City of Denton v. Page

• Decision Date: 17 January 1985
• Docket Number: Nos. 2-84-038-C,2-84-039-CV,s. 2-84-038-C
• Citation: 683 S.W.2d 180
• Parties: The CITY OF DENTON, Texas & Frances Melton, Appellants, v. Michael Van PAGE and Ida Louise Page, Appellees.
• Court: Texas Court of Appeals

Page 180

683 S.W.2d 180

The CITY OF DENTON, Texas & Frances Melton, Appellants, v. Michael Van PAGE and Ida Louise Page, Appellees.

Nos. 2-84-038-CV, 2-84-039-CV.

Court of Appeals of Texas,

Fort Worth.

Jan. 17, 1985.

Henderson, Bryant & Wolfe, John B. Kyle, Sherman, for The City of Denton, Texas.

Frances C. Melton, pro se.

Philips, White, Davidge, Griffin, Shelton, Eames, Wood & Duncan, R. William Wood, Denton, for appellees.

Before HUGHES, JOE SPURLOCK, II and HILL, JJ.

OPINION

JOE SPURLOCK, II, Justice.

This is a personal injury case arising out of injuries received by Michael Van Page appellee, during a fire in a building belonging to Frances Melton, appellant. Page alleged that the fire was caused by the dangerous and unsafe condition of the building which was created and maintained by the negligence of both Melton and the Fire Department of the City of Denton, appellant. Page's wife, Ida Louise (Lou) Page, appellee, joined in the suit and sought damages for mental anguish, loss of consortium and loss of household services. Based on a jury's answer to special issues, the trial court entered judgment for the Pages, appellees. From such judgment, Melton and the City of Denton bring the present appeal.

We reform and affirm.

Frances Melton has submitted a pro se brief which sets out eight points of error and cites only two authorities in support of her contentions. Although her failure to cite authorities is in direct conflict with the requirements of TEX.R.CIV.P. 418(e), we believe that Melton's points of error should nevertheless be addressed in this instance. TEX.R.CIV.P. 1. Melton's point of error one contends that it was error for the trial court to deny her motion for a directed verdict and motion for judgment non obstante veredicto. Points of error two, three, four, and six complain of the trial court's charge to the jury. Point of error five complains of the trial court's exclusion of certain expert testimony. Points of error seven and eight appear to challenge the sufficiency of the evidence to support the jury's apportionment of negligence between the parties.

The City of Denton bases its appeal on thirteen points of error. Point of error one asserts that the Texas Tort Claims Act does not provide for waiver of immunity under the circumstances of the present case. Point of error two contends that the City of Denton owed no legal duty to appellees. Points of error three through ten contend that there was either no evidence or insufficient evidence to support the jury's findings in answer to Special Issues One, Three, Five, Six and Seven. Points of error eleven, twelve and thirteen complain of the award by the trial court to Ida Louise Page. Because of the complexity of the arguments made concerning the relationship and duties of the parties, and the result this court reaches today, it is necessary to set out the facts of the case in detail.

In April of 1981, Michael Van Page saw a rental listing for a house located in Denton, Denton County, Texas which was situated facing west onto Kendolf Street. To the north of the rent house was a narrow vacant lot, bordered on the north by Lindsey Street and on the west by Kendolf. To the south of the rent house was a large vacant lot, described as a field. About one hundred yards across this field and south of the rent house was a house under construction. Behind the rent house and a bit further north towards Lindsey was a barn or chicken coop. Just behind this barn was the driveway to another house which belonged to the McCarter family. All of the land between the driveway and Kendolf and from Lindsey to the house under construction belonged to Frances Melton including the house under construction and its property.

The rent house was vacant when Michael Page first saw it. It was a small house with a wood exterior. The yard around the house was overgrown and the house itself was in need of painting. The lot which the house sat on was surrounded on three sides by tall shrubs. A note on the door indicated that inquiries about the rent house could be made of R.B. Melton who was at the house under construction on Kendolf. Page went to the house under construction and met R.B. Melton, who indicated to Michael Page that he was acting on behalf of his mother, Frances Melton, in showing the house and attempting to rent it.

R.B. Melton showed Page around the property and pointed out the property lines. He explained to Page that the shrubs around the house marked the property line of the rent house. He told Page that the rent would be three hundred fifty dollars a month. R.B. Melton explained that the barn or chicken coop was used for storage and was not part of the rental property and would not be included in any rental agreement. There was also an area of the house directly behind the garage which was used for storage and would not be included in the rental agreement. Later that same day, Michael Page, his wife and two children, visited with Frances Melton to discuss the rental of the house. Frances Melton told the Pages basically the same things that R.B. Melton had told Michael Page.

About a week after they visited with Frances Melton, the Pages moved into the house. The next few weeks were spent cleaning up the property surrounding the house. One morning after the yard had been cleaned up, Michael Page found a handwritten note on the front of the house which said, "You finally mowed the yard. When the hell are you going to paint the house?" Michael Page brought this note to the attention of R.B. Melton and they discussed the possibility of painting the house. Page told R.B. Melton that if the paint was furnished he, Page, would paint the house in exchange for rent.

One evening after finding the note, the Pages found both of their cars spray painted with black paint. The Denton Police were contacted and an officer came out and took a report. The next day, Michael Page contacted R.B. Melton about the incident. Following this incident, Frances Melton only charged the Pages three hundred dollars for the May rent. A few days later, the Pages' cars were spray painted again and black and brown paint was splattered on the front of the house. The incidents of vandalism continued and the Pages kept both Frances and R.B. Melton informed about the occurrences. The house was vandalized several times and signs saying "paint me" were painted on the walls. Some obscenities were painted on the front door which had been removed from its hinges in order to refinish the floor of the house.

The Denton Police were contacted three or four times about the vandalism and each time a report was taken by an officer. These acts of vandalism took place from May of 1981 through September of 1981. It is unclear exactly how many incidents actually occurred and how they were spaced out over this time.

On the evening of September 30, 1981, the Pages were at home when they received a phone call from their neighbor living behind the barn, Bill McCarter. The call came around 9:00 p.m. and Bill McCarter informed Michael Page that the barn was on fire and that he, McCarter, had already called the fire department. The barn could be clearly seen from the McCarters' house but, the shrubs surrounding the rental house obscured the view of the barn from the Pages' house. The fire station is located very close to the Melton property and in a very short time the fire trucks arrived.

The barn had two entrances. One entrance was at the west end of the barn and one at the east end. The west door was padlocked and was mainly used for access to the barn. The east door had been nailed closed and was never used. When Michael Page went outside to the barn he could see that the west door was open and smoke was coming out of the barn. When the firemen entered the barn they found an old antique couch on fire. The fire was extinguished and the couch was pulled outside. The smell of kerosene was present on the couch and it appeared the fire had been deliberately set.

The fire department remained on the scene for approximately thirty minutes. The firemen checked the inside and outside of the barn and then left. Frances Melton was notified about the fire and during the day of October 1, she went to the barn. The padlock on the west door was gone. She returned home and got another lock, then went back to the barn and relocked the west door.

Fire Marshall, Robert (Bob) Hagemann, was present during the September 30th fire. He examined the barn and the couch and filed a written report. He concluded that the fire was deliberately set. During the day of October 1, he returned to the barn to check the damage and search for evidence but none was found.

On the evening of October 1, 1981, around 10:00 p.m., Michael Page was visiting with neighbors across the street when he saw Bill McCarter running down Lindsey Street towards his house. McCarter ran to Page and told him that the barn was on fire again and that the fire department had been called. Page and McCarter ran to the barn and the fire department arrived shortly thereafter. The couch, which had been dragged outside the previous evening, was up against the wall of the barn and on fire. Both the couch and the corner of the barn were burning when the fire department arrived.

The fire was extinguished and the firemen checked the premises, including the inside of the barn for any remaining fire. In order to check inside, the firemen had to pry the west door off of its hinges. After about thirty minutes from the time they had arrived, the firemen left. McCarter returned to his home and Page went back to his house. Later that same evening Michael and Lou Page were sitting on their front porch when they received a phone call sometime between 10:30 p.m. and 11:00 p.m. and it was Bill McCarter saying that the barn was again on fire, and he had again called the fire department.

The firemen arrived and found a fire inside the barn, much more substantial than...