Opinion
No. 10-05-00303-CV
Opinion delivered and filed October 11, 2006.
Appeal from the 40th District Court, Ellis County, Texas, Trial Court No. 67729.
Modified and affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurs in the judgment of the Court without a separate opinion).
MEMORANDUM OPINION
Ken Halverson filed suit against Larry Podlewski for dissolution of their partnership and an accounting. Podlewski counterclaimed alleging that Halverson committed a trespass on his land by constructing two earthen dams on a pond which lay along part of their common property line. Following a bench trial, the court rendered judgment for Podlewski.
Halverson contends in seven points that: (1) Podlewski's expert witness was not shown to be qualified and his testimony was not based on a reliable foundation; (2) the record contains no evidence to support the award of $5,000 in damages to relocate a fence Halverson built on one of the dams; (3) the record contains no evidence to support the issuance of a permanent injunction barring Halverson from constructing any barrier on the pond, "from [effecting] any further recontour of his land which interferes with the natural flow of water to Larry Podlewski's pond or land," or "from placing any waste product" within 500 feet of Podlewski's property (three points); and (4) the permanent injunction is too vague to be enforceable (two points). We will modify the judgment and affirm the judgment as modified.
Background
Halverson and Podlewski formed a partnership for the development of real estate. Halverson sought to dissolve the partnership several years later, but Podlewski and he could not agree on valuation of partnership assets. Thus, he filed the underlying suit to obtain a court-ordered dissolution of the partnership.
Podlewski filed a counterclaim to litigate a separate dispute with Halverson regarding a pond they constructed on part of their common property line. Podlewski claims that Halverson erected an earthen dam across the pond on Podlewski's side of the property line and a second earthen dam along the property line which caused the pond to dry up on Podlewski's side. Podlewski also alleges that Halverson constructed a fence on the first dam and erected a gate on "an old county road" which Podlewski had previously used for ingress and egress. Podlewski claimed the existence of an easement by necessity on this road.
Following a bench trial, the court rendered judgment for Podlewski. The court awarded him $30,000 for the cost of removing the two dams, $1,500 for the cost of surveying the property line, and $5,000 for the cost of relocating the fence Halverson erected on the first dam. The court rejected Podlewski's claim of an easement by necessity.
The court also issued a permanent injunction prohibiting Halverson from: (1) trespassing on Podlewski's property; (2) constructing any barrier which interferes with the free flow of water in the pond; (3) effecting "any further recontour of his land which interferes with the natural flow of water"; and (4) "placing any waste product" within 500 feet of Podlewski's property line.
Cost to Relocate Fence
Halverson contends in his second point that the record contains no evidence to support the award of $5,000 in damages to relocate the fence.
When we conduct a no-evidence review, we must determine "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We "must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Id. Although the Wilson standard is stated in terms of a jury finding, it applies equally to a trial court's findings made in a bench trial. See Kilpatrick v. McKenzie, No. 14-04-00986-CV, 2006 WL 1675421, at * 2 (Tex.App.-Houston [14th Dist.] June 20, 2006, no pet.); Ludwig v. Encore Med., L.P., 191 S.W.3d 285, 294 (Tex.App.-Austin 2006, pet. denied); see also Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).
The only reference in the trial record to a cost for relocating the fence is found in the closing argument of Halverson's counsel.
The parties, because they jointly built this fence, jointly share in those costs to move the fence. And those costs total, based on the testimony of the expert of Mr. Halverson, approximately $5,000. We're requesting that the Court order the parties to split that cost to have the fence moved to the agreed upon property line.
Argument of counsel is not evidence. See Dunn v. Dunn, 177 S.W.3d 393, 397 (Tex.App.-Houston [1st Dist.] 2005, pet. denied); Clayton v. Wisener, 169 S.W.3d 682, 684 (Tex.App.-Tyler 2005, pet. denied). Despite counsel's reference to expert testimony, none of the witnesses who testified on Halverson's (or Podlewski's) behalf assigned a cost for relocation of the fence.
Instead, expert testimony was presented on attorney's fees, surveys of the property line, removal of the dams, property values, and costs to construct a new road for access to Podlewski's land.
Accordingly, we sustain Halverson's second point.
Evidence Supporting Permanent Injunction
Halverson contends in his third, fifth, and seventh points respectively that the record contains no evidence to support the issuance of a permanent injunction barring Halverson from constructing any barrier on the pond, from effecting "any further recontour of his land which interferes with the natural flow of water," or from "placing any waste product" within 500 feet of Podlewski's property.
Halverson challenges the court's injunction against him "constructing any barrier which interferes with the free flow of water in the subject common pond" because there is no evidence to establish the manner in which the water flows in the pond.
Podlewski testified that, after Halverson constructed the first dam, the pond dried up on his side. The court rendered an agreed temporary injunction which prohibited the parties from constructing additional dams or otherwise altering the status quo, but Halverson constructed a second dam anyway.
From this evidence, a "reasonable and fair-minded" trier of fact could have found that: (1) Halverson's construction of these dams prevented water from flowing to Podlewski's part of the pond; and (2) Halverson would persist in erecting such structures unless enjoined. See Wilson, 168 S.W.3d at 827. Thus, the record contains some evidence to support the court's decision to permanently enjoin Halverson from constructing additional barriers which interfere with the flow of water in the pond.
Halverson next challenges the court's injunction against him effecting "any further recontour of his land which interferes with the natural flow of water" because there is no evidence to establish the manner in which the water flows onto Podlewski's property.
Podlewski testified that he observed Halverson and others digging "out a bunch of dirt in one spot to try to catch water from the adjoining property." They deposited this additional dirt across the top of the first dam. As previously observed, Halverson violated the agreed temporary injunction.
From this evidence, a "reasonable and fair-minded" trier of fact could have found that: (1) Halverson's additional excavation interfered with the natural flow of water onto Podlewski's property; and (2) Halverson would persist in such conduct unless enjoined. See Wilson, 168 S.W.3d at 827. Thus, the record contains some evidence to support the court's decision to permanently enjoin Halverson from effecting "any further recontour of his land which interferes with the natural flow of water."
Halverson also challenges the court's injunction against him "placing any waste product" within 500 feet of Podlewski's property because there is no evidence that he engaged in such conduct.
A report from the Texas Commission on Environmental Quality (Plaintiff's Exhibit 10) states that "stockpile of manure were [sic] observed near the southern property line (see photographs). Piles of manure situated such that contaminated runoff from stormwater could leave the owner's property should be avoided." Podlewski testified that Halverson had dumped "probably 15 loads" of manure in a drainage ditch which "completely blocked" the ditch, causing the road to wash out "during big rains" and causing "all the pathogens and bacteria from the cattle manure" to flow onto Podlewski's land. Podlewski testified that Halverson dumped the manure there after he had "threaten[ed] to make [Podlewski's] life ugly."
From this evidence, a "reasonable and fair-minded" trier of fact could have found that: (1) Halverson damaged Podlewski's property by dumping manure near the property line; and (2) Halverson would persist in such conduct unless enjoined. See Wilson, 168 S.W.3d at 827. Thus, the record contains some evidence to support the court's decision to permanently enjoin Halverson from "placing any waste product" within 500 feet of Podlewski's property.
Accordingly, we overrule Halverson's third, fifth, and seventh points.
Expert Testimony
Halverson contends in his first point that Podlewski's expert witness was not shown to be qualified and his testimony was not based on a reliable foundation. However, Halverson did not make these objections at trial. Thus, he has not preserved this complaint for appellate review. See Tex.R.App.P. 33.1(a)(1); Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). Accordingly, we overrule Halverson's first point.
Although Halverson states his first point as a "no-evidence" challenge, virtually the entirety of the argument presented challenges the expert's qualifications and the reliability of his testimony. Halverson does not contend that the expert's testimony is conclusory or speculative. Cf. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004).
Specificity of Injunction
Halverson contends in his fourth and sixth points respectively that the permanent injunction is too vague to be enforceable insofar as it enjoins him from "constructing any barrier interfering with the free flow of water in the common pond" and from engaging in "any further recontour of his land which interferes with the natural flow of water to Larry Podlewski's pond or land."
Rule of Civil Procedure 683 provides in pertinent part that an order granting an injunction "shall be specific in terms." To satisfy this requirement, an injunction order must be as precise as possible to inform the defendant of the acts he is restrained from doing. See Khaledi v. H.K Global Trading, Ltd., 126 S.W.3d 273, 280 (Tex.App.-San Antonio 2003, no pet.) (citing San Antonio Bar Ass'n v. Guardian Abstract Title Co., 156 Tex. 7, 291 S.W.2d 697, 702 (1956)); Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 579 (Tex.App.-Austin 2000, no pet.) (same). The defendant should not be required to draw inferences or conclusions about which persons may differ to determine what conduct is prohibited. See San Antonio Bar Ass'n, 291 S.W.2d at 702; Khaledi, 126 S.W.3d at 281; Universal Health Servs., 24 S.W.3d at 579. Nevertheless, the injunction must be stated in broad enough terms to prevent repetition of the conduct sought to be enjoined. Id.
Here, Podlewski presented evidence about Halverson constructing barriers ( i.e., dams) across the pond which caused it to dry up on Podlewski's side. Podlewski also presented evidence about Halverson digging on his property ( i.e., recontouring) in a manner which would affect the flow of water onto Podlewski's land. The court enjoined Halverson from continuing to engage in such conduct.
Thus, we hold that the challenged terms are sufficiently precise to satisfy Rule 683 and to be enforceable. See Khaledi, 126 S.W.3d at 281; Universal Health Servs., 24 S.W.3d at 579-80. Accordingly, we overrule Halverson's fourth and sixth points.
Conclusion
There is no evidence to support the court's award of $5,000 for relocation of the fence. Accordingly, we modify the judgment to delete that award of damages and affirm the judgment as modified.