Gary Peterson v. James Jansen and Vikki Jansen

Affirmed in Part, Reversed and Rendered in Part, and Memorandum Opinion filed February 12, 2009 Affirmed in Part, Reversed and Rendered in Part, and Memorandum Opinion filed February 12, 2009. In The Fourteenth Court of Appeals _______________ NO. 14-07-00535-CV _______________ GARY PETERSON, Appellant/Cross-Appellee V. JAMES JANSEN AND VIKKI JANSEN, Appellees/Cross-Appellants On Appeal from the County Civil Court at Law No. 1 Harris County, Texas Trial Court Cause No. 866337 M E M O R A N D U M   O P I N I O N In this case arising, in part, from a dispute among neighbors over the installation of a drainage pipe, the trial court found in favor of appellant/cross-appellee, Gary Peterson, on his claim for trespass and awarded him nominal damages of one dollar and attorneys= fees of $10,000, plus $5,000 for each level of successful appeal.[1] The trial court found in favor of appellees/cross-appellants, James Jansen and Vikki Jansen, on their claims for nuisance and invasion of privacy, and for Vikki on her claim for intentional infliction of emotional distress. The court awarded them $32,000 plus pre- and post-judgment interest. The court found against the Jansens on their claims for defamation of character and breach of contract and against James on his claim for intentional infliction of emotional distress. The court also denied their request for attorneys= fees.[2] Both parties appealed. Concluding the trial court correctly found for the Jansens on their nuisance claim and against them on their breach-of-contract claim, we affirm the award of $32,000 to the Jansens and denial of their attorneys= fees. Concluding Peterson, as a matter of law, did not assert or prove a claim for adverse possession, we reverse the award of attorneys= fees and render judgment Peterson take nothing for attorneys= fees.[3] I. Factual and Procedural Background The Jansens purchased a home in a golf-course community in 2004. Peterson lived two houses down from the Jansens. Dale Farber lived between the Jansens and Peterson. The Jansens=, Peterson=s, and Farber=s yards backed to the golf course and contained an eight-foot utility and drainage easement running along the golf-course side of the properties. Beginning in late 2004, the Jansens spent over $70,000 on home improvements, installing a swimming pool and landscaping their yard. Peterson called the constable on at least two occasions in relation to the work the Jansens were doing on their home. Peterson also complained about a privacy fence the Jansens erected to prevent Peterson from staring across Farber=s yard and into the Jansens= yard. Before the Jansens installed the privacy fence, Peterson had interrupted a conversation between James Jansen and Farber by shouting obscenities at Jansen. According to the Jansens, Peterson also let his large dog antagonize their two smaller dogs. The Jansens= backyard was subject to flooding; and, in the process of improving the backyard, the Jansens investigated a way of diverting the water underground. Eventually, they contracted with Ben Dittman to install a six-inch PVC pipe under the utility and drainage easement. The pipe was to run under the easement on Jansens=, Farber=s, and Peterson=s properties. Dittman was responsible for obtaining the necessary permits and approvals. Farber gave James Jansen oral approval to run the pipe through the easement on Farber=s property. James also discussed the pipe with Peterson. According to James, Peterson was concerned about the pipe backing up and wanted James to sign a statement accepting responsibility for any problems or liabilities with the pipe. Six days later, when Peterson had not heard from James, Peterson sent James a ACease & Desist Order.@ The same day, James attempted to hand-deliver a signed statement to Peterson. Peterson refused to take it, saying AYou=re too late. You=ve been served.@ Dittman also met with Peterson. According to Dittman, Peterson was agreeable to the drain work and also wanted Dittman=s company to do drain work for him. Subsequently, however, Peterson called Dittman Ajust kind of out of the blue, and began to cuss me out and tell me that I didn=t know who he was and that I didn=t know what he was going to be able to do to me and all this other stuff.@ Work began on the pipe. At one point, James Janson observed Peterson trying to dig it up. Peterson placed a sign where golfers could see it. Between a half dozen and a dozen people mentioned the sign to the Jansens. The sign read, AMr. Jansen=s encroachment. 6" PVC Pipe.@ Peterson stood on his porch and in Farber=s yard and screamed obscenities at James. Peterson stood behind the Jansens= fence and took photographs into the Jansens= yard and home. According to James, it was Acreepy . . . kind of like [Peterson=s] stalking us at times.@ James stopped his membership in the Men=s Golf Association because he did not want to be in an organization that supported Peterson and did not want to be placed in a position of having to golf with him. According to Vikki Jansen, Peterson would stand at the back of their fence with his dog, which acted aggressively toward the Jansens= dogs. Vikki no longer left her dogs unsupervised in the backyard. As a result of Peterson=s taking photographs into her house, Vikki kept her blinds closed and no longer enjoyed the view of the golf course. Vikki stopped playing with the Ladies Golf Association after Peterson complained to the police about a group with whom Vikki was riding to the club house after an evening golf game. In June 2006, the Jansens sued Peterson. They alleged defamation, nuisance, invasion of privacy, intentional infliction of emotional distress, and breach of contract. They sought damages for past and future mental anguish, exemplary damages, attorneys= fees under Civil Practice and Remedies Code section 38.001, costs of court, and pre- and post-judgment interest. Peterson answered and counter-claimed. He asserted a general denial, specially excepted insofar as the Jansens might be seeking equitable relief in the form of a temporary restraining order or temporary injunction, specially excepted to the Jansens= failure to set forth an amount of damages for each claim, and specially excepted to the breach-of-contract claim for failure to identify the existence of a contract. Peterson claimed for trespass and encroachment, nuisance, and nuisance per se. He sought reasonable rental value of the property, loss-of-use damages, cost of restoring the land to its original condition, removal of the encroachment, a permanent injunction, attorneys= fees pursuant to Texas Civil Practice and Remedies Code sections 16.034 and 38.001, costs of court, and pre- and post-judgment interest. Trial was to the court. The court found in favor of the Jansens on their nuisance and invasion-of-privacy claims and for Vikki on her intentional-infliction-of-emotional-distress claim. It found against the Jansens on their breach-of-contract claim and against James on his intentional-infliction-of-emotional-distress claim. It awarded them $32,000, without segregating the award among claims. It denied their request for attorneys= fees. The court found in favor of Peterson on his trespass claim. It awarded him nominal damages of one dollar and attorneys= fees pursuant to Texas Civil Practice and Remedies Code section 16.034. Both parties filed a notice of appeal.[4] The parties subsequently notified this court they had reached an agreement to settle the issues on appeal and requested the appeal be abated for completion of the settlement. We granted the motion, but the settlement agreement was not completed. On an unopposed motion, we reinstated the appeal. II. Issues Presented and Standard of Review In three issues, Peterson challenges the legal and factual sufficiency of evidence to support the trial court=s findings in favor of the Jansens on their claims for invasion of privacy and nuisance and for Vikki on her claim for intentional infliction of emotional distress. In two issues, the Jansens argue (1) the trial court Aerred@ in finding against them on their breach-of-contract claim, and (2) the evidence was legally and factually insufficient to support an award of attorneys= fees to Peterson under Texas Civil Practice and Remedies Code section 16.034. Thus, all five issues concern the legal or factual sufficiency of the evidence. In a non-jury trial, when the court does not enter findings of fact and conclusions of law to support its ruling, all facts necessary to support the judgment are implied. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987). Nevertheless, when, as here, the appellate record includes the reporter=s and clerk=s records, implied findings are not conclusive, and a party may challenge such findings on the basis of legal and factual sufficiency. See BMC Software, 83 S.W.3d at 795. In reviewing a trial court=s findings for legal and factual sufficiency of the evidence, we apply the same standards we apply in reviewing evidence supporting a jury=s answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When reviewing legal sufficiency of the evidence, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable fact finder could, and we disregard contrary evidence unless a reasonable fact finder could not. Id. at 827. The evidence is legally sufficient if it would enable fair-minded people to reach the finding under review. Id. An appellant attacking the legal sufficiency of evidence supporting an adverse finding on which he had the burden of proof must show on appeal that a contrary finding was established as a matter of law. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In reviewing factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). We may not substitute our own judgment for that of the trier of fact even if we would have reached a different result on the evidence. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). Therefore, we will reverse only if the overwhelming weight of the evidence indicates the trial court=s findings were clearly wrong and unjust. Id. III. Analysis A. Peterson=s Issues In issue one, Peterson challenges the legal and factual sufficiency of the evidence to support a finding of intentional emotional distress for Vikki Jansen; in issue two, to support a finding of invasion of privacy by intrusion on seclusion for the Jansens; in issue three, to support a finding of private nuisance for the Jansens. We turn first to Peterson=s third issue, Because we conclude the evidence was legally and factually sufficient to support the trial court=s finding on the Jansens= nuisance claim and its award of $32,000, we affirm the judgment in the Jansens= favor on nuisance and do not address Peterson=s remaining issues. AA nuisance is a condition which substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it.@ GTE Mobilnet of S. Tex. Ltd. P=ship. v. Pascouet, 61 S.W.3d 599, 614 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). The non-trespassory invasion constituting a nuisance may be intentional or unintentional. Bily v. Omni Equities, Inc., 731 S.W.2d 606, 611B12 (Tex. App.CHouston [14th Dist.] 1987, writ ref=d n.r.e.). When the invasion is intentional, liability depends on whether the invasion was unreasonable. Id. at 612 (citing Restatement (Second) of Torts ' 822 and ' 833 cmt. b). When the invasion is unintentional, liability depends on whether the defendant=s conduct was negligent, reckless, or abnormally dangerous. Id. (citing Restatement (Second) of Torts ' 822 and ' 833 cmt. b). AA >nuisance in fact= is a condition that is a nuisance because of its particular surroundings.@ GTE Mobilnet, 61 S.W.3d at 614. There is no requirement of physical damage to the land. See id. at 615. Thus, to establish their claim for nuisance, the Jansens had to show (1) they had a private interest in land; (2) Peterson interfered with or invaded that interest by conduct that was (a) negligent, (b) intentional and unreasonable, or (c) abnormal and out of place in its surroundings; (3) Peterson=s conduct resulted in a condition that substantially interfered with the Jansens= private use and enjoyment of the land; and (4) the nuisance caused injury to the Jansens. See Burditt v. Swenson, 17 Tex. 489, 502 (1856); Aguilar v. Trujillo, 162 S.W.3d 839, 850B51 (Tex. App.CEl Paso 2005, pet. denied). Peterson does not specifically argue the evidence was insufficient on any of these four elements. Rather, as he does in issues one and two, Peterson relies in part on stipulated findings of fact and conclusions of law, signed by the trial court August 28, 2007, that Aall acts, omissions, and commissions that have proximately caused any damages [the Jansens] sustained upon which an award was based that were awarded or could have been awarded in this action were the result of [Peterson=s] negligence.@[5] As discussed above, however, nuisance does not require an intentional act, but may result from negligence or recklessness. Peterson also argues the Jansens Acannot recover damages for mental anguish arising from a nuisance caused by negligent conduct.@ See City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997) (ATexas does not recognize a general legal duty to avoid negligently inflicting mental anguish.@). There is, however, Aconsiderable authority . . . for the proposition that a nuisance which impairs the comfortable enjoyment of real property may give rise to damages for >annoyance and discomfiture.=@ Id. at 504. Peterson incorrectly assumes the Jansens sought, established, and were awarded only mental anguish damages. To the contrary, the Jansens introduced evidence establishing damages for annoyance and discomfiture. James Peterson testified they moved to the golf-course community in October 2004 and were Areally looking forward to enjoying@ it. Photographs of the property show the backyard bordering the golf course and affording an expansive view of a section of the course. Vikki Jansen testified they spent more than $70,000 on improvements to their home. The Jansens contend they erected an eight-foot tall privacy fence along one side of the property, blocking about half of their yard because of Peterson=s conduct. Vikki Jansen kept the blinds closed and no longer could enjoy the view.[6] She also no longer allowed her two small dogs to be in the yard without supervision. She testified she felt like a prisoner in her own home. Her retirement home had Aended up being . . . a nightmare.@ Both Vikki and James stopped participating in golfing activities. The Jansens moved into their home in October 2004. Trial was the third week of May 2007. The Jansens sought, and were awarded, damages of $1,000 per month for thirty-two months. The evidence was legally and factually sufficient to support an award of $32,000 for loss of the comfortable enjoyment of their property. See GTE Mobilnet, 61 S.W.3d at 616B17 (concluding evidence was legally and factually sufficient to support award of $180,000 for past loss of use and enjoyment of property when husband and wife property owners testified bright lights, noise, and viewing of their backyard by workers on 126-foot cellular telephone tower resulted in their not using backyard as they used to, and wife testified nuisance created by tower caused her distress, made her cry, and made her not interested in living in the house anymore). We overrule Peterson=s third issue. Because the Jansens= nuisance claim supports the trial court=s award of $32,000, we do not address Peterson=s first and second issues, challenging the legal and factual sufficiency of the evidence to support the claims for invasion of privacy and intentional infliction of emotional distress.[7] B. The Jansens= Issues Issue one: breach of contract. In issue one, the Jansens argue the trial court Aerred@ by finding Peterson did not breach his contract with the Jansens. To be awarded attorneys= fees, the Jansens had to prevail on this claim. See Tex. Civ. Prac. & Rem. Code Ann. ' 38.001(8) (Vernon 2008). In their argument, the Jansens invoke the factual sufficiency standard of review. See Cain, 709 S.W.2d at 176. In their prayer for relief, however, they request rendition of judgment in their favor, the remedy when a party prevails on a legal sufficiency challenge. See Jordan v. Sava, Inc., 222 S.W.3d 840, 853 (Tex. App.CHouston [1st Dist.] 2007, no pet.) (stating, because appellant was attacking legal sufficiency of adverse jury finding on which she had burden of proof, she needed, for rendition, to demonstrate that evidence conclusively established all facts in support of the issue, as a matter of law). The Jansens had the burden of proof on their breach-of-contract claim. To be entitled to rendition, they therefore must demonstrate the evidence conclusively established each element of breach of contract. See id.; see also Croucher, 660 S.W.2d at 58. The essential elements of a breach-of-contract claim are (1) the existence of a valid contract, (2) the plaintiff performed or tendered performance, (3) the defendant breached the contract, and (4) the plaintiff was damaged as a result of the breach. Apache Corp. v. Dynegy Midstream Servs., L.P., 214 S.W.3d 554, 560 (Tex. App.CHouston [14th Dist.] 2006, pet. granted). To establish a valid and enforceable contract, the Jansens were required to prove (1) an offer, (2) an acceptance, (3) a meeting of the minds, (4) an expression of the terms with sufficient certainty so that there is no doubt regarding the parties= intentions, and (5) consideration. See MG Bldg. Materials, Ltd. v. Moses Lopez Custom Homes, Inc., 179 S.W.3d 51, 61 (Tex. App.CSan Antonio 2005, pet. denied). We cannot conclude the evidence conclusively established the existence of a contract. The Jansens rely on James=s testimony (1) he met with Peterson regarding the drain pipe, (2) Peterson was concerned only that James take responsibility for any problems or liabilities related to the pipe, and (3) Peterson said he would have no problem with the pipe so long as James provided him a letter accepting responsibility. In addition, the Jansens represent that Peterson reduced the agreement in writing and sent it to the Jansens. The document to which the Jansens point, however, is a ACease & Desist Order,@ authored by Peterson. In the AOrder,@ Peterson referred to the meeting six days earlier with James and stated that he (Peterson) required a dual signature document communicating that James would Aaccept liability for breakage, leakage, [and] any damage cause[d] by any line problem . . . .@ Peterson also referred to James=s not having had any contact with Peterson since the meeting. James=s testimony, particularly combined with the document purportedly evidencing an Aagreement@ on Peterson=s part, does not prove the existence of a valid enforceable contract. Additionally, Peterson unequivocally testified that, at no time, did he have an agreement with James authorizing James to install the drainage line. The evidence does not conclusively establish the Jansens= breach-of-contract claim. Neither was a finding against them on this claim so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Whether viewed as a challenge to the legal sufficiency of the evidence or to the factual sufficiency of the evidence, or to both, the Jansens= first issue fails; and we therefore overrule it. Issue two: Aadverse possession.@ In issue two, the Jansens argue the evidence was legally and factually insufficient to support the trial court=s award of Peterson=s attorneys= fees pursuant to Texas Civil Practice and Remedies Code section 16.034. Section 16.034(a) provides: In a suit for the possession of real property between a person claiming under record title to the property and one claiming by adverse possession, if the prevailing party recovers possession of the property from a person unlawfully in actual possession, the court may award costs and reasonable attorney=s fees to the prevailing party. Id. ' 16.034(a) (Vernon 2002). AAdverse possession@ refers to Aan actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.@ Id. ' 16.021(1). Peterson set forth a cause of action for trespass based on the Jansens= installation of the drain pipe in the utility and drainage easement across the back of Peterson=s property. The trial court found there was a trespass to Peterson=s property resulting from the laying of the pipe, found Peterson had not provided any probative evidence of damages, and awarded Peterson nominal damages of one dollar for the trespass. The court then ruled: AAs to [Peterson=s] claim for attorney=s fees based upon the trespass, which they=re [sic] entitled because there were damages that were found, I will now award attorney=s fees damages to [Peterson] in the amount of $10,000.000 [sic], plus $5,000.00 for each of the four [sic] levels of appeal.@ Neither party, however, was claiming right to the site of the drain pipe by virtue of adverse possession. In none of their causes of action did the Jansens assert title to the property at issue.[8] Neither did they defend on this ground. As record owner of the property, Peterson, by definition, would not be asserting an adverse-possession claim. Instead, Peterson was merely asserting a claim for the tort of trespass. Attorneys= fees are not recoverable in tort actions. Acad. Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 743 (Tex. App.CHouston [14th Dist.] 2000, no pet.). The evidence was legally insufficient to support an award of attorneys= fees under Texas Civil Practice and Remedies Code section 16.034. Accordingly, we sustain the Jansens= second issue and render judgment Peterson take nothing on his claim for attorneys= fees. IV. Conclusion Having sustained the Jansens= second issue, we reverse that part of the trial court=s judgment awarding Peterson his attorneys= fees, and we render judgment Peterson take nothing for attorneys= fees. We affirm the remainder of the judgment insofar as it awarded monetary damages of $32,000 to the Jansens and $1.00 to Peterson, granted a permanent injunction prohibiting all parties from engaging in specified actions, granted Peterson the right to remove the PVC pipe from his property, denied the Jansens= request for declaratory judgment, and denied Peterson=s request for specific performance.[9] /s/ Charles W. Seymore Justice Panel consists of Chief Justice Hedges and Justices Anderson and Seymore. [1] The court awarded the fees under Texas Civil Practice and Remedies Code section 16.034, applicable to suits in which one party claims by adverse possession. See Tex. Civ. Prac. & Rem. Code Ann. ' 16.034 (Vernon 2002). In its judgment, the court states, AIf any party should appeal the Court=s decision as to Defendant=s claim for adverse possession, then Plaintiffs shall additionally pay $5,000.00 to Defendant for each of two levels of appeal, for a total maximum amount of $10,000, conditioned on Defendant=s success as to its claim for adverse possession.@ [2] The judgment includes additional decrees not challenged on appeal. [3] Because the dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.4. [4] The Jansens requested findings of fact and conclusions of law. They did not, however, submit proposed findings and conclusions. The trial court did not file findings of fact and conclusions of law, but neither party alleges error in this regard. [5] The Jansens allege Peterson breached the settlement agreement that resulted in the stipulations. They argue this court should therefore disregard the stipulations. Although the settlement agreement is part of this court=s record, the documents supporting Peterson=s alleged breach are not. We cannot consider this documentation. See Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 342 n.2 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (A[W]e cannot consider documents attached as appendices to briefs and must consider a case based upon the record filed.@). However, as discussed above, even if one assumes Peterson=s conduct was only negligent, that assumption does not undermine a finding of nuisance on his part. [6] Vikki also testified she had seen a physician, who prescribed Wellbutrin XL. The trial court sustained Peterson=s objection that he had not been provided with medical documentation or corroboration. The trial court sustained the objection, but the record is unclear regarding how much of the testimony the objection covered. [7] Peterson Aprays that this Court reverse the Trial Court=s Judgment granting . . . Vikki Jansen=s claim for intentional infliction of emotional distress, and the granting of . . . Jansens= claim for invasion of privacy by intrusion on the seclusion and nuisance and render judgment that [the Jansens] take nothing from . . . Peterson.@ Our conclusion the evidence is legally and factually sufficient to support an award of $32,000 for the Jansens= nuisance claim necessarily precludes us from rendering judgment the Jansens take nothing. Addressing Peterson=s remaining issues is therefore not necessary to final disposition of the appeal. See Tex. R. App. P. 47.1. [8] The drain pipe was located on a utility and drainage easement across Peterson=s property. If the easement was dedicated to public use, it could not be claimed by adverse possession. See Tex. Civ. Prac. & Rem. Code Ann. ' 16.030(b) (Vernon 2002) (AA person may not acquire through adverse possession any right or title to real property dedicated to public use.@); Ellis v. Jansing, 620 S.W.2d 569, 570 (Tex. 1981); Bowen v. Ingram, 896 S.W.2d 331, 335 (Tex. App.CAmarillo 1995, no writ). [9] We do not consider findings of fact as part of the judgment. See Tex. R. Civ. P. 299a (AFindings of fact shall not be recited in a judgment. . . . Findings of fact shall be filed with the clerk of the court as a document or documents separate and apart from the judgment.@).