Shyla Desiree Russell v. Mark Anthony Lebedzinski
CourtTexas Court of Appeals, 10th District (Waco)
Date FiledNovember 12, 2026
Docket10-26-00036-CV
StatusPublished
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Full Opinion
Court of Appeals
Tenth Appellate District of Texas
10-26-00036-CV
Shyla Desiree Russell,
Appellant
v.
Mark Anthony Lebedzinski,
Appellee
On appeal from the
278th District Court of Walker County, Texas
Judge Tracy Sorensen, presiding
Trial Court Cause No. 1929520
JUSTICE WESTERFELD delivered the opinion of the Court.
MEMORANDUM OPINION
Shyla Desiree Russell appeals from a post-answer default judgment
rendered against her in this property dispute filed by Mark Anthony
Lebedzinski. In four issues, Russell contends the trial court violated her due
process rights and failed to join a necessary party, the evidence is insufficient
to support the relief awarded, and procedural irregularities require reversal.
We modify the trial court’s judgment and affirm as modified.
BACKGROUND
Russell and Lebedzinski own adjacent tracts of land. After Russell
placed a fence on Lebedzinski’s property, blocking his access, Lebedzinski
brought suit seeking a declaration of his rights and an injunction prohibiting
Russell from denying his access and from interfering with his use of his
property. He also complained of a 2021 deed wherein Russell and her husband
purport to convey Russell’s property as well as two other tracts of land to
Russell’s mother, Brenda Russell. Lebedzinski asserted that Russell had no
ownership interest in those two tracts and the deed is therefore void. The trial
court granted all relief requested.
DUE PROCESS
In her first issue, Russell asserts that the trial court violated her due
process rights by proceeding to trial and rendering judgment without record
proof that she received notice of the August 28, 2025 bench trial. The docket
control order setting the matter for a trial before the court on August 28, 2025
reflects service on Lebedzinski’s counsel but not Russell. Accordingly, her
argument continues, the judgment should be reversed, and the case should be
remanded for a new trial.
When Lebedzinski filed his original petition on December 4, 2019 in the
12th District Court of Walker County, he served Russell at 105B Gourd Creek
Russell v. Lebedzinski Page 2
Cemetery Road, Huntsville, Texas 77340. Russell’s answer, filed on December
30, 2019, reflects the same address. The case was transferred to the 278th
District Court in early 2023. The record reflects no activity in the case for over
two years. The court’s June 5, 2025 scheduling order set the case for a trial
before the court on August 28, 2025. The trial was held on that day but only
Lebedzinski was in attendance. On December 23, 2025, Russell filed a change
of address with the district court clerk stating that her new address is 7734
FM 697, Whitewright, Texas 75491. On the same day, she filed a motion to
dismiss the case in which she stated that she had not lived on the property at
issue for years.
Once a defendant has made an appearance in a cause, he is entitled to
notice of the trial setting as a matter of due process. LBL Oil Co. v. Int’l Power
Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989) (per curiam). If a party’s
address changes during the course of a civil action, the party or the party’s
attorney must provide the clerk of the court with written notice of the party’s
new address. TEX. CIV. PRAC. & REM. CODE ANN. § 30.015(d). Parties have a
continuing obligation to keep the court and the other parties apprised of a
correct and current address where they may be reached. See TEX. R. CIV. P.
21a; Manning v. Johnson, 642 S.W.3d 871, 880 (Tex. App.—Texarkana 2021,
no pet.). Courts consider whether the failure to provide an updated address is
Russell v. Lebedzinski Page 3
the result of a mistake or whether it was intentional or due to conscious
indifference. See Wade v. Valdetaro, 696 S.W.3d 673, 676-77 (Tex. 2024) (per
curiam). A party who does nothing to protect her due process rights with
respect to a trial setting should not complain on appeal that those rights have
been violated. Manning, 642 S.W.3d at 880.
Here, Russell moved and did not notify the trial court of her new address
until after the trial of the case. Although Russell states, in her post-trial
motion to dismiss, that she has not lived at that address for years, she provides
no explanation for her failure to monitor the suit. Moreover, we conclude that
Russell’s failure to provide a reasonable explanation for failing to provide the
court with her new address indicates that failure is either intentional or the
result of conscious indifference. See In re Marriage of Sandoval, 619 S.W.3d
716, 721 (Tex. 2021) (per curiam) (held that the element of conscious
indifference can be overcome by a reasonable explanation). Accordingly,
Russell cannot complain of a lack of due process for not having received notice
of the trial date. See Manning, 642 S.W.3d at 880. We overrule Russell’s first
issue.
SUFFICIENCY OF THE EVIDENCE
In her second issue, Russell asserts the evidence is legally and factually
insufficient to support the trial court’s judgment. Specifically, she complains
Russell v. Lebedzinski Page 4
that Lebedzinski failed to prove entitlement to the “title adjudication actually
awarded,” did not prove the elements necessary to defeat her pleaded adverse
possession claim, did not prove the 2021 deed to Brenda Russell is void, did not
prove the encroachments at issue, and did not prove attorney’s fees or
damages.
Nature of the Proceeding
Initially, we must address the question of what causes of action
Lebedzinski pleaded. The live pleading is entitled “Plaintiff’s First Amended
Original Petition for Declaratory Judgment and Application for Injunctive
Relief.” In the facts section, he asserted that he owns a particular four-acre
piece of real property and Russell owns an adjacent piece of property. He
alleged that:
9. Defendant has become difficult and obstreperous to
the point of being a nuisance to Plaintiff and to the
point of interfering with Plaintiff’s basic property
rights. Defendant has erected a fence across the
northern end and has erected a north-south fence
along the west side of the ‘panhandle’ portion of
Plaintiff’s property (approximately 0.4 acres).
10. All attempts by Plaintiff to reason with Defendant
have failed. Despite Plaintiff providing Defendant
with the survey depicting the boundary lines,
Defendant has denied Plaintiff access to his 0.4 acres
and apparently intends to usurp the land.
11. On September 13, 2021, while this action is
pending, Defendant recorded a warranty deed dated
August 16, 2021, wherein she and her husband
purportedly conveys [sic] Defendant’s 0.50 acres that
Russell v. Lebedzinski Page 5
lies between both Plaintiff’s tracts to her mother,
Brenda S. Russell. Notably, in the Warranty Deed
Defendant further conveys two additional ‘tracts’ of
land that she nor her husband have title to.
“Tract II” in that deed describes 0.09 acres of land that is the “panhandle” part
of the four-acre tract owned by Lebedzinski and that is the subject of this suit.
“Tract III” in that deed is a dirt driveway on property described as crossing
land belonging to Lebedzinski and a third party.
The next section of the petition is entitled “Declaratory Judgment Action,
Injunctive Relief & Causes of Action for Trespass to Try Title.” In this section,
Lebedzinski alleged:
12. Pursuant to Chapter 37 of the Texas Civil Practice
and Remedies Code, the Declaratory Judgment[s] Act,
Plaintiff seek [sic] a declaratory judgment that he has
one hundred percent (100%) interest in the four (4)
acre tract.
13. Plaintiff also seeks a declaration that the August
16, 2021 Deed mentioned above is void and a nullity
as it purports to convey land that Defendant did not
have an ownership interest in.
14. This controversy is ripe for adjudication in that
Defendant has openly stated her intent [sic] divest
Plaintiff of his interest in his property. More
specifically, the approximate 0.4 acres comprising [sic]
of the ‘panhandle’ to the four-acre tract.
15. Absent a court declaration of the rights of Plaintiff,
Plaintiff cannot use and enjoy the property. Plaintiff
also seeks injunctive relief requiring Defendant
remove the fencing and preventing Defendant from
further interfering with Plaintiff’s use of the property
at issue.
Russell v. Lebedzinski Page 6
In the next section, entitled “Injunctive Relief,” Lebedzinski sought
temporary and permanent injunctions prohibiting Russell “from denying
Plaintiff access and from interfering with Plaintiff’s use of the property at
issue.” He alleged that the fence Russell erected will cause irreparable harm
and without the injunction he cannot access or enjoy his real property.
The petition also includes a section entitled “Suit for Intentional
Interference with Property Rights.” Here, Lebedzinski alleged that Russell’s
bad actions have intentionally and maliciously interfered with his use and
enjoyment of property rights.
In the absence of special exceptions or other motion challenging the
sufficiency of the pleadings, we construe a petition liberally in favor of the
pleader. Brumley v. McDuff, 616 S.W.3d 826, 831 (Tex. 2021). Texas courts
consider the substance and not the form of the pleadings to determine whether
an action is properly considered as one for declaratory judgment, trespass to
try title, or to quiet title. Id. at 831-833; Meekins v. Wisnoski, 404 S.W.3d 690,
696 (Tex. App.—Houston [14th Dist.] 2013, no pet.). In his petition,
Lebedzinski referenced the Declaratory Judgments Act and used the phrase
“trespass to try title.” Both terms were also used in the judgment, which was
also drafted by Lebedzinski’s counsel. But we think the suit is more accurately
characterized as one to quiet title.
Russell v. Lebedzinski Page 7
A person interested under a deed may have determined any question of
construction or validity arising under the instrument and obtain a declaration
of rights, status, or other legal relations thereunder. TEX. CIV. PRAC. & REM.
CODE ANN. § 37.004(a). Additionally, a person may obtain a declaratory
judgment when the sole issue concerning title to real property is the
determination of the proper boundary line between two adjoining properties.
Id. § 37.004(c). Here, Lebedzinski does not ask the court to construe his deed
or determine if it is valid. Additionally, he is not complaining that the parties
are feuding about the location of the boundary line between his property and
Russell’s property. Therefore, Chapter 37 of the Declaratory Judgments Act is
inapplicable to questions regarding the deed to Lebedzinski’s four-acre tract.
Any suit involving a dispute over the title to land is an action in trespass
to try title. TEX. PROP. CODE ANN. § 22.001(a). A claim for trespass to try title
is distinct from a claim to quiet title, although the differences are nuanced. See
Brumley, 616 S.W.3d at 835. A claim to quiet title is traditionally one in which
the superior title holder seeks to remove a challenge to that title. Id. Any
deed, contract, judgment, or other instrument not void on its face that purports
to convey an interest in or make any charge upon the land of a true owner, the
invalidity of which would require proof, is a cloud upon the legal title of the
owner. Hahn v. Love, 321 S.W.3d 517, 531 (Tex. App.—Houston [1st Dist.]
Russell v. Lebedzinski Page 8
2009, pet. denied). The plaintiff in a quiet title suit must prove, as a matter of
law, that he has a right of ownership and that the adverse claim is a cloud on
the title that equity will remove. Brumley, 616 S.W.3d at 835. A suit to clear
title or quiet title, also known as a suit to remove cloud from title, relies on the
invalidity of the defendant’s claim to the property. Essex Crane Rental Corp.
v. Carter, 371 S.W.3d 366, 388 (Tex. App.—Houston [1st Dist.] 2012, pet.
denied).
Here, Lebedzinski began his recitation of the facts of the case by
asserting that he owned a specific four-acre tract of land. He attached his deed
and survey as exhibits to the petition. We do not construe his request for the
court to declare that he has a one hundred percent interest in that tract as a
request that the court award him title ownership in the land, as he asserted
that he already had title. Rather, he was asking for judicial confirmation that
Russell has no interest in his tract of land. In the petition, he described his
reason for bringing suit against Russell. She was a nuisance who interfered
with his property rights by erecting a fence across part of his property, denying
him access to his land. He wanted a judgment and injunction ensuring Russell
would no longer interfere with his use of his property. Lebedzinski complained
of the 2021 deed from Russell to Brenda that purported to convey a portion of
his property, the same portion she fenced off. That deed created a cloud on his
Russell v. Lebedzinski Page 9
title, and he sought to adjudicate the supremacy of his existing title. He was
not seeking to establish his title. Accordingly, instead of the stated causes of
action for declaratory judgment and trespass to try title regarding his four-acre
tract of land, we construe the petition as one asserting a claim to quiet title as
to that tract of land. See Brumley, 616 S.W.3d at 835; Hahn, 321 S.W.3d at
531.
Additionally, Lebedzinski sought “a declaration that the August 16, 2021
Deed . . . is void and a nullity as it purports to convey land that Defendant did
not have an ownership interest in.” This allegation states a claim for
construction of a deed pursuant to Section 37.004(a). TEX. CIV. PRAC. & REM.
CODE ANN. § 37.004(a). This allegation also states a cause of action for a
statutory fraudulent claim against real property or interest in real property.
Id. § 12.002(a). Finally, Lebedzinski alleged a common law claim for
intentional interference with property rights based on Russell’s interference
with his use and enjoyment of his property rights.
Standard of Review
A party who challenges the legal sufficiency of the evidence to support
an issue upon which it did not have the burden of proof at trial must
demonstrate on appeal that there is no evidence to support the adverse finding.
Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011).
Russell v. Lebedzinski Page 10
Evidence is legally sufficient if it would enable reasonable and fair-minded
people to reach the verdict under review. Id. We credit favorable evidence if
a reasonable finder of fact could, and disregard contrary evidence unless a
reasonable finder of fact could not. Id. If there is any evidence of probative
force to support the finding, i.e., more than a scintilla, we will overrule the
issue. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005) (per
curiam).
If a party is attacking the factual sufficiency of the evidence to support
an adverse finding on an issue on which the other party had the burden of
proof, the attacking party must demonstrate that there is insufficient evidence
to support the adverse finding. Capps v. Nexion Health at Southwood, Inc.,
349 S.W.3d 849, 855 (Tex. App.—Tyler 2011, no pet.). The verdict should be
set aside only if it is so contrary to the overwhelming weight of the evidence as
to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)
(per curiam). In reviewing the factual sufficiency of the evidence, we must
examine the entire record, considering both the evidence in favor of, and
contrary to, the challenged findings. See Mar. Overseas Corp. v. Ellis, 971
S.W.2d 402, 406-07 (Tex. 1998); Cain, 709 S.W.2d at 176. The reviewing court
may not substitute its opinion for that of the trier of fact, as it is the fact-
finder’s role to judge the credibility of witnesses, to assign the weight afforded
Russell v. Lebedzinski Page 11
their testimony, and to resolve inconsistencies within or conflicts among the
witnesses’ testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757,
761 (Tex. 2003); Ford v. Panhandle & Santa Fe Ry. Co., 252 S.W.2d 561, 563
(Tex. 1952).
Discussion
Title
Russell contends that, rather than resolving a “narrow encroachment
dispute,” the judgment adjudicated title to the entire four-acre tract. She
argues that the evidence concerned only a “disputed ‘panhandle’ area” and
could not support adjudication of title to the entire tract of land or that
Lebedzinski’s title is free and clear of all claims that were or could have been
made by Russell.
As explained above, this is not a trespass to try title case, and the
judgment did not adjudicate title. The plaintiff in a quiet title suit must prove,
as a matter of law, that he has a right of ownership and that an adverse claim
is a cloud on the title that equity will remove. Brumley, 616 S.W.3d at 835.
Lebedzinski presented his deed to the four-acre tract showing he owned that
property. He also presented a 2021 deed, which had been filed in the county
land records, naming Russell as grantor purporting to convey a portion of
Lebedzinski’s four acres. Because Russell’s 2021 deed purports to convey an
Russell v. Lebedzinski Page 12
interest in Lebedzinski’s property, her 2021 deed constitutes a cloud on
Lebedzinski’s title. See Hahn, 321 S.W.3d at 531. The evidence is legally and
factually sufficient to show Lebedzinski is entitled to judgment in his suit to
quiet title. See Brumley, 616 S.W.3d at 835; Exxon Corp., 348 S.W.3d at 215;
Cain, 709 S.W.2d at 176.
Russell asserts that Lebedzinski did not prove the elements necessary to
defeat the adverse possession claim she pleaded in her answer. She argues
that there was no testimony establishing when any hostile possession began,
how long it continued, or whether the disputed area was actually and visibly
appropriated for the statutory period.
In her answer, Russell asserted the defense of adverse possession,
specifically the ten-year limitations period, by which she claimed title to the
property. As a claim of superior title against the owner of record, adverse
possession is an affirmative defense to trespass to try title. See TEX. CIV. PRAC.
& REM. CODE ANN. § 16.021(1); Rife v. Kerr, 513 S.W.3d 601, 616 (Tex. App.—
San Antonio 2016, pet. denied). As the claim of adverse possession was
Russell’s affirmative defense, Russell, not Lebedzinski, had the burden to
prove that defense. See Vance v. Popkowski, 534 S.W.3d 474, 481 (Tex. App.—
Houston [1st Dist.] 2017, pet. denied). Furthermore, in light of the fact
Lebedzinski sued to quiet his title, if we were to construe Russell’s answer as
Russell v. Lebedzinski Page 13
asserting a counterclaim for trespass to try title based on the ten-year
limitations period, the result would be the same. It would be Russell’s burden
to prove adverse possession. See NAC Tex. Hotel Co. v. Greak, 481 S.W.3d 327,
332 (Tex. App.—Tyler 2015, no pet.).
2021 Deed
Russell contends that Lebedzinski failed to prove that the 2021 warranty
deed is void. She asserts the deed is “facially regular,” and Lebedzinski did not
contend the signatures were forged or that there was an execution defect. She
argues that, at most, Lebedzinski alleged that she attempted to convey
property she does not own, Tracts II and III, which even if true, would not
render the deed void.
Pursuant to the 2021 deed, Russell and her husband purported to convey
three tracts of land to Brenda Russell. Tract I is undisputedly the 0.5 acre
tract deeded to Russell in 2001 that is adjacent to Lebedzinski’s property.
Tract II is described in the deed as 0.09 acres within Lebedzinski’s tract of land
that he acquired in 2016. Tract III is described as a dirt driveway across a
tract owned by Lebedzinski and another tract owned by Anthony David
Lebedzinski.
The Declaratory Judgments Act permits parties to seek a declaration of
rights, status or other legal relationship under certain instruments, including
Russell v. Lebedzinski Page 14
deeds. TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a). Pursuant to Texas Civil
Practice and Remedies Code Chapter 37, the trial court declared the 2021 deed
void and a nullity because Russell attempted to convey property she did not
own. The record shows that Russell did not own Tracts II or III. Russell cannot
convey that which she does not own. See Trial v. Dragon, 593 S.W.3d 313, 321-
22 (Tex. 2019); Collora v. Navarro, 574 S.W.2d 65, 70 (Tex. 1978). However,
the attempted inclusion of Tracts II and III had no legal effect. See Am. Sav.
& Loan Ass’n of Houston v. Musick, 531 S.W.2d 581, 585-86 (Tex. 1975). The
attempted conveyance of property Russell does not own, while ineffective as to
those tracts, does not render the deed void. See U.S. Fidelity & Guar. Co. v.
Carr, 242 S.W.2d 224, 226 (Tex. App.—San Antonio 1951, writ ref’d) (held that,
although deed purported to convey eight lots, it was only effective as to two lots
and was ineffective to convey six lots grantor had previously conveyed). The
deed remains valid and effective as to Tract I, the property Russell owned. The
evidence is legally insufficient to prove the 2021 deed was void. See Exxon
Corp., 348 S.W.3d at 215.
Encroachments
Russell contends Lebedzinski failed to prove the existence and nature of
the encroachments at issue. She complains that, while his petition referenced
fences barring his access to his property, the judgment awarded materially
Russell v. Lebedzinski Page 15
broader relief. She argues that Lebedzinski was required to prove the vital
facts showing that encroachments actually existed and what those
encroachments were.
Paul Lebedzinski 1 testified that Russell fenced off the 0.09 acre “tail
section” of Lebedzinski’s property. He explained that the fence was
represented by the dotted lines on Plaintiff’s Exhibit 2, a survey of
Lebedzinski’s four-acre tract. The dotted line encloses the small rectangular
portion of the tract that extends off of the main area of the tract. Additionally,
prior to filing suit, Lebedzinski sent a demand letter to Russell demanding “the
removal of the fence and partially constructed porch roof that extends onto” his
property. Specifically referencing the fence, Lebedzinski requested an
injunction prohibiting Russell from denying him access and from interfering
with his use of his property. The trial court granted Lebedzinski’s request for
an injunction and ordered Russell to “remove any and all encroachments into
or onto [Lebedzinski’s] real property.”
An owner whose land is subjected to an encroachment may seek
equitable relief to compel its removal. Allen v. Virginia Hill Water Supply
Corp., 609 S.W.2d 633, 636 (Tex. App.—Tyler 1980, no writ). To be entitled to
a permanent injunction, a party must prove 1) a wrongful act, 2) imminent
1 Paul Lebedzinski is Mark Lebedzinski’s father. Mark signed a power of attorney authorizing Paul
to act on his behalf in this litigation.
Russell v. Lebedzinski Page 16
harm, 3) an irreparable injury, and 4) the absence of an adequate remedy at
law. Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 792 (Tex. 2020). We
review a trial court’s ruling on applications for permanent injunctions for an
abuse of discretion. Operation Rescue-Nat’l v. Planned Parenthood of Houston
and Se. Tex., Inc., 975 S.W.2d 546, 560 (Tex. 1998). In reviewing for an abuse
of discretion, legal and factual sufficiency claims are factors we weigh in
determining whether the trial court abused its discretion. Montfort v. Trek
Res., Inc., 198 S.W.3d 344, 351 (Tex. App.—Eastland 2006, no pet.). If some
evidence appears in the record that reasonably supports the trial court’s
decision, there is no abuse of discretion. Id.
The record shows that Russell built a fence on Lebedzinski’s property,
blocking Lebedzinski’s access to his property. The evidence sufficiently
identifies the nature of the encroachment. Because the fence physically barred
Lebedzinski from his property, a damage award alone would not resolve the
problem. We conclude that the evidence is sufficient to show Lebedzinski is
entitled to an injunction. See Pike, 610 S.W.3d at 792. Accordingly, the trial
court did not abuse its discretion in granting the injunction. See id.
Damages
Russell contends the trial court’s damage award is not supported by
legally or factually sufficient evidence. She argues that no witness testified to
Russell v. Lebedzinski Page 17
any amount for loss of use, diminution in value, repair costs, rental value, or
mental anguish. She asserts the $10,000 award is unsupported and suggests
it is an arbitrary number untethered to the record.
The trial court found that the 2021 deed Russell filed in the official
records of Walker County constituted an attempt to convey an interest in real
estate to which she had no ownership. Based on this finding, the court ordered
“Statutory and or Exemplary Damages in the amount of Ten Thousand dollars
($10,000.00)” pursuant to Chapter 12 of the Texas Civil Practice and Remedies
Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 12.002(a); Hargrave v. Lake
CCC, Inc., 730 S.W.3d 519, 524 (Tex. App.—Eastland 2026, pet. denied). A
person who violates Section 12.002(a) is liable to each injured party for 1) the
greater of $10,000 or the actual damages caused by the violation; 2) court costs;
3) reasonable attorney’s fees; and 4) exemplary damages in an amount
determined by the court. TEX. CIV. PRAC. & REM. CODE ANN. § 12.002(b). Here,
the record supports the finding that Russell violated Section 12.002(a), and the
trial court’s award constitutes statutory damages pursuant to Section
12.002(b). Chapter 12 allows statutory damages without evidence of actual
damages. See Roman v. Ramirez, 573 S.W.3d 341, 351 (Tex. App.—El Paso
2019, pet. denied). Accordingly, the record supports the $10,000 award.
Russell v. Lebedzinski Page 18
Attorney’s Fees and Costs
Russell contends the evidence is legally insufficient to support the $6,450
award for attorney’s fees and court costs. Paul Lebedzinski testified that
Lebedzinski paid counsel a flat fee of $6,000 and he paid $450 in costs for
service and filing fees. The court awarded those same amounts.
To obtain attorney’s fees from the opposing party, a claimant must prove
that the requested fees are both reasonable and necessary. Rohrmoos Venture
v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 489 (Tex. 2019). Texas courts
apply the lodestar method to determine what constitutes reasonableness and
necessity when awarding attorney’s fees. Id. at 498. The fact-finder’s starting
point for calculating an attorney’s fee award is determining the reasonable
hours worked multiplied by a reasonable hourly rate, the product of which is
the base fee or lodestar. Id.
Lebedzinski’s testimony identifying the amount of attorney’s fees paid
does not address reasonableness or necessity of the fees. Counsel did not
testify regarding the reasonableness or necessity of the fees he charged.
Accordingly, the evidence is legally insufficient to support the award of $6,000
for attorney’s fees. Id.
The allocation of costs is a matter for the trial court’s discretion and
cannot be overturned on appeal, absent an abuse of discretion. Nolte v.
Russell v. Lebedzinski Page 19
Flournoy, 348 S.W.3d 262, 270 (Tex. App.—Texarkana 2011, pet. denied). As
a general rule, “the successful party to a suit shall recover of his adversary all
costs incurred therein.” TEX. R. CIV. P. 131. Each party to a suit is responsible
for accurately recording all costs and fees incurred during the course of a
lawsuit, if the judgment is to provide for the adjudication of such costs. TEX.
CIV. PRAC. & REM. CODE ANN. § 31.007(a). Section 31.007(a) does not require
a formal presentation of evidence of a party’s costs during trial. See id.; Nolte,
348 S.W.3d at 271. All that seems to be required is that the successful party
present an itemized list of costs and fees incurred during the lawsuit. Id.
Although Paul Lebedzinski testified that Lebedzinski paid $450 in court
costs, this does not satisfy the burden of recording and presenting an itemized
list of those court costs. Id. Accordingly, the trial court abused its discretion
in awarding Lebedzinski $450 in court costs.
Summary
We sustain the portions of Russell’s second issue complaining that the
judgment declared the 2021 deed void and complaining of the awards for
attorney’s fees and costs in the amount of $6,450. We overrule all other
arguments in Russell’s second issue.
Russell v. Lebedzinski Page 20
NECESSARY PARTY
In her third issue, Russell contends that the judgment should be
reversed because her mother, Brenda S. Russell, who she alleges is a necessary
party, was not made a party to the suit. Relying on the 2021 deed from Russell
to Brenda, Russell argues that Brenda claims an interest relating to the
subject of the lawsuit and disposition in her absence may impair her ability to
protect that interest. Therefore, she asserts, the trial court abused its
discretion by failing to join Brenda.
Rule 39 of the Texas Rules of Civil Procedure provides that a person
subject to service of process shall be joined as a party in the action if he claims
an interest relating to the subject of the action and is so situated that the
disposition of the action in his absence may impair his ability to protect that
interest. TEX. R. CIV. P. 39(a)(2)(i). To challenge a defect in parties, a
defendant should file a verified plea. See Allison v. Nat’l Union Fire Ins. Co.,
703 S.W.2d 637, 638 (Tex. 1986) (per curiam).
Russell failed to raise this issue in the trial court. When a party fails to
raise a joinder issue in the trial court, the issue is waived for appellate review.
Hibernia Energy III, LLC v. Ferae Naturae, LLC, 668 S.W.3d 745, 757 (Tex.
App.—El Paso 2022, no pet.); see also TEX. R. APP. P. 33.1(a)(1) (as a
prerequisite to presenting a complaint for appellate review, the record must
Russell v. Lebedzinski Page 21
show that the complaint was made to the trial court by a timely request,
objection, or motion). Accordingly, we overrule Russell’s third issue.
PROCEDURAL IRREGULARITIES
In her fourth issue, Russell asserts that the procedural sequence
reflected in the clerk’s record is irregular, raising a question whether the
proceedings were sufficiently regular to support a final post-answer default
judgment. Apparently contending that the case lacks “procedural fairness,”
she requests the case be “remanded so it can be adjudicated on a regular record
after clear notice and a proper opportunity to be heard.”
At the close of the August 28, 2025 bench trial, the court orally rendered
its ruling. Lebedzinski’s counsel then stated, “I’ll prepare the judgment.” On
October 1, the trial court sent a notice of intent to dismiss for want of
prosecution and scheduled a hearing for December 2. One day before the
scheduled hearing, counsel for Lebedzinski filed a motion to retain the case in
which he explained there was a bench trial on August 28, and he is “currently
drafting the proposed Final Judgment in accordance with the court’s rulings.”
He requested retention on the docket “so that the Final Judgment may be
submitted, entered, and the case finalized.”
The trial court has wide discretion in managing its docket. Clanton v.
Clark, 639 S.W.2d 929, 931 (Tex. 1982). The record shows the notice of
Russell v. Lebedzinski Page 22
dismissal was issued because counsel did not present a draft final judgment to
the trial court. Apparently in response to the motion to retain, the trial court
signed a form scheduling order setting the case for trial on January 8, 2026.
Before that date, the trial court was presented with counsel’s draft judgment
and signed it on December 29, 2025. The so-called “procedural irregularities”
occurred because counsel failed to provide the draft judgment in a timely
manner, and the trial court was controlling its docket. This record does not
raise questions regarding regularity of the proceedings to support a post-
answer default judgment. We overrule Russell’s fourth issue.
CONCLUSION
The evidence is legally and factually sufficient to support the trial court’s
judgment in favor of Lebedzinski on his claims to quiet title, for an injunction,
and for statutory damages. Because the trial court erred in ordering that
Russell’s 2021 deed is void, we modify the trial court’s judgment by deleting
the declaration that the 2021 deed is void and a nullity. Because Lebedzinski
did not prove entitlement to attorney’s fees or court costs, we modify the trial
court’s judgment to delete the $6,450 award of attorney’s fees and costs. As
modified, we affirm the trial court’s judgment. See TEX. R. APP. P. 43.2(b).
ANDREA WESTERFELD
Justice
Russell v. Lebedzinski Page 23
OPINION DELIVERED and FILED: November 12, 2026
Before Chief Justice Johnson,
Justice Harris, and
Justice Westerfeld
Affirmed as modified
CV06
Russell v. Lebedzinski Page 24