEAN PIERRE CONVERT AND YOLANDE CONVERT, Appellees
On Appeal from the 190th District Court Harris County, Texas Trial Court Case No. 2018-61583
Panel consists of Justices Kelly, Goodman, and Guerra.
MEMORANDUM OPINION
Peter Kelly Justice
This case arises from a residential property boundary line dispute between neighbors. Edward Muehlner and June Muehlner (the "Muehlners") appeal from the trial court's judgment that (1) determined the boundary between the two properties; (2) held that appellees Jean Pierre and Yolande Convert (the "Converts") had adversely possessed a strip of land that was near the fence and that housed their pool equipment; (3) found the Muehlners had trespassed on the Converts' property but that the Muehlners' own trespass claim was barred by the statute of limitations; and (4) provided other equitable relief. We affirm.
Background
The Converts purchased their house from its builder in July 1997 and have continuously resided on the property since. When purchased, there was a wooden fence between the Converts' house and the neighboring property. In 1981, the Converts installed a swimming pool in their backyard. Pool equipment, including the filter, pump, electrical boxes and piping, was placed adjacent to and attached to the rear portion of the fence between the properties. In 2001, the Converts installed a wrought iron fence as a continuation of the wooden fence. It runs from the front corner of the wood fence between the houses, toward the street, to the front corner of their house. In 2012, the Converts added a short white border wall from the front corner of the metal fence toward the front curb (hereinafter "the rock ridge").
The Muehlners purchased the property next door to the Converts' house in March 2007. Six months later, the Muehlners and the Converts jointly contracted with a fencing company to replace the 30-year-old existing wooden fence. The cost was split evenly between the two neighbors. A new fence was built upon or near the same place as the existing fence, without objection by either party.
This lawsuit concerns the boundary line between the properties and a strip of land along the boundary line that houses the Converts' pool equipment. The strip is approximately one foot wide and five feet long. After years of disputes between the neighbors, the Muehlners filed suit against the Converts in 2018. The Muehlners originally asserted claims for trespass to try title, trespass to real property, and suit to quiet title due to a scrivener's error in the Converts' deed. The petition also sought a declaratory judgment to correct the scrivener's error. The Converts denied the allegations and asserted several counterclaims, including trespass to real property and adverse possession. They sought an injunction against future trespasses. Both parties amended their pleadings multiple times.
In July 2019, the Converts filed a non-material correction affidavit that corrected a scrivener's error in their deed. Eight days after the scrivener's error was corrected, the Muehlners amended their petition, nonsuiting their original declaratory judgment claim based in part on the scrivener's error and instead asking the court to declare that the Converts "are and have been trespassing" on the Muehlners property. In October, the Muehlners attempted to file, without leave of court, a second amended petition that removed their claim to quiet title and added a new declaratory judgment claim seeking a declaration that there had been a scrivener's error in the Converts' deed before it was corrected.
The Converts filed the nonmaterial correction affidavit which pointed out that the deed's description of the property incorrectly used the cardinal direction "west" when it should have been "east." The affidavit corrected the minor error.
The Converts moved for summary judgment, and the trial court granted the motion in part, holding that the Muehlners take nothing on their declaratory judgment claims, dismissing the Muehlners' trespass to try title claim with regard to the scrivener's error as moot, and denying their claim for attorney's fees under the Declaratory Judgment Act. In August 2020, the trial court allowed the Muehlners to file a third amended petition.
Tex. Civ. Prac. & Rem. Code §§ 37.001-37.011.
The case proceeded to a bench trial in October 2020. Four surveys were admitted into evidence. The Muehlners obtained and paid for three of the surveys: (1) the Windrose Land Services, Inc. Survey conducted in June 2009 ("Windrose Survey"); (2) the Piotr A. Debski Survey conducted in May 2012 ("Debski Survey"); and (3) the B&B Surveying Company Survey conducted in July 2017 ("B&B Survey"). The Converts obtained and paid for one survey on their property: the Probstfeld & Associates Survey conducted in March 2012 and revised in May 2012 ("Probstfeld Survey"). At trial, Karl Bowles of B&B Surveying Company testified for the Muehlners, and Matthew Probstfeld, who conducted the Probstfeld Survey, testified for the Converts.
All four surveyors used the same marker to determine the rear common corner between the properties: a 5/8" iron rod bearing a Windrose cap. Bowles testified that he disagreed with the placement of the front corner between the two properties. He placed the line 2 5/32" to the west of the Windrose Cap. The Converts stipulated at trial to accept the boundary line from the B&B Survey, subject to their adverse possession claim. Probstfeld testified that the wooden fence between the properties runs approximately .3 feet from the boundary line.
The Probstfeld Survey described the marker as a ½" iron rod, but Probstfeld testified that what he measured as a ½" iron rod is the same rod identified as a ⅝" iron rod in the other surveys.
The court orally stated that it would decide the boundary line based on the 5/8" rod and that the remaining issues were trespass issues and adverse possession issues. The court told the parties that its order would include a "complete reset" with a new wooden fence on the property line as determined by the surveyors.
The parties stipulated that the Converts' pool equipment was located on the Muehlners' property. Edmund Muehlner testified that the Converts had not paid property taxes for the piece of his property where the pool equipment was located. He testified that based on the fair market value of his property, the piece that was occupied by the Converts' pool equipment would be valued at $500 per year or the same amount annually in rent. He asked the court to award him $2,000 in damages, or $500 per year for four years. Muehlner stated that he had neither demanded the Converts to move the pool equipment nor disputed where the pool equipment was, including in 2007 when the fence was rebuilt. He did request that the fence be moved, and he believed that to be an implied request to move the pool equipment, since it was mounted to the fence. Muehlner testified that ownership of the strip would help him have less restricted access to his own backyard.
As to other trespass issues, Muehlner testified that Mrs. Convert dug a trench in the grass in his front yard, and the court admitted a photograph into evidence showing the trench. Muehlner testified that he paid $260 to repair the trench. On cross-examination, he testified that Mrs. Convert dug the trench in 2012. Muehlner also testified that Mrs. Convert threw pine branches and needles onto his yard beginning in 2012. He testified that there was video of her doing so between 2012 and 2015. He admitted that some of the needles came from his tree and some came from the Converts' tree.
The court viewed a video of Mr. Muehlner spraying a substance onto the Converts' plants between 10 p.m. and 1 a.m. The plants were located along the boundary line between the properties. Muehlner testified that the substance was squirrel deterrent.
Mrs. Muehlner testified that she and her husband installed a large, white metal sign bearing their house number that was secured with a concrete foundation. The sign is in the front yard, near the rock ridge, and faces the Converts' property.
Yolande Convert also testified. She stated that she had not taken yard debris from her yard and thrown it back over into the Muehlners' yard since the Muehlners filed suit. She testified that in 2013 she put a branch from the Muehlners' tree that fell in her yard back into the Muehlners' yard.
Mrs. Convert testified that in approximately 2018 she put plants in front of the big white sign that the Muehlners erected facing her property. She believed the sign was unsightly. The Muehlners sprayed the plants with an unknown substance, and the plants died. Mrs. Convert then replaced the plants with artificial plants. She alleged that Mrs. Muehlner then cut her artificial plants. Several photographs of the sign and the plants were admitted into evidence. In a few photographs, Mrs. Muehlner is standing on her property, leaning over her sign, and appears to be attempting to cut the Converts' plants. Mrs. Convert testified that her live plants were valued at $180, and the artificial plants were valued at $200.
Mr. Convert testified that he purchased his house directly from the builder in 1977. He built a pool in 1981, with some of its equipment placed along the fence. The equipment has remained the same and been in the same location since 1981, except that he replaced a motor on the pool pump. He testified that with respect to adverse possession, he was asking for 61 inches of property that covers the location of his pool equipment.
The court also heard testimony on attorney's fees from each side. At the end of trial testimony, the court requested that each side brief the adverse possession issue fully.
The trial court entered its original final judgment in November 2020. The judgment ordered the parties' surveyors to meet at the properties and verify that the rear common corner iron rod had not been moved since the B&B Survey in 2017. The parties' surveyors accordingly met on December 1, 2020. The November judgment also stated that the exact measurement and legal description of the property awarded to the Converts by adverse possession would be provided. The description and drawing were later agreed upon by the parties and their surveyors.
The Converts filed a motion to modify and correct the judgment, asking the trial court to make several changes. The Muehlners responded with their own complaints about the process of drawing the boundary line. Each party filed an additional motion to modify.
In January 2021, the trial court entered an amended final judgment which included the agreed description and drawing of the adversely possessed property. The Muehlners appealed.
Sufficiency of the Evidence
In several issues, the Muehlners argue that the evidence is legally and factually insufficient to support the trial court's judgment. We disagree.
A. Standard of review
When, as here, the trial court does not issue findings of fact and conclusions of law, we imply all facts necessary to support the judgment that are supported by the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Fenlon v. Harris Cnty., 569 S.W.3d 783, 791 (Tex. App.-Houston [1st Dist.] 2018, no pet.). When the appellate record includes a reporter's record, as here, the trial court's implied findings may be challenged for legal and factual sufficiency. Fenlon, 569 S.W.3d at 791.
When a party challenges the legal sufficiency of an adverse finding on an issue on which he had the burden of proof, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). We consider the evidence in the light most favorable to the trial court's judgment and indulge every reasonable inference that supports it. City of Keller v. Wilson, 168 S.W.3d 802, 826-27 (Tex. 2005).
When a party challenges the factual sufficiency of an adverse finding on an issue on which he had the burden of proof, he must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 242. We consider all of the evidence in a neutral light and set aside the finding only if the finding is so contrary to the overwhelming weight of the evidence that it is clearly wrong and manifestly unjust. Id.
When a party attacks the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof, he must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem Co., 46 S.W.3d at 241. After considering and weighing all of the evidence, we can set aside the judgment only if the evidence is so weak or if the finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.
In a bench trial, the trial court is the sole judge of the witnesses' credibility and the weight to be given their testimony. APMD Holdings, Inc. v. Praesidium Med. Prof'l Liab. Ins. Co., 555 S.W.3d 697, 706 (Tex. App.-Houston [1st Dist.] 2018, no pet.). In resolving factual disputes, the trial court may choose to believe one witness and disbelieve others, and it may resolve any inconsistencies in a witness's testimony. CCC Grp., Inc. v. S. Cent. Cement, Ltd., 450 S.W.3d 191, 196 (Tex. App.-Houston [1st Dist.] 2014, no pet.); see also City of Keller, 168 S.W.3d at 820-21.
An appellant may not challenge a trial court's conclusions of law for factual insufficiency, but we may review the legal conclusions drawn from the facts to determine their correctness. Marchand, 83 S.W.3d at 794. We review the trial court's conclusions of law de novo and uphold them if they can be sustained on any legal theory supported by the evidence. Id.
B. Analysis
1. Adverse possession claim
In their first issue, the Muehlners argue that the evidence is legally insufficient to support the trial court's conclusion that the Converts adversely possessed the small strip of property where their pool equipment was located. Specifically, the Muehlners argue that the possession was not open, notorious, or hostile. They also complain that the nonmaterial correction affidavit invalidated the claim for adverse possession. We disagree.
Adverse possession is the "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 § 16.021(1). The Texas Civil Practice and Remedies Code states that "[a] person must bring suit not later than 10 years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property." Id. § 16.026(a).
Adverse possession requires proof of actual possession of the disputed real property that is open and notorious, peaceable, under a claim of right, averse or hostile to the claim of the owner, and consistent and continuous for the duration of the statutory period. Estrada v. Cheshire, 470 S.W.3d 109, 123 (Tex. App.- Houston [1st Dist] 2015, pet. denied). Whether adverse possession has been established is ordinarily a question of fact. Id.; see also Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985).
"The test for hostility is whether the acts performed by the claimant on the land and the use made of the land were of such a nature and character as to reasonably notify the true owner of the land that a hostile claim was being asserted to the property." Masonic Bldg. Ass'n of Hous., Inc. v. McWhorter, 177 S.W.3d 465, 472 (Tex. App.-Houston [1st Dist.] 2005, no pet.). A claimant needs to show that he acted in a way that visibly appropriated the disputed property in a manner that gave notice to any other person that he claimed a right in the property. Estrada, 470 S.W.3d at 123.
(1) The evidence supports all of the elements of an adverse possession claim.
There is no dispute that the Converts actually possessed and exclusively used the strip of land. The land continually housed the Converts' pool equipment since 1981. The use was "peaceable." "Peaceable possession" means "possession of real property that is continuous and is not interrupted by an adverse suit to recovery the property." Tex. Civ. Prac. & Rem. Code § 16.021(3). Mr. Muehlner testified that he never directly requested that the Converts move the pool equipment. No adverse suit to move the fence and recover the property was filed until 2018, thirty-seven years after the pool equipment was installed, and eleven years after the Muehlners moved next door to the Converts.
The use was exclusive. The strip of land was on the Converts' side of the fence. The Muehlners could not have reached the property or jointly used it. Finally, the possession was open and notorious. The equipment was installed in 1981. In 2007, the neighbors jointly contracted to replace the fence between them. Since at least November 2007 when the fence was replaced, the Muehlners were aware of the placement of the Converts' pool equipment. Despite that knowledge, they did not file suit until September 2018.
On appeal, the Muehlners argue that the Converts did not visibly possess the property for two reasons. First, they argue that the pool equipment did not stay in the exact same place. They did not raise this argument during the trial. During trial, Mr. Convert testified that the equipment had been in its current location since 1981. He also testified that he had changed the motor on his pool pump, but that the pump and necessary PVC tubing and equipment remained unchanged or moved. After trial, the Muehlners' surveyor commented that the pool equipment appeared to be in a different location. His opinion was included in a report attached to the Muehlners' motions in opposition to the Converts' motion to modify and correct the judgment. It was not included in the Muehlners' third amended motion to modify the judgment.
Even assuming this issue had been properly raised and presented to the trial court, whether the pool equipment remained in the same place on the property, thus adversely possessing the land underneath it, is a question of credibility of the witnesses. Mr. Convert was the only witness at trial to testify regarding the location of the pool equipment. He testified that it had remained in its current location since the pool was built in 1981. The trial court is the sole judge of the credibility of the witnesses and resolve conflicts or inconsistencies in the testimony. See CCC Grp., 450 S.W.3d at 196.
Second, the Muehlners argue that the Converts did not openly and notoriously possess the strip of land because it was behind the common fence. This argument is without merit. A claimant must prove "a visible appropriation and possession of the land, sufficient to give notice to the record title holder." Estrada, 470 S.W.3d at 122. The evidence shows that the Muehlners were on notice that the Converts asserted a claim of exclusive ownership from the time the fence was torn down and replaced. In November 2007, when the wood fence was torn down, both backyards were exposed to all parties. The Muehlners knew that the Converts were using the land on the other side of the fence for their pool equipment.
(2) The nonmaterial correction affidavit did not invalidate the adverse possession claim.
For the first time on appeal, the Muehlners argue that the nonmaterial correction affidavit invalidates the Converts' adverse possession claim. The Muehlners did not advance this argument in the trial court. The only two issues raised about the correction affidavit were that it entitled the Muehlners to a declaratory judgment and that it was insufficient to convey title so a quitclaim deed should be issued to the Muehlners. The Muehlners also cite no authority for their argument that the nonmaterial correction affidavit interrupted the Converts' continuous possession of the adversely possessed property. The Muehlners waived this argument on appeal. See Tex. R. App. P. 33.1(a).
The trial court did not err in holding that the Converts adversely possessed the land on which their pool equipment is located. We overrule the Muehlners' adverse possession issue.
2. Suit to quiet title
In their second issue, the Muehlners complain that the trial court erred by not granting their claim to quiet title. The basis for the alleged error is that the trial court erroneously granted the Converts' adverse possession claim. Because the trial court did not err in granting the Converts' adverse possession claim, the trial court did not err in denying the Muehlners' claim to quiet title. We overrule this issue.
3. Trespass to real property
In their third issue, the Muehlners argue that the trial court erred in holding that their trespass to real property claim was barred by the statute of limitations. Specifically, they argue that the final judgment is contrary to statements made by the trial court at the end of the trial.
The statute of limitations for trespass to real property is two years. See Tex. Civ. Prac. & Rem. Code § 16.003(a). Accrual of limitations is a question of law for the court. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003). Generally, a cause of action accrues, and limitations begin to run, when facts exist that authorize a claimant to seek judicial relief. See Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 279 (Tex. 2004).
The trial court heard evidence from Mr. Muehlner that Mrs. Convert had thrown branches and pine needles into the Muehlners' yard beginning in 2012. Muehlner testified that he had videos of the trespasses from 2012 to 2015. Mrs. Convert denied throwing anything into her neighbors' yard after 2013. The Muehlners filed suit in 2018. The evidence established that any purported trespasses by the Converts occurred no later than 2015. These claims were barred by the statute of limitations.
The Muehlners acknowledge that some of the factual bases for their trespass claims may have been subject to the two-year limitations period. App. Br. at 40- 41. They contend that the trial court orally held that there had been a trespass, yet the final judgment states that their claim is barred by the statute of limitations. During the course of the trial, the trial court stated:
I don't see how we get around a dueling trespass on both sides, but also a destruction of property on the Muehlners' side. I'm not sure if they offset, but my current finding is that there is . . . definitely trespass on both sides with regard to this evidence and that there is some destruction of property.
The trial court, in asking the parties to draft proposed judgments, stated:
And realize that obviously, . . . the Court found that both parties have trespassed. That needs to go in the judgment. As far as how much money that will be, I don't know yet.
The trial court's written judgment granted the Converts' trespass claim and ordered that the Muehlners take nothing on their claim for trespass. The judgment states:
The trespass to real property claim brought by Edmund Muehlner and June Muehlner is barred by the two-year statute of limitations for trespass to real property action and is otherwise DENIED.
A trial court's oral statements at trial are not findings of fact or conclusions of law. Tamuno Ifiesimama v. Haile, 522 S.W.3d 675, 684 (Tex. App.-Houston [1st Dist.] 2017, pet. denied); see also In re Doe 10, 78 S.W.3d 338, 340 n.2 (Tex. 2002) ("Oral comments from the bench are not written findings of fact."); Cnty. of Dall. v. Poston, 104 S.W.3d 719, 722 (Tex. App.-Dallas 2003, no pet.) ("A trial court's oral comments following bench trial may not be substituted for a written finding of fact. Thus, we may not look to such comments to determine the basis for the trial court's ruling."). In civil cases, when a trial court's oral pronouncement conflicts with a written judgment, the written judgment prevails. Ifiesimama, 522 S.W.3d at 684 (citing Seasha Pools, Inc. v. Hardister, 391 S.W.3d 635, 640 (Tex. App.-Austin 2012, no pet.)).
The Muehlners filed suit in 2018. The evidence supports the trial court's conclusion, as listed in the judgment, that any trespass by the Converts onto the Muehlners' property occurred outside the two-year statute of limitations for the claim. We overrule the Muehlners' issue related to the trial court's denial of their trespass claim.
Damages for Trespass
The Muehlners dispute the damages awarded to the Converts for the Muehlners' trespasses. The Converts alleged and the trial court found that the Muehlners trespassed onto the Converts property, destroying Mrs. Convert's flowers. Trespass to real property occurs when a person enters another's land without consent. See Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (Tex. App.-Dallas 2000, no pet.). Mrs. Convert testified that the Muehlners destroyed her live plants, which cost $180, and destroyed her artificial plants that cost $200. The court viewed videos and photographs of Mrs. Muehlner appearing to lean over into the Converts property with a tool in her hand. Mrs. Convert testified that Mrs. Muehlner was cutting her artificial plants. Mrs. Convert testified that the value of the artificial plants that were destroyed was $200. On appeal, the Muehlners argue that there is insufficient evidence to support the trial court's award for damages because there is no testimony concerning where the plants were purchased or how much they cost. The Muehlners do not cite to any legal authority for this argument. The trial court heard sufficient evidence to support the damages award. Wilson, 168 S.W.3d at 827. We overrule the Muehlners' issue related to trespass damages.
Declaratory Judgment
The Muehlners allege that the trial court erred by denying their declaratory judgment action. In their third amended petition, the Muehlners asserted a declaratory judgment claim that asked the trial court to declare: (1) the existence of a scrivener's error in the metes and bounds of the Converts' deed; (2) that the Converts conceded to this error by recording the correction deed; (3) that the Converts have been trespassing on the Muehlners' property; and (4) that the B&B Survey contains the true and correct boundary line for their property. They also asked for an order removing the portion of fence that encroaches on their property. The trial court denied all claims for a declaratory judgment.
"The Uniform Declaratory Judgment Act (UDJA) is not appropriately employed to remedy a trespass occurring prior to trial that is the subject of a separate common-law trespass claim." Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 624 (Tex. 2011). The Muehlners' declaratory judgment claim merely duplicates the issues litigated in their other tort claims. The UDJA "is intended as a means of determining the parties' rights when a controversy has arisen but before a wrong has been committed, 'and is preventative in nature.'" Id. (quoting Cobb v. Harrington, 190 S.W.2d 709, 713 (Tex. 1945)).
The Muehlners' attempt to remedy alleged past trespasses through the UDJA was improper. The Muehlners also alleged a trespass to real property claim in their original petition but did not seek declaratory relief until their first amended petition ten months later. "The UDJA is 'not available to settle disputes already pending before a court.'" Hot-Hed, Inc. v. Safehouse Habitats (Scotland), Ltd., 333 S.W.3d 719, 727 (Tex. App.-Houston [1st Dist] 2010, pet denied) (quoting BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990); see also Brumley v. McDuff, 616 S.W.3d 826, 836 (Tex. 2021) (stating a party does not turn a trespass to try title dispute into a declaratory judgment action through artful pleading).
As to the declaratory relief sought over the corrected scrivener's error in the Converts' deed, the trial court did not err in denying the claim because no controversy remained after the filing of the correction affidavit. A declaratory judgment is not proper if the controversy ends, even if it ends while the lawsuit is pending. See Etan Indus., 359 S.W.3d at 624.
The trial court did not err in denying the Muehlners' declaratory judgment claim. We overrule this issue.
Conformity of the Judgment to the Pleadings
The Muehlners complain that the trial court did not have jurisdiction to order equitable remedies related to the rock ridge because neither party pleaded specifically for relief related to the ridge. The Converts built the rock ridge a few inches away from the alleged boundary line of their property. The ridge extends from the fence between the two properties toward the street. The Muehlners refused to allow the Converts to maintain the strip of land on the Muehlners side of the ridge, refused to let the Converts enter or stand on the neighboring property to maintain the strip of land, and refused to allow a work crew hired by the Converts access to expand the rock ridge to the boundary line.
The trial court's judgment allows the Converts to have limited access to the strip of the Muehlners' front yard for a short period of time so that the Converts can expand the ridge to the boundary line declared in the final judgment. The Muehlners argue on appeal that the judgment does not conform to the pleadings because neither party pleaded for specific relief related to the rock ridge.
Texas Rule of Civil Procedure 301 provides: "The judgment of the court shall conform to the pleadings, the nature of the case proved, and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity." Tex.R.Civ.P. 301. "A prayer for general relief will support any relief raised by the evidence and consistent with the allegations in the petition." Salomon v. Lesay, 369 S.W.3d 540, 543 (Tex. App.-Houston [1st Dist.] 2012, no pet.) (quoting Khalaf v. Williams, 814 S.W.2d 854, 858 (Tex. App.-Houston [1st Dist.] 1991, no writ)). The trial court's orders related to the rock ridge are designed to resolve the parties' trespass claims in accordance with the trial court's ruling on the boundary line and are a limited exception to the mutual permanent injunctions ordered. The trial court had jurisdiction to grant the Converts temporary access to the Muehlners yard to expand the rock ridge to the boundary line. We overrule this issue.
Finality of the Judgment
In their final issue, the Muehlners argue that the trial court's judgment is not final because it does not dispose of their claim regarding the wrought iron fence between the properties. The Muehlners argue that they properly pleaded an issue related to the "encroaching wrought iron fence" and that it was discussed at trial, yet the judgment does not mention the iron fence. The Muehlners argue that their pleading raises the issue of a wrought iron fence when it stated:
Since Plaintiffs purchased their Property in 2007, Plaintiffs have voiced their concerns to Defendants regarding the boundary line between the two properties. In July of 2017, Plaintiffs retained B&B Surveying Company to perform a survey to their Property. That survey determined that the fence that divides Plaintiffs' and Defendants' Property was improperly placed onto Plaintiffs' land . . . . Attached is a recent survey which clearly shows that the fence is encroaching onto Plaintiffs' Property.
This portion of the pleading, and the arguments at trial, referred to the wooden fence between the two properties. At trial, the Converts' attorney explained without objection that (1) the wrought iron fence was not the subject of the litigation; (2) the rear portion of the fence was on the boundary line; and (3) the front portion was on the Converts' property. The Muehlners waived this issue by failing to present it to the trial court. See Tex. R. App. P. 33.1(a).
Conclusion
We affirm the judgment of the trial court. All pending motions are dismissed as moot.