Rebecca B. Watson v. Michael Haskins Photography, Inc.--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00010-CV

Rebecca B. Watson,

Appellant

v.

Michael Haskins Photography, Inc.,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 68,288

MEMORANDUM Opinion

Watson and Michael Haskins Photography owned buildings sharing a common wall. Watson s roof collapsed. The common wall was damaged. The trial court awarded Michael Haskins $67,000 for damages to the wall and entered a permanent injunction against Watson. Watson appeals. We modify the judgment and affirm it as modified.

Injunction. In Watson s fifth issue, she contends that the evidence supporting the injunction was legally and factually insufficient, and that the injunction was overbroad. The injunction permanently enjoined Watson from, among other things, [s]elling, transferring or otherwise encumbering the property. [A] decree of injunction [should not] be so broad as to enjoin a defendant from activities which are a lawful and proper exercise of his rights. Holubec v. Brandenberger, 111 S.W.3d 32, 39-40 (Tex. 2003); accord Schneider Nat l Carriers, Inc. v. Bates, 147 S.W.3d 264, 271 n.16 (Tex. 2004). Michael Haskins points only to evidence of Watson s failure to make repairs as ordered in the trial court s temporary injunction. There was no evidence supporting the permanent injunction against selling the property. We sustain Watson s fifth issue.

Duty. In Watson s first issue, she contends that the trial court erred in holding that Watson had a duty to avoid damage to the common wall. The trial court held that Watson s negligent conduct proximately caused damages to Michael Haskins. The elements of a negligence cause of action are the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. HIS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). A duty of care arises when conditions are such that a prudent person would have anticipated and guarded against the occurrence which caused another s injury. Alm v. Aluminum Co., 717 S.W.2d 588, 590 (Tex. 1986) (quoting St. Louis S.W. Ry. Co. v. Pope, 98 Tex. 535, 541, 86 S.W. 5, 7 (1905)). Watson s duty was to act as a reasonable prudent person would act under the same or similar circumstances regarding any reasonably foreseeable risk. See Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex. 1984). Watson cites distinguishable cases on the duty to maintain natural lateral support. See Carrion v. Singley, 614 S.W.2d 916 (Tex. Civ. App. Waco 1981, writ ref d n.r.e.). Michael Haskins points to one s general duty not to make an unreasonable use of his premises to the material injury of his neighbors premises. See Hoover v. Horton, 209 S.W.2d 646, 649 (Tex. Civ. App. Amarillo 1948, no writ). The trial court did not err in holding that Watson breached a duty to Michael Haskins. We overrule Watson s first issue.

Sufficiency of Evidence of Damages. In Watson s second issue, she contends that the evidence that she breached a duty to Michael Haskins was legally and factually insufficient. We overrule Watson s second issue.

Legal Sufficiency. In reviewing the legal sufficiency of the evidence, [w]e review the evidence in the light most favorable to the verdict, disregarding all contrary evidence that a reasonable factfinder could have disbelieved. Ysleta Indep. Sch. Dist. v. Monarrez, 48 Tex. Sup. Ct. J. 1014, 1014, 2005 Tex. LEXIS 603, at *2 (Tex. Aug. 26, 2005) (per curiam).

No evidence points must, and may only, be sustained when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact.

City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (quoting Robert W. Calvert, No Evidence & Insufficient Evidence Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960)).

Michael Haskins points to evidence that the parties were adjoining landowners. The evidence was legally sufficient.

Factual Sufficiency. When reviewing the factual sufficiency of the evidence, the court of appeals must consider and weigh all the evidence, and should set aside the verdict 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).

Watson points to Michael Haskins s testimony that he did not feel responsible for Watson s damages to the wall. The evidence was factually sufficient.

Measure of Damages. In Watson s third issue, she contends that the trial court used the wrong measure of damages. Watson argues that the trial court used the cost of building a new exterior wall as the measure of damages, rather than the cost of repairing the damaged wall, and thus erred. As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion . . . . Tex. R. App. P. 33.1(a); see In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003), cert. denied sub nom. Duenas v. Montegut, 541 U.S. 1043 (2004). Watson does not suggest that she preserved her complaint. We overrule Watson s third issue.

Admission of Evidence. In Watson s fourth issue, she contends that the trial court erred in overruling Watson s objections to certain evidence. We overrule Watson s fourth issue.

Bid. First, Watson complains of the admission of a bid for repair of the wall. We assume without deciding that Watson s issue is adequately briefed. See Tex. R. App. P. 38.1(h); Gen. Servs. Comm n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 n.1 (Tex. 2001). On appeal, Watson contends that the exhibit constituted inadmissible hearsay and expert evidence. See Tex. R. Evid. 702, 801(d), 802. Watson did not object on the basis of Rule 702 at trial, and thus failed to preserve that complaint on appeal. See Tex. R. App. P. 33.1(a); Campbell v. State, 85 S.W.3d 176, 184-85 (Tex. 2002). The trial court admitted the exhibit conditionally. See Tex. R. Evid. 104(b). If the condition on which evidence is admitted is not fulfilled by the close of the proponent s case, the burden is on the opposing party to renew his original objection by moving to strike the evidence; otherwise the party waives any error resulting from the conditional admission of the evidence. Owens-Corning Fiberglas Corp. v. Keeton, 922 S.W.2d 658, 661 (Tex. App. Austin 1996, writ denied); see Tex. R. App. P. 33.1(a). Watson does not point to any renewal of her hearsay objection. Watson waived her hearsay objection.

Leading. Watson complains of the following testimony by one of Michael Haskins s witnesses on direct examination:

Q . . . Is it your opinion that if these repairs were accomplished, would it return the plaintiff s property to a usable condition?

A Yes.

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the testimony of the witness. Tex. R. Civ. P. 611(c). A leading question is one which suggests the desired answer or puts words into the witness s mouth to be echoed back. Mega Child Care, Inc. v. Tex. Dep t of Prot. & Reg. Servs., 29 S.W.3d 303, 308 (Tex. App. Houston [14th Dist.] 2000, no pet.). The decision to permit a leading question lies within the sound discretion of the trial court. Id. Watson does not establish that the trial court abused its discretion.

Bias and Cumulative Harm. In Watson s sixth issue, she contends that the trial court was biased against her, and that the trial court s errors caused cumulative harm. We overrule Watson s sixth issue.

Bias. Watson argues that the trial judge was biased against her. Watson points primarily to the trial court s finding, Upon evaluation of the demeanor of the witnesses and assessing their credibility, the Court specifically finds that Defendant Rebecca Watson was not a credible witness and the weight of her testimony was adjusted accordingly. Bias, like any other form of error, must be preserved in the trial court. See Tex. R. App. P. 33.1(a); Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). The appellant bears the burden to explain how any comments made by the trial judge were incurable or would excuse the appellant s failure to preserve error. Francis at 241. Watson does not point to an objection and does not explain her failure to object. Watson fails to preserve her complaint.

Cumulative Harm. Multiple errors, determined harmless when considered separately, may combine to produce an effect that is harmful, requiring reversal. Haskett v. Butts, 83 S.W.3d 213, 221 (Tex. App. Waco 2002, pet. denied). We assume without deciding that Watson s issue is adequately briefed. See Tex. R. App. P. 38.1(h); Little-Tex, 39 S.W.3d at 598 n.1. [C]umulative harm by definition requires more than one error. Haskett at 221. We have found only one error, namely in Watson s fifth issue. Accordingly, there is no cumulative harm.

Conclusion

Having sustained Watson s fifth issue, we modify the judgment to delete the injunction against [s]elling, transferring, or otherwise encumbering the property located at 116 S. Hwy. 77, Forreston, Texas. As so modified, we affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurring with note)*

Affirmed as modified

Opinion delivered and filed November 23, 2005

[CV06]

* (Justice Vance concurs with a note: It is hard to understand why this opinion, even though it is a memorandum opinion, does not adequately provide either the basic facts necessary to understand why the Appellant brought the issues or the reasons for rejecting them. Although I concur in the judgment, I cannot join this opinion.)