Landolt, Michael and Landolt, Ann Wismer v. Dr. Stephen Falk and Wife, Sheila Falk, John O. Williams, Landesign of America, Inc., Halff Associates, Inc., Hamid Djavadzadeh D/B/A Shade and Shrub Landscaping, and Ideh Djavadzadeh D/B/A/ Nasascape

Affirmed and Memorandum Opinion filed March 4, 2004 Affirmed and Memorandum Opinion filed March 4, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-02-01139-CV ____________ MICHAEL LANDOLT AND ANN WISMER LANDOLT, Appellants V. DR. STEPHEN FALK AND WIFE, SHEILA FALK, JOHN O. WILLIAMS, LANDESIGN OF AMERICA, INC., HALFF ASSOCIATES, INC., HAMID DJAVADZADEH D/B/A SHADE AND SHRUB LANDSCAPING, AND IDEH DJAVADZADEH D/B/A NASASCAPE, Appellees On Appeal from the 122nd District Court Galveston County, Texas Trial Court Cause No. 01-CV-0170 M E M O R A N D U M   O P I N I O N This is a dispute between two neighbors about the placement of a shared stone wall on the property line between their adjacent lots. Appellants Michael Landolt and his wife, Ann Wismer Landolt, filed suit against the appellees pleading causes of action for breach of contract, negligent misrepresentation, negligence, trespass, specific performance, conversion and breach of a settlement agreement. Appellees raised the affirmative defenses of mutual mistake, laches, and estoppel. After a bench trial, the court entered a take-nothing judgment for all defendants. The Landolts appeal the trial court=s findings of fact and conclusions of law with respect to their causes of action for breach of contract, trespass, and breach of a settlement agreement. They do not appeal the trial court=s findings of fact and conclusions of law with respect to their causes of action for negligence, negligent misrepresentation, or conversion or their request for relief in the form of specific performance. We affirm. I. Factual and Procedural Background The Landolts and appellees Dr. Stephen Falk and his wife, Sheila Falk, are adjacent property owners in Kemah, Texas. Due to the subdivision=s deed restrictions requiring a stone wall between adjoining properties, in the fall of 1999, the Landolts and Falks entered into a handshake agreement to build a party wall between their two properties and share the costs of the wall=s construction. Michael Landolt and Stephen Falk orally agreed that the wall would be built on the common property line. It is undisputed that neither Michael Landolt nor Stephen Falk knew exactly where the common property line was. The Falks contacted appellee John O. Williams, a landscape architect,[1] to plan the wall. Williams had previously done work for the Falks. Williams asked appellee Hamid Djavadzadeh (d/b/a Shade and Shrub Landscaping)[2] to bid on construction of the wall. Djavadzadeh began the wall=s construction on January 5, 2000. Williams testified that he talked to Michael Landolt in late December 1999, and told him construction would begin soon. On January 5, 2000, the piers for the wall were installed, and the trench for the grade beam was dug. On January 6, 2000, the Landolts received a parcel that contained the plans for the wall and a copy of a letter to Stephen Falk, dated January 5, 2000, from Williams. The January 6, 2000 information provided to the Landolts detailed the wall=s costs, including a surveying charge in the amount of $125.00. The Landolts testified that they assumed a survey was conducted because of the charge for surveying. Williams testified he contacted the surveying company to come out and survey the property. Both Williams and Djavadzadeh testified they saw flags on the property, and assumed their purpose was to mark the property line. Apparently, the location of the wall=s centerline was determined by someoneCit is not clear from the record who did thisCusing a survey done in 1987 by H&M Surveying. Construction of the wall resumed, and the wall was built on the flags= location. The wall is eight inches thick, runs 60 feet, and has 16-inch thick columns placed every eight feet. The cost to construct the wall was approximately $23,000.00. The Landolts paid for one-half of the wall=s construction. After the completion of the wall, the Falks expended additional monies in completing landscaping, lighting, and applying other finishing touches (paint and stucco) to their side of the fence, totaling $16,000 to $18,000, plus spent $30,000 installing a driveway. In July of 2000, the Landolts hired another surveying firm to conduct a survey of their property as part of their putting another wall on their property line adjacent to the neighbor=s property. The Landolts were told that the center of the wall adjoining the Falks= property was not centered on the common property line. The record reflects that the wall is on the property line for the most part, except for a one-inch deviation at the end of the wall, but the entirety of the wall is not centered on the property line at both ends. The wall is about one inch off the property line at one end and about seven inches off center at the other end; approximately twenty square feet more of the Landolts= property is covered by the wall than was intended. The deviation of the wall=s center from the property line is less than the total width of the wall, considering the width of the 16-inch columns spaced every eight feet. Michael Landolt testified that it would cost $50,000 to $60,000 to remove the wall. The record reflects that the total cost to remove the current party wall and rebuild it, as well as to remedy all damage to the Falks= property caused by the removal of the wall (e.g., replacing portion of the driveway, irrigation system, lighting, and landscaping on the Falks= side of the fence) would be approximately $150,000, compared to the current wall=s construction costs of approximately $23,000. During Michael Landolt=s deposition taken during the pendency of this lawsuit, the Falks= counsel made a statement, which the Landolts= counsel apparently construed as a settlement offer. The Landolts= counsel sent two letters to counsel for the Falks, one of which was a Rule 11 letter agreement, responding that the offer was accepted and that he would prepare settlement papers. The trial court concluded there was no settlement agreement. Other findings of fact and conclusions of law relevant to this appeal will be discussed in more detail below. II. Standard of Review The trial court=s findings of fact are subject to review for legal and factual sufficiency in the same manner as jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). We defer to the trial court=s factual determinations if they are supported by the evidence. Id. When a party attacks the legal sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). We must first examine the record for all evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. When a party attacks the factual sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). We must consider and weigh all of the evidence, and can set aside a finding only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). The trial court=s conclusions of law are reviewed de novo as legal questions. Precast Structures, Inc. v. City of Houston, 942 S.W.2d 632, 636 (Tex. App.CHouston [14th Dist.] 1996, no writ) (citing State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996)). Conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence. Kotis v. Nowlin Jewelry, Inc., 844 S.W.2d 920, 922 (Tex. App.CHouston [14th Dist.] 1992, no writ). When the trial court=s findings involve questions of law and fact, the appellate court reviews the trial court=s decision for an abuse of discretion. Remington Arms Co. v. Luna, 966 S.W.2d 641, 643 (Tex. App.CSan Antonio 1998, pet. denied). III. Analysis In six issues, the Landolts contend the trial court erred in (1) striking Ann Landolts= testimony about her property=s market value, (2) characterizing the injury to the Landolts= property as permanent, (3) granting judgment in favor of the Falks on the Landolts= breach of contract claim, (4) granting judgment in favor of all appellees= on the Landolts= trespass claim, (5) finding that the doctrine of laches applied to the Landolts= causes of action, and (6) finding that there was no valid settlement agreement between the Falks and the Landolts. A. Settlement Agreement Because it would dispose of all issues if the parties had an enforceable settlement agreement, we first address the Landolts= sixth issue. The Landolts complain that the trial court erred in finding that the parties had not entered into a valid settlement agreement with the Falks. During the deposition of Michael Landolt in January of 2002, the Falks= counsel, Richard Morrison, made the following statements in the context of other questions regarding the removal of the wall and where it would be placed if reconstructed: Q.: We will tear it [wall] down and remove that wall entirely and we=ll build one on our side and you can build one on your side, if you want to do that; but it is going to take up more land from your property so that you will be prohibited from building that fancy new addition you want to build. Because it is going to take up more and you are going to have to move it further to the west. . . . Q.: Now, think about that. That=s all I have. Think about that. Use your head. After the deposition, counsel for the Falks, Kenneth Kaye, sent a letter to Morrison, stating, APlease be advised that following six (6) months of your receipt of this letter, Mr. and Mrs. Landolt will remove the wall separating the two properties.@ Two days later, Kaye sent Morrison another letter, contending the above-quoted statement made by Morrison during the deposition was a settlement offer and stating that his clients accepted the offer and he would prepare the necessary settlement papers. Morrison responded two days later, denying that his statement was an offer of settlement. At trial, Dr. Falk also testified that he had not granted his attorney authority to make a settlement offer and denied that a settlement offer had been made during the deposition of Landolt. In their brief filed with this court, the Falks state that on March 11, 2002, Kaye filed a Rule 11 letter agreement with the trial court but that neither party nor their counsel signed it, and the document is not in the record before this court. The trial court concluded that there was no evidence of a contractual settlement agreement or any kind of settlement agreement between the Falks and Landolts with respect to the claims underlying this lawsuit. As the Texas Supreme Court made clear in Kennedy v. Hyde, 682 S.W.2d 525 (Tex. 1984), Rule 11 of the Texas Rules of Civil Procedure requires settlement agreements to be in writing, signed, and filed with the papers as part of the record. Id. at 529. This lawsuit invokes the policy considerations emphasized by the court in KennedyCAThe reason for Rule 11 is clear. As already observed, oral agreements concerning suits >are very liable to be misconstrued or forgotten, and to beget misunderstandings and controversies.=@ Id. (quoting Birdwell v. Cox, 18 Tex. 535, 537 (1857)). There is no settlement agreement in writing in this case, and the deposition transcript does not satisfy the Ain writing@ requirement of Kennedy because it does not contain all material terms of the parties= alleged settlement agreement or reflect an agreement at all.[3] See, e.g., Alcantar v. Oklahoma Nat=l Bank, 47 S.W.3d 815, 820 (Tex. App.CFort Worth 2001, no pet.) (A[A] settlement agreement is unenforceable unless it complies with Rule 11, regardless of whether the parties have orally announced the terms of their agreement to the trial court.@); cf. Padilla v. LaFrance, 907 S.W.2d 454, 460B61 (Tex. 1995) (holding that series of letters between counsel for parties reflected all material terms of parties= agreement, thereby satisfying Ain writing@ requirement, and constituted enforceable settlement agreement).[4] In the absence of a writing, whether in one Rule 11 letter or multiple letters, reflecting all material terms of a settlement agreement agreed upon by the parties, there is no enforceable settlement agreement in this case. Accordingly, we overrule the Landolts= sixth issue. B. Breach of Contract In their third issue, the Landolts contend the trial court=s judgment is in error because the evidence conclusively establishes the Falks breached the parties= oral contract. In its findings of fact, the trial court found that (1) the ALandolts and the Falks agreed to build a party wall between their lots with its centerline on their common property line, so that a portion of the wall would be on each of their property [sic];@ (2) A[t]here was no agreement between the Plaintiffs and the Falks as to where the common boundary line was actually located;@ (3) A[a]s part of the authorization to construct the party wall, the Landolts and the Falks authorized defendants Williams and Halff to determine the location of the common property line; and (4) A[t]he Falks never represented to the Landolts that the party wall was being constructed on the property line.@ The trial court further found that the Falks and Landolts both authorized the defendant contractors to enter their properties for the purpose of constructing the party wall, the Falks never represented to the Landolts that a survey had been done, the Falks believed that surveying was performed in connection with the construction of the wall, the centerline of the wall is on the property line as established by the H&M survey, but the H&M survey relied upon by the contractors was in error. In its conclusions of law, the trial court concluded that the Landolts and Falks had entered into a contract to construct a party wall on their common property line, that the contract did not require either party to determine the correct location of their common property line, and neither the Landolts nor the Falks had a contractual duty to cause a survey to be done prior to building the wall. The trial court further concluded that the Falks did not breach the contract with respect to the location of the party wall and that the Landolts did not suffer any damage or injury as a result of any alleged breach of contract. In Texas, the essential elements of a breach of contract action are (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach. Frost Nat=l Bank v. Burge, 29 S.W.3d 580, 593 (Tex. App.CHouston [14th Dist.] 2000, no pet.). AWhen the evidence is undisputed regarding a person=s conduct under a contract, the court as a matter of law determines whether the conduct shows performance or breach of a contract obligation.@ Valero Mktg. & Supply Co. v. Kalama Int=l, 51 S.W.3d 345, 351 (Tex. App.CHouston [1st Dist.] 2001, no pet.) (citing Lafarge Corp. v. Wolff, Inc., 977 S.W.2d 181, 186 (Tex. App.CAustin 1998, pet. denied)). AThe meaning given to the language in a contract is, of course, a question of law for the court.@ Bank One, Texas, N.A. v. Stewart, 967 S.W.2d 419, 432 (Tex. App.CHouston [14th Dist.] 1998, pet. denied) (also stating Awhether a party has breached a contract is a question of law for the court and not a question of fact for the jury@). Michael Landolt testified that his agreement with the Falks did not require either party to locate the property line. He also testified that he did not know whether the Falks caused the wall not to be located on the property line or failed to comply with the agreement. He further testified that he did not know of anything the Falks did that failed to comply with their handshake deal to locate the wall on the center of their shared property line. He further testified that neither the Landolts nor the Falks had any responsibility under the agreement to perform a survey to locate the common boundary line. Dr. Falk also testified that neither he nor Landolt agreed to cause a survey to be done prior to the construction of the wall and that neither he nor Landolt was responsible, under the terms of their handshake deal, to ensure or guarantee that the wall was built on the property line. Thus, there is no evidence that the parties= oral agreement contained a provision as to where the common boundary line was located or that either party had the responsibility of locating the common boundary line, or that the Falks, as opposed to the Landolts, had a duty to erect the party wall on the property line. Dr. Falk testified that he and Michael Landolt agreed that the wall would be built on the property line and that they would share the construction costs equally. In conclusion, the evidence is legally sufficient to support the trial court=s fact findings and conclusion that the Falks did not breach the parties= oral agreement. For the same reasons, we also hold the evidence was factually sufficient to support the trial court=s findings of fact and conclusions of law with respect to the Landolts= breach of contract claim. Accordingly, we overrule the Landolts= third issue. Because of our disposition of the Landolts= third issue, we need not decide whether the trial court correctly decided that the Falks proved the affirmative defenses of laches, mutual mistake, or estoppel. C. Trespass In their fourth issue, the Landolts contend the trial court erred because the evidence conclusively establishes the wall encroaches on their property, and thus, they have established their claim of trespass as a matter of law. The trial court made the following findings of fact relevant to the Landolts= trespass claim: (1) the Landolts and the Falks authorized the contractor defendants to enter their respective properties for the purpose of constructing the party wall; (2) the north end of the wall is seven inches off center from the true property line, with more of it on the Landolts= property than on the Falks= property; (3) the party wall covers approximately 20 square feet more of the Landolts= property than was intended by the Landolts and the Falks; (4) the party wall cannot be removed without damaging or destroying the stucco finish, landscaping, irrigation system, vegetation, lighting, and driveway on the Falks= property; (5) none of the defendants assumed and exercised dominion and control over any of the Landolts= property in an unlawful and unauthorized manner, to the exclusion of and inconsistent with the Landolts= rights to that property; and (6) placement and construction of the wall was a mutual undertaking by the Landolts and the Falks. The trial court also issued the following conclusions of law: (1) any damage to the Landolts= property caused by the presence of the party wall would be characterized as permanent damage, but the Landolts were not permanently damaged by the party wall; (2) the Landolts= full use of their property in terms of the design of buildings and other improvements has not been limited in any way; (3) it is not economically feasible to remove the party wall, and the cost of tearing down the wall and rebuilding compared to any damage to the Landolts is de minimus and would result in economic waste; (4) the continued presence of the Landolts= portion of the wall on their own property does not constitute a trespass by any of the defendants; and (5) the Landolts= property and their portion of the party wall is encumbered with an easement of servitude in favor of the Falks, and it may afford support to and maintenance of the Falks= portion of the party wall. ATrespass to real property occurs when a person enters another=s land without consent.@ General Mills Rest., Inc. v. Texas Wings, Inc., 12 S.W.3d 827 (Tex. App.CDallas 2000, no pet.) (citations omitted). The record in this case clearly reflects that the Landolts granted consent to the Falks and the other appellees to enter their property for the purpose of constructing the wall. The more precise issue before this court is whether the wall=s additional encroachment onto the Landolts= propertyCwithout any corresponding gain of real property by the FalksCis a trespass. Texas law pertaining to party walls is well established, with the following rule being first announced in 1912: A party wall need not necessarily be upon both sides of the division line equally, and it may be . . . altogether upon the property of one of the owners. The right of each adjoining owner to the use of a party wall erected for the use of both is to the use of the wall and to an easement of the other=s ground for the purposes of the wall . . . . [T]he adjoining owners are not joint owners or tenants in common of the party wall. Each is possessed in severalty of his own soil up to the dividing line and of that portion of the wall which rests upon it; but the soil of each, with the wall belonging to him, is burdened with an easement or servitude in favor of the other, to the end that it may afford a support to the wall and buildings of such other. Evidence, therefore, that a wall was constructed by adjoining owners as a party wall, without evidence of an agreement between them as to the division line, is not sufficient to change the true boundary line. Fewell v. Kinsella, 144 S.W. 1174, 1178 (Tex. Civ. App.CSan Antonio 1912, writ ref=d). An agreement to erect a party wall equally on two adjacent properties creates reciprocal easements in favor of each owner=s lot in favor of the other landowner for support of the wall; each lot is burdened with such an easement. See McCormick v. Stoneheart, 195 S.W. 883, 884 (Tex. Civ. App.CAmarillo 1917, writ ref=d) (AThis cross-easement was created for the benefit of both lots, in that a saving of space, as well as the expense of erection of one wall, was thereby made.@). We agree with the trial court that the Landolts and Falks have a party wall, and each property is burdened by an easement of support in favor of the adjacent property. As a matter of law, the wall does not trespass on the Landolts= property. Accordingly, we overrule their fourth issue. Because of our disposition of the Landolts= third and fourth issues, we need not address their first, second and fifth issues. Having concluded that the Falks did not breach their contract with the Landolts and that none of the appellees committed a trespass onto the Falks= property, we affirm the trial court=s judgment. /s/ Leslie Brock Yates Justice Judgment rendered and Memorandum Opinion filed March 4, 2004. Panel consists of Justices Yates, Hudson, and Fowler. [1] Williams had previously owned his own company, Landesign of America, Inc., and joined the firm of Halff Associates, Inc. before October or November 1999. [2] Appellee Ideh Djavadzadeh is the wife of Hamid Djavadzadeh. The Landolts have not alleged that Ideh did or did not do anything. The Landolts apparently contend that Hamid was doing business as Shade and Shrub Landscaping and doing business as NasaScape, a company with which his wife was affiliated. [3] The Landolts do not contest the requirement that settlement agreements must be in writing, but they argue that Kennedy does not apply because the reasoning of the court in that opinion only applied to disputed settlement agreements, and here, the Landolts accepted the settlement offer made by the Falks before it was disputed. This tenuous distinction is not supported by KennedyCone party said the parties had an oral settlement agreement and another disputed that they had finalized an agreement. And in any event, the Falks immediately disputed that they had made a settlement offer. [4] Furthermore, we agree with the Falks that a plain reading of the statements made by their counsel prior to the portion relied upon by the Landolts reflects that their counsel never made an oral settlement offer. He instead was merely emphasizingCwith some sarcasm that may not be readily apparent from reading only the quoted portion of the deposition cited by the FalksChis perception that the Landolts were being unreasonable in their complaints about the placement of the wall.