Larson v. Cook Consultants, Inc.

• Decision Date: 29 May 1985
• Docket Number: No. C-3594,C-3594
• Citation: 690 S.W.2d 567
• Parties: Jean M. LARSON, Petitioner, v. COOK CONSULTANTS, INC., et al. Respondents.
• Court: Texas Supreme Court

Page 567

690 S.W.2d 567

Jean M. LARSON, Petitioner, v. COOK CONSULTANTS, INC., et al. Respondents.

No. C-3594

Supreme Court of Texas.

May 29, 1985.

Robert E. Luna, Dallas, for petitioner.

Chancellor, Wood and Martin, Edmund R. Wood, Haynes and Boone, William R Allensworth and Daniel E. Westbrook, Dallas, for respondents.

ROBERTSON, Justice.

Jean Larson purchased a house which was later found to be constructed partially on her neighbor's lot. Larson sued Stewart Title Guaranty Company for breach of its title insurance policy and Cook Consultants for negligence in surveying her property. The trial court granted Stewart Title's motion for instructed verdict, and based on a jury verdict, rendered judgment for Larson as against Cook Consultants. The court of appeals affirmed the trial court's judgment as to Stewart Title; and it reversed the trial court's judgment as to Cook Consultants, rendering judgment that Larson take nothing. 677 S.W.2d 718 (Tex.App.--Dallas 1984). We reverse the judgment of the court of appeals as to Cook Consultants and we affirm as to Stewart Title; we remand the cause against Cook to the court of appeals.

In 1970, the builder of Larson's home hired Cook to perform a completion survey that would locate all improvements on the lot. Cook's survey revealed that the house was within the lot lines; consequently the mortgage company approved Larson's loan and Larson purchased the property with title insurance from Stewart Title. Shortly after Larson moved in, a house was built on the neighboring lot; this house was subsequently purchased by Stephen and Joyce Bates.

In 1977, Mr. Bates began to suspect that the property lines were incorrect, and he hired Robert West to resurvey the lot. West's survey revealed that Larson's house extended onto Bates' lot by two and one-half feet at the front of the house and by six feet at the rear. Bates sued Larson, and the court ordered Larson to "remove all improvements encroaching upon [Bates'] property." Larson then hired a demolition company to tear down the entire house. Thereafter, this litigation ensued.

The jury found that Cook was grossly negligent in making his completion survey and awarded both actual and exemplary damages to Larson; and judgment was rendered on the verdict. However, the court of appeals reversed, holding that Larson's suit was barred by the statute of limitations. The court of appeals held that the evidence established, as a matter of law, that Larson had discovered the survey error more than two years prior to filing suit.

Larson filed suit on July 10, 1979. In answer to Special Issue No. 1, the jury found that Larson had no notice of the error in the completion survey prior to July 10, 1977. However, the court of appeals relied upon Bates' testimony that on June 6, 1977, he told Larson's daughter about the boundary problem.

Because the court of appeals was reviewing a "no evidence" point of error, it was required to consider only the evidence and inferences tending to support the jury finding and to disregard contrary evidence and inferences. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). In connection with Special Issue No. 1, the jury received the following instruction:

You are instructed that Jean Larson would have notice of the error in the survey at that time when she knew sufficient facts that would cause an ordinary and reasonable person to make further investigation and if such investigation would have discovered that the survey in question was in error.

Cook did not object to this instruction and no point of error was raised concerning it; therefore the court of appeals was also bound to review the evidence in light of this instruction. The question is whether there is some evidence to support the jury's answer to Special Issue No. 1 in light of the instruction as submitted. We hold that there is evidence to support the jury's answer. Although the court of appeals set forth the standard of review for a "no evidence" point, it failed to properly apply that standard; therefore the court of appeals erred in reversing the trial court's judgment.

At the time Bates talked with Larson's daughter, he was mowing the yard behind Larson's house. Larson acknowledged that her daughter had told her of Bates' claim that it was his yard. However, in describing her state of mind after the incident, Larson further testified as follows:

I laughed. I thought it was hilarious. In fact, I said why don't you let him mow the rest of it? Totally meaningless to me.

The jury also heard testimony about other incidents which indicated a history of "bad blood" between the two neighbors. This additional evidence is such that the jury could reasonably find that, taken in context, Bates' confrontation with Larson's daughter did not give Larson notice of sufficient facts to cause a reasonable and ordinary person to make further investigation at that time.

There is also evidence that Larson made further investigation after receiving two letters from Bates' attorney. She called her mortgage company and obtained a copy of her survey. The survey she obtained was Cook's survey which showed her home to be properly placed. She called the Federal Housing Administration and Stewart Title Guaranty Company. As a result of her phone calls, a meeting was set up between Larson, Cook and representatives from Stewart Title. At this meeting, Cook did not admit that there was any error in his survey. From this evidence, the jury could reasonably conclude that Larson did make a reasonable investigation which nevertheless failed to disclose that Cook's survey was in error. Thus, within the instruction that the jury was required to...