Milad Nassar v. Phyllis M. Cole
This text of Milad Nassar v. Phyllis M. Cole (Milad Nassar v. Phyllis M. Cole) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
IN THE
TENTH COURT OF APPEALS
No. 10-92-070-CV
     MILAD NASSAR,
                                                                                              Appellant
     v.
     PHYLLIS M. COLE,
                                                                                              Appellee
From the 234th District Court
Harris County, Texas
Trial Court # 90-56816
                                                                                                   Â
O P I N I O N
                                                                                                   Â
      This is a boundary dispute in the form of trespass to try title between two property owners whose lots abut each other at their rear boundaries. Milad Nassar owns Lot 10, and Phyllis Cole owns Lot 15 and the East fifteen feet of Lot 16. At or about the time Nassar bought his property in September 1989, someone tore down Cole's chain-link fence and constructed a new wooden fence for Lot 10 approximately eighteen inches farther into what Cole considers her property. Nassar claims that the new fence is on the true property line. The jury found that Cole owned the disputed strip of land and awarded her $3650 for its rental value and costs of repairs. Nassar raises legal- and factual-sufficiency complaints about the evidence supporting the damage award and also claims that the judgment is void because it does not describe the disputed strip with sufficient particularity to locate it on the ground. We will reform the judgment to delete the damages and then affirm.
      In its judgment, the court awarded Cole ownership and possession of the disputed strip of property, "that being a portion of land as outlined and described by Plaintiff's survey by Billy Shanks dated October 19, 1989[,] and attached and incorporated herein for all purposes by reference." Nassar contends in point five that the judgment is void because it does not describe the disputed tract with enough certainty to locate it on the ground.
      The judgment in a trespass-to-try-title action must describe the land in dispute with certainty. Smith v. Griffin, 131 Tex. 509, 116 S.W.2d 1064, 1066 (1938). A description is sufficient if it identifies the land with enough certainty that an officer charged with the duty of executing a writ of possession could, with the assistance of a competent surveyor, locate the property on the ground from the description in the judgment. Southern Pine Lumber Co. v. Whiteman, 163 S.W.2d 212, 214 (Tex. Civ. App.âTexarkana 1942, writ ref'd). The survey incorporated into the judgment depicts in scale, with accompanying measurements, the boundary line between Cole's and Nassar's property, the location of Nassar's new wooden fence, and the location of Cole's old chain-link fence before it was destroyed. This provided a sufficient description of the disputed strip of land to locate it on the ground. See id. Point five is overruled.
      In response to Question 2, the jury awarded Cole $3650 for the rental value of the disputed strip and cost of repairs. Nassar objected to the question on the ground that there was no evidence of rental value or cost of repairs, but his objections were overruled. His first point is that there was no evidence to support the submission of the damage question. He contends in points two and three that the evidence is factually insufficient to support an award of rental value or cost of repairs. His fifth point is that the damage award is excessive. Finally, in point six he argues that the damage question should not have been submitted because there was no evidence that Nassar caused Cole's damages.
      With respect to her damages, Cole said that she purchased concrete blocks that were used to cover the opening at the bottom of the wooden fence so that her dogs would not escape from her yard. She never testified, however, as to their cost. Moreover, there is no evidence of the cost of moving shrubs that were displaced by the wooden fence or the cost of replacing the chain-link fence that was destroyed. In short, there is no evidence of the reasonable and necessary cost of repairs.
      She also testified about other damages:
Q And, what other damage have you sustained because of that fence being on your property?
. . .
A Um -- every time I look out my window, I look at that nasty set up there. It was all hedge along the chain link fence. . . . And now, there's no hedge. And there's no chain link fence. . . . and it hits me in the face every time I look out the window, sorry to say, . . . and it reminds me of what I've gone through, and it's just not a very happy sensation to look out the window anymore.
Q How long has that been going on?
A Oh, almost two and a half years now.
Q Have you suffered loss of sleep, or some other loss, just because of this?
A Well, I --
[DEFENDANT'S COUNSEL]: Objection. Your Honor, these mental anguish damages were not pled, --
[OBJECTION SUSTAINED]
Q You have not had the use of that land? Is that right?
A No. I haven't had the use of the land, and I haven't been able to do anything to redeem the appearance of it, because I kept waiting for the hedge to get moved back where it belonged.
Q Are you able to put a dollar value on your loss, Mrs. Cole?
A I'd hate to try, but -- golly. How about, -- oh, $5.00 a day. That sound reasonable?
Q You feel you've lost $5.00 a day, in fact, that's your damages, because of the loss of use of that land?
A Yeah, I think so.
Q For some two years[?]
A Mm hmm.
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Milad Nassar v. Phyllis M. Cole, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milad-nassar-v-phyllis-m-cole-texapp-1993.