Ennis Cole v. Gary R. Baily--Appeal from 118th District Court of Martin County

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
)

ENNIS COLE,

)
No. 08-02-00466-CV)

Appellant,

)
Appeal from)

v.

)
118th District Court)

GARY R. BAILY,

)
of Martin County, Texas)

Appellee.

)
(TC# 5459)
MEMORANDUM OPINION

Ennis Cole appeals from a judgment for money damages and attorneys' fees entered in favor of Gary Baily. Finding no error, we affirm.

FACTUAL SUMMARY

In November 1999, Baily acquired unimproved rural property in Martin County from Don Eggleston. At the time of the purchase, Baily also acquired easement rights over Cole's property for access from the public roadway to his land. The easement had been of record for approximately two years before Cole acquired his property.

Baily purchased the land for recreational and ranching purposes. He began making improvements shortly thereafter which included digging a pond, planting trees, installing a sprinkler system, and adding a concrete pad for a picnic area. Two weeks after the purchase, Baily contacted Cole to inquire about improving the roads. At that time, Cole told Baily to stay off his land because he had no permission to be there. In late January or early February 2000, contractors hired by Baily to improve the road encountered problems while trying to leave the property. During the same period, the lock on the gate was changed preventing ingress or egress without breaking the lock or chain, and Cole threatened Baily on numerous occasions.

Baily filed suit seeking a temporary restraining order, injunction, and damages. The trial court restrained Cole from interfering, blocking, or denying Baily's use and possession of ingress and egress to the easement. Nevertheless, Cole's interference with Baily's easement lasted from the date of purchase in November 1999 until trial in June 2002.

Following a bench trial, Baily was awarded judgment in the amount of $5,000 for loss of use of his land, $3,750 for attorneys' fees through trial, and conditional appellate fees of $9,000. The trial court duly filed findings of fact and conclusions of law.

LEGAL SUFFICIENCY

In his sole point of error, Cole challenges the legal sufficiency of the evidence to support the money damages and the fee award. We begin with the standard of review.

Standard of Review

A "no evidence" or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. Lozano v. H.D. Industries, Inc., 953 S.W.2d 304, 319 (Tex.App.--El Paso 1997, no pet.). In conducting our review, we consider only the evidence and inferences in a light most favorable to such findings and disregarding all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Dayton Hudson Corp. v. Altus, 715 S.W.2d 670 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.). If any probative evidence supports the fact finding, it must be upheld. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (Tex. 1951). Where, as here, the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of "no evidence to support the finding." See Lozano, 953 S.W.2d at 319. In a bench trial, a legal sufficiency challenge to the trial court's findings of fact is reviewable under the same standard that we apply in reviewing evidence supporting a jury's answer. Catalina v. Blasdell, 881 S.W.2d 295, 297 (Tex. 1994); Schwartz v. Pinnacle Communications, 944 S.W.2d 427, 432 (Tex.App.--Houston [14th Dist.] 1997, no writ). However, the findings are not conclusive when a complete reporter's record appears in the record. See Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex.App.--San Antonio 1995, writ denied).

We are presented here with only a partial reporter's record. At trial, the court took judicial notice of the testimony of two witnesses who had testified at a prior hearing, but the parties did not request a transcript of the prior proceeding, and the record does not include documentation of the witnesses' testimony. Texas Rule of Appellate Procedure 34.6 provides:

The appellate court must presume that the partial reporter's record designated by the parties constitutes the entire record for purposes of reviewing the stated points or issues. This presumption applies even if the statement includes a point or issue complaining of the legal or factual insufficiency of the evidence to support a specific factual finding identified in that point or issue.

 

Tex.R.App.P. 34.6(c)(4). Cole did not include the requisite statement of the points or issues to be presented on appeal in his record request. See Tex.R.App.P. 34.6(c)(4). On this basis alone, we must presume that the omitted portions support the trial court's findings and affirm the trial court's judgment. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002). Nevertheless, in the interest of fairness, we will examine the record such as it is.

In his brief, Cole does not specifically challenge any of the trial court's findings of fact but instead challenges generally those relating to damages and attorneys' fees:

Baily has sustained damages for loss of use of the Baily Property in the sum of $5,000.00 which represents the reasonable rental value for the property during the periods of loss of use of the Baily Property.

 
. . .

The Court finds that the reasonable and necessary attorney's fees incurred by Baily are the sum of $3,750.00 for services rendered through the trial of this cause; $3,500.00 in the event of an appeal to the Court of Appeals; $3,000.00 in the responding to an Application for Writ of Error to the Supreme Court of Texas; and, the sum of $2,500.00 if the appeal to the Supreme Court of Texas is unsuccessful.

 
Money Damages

The injuries to Baily's property were temporary in nature. Temporary injuries to real property are those which are sporadic and contingent upon some irregular force which may be enjoined. Hall v. Robbins, 790 S.W.2d 417, 418 (Tex.App.--Houston [1st Dist.] 1990, no writ), citing Moore v. Rotello, 719 S.W.2d 372, 378 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). The proper measure of recovery has been calculated in various ways, depending on the specific circumstances. Hall, 790 S.W.2d at 418. For example, damages can be quantified as the value of the products of the land and the injury done to it, or the reasonable cost of restoring the land to its condition immediately preceding the injury, plus the value of its use for the period of injury with interest or the reduced rental value. Hall, 790 S.W.2d at 418. Damages may also be measured by the cost of repairs or restoration if the injury can be remedied with reasonable expense and the cost of restoration is reasonably certain, or if the cost of restoration is less than the diminution in the value of the property. Hall, 790 S.W.2d at 418. The lease or rental value of vacant land is also an appropriate measure of damages for the temporary loss of use due to interference with access to the land. Hall, 790 S.W.2d at 418, citing City of Austin v. Teague, 570 S.W.2d 389, 394 (Tex. 1978).

Cole complains that Baily failed to present competent evidence as to the loss of use and enjoyment of his property and as to its rental value. The record reveals the following incidents:

Cole refused to allow Midkiff Transports to travel from the property by blocking the gate for one and a half hours;

 

Cole blocked Baily from entering onto right of way for five minutes and yelled at him;

 

Cole blocked the right of way forcing Baily to go around him;

 

Cole blocked Baily's landscaper from leaving Baily's property;

 

Cole blocked Baily and his parents for five minutes while they were trying to leave the property;

 

Cole blocked the gate and threatened Baily;

 

Cole held Baily's landscaper and the landscaper's wife at gunpoint for over an hour while they were on the right of way; and

 

Cole chased Baily while Baily was entering the property.

 

Baily testified that he and his family had been unable to enjoy the property due to Cole's threats and that his family had not been on the property for the last year. He only went out to the property on rare occasions in order to maintain the land and did not allow his wife and daughter to go onto the property alone. A real estate investor with over twenty years' experience, Baily has been involved in the purchase, sale, or lease of at least a hundred parcels of land. He leases three-fourths of his properties and does so for a reasonable rate of return of 10 to 15 percent. Baily opined that the lease or rental value of the property was between $17,000 and $20,000 per year.

The trier of fact has the discretion to award damages within the range of the evidence presented at trial. See Clary Corp. v. Smith, 949 S.W.2d 452, 467 (Tex.App.--Fort Worth 1997, pet. denied). The trial court found damages of $5,000 which, according to the testimony, does not exceed the rental value. We conclude the evidence is legally sufficient.

Attorneys' Fees

Cole's only complaint with regard to the fee award is that it is improper since the trial court erred in granting monetary damages. He has provided no additional authority for his claim. See Tex.R.App.P. 38.1(h). Because we have found no fault with the damage award, we need not address the propriety of the fee award. Consequently, we overrule the sole point and affirm the judgment of the trial court.

 

February 19, 2004 ANN CRAWFORD McCLURE, Justice

 

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.