Scamardo v. 3D Farms
| Decision Date | 07 January 2016 |
| Docket Number | No. 10-15-00163-CV,10-15-00163-CV |
| Parties | PETER AND CAMELLA SCAMARDO, FLP, Appellants v. 3D FARMS, A GENERAL PARTNERSHIP, AND FRANK DESTEFANO, TRUSTEE, SAM F. DESTEFANO TESTAMENTARY TRUST, Appellees |
| Court | Texas Court of Appeals |
From the 82nd District Court Robertson County, Texas
In this trespass case, appellant, Peter and Camella Scamardo, FLP, complains about a judgment entered in favor of appellees, 3D Farms, a general partnership, and Frank DeStefano, Trustee of the Sam F. DeStefano Testamentary Trust. Specifically, appellant challenges the jury's finding with regard to implied consent. Because we conclude that the evidence supporting the jury's consent finding is legally insufficient, we reverse the judgment of the trial court, render judgment on appellant's trespass claim, and remand for entry of a mandatory injunction in favor of appellant and for consideration of appellant's request for court costs.
Appellees, whose property lies adjacent to that of appellant, built an irrigation canal along the common boundary between the properties. In its live pleading, appellant complained that a portion of the northern embankment of the canal encroaches on appellant's property and causes water to be impounded. Appellant asserted claims for trespass and Texas Water Code violations and sought an injunction requiring appellees to remove the encroachment. The matter was tried to a jury, and the jury concluded that: (1) appellees trespassed on appellant's property; (2) appellant consented to the trespass; (3) appellant was responsible for 30% of the damage caused, while appellees were responsible for 70%; and (4) appellees did not divert the natural flow of surface waters, thereby causing damage to appellant's property. The trial court entered judgment in accordance with the jury's findings and ordered that appellant take nothing by this suit. The trial court also denied several post-judgment motions filed by appellant. This appeal followed.
An appellate court may sustain a legal-sufficiency challenges only when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). In determining whether there is legally-sufficient evidence to support the finding under review, we must consider the evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
Anything more than a scintilla of evidence is legally sufficient to support the finding. Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).
In its second issue, appellant contends that the evidence is legally and factually insufficient to support the jury's finding that appellant consented to the trespass in this case.
As noted above, appellant sued appellees for trespass. However, after the parties rested, but before the trial court signed the final judgment, the Texas Supreme Court issued its decision in Environmental Processing Systems, L.C. v. FPL Farming Ltd., 457 S.W.3d 414 (Tex. 2015). The FPL Farming Court noted that it "has consistently defined a trespass as encompassing three elements: (1) entry (2) onto the property of another (3) without the property owner's consent or authorization." Id. at 419. After reviewing nearly a century of Texas property law, as well as property law of other jurisdictions, the FPL Farming Court concluded that "to maintain an action for trespass, it is the plaintiff's burden to prove that the entry was wrongful, and the plaintiff must do so by establishing that entry was unauthorized or without its consent." Id. at 425. With its holding, the FPL Farming reaffirmed the well-settled, traditional definition of trespass and clarified the plaintiff's burden in such a case. See Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011) ; McDaniel Bros. v. Wilson, 70 S.W.2d 618, 621 (Tex. Civ. App.—Beaumont 1934, writ ref'd) (); see also Withrow v. Armstrong, No. 10-05-00320-CV, 2006 Tex. App. LEXIS 9994, at **2-3 (Tex. App.—Waco Nov. 15, 2006, pet. denied) (same). As such, it was appellant's burden to demonstrate that the purported trespass was unauthorized or without consent. See id.
At trial, the parties did not dispute that the embankment for the canal encroached on appellant's land.1 The heart of the dispute was whether appellant impliedly consented to the encroachment. In the charge, the jury was asked the following, with respect to appellant's trespass claim:
To this question, the jury answered, "yes."
Then, the charge asked the jury the following question:
The jury answered in the affirmative.
The record evidence shows that Peter Scamardo declined on several occasions to discuss the canal project with Frank DeStefano.3 Moreover, Peter testified that he observed the canal being built on the property line, but that "the northern bank spilled over onto our property." Upon discovering this, Peter told Dean Schieffer, the contractor employed by appellees to build the canal, "that he was trespassing and [Schieffer] insisted that he had to finish the job before he would get paid, and the best I remember it was a $25,000 deal, and if he didn't finish it he didn't get paid." Peter also testified that he mentioned to Schieffer his concerns that the canal would cause water to be impounded on his property. When asked about the actions taken upon discovering the trespass, Peter explained that:
Well, like I said I don't fool with the other people's property and I didn't want to—some people say I should have got a dozer and knocked it down, but I didn't want no other problems, and I—I just left it like it was and decided to sue them.
Peter recalled that the canal was completed in late 2010 or early 2011. Thereafter, Peter enlisted the services of attorney R. Hal Moorman, who, on April 15, 2011, sent a letter to appellees indicating, among other things, that:
Without authorization, you and/or your agents have placed the northern embankment of the irrigation canal, constructed for your sole benefit, in a position constituting a trespass on the Scamardo Property. . . . In addition to constituting a trespass, the construction and placement of the fill dirt will serve as a levee, which will likely cause water to become impounded on the Scamardo Property.
Moorman, on behalf of appellant, demanded that appellees: (1) relocate or reconstruct the canal entirely on their property; (2) remove embankments on both sides of the canal so that the water level of the canal rises no higher than ground level; and (3) provide documentation to show how the canal was built and would be maintained to ensure that appellant's interests are protected. On December 16, 2011, Moorman sent appellees another letter requesting that appellees remove the encroachment from appellant's property.4 Because appellees did not comply with appellant's demands, appellant chose to file suit.
Schieffer testified that all of the dirt excavated from the digging of the canal was placed on a cart path or on the northern embankment. Schieffer denied having any conversations with appellant...
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