United Services Professional Group, Inc. D/B/A Pyramid Realty, Majid Hammasi, Sadat Bassampour Fatemeh, and Al Daneshian v. David M. Hurt, Kimberly R. Hurt, National Audubon Society, Inc., and Dallas County Audubon Society, Inc. ( 2015 )

AFFIRMED as Modified; Opinion Filed December 7, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00108-CV
UNITED SERVICES PROFESSIONAL GROUP, INC. D/B/A PYRAMID REALTY,
MAJID HAMMASI, SADAT BASSAMPOUR FATEMEH, AND AL DANESHIAN,
Appellants
V.
DAVID M. HURT, KIMBERLY R. HURT, NATIONAL AUDUBON SOCIETY, INC.,
AND DALLAS COUNTY AUDUBON SOCIETY, INC., Appellees
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-10-04892-I
MEMORANDUM OPINION
Before Justices Fillmore, Stoddart, and Richter1
Opinion by Justice Stoddart
This is an appeal from a partial summary judgment and a judgment rendered after a
bench trial. The dispute between the parties arises out of an easement. The trial court’s
judgment provides appellees with declaratory relief and awards damages in their favor. On
appeal, appellants argue four issues: (1) the trial court erred by providing appellees with
declaratory relief as to a matter not sought in their pleadings; (2) the trial court’s judgment is
inconsistent with the plain language of the easement; (3) the trial court erred by rendering an
1
The Hon. Martin Richter, Justice, Assigned
indefinite and uncertain judgment; and (4) the trial court’s award of damages is not supported by
sufficient evidence. We modify the trial court’s judgment and affirm as modified.
FACTUAL BACKGROUND
In the 1960s, the Mobley family—which is not a party to this lawsuit—owned 287 acres
of land in Cedar Hill, Texas. When the Mobleys divided their property, easements were granted
to landlocked parcels. The parties to this lawsuit own neighboring pieces of property that used to
be part of the Mobley estate. Appellants’ properties are landlocked, and they have a road
easement that crosses property owned by the Audubon appellees (the Easement). The Easement
states: “SAID TRACT BEING SUBJECT to a 50 foot road easement for egress and ingress,
being 25 feet on either side of centerline as shown on plat of subdivision of BF Mobley and Julie
Viola Mobley Estate Partition.”
Appellees’ land is part of an area known as “Dogwood Canyon” and the “Cedar Hill
Escarpment.” For nearly 20 years, appellees worked to preserve their land and create a bird
sanctuary. A substantial portion of the testimony at trial was about the unique qualities of
appellees’ land, the types of vegetation that grow on their properties, and appellees’ future plans
to use the land as a nature preserve.
In April 2010, appellant Al Daneshian,2 president of appellant United Services
Professional Group, Inc., hired a person to use a backhoe3 and remove vegetation from an area he
believed was on the Easement. He sought to clear a path so a truck could drive along the
Easement from the main road to his property. Clearing the path was part of the preliminary work
for appellants’ plans to develop their properties into home sites for resale. However, the backhoe
2
Al Daneshian is married to appellant Sadat Bassampour Fatemeh and is business partners with appellant Majid Hammasi. Daneshian,
Fatemeh, and Hammasi purchased land to develop into residential home sites. They had an oral agreement giving Daneshian authority to develop
the property for residential use.
3
There also is testimony the person used a bulldozer, a tractor, or a front-end loader to remove the vegetation. Which type of machinery
was used is not important to the resolution of this appeal and we will use the term backhoe.
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driver cleared vegetation from an area outside the Easement on property owned by appellee
David Hurt.
The parties dispute the extent of the damage the backhoe caused to the Hurts’ property.
Witnesses for appellees testified the damage was substantial. Mr. Hurt said the area looked like
a tornado cleared the vegetation. As a result of the clearing, trees were pushed over, trees were
stripped of lower limbs and bark, and there were multiple, large piles of trees and brush left
behind. Some trees that remained standing were damaged. As a result of the demolition of trees,
the tree canopy was opened, which caused more damage to the natural habitat. An expert
testified “this trespass is a major infraction” on appellees’ preservation efforts and the Hurts’
property would require ongoing work and could never be fully restored.
Appellees’ witnesses further testified that prior to the trespass, a trail approximately 6-
feet wide existed on the Hurts’ property. After the trespass, the cleared area was approximately
17-feet wide. Appellees’ expert testified “there were 11 feet added to the original trail at 635
feet deep. That’s 6,985 square feet.” He estimated about 690 individual trees were destroyed.
Three years after the event, on August 20, 2013, the expert visited the site again to “review the
site of the trespass.” He provided Mr. Hurt with a “reclamation plan that would provide for an
immediate canopy replacement and a replacement of native understory trees that were removed
as a result of the damage to the property in 2010.” His estimated cost to accomplish these goals
was $88,493.00.
Daneshian portrayed the damage differently. He testified the backhoe did not
significantly damage the Hurts’ property: “They had scuffed some of the tree [sic] at the end of
the trail, two or three trees. Basically, that’s all I could see. Couple - - few trees were damaged,
but the trees are still live [sic]. The trees are recovering. They’re in good shape.” He also noted
the backhoe driver cleared some underbrush and moved broken limbs already on the ground.
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Daneshian testified he has not seen any large openings in the canopy of trees on the property, his
worker did not do anything to cause any large openings in the canopy, and there are openings in
the canopy throughout the Audubon’s property. Daneshian testified that in order to create the
development planned by appellants, trees and natural vegetation must be removed from the
Easement.
The Hurts sued appellants for trespass and Audubon sought a declaratory judgment:
a. That the scope of any easement along [appellee’s] Land owned by
[appellants] is limited to providing [appellants] with a right to ingress and egress
only;
b. That the scope of any easement along [appellee’s] Land owned by
[appellants] does not provide [appellants] with any right to use the easement for
development purposes, including, but not limited to, (1) running water, power,
internet cable, or other utility lines along the easement, (2) building a road along
the easement, and/or (3) transporting machinery or materials along the easement;
and
c. That [appellants] have no right to bulldoze, destroy, remove,
conceal, encumber, or otherwise damage [appellee’s] Land.
PROCEDURAL HISTORY
Appellees filed a partial traditional motion for summary judgment on their claim for
declaratory judgment. The trial court granted the motion in part and denied it in part. The trial
court’s order states that the scope of the road Easement “is limited to providing [appellants] with
a right to ingress and egress only” and the scope of the Easement does not provide appellants
“with the right to use the road easement for any development that would result in any violation
of applicable city, state, or federal ordinances, statutes, or laws.”
Following a bench trial, the trial court rendered judgment that appellants trespassed on
land owned by the Hurts and they were entitled to actual damages of $88,493 caused by the
trespass. The trial court also rendered judgment in favor of Audubon, declaring the road
Easement: (1) is “limited to providing the owner(s) of the Dominant Estates with a right to
ingress and egress only;” (2) “Does not provide the owner(s) of the Dominant Estates with the
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right to use the road easement for any purpose that would result in any violation of applicable
city, state, or federal ordinances, statutes, or laws;” (3) “Does not provide the owner(s) of the
Dominant Estates with any right to install power lines, water lines, cable lines, internet lines, or
any other utility line along the easement;” and (4) “Does not provide the owner(s) of the
Dominant Estates with any right to excavate the land or otherwise clear or remove trees along the
easement.”
LAW & ANALYSIS
A. Judgments Conform to Pleadings
In their first issue, appellants assert the trial court erred by rendering final judgment
providing declaratory relief as to a matter not sought by appellees in their pleadings, and the trial
court erred by granting partial summary judgment to appellees as to a matter not sought in their
summary judgment motion. In response, appellees assert the trial court’s order and judgment are
supported by the pleadings or, alternatively, the declaratory relief granted was tried by consent.
Appellees’ third amended petition sought declaratory relief as to three matters: (1) the
scope of the road Easement is limited to ingress and egress; (2) appellants do not have the right
to use the Easement for “development purposes”; and (3) appellants do not have the right to
bulldoze, destroy, remove, conceal, encumber, or otherwise damage appellees’ land.
Appellees’ partial motion for summary judgment sought declaratory relief as to the same matters.
However, the trial court’s order granting the partial summary judgment in part declares that the
scope of the Easement does not provide appellants “with the right to use the road easement for
any development that would result in any violation of applicable city, state, or federal
ordinances, statutes, or laws.” The final judgment includes similar language, although the issue
was not litigated during the bench trial.
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1. Law
A court’s jurisdiction to render judgment is invoked by the pleadings, and a judgment
unsupported by the pleadings is void. Bever Props., LLC v. Jerry Huffman Custom Builders,
L.L.C., No. 05-13-1519-CV, 2015 WL 4600347, at *14 (Tex. App.—Dallas July 31, 2015, no
pet.) (mem. op.) (citing In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.—Dallas 2009, no pet.);
Holden v. Holden, 456 S.W.3d 642, 650 (Tex. App.—Tyler 2015, no pet.)). Therefore, a trial
court’s judgment must conform to the pleadings. Id. (citing TEX. R. CIV. P. 301; Holden, 456
S.W.3d at 650). Absent trial by consent, a plaintiff may not be granted a favorable judgment on
an unpleaded cause of action and judgment on an unpleaded cause of action is void. Id.
Issues not raised in the pleadings can be tried by express or implied consent of the
parties. TEX. R. CIV. P. 67; Hampden Corp. v. Remark, Inc., 331 S.W.3d 489, 495 (Tex. App.—
Dallas 2010, pet. denied). However, this rule “applies only where it appears from the record that
the issue was actually tried, although not pleaded.” Hampden Corp., 331 S.W.3d at 495 (quoting
Case Corp. v. Hi–Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 771 (Tex. App.—Dallas 2005,
pet. denied)). To determine whether the issue was tried by consent, the court must examine the
record not for evidence of the issue, but rather for evidence that the issue was tried. Id. The
unpleaded issue may be deemed tried by consent when the evidence on the issue is developed
without objection under circumstances indicating both parties understood the issue was being
contested. Id. at 496 (citing Ingram v. Deere, 288 S.W.3d 886, 893 (Tex. 2009) (“When both
parties present evidence on an issue and the issue is developed during trial without objection, any
defects in the pleadings are cured at trial, and the defects are waived.”); Case Corp., 184 S.W.3d
at 771). An issue is not tried merely because there is evidence on the issue, but can be deemed
tried by consent when both parties present conflicting evidence on the subject. Id. (citing
Ingram, 288 S.W.3d at 893). On the other hand, an issue is not tried by consent when the
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evidence relevant to the unpleaded issue is also relevant to a pleaded issue because admitting that
evidence would not be calculated to elicit an objection and its admission ordinarily would not
prove the parties’ “clear intent” to try the unpleaded issue. Id. (citing Case Corp., 184 S.W.3d at
771).
The trial court has broad discretion to determine whether an unpleaded issue was tried by
consent. Id. at 495 (citing Case Corp., 184 S.W.3d at 771). Although that discretion is to be
exercised liberally in favor of justice, trial by consent is the exception, not the rule, and should
not be inferred in doubtful cases. Id. (citing Case Corp., 184 S.W.3d at 772).
2. Analysis
There are no allegations in appellees’ live pleading, their partial summary judgment
motion, or anywhere else in the record that appellants must be restrained from violating state or
federal ordinances, statutes, or laws. No evidence was admitted with respect to any state or
federal laws that might be applicable to the parties’ properties. Therefore, we conclude the trial
court lacked jurisdiction to render judgment that the Easement does not provide appellants “with
the right to use the road easement for any development that would result in any violation of . . .
state, or federal ordinances, statutes, or laws.” See Bever Props., 2015 WL 4600347, at *14; In
re S.A.A., 279 S.W.3d at 856. This portion of the judgment is void. See Bever Props., 2015 WL
4600347, at *14; In re S.A.A., 279 S.W.3d at 856.
Likewise, neither appellees’ live pleading nor their motion for partial summary judgment
requests a declaration that the Easement does not provide appellants “with the right to use the
road easement for any development that would result in any violation of applicable city . . .
ordinances, statutes, or laws.” However, in their third amended petition and motion for partial
summary judgment, appellees alleged the City of Cedar Hill has ordinances and escarpment zone
regulations strictly limiting development and clearing rights and appellees’ properties are
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protected by those regulations. Appellees further claimed that appellants entered their land and
cleared it in violation of a Cedar Hill Tree Preservation Ordinance and the Escarpment
Development Regulations, which are intended to preserve Cedar Hill’s distinctive character.
Appellees attached copies of a Cedar Hill ordinance and regulation to their third amended
petition and partial motion for summary judgment. The partial summary judgment motion
provided more discussion about the City’s ordinances and regulations, but did not request the
declaration made by the trial court in its order and final judgment.
Although appellees’ live pleading and motion for partial summary judgment allege
appellants’ destruction of trees and vegetation violate the City of Cedar Hill’s ordinances and
regulations, appellees never pleaded a cause of action arising from the alleged violation of those
ordinances and regulations or requested relief on those bases. Thus, the trial court’s order and
judgment grant relief that was not requested and do not conform to the pleadings.
We also conclude the issue was not tried by consent. Appellees’ discussion of the Cedar
Hill ordinances and regulations did not seek judgment from the trial court prohibiting appellants
from violating any ordinances and regulations. Rather, appellees included the City’s regulations
as part of their extensive description about the uniqueness and fragility of their properties and
why their properties need to be protected from development—including development of the road
Easement proposed by appellants. For example, in their motion for summary judgment,
appellees stated: “Because of the fragile, unique nature of Dogwood Canyon, the City of Cedar
Hill created ordinances and escarpment zone regulations strictly limiting development and
clearing rights.” Appellants presented no evidence regarding the City’s ordinances and
regulations.
After examining the record, we conclude the evidence does not show the issue of whether
the trial court should prohibit appellants from violating the City of Cedar Hill’s ordinances and
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regulations was tried by consent. The ordinances and regulations were presented to illuminate
that appellees’ land is unique and fragile and has been recognized as such by the City which has
afforded appellees’ land protection. The circumstances do not indicate both parties understood
the issue of prohibiting appellants from violating those ordinances was being tried by consent.
See Hampden Corp., 331 S.W.3d. at 495-96.
3. Conclusion
We sustain appellants’ first issue. We modify the trial court’s judgment and delete the
trial court’s declaration that the road Easement “Does not provide the owner(s) of the Dominant
Estates with the right to use the road easement for any purpose that would result in violation of
applicable city, state, or federal ordinances, statutes, or laws.”4
B. Plain Language of the Easement
In their second issue, appellants argue the trial court’s judgment is inconsistent with the
plain language of the Easement. The judgment states the road Easement “Does not provide the
owner(s) of the Dominant Estates with any right to excavate the land or otherwise clear or
remove trees along the easement.” In response, appellees argue the trial court’s judgment does
not prevent appellants from building a road, although it may preclude appellants from building
the type of road they desire.
1. Interpretation of Easements
A property owner’s right to exclude others from his or her property is recognized as
“‘one of the most essential sticks in the bundle of rights that are commonly characterized as
property.’” Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002) (quoting
Dolan v. City of Tigard, 512 U.S. 374, 384 (1994)). A landowner may grant an easement which
4
We do not conclude appellants have the right to violate ordinances and regulations of the City of Cedar Hill. We only conclude the trial
court lacked jurisdiction to enter judgment precluding appellants from violating ordinances and regulations because the issue was not pleaded or
tried by consent.
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relinquishes a portion of the right, but the relinquishment is limited in nature. Id. An easement
is a nonpossessory interest that authorizes its holder to use the property for only particular
purposes. Id. (citing RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 1.2 cmt. d).
An easement exists for the benefit of the easement holder, and allows another to use the
property for a specific purpose. Severance v. Patterson, 370 S.W.3d 705, 721 (Tex. 2012). An
easement implies a grant of “unlimited reasonable use such as is reasonably necessary and
convenient and as little burdensome as possible to the servient owner.” Id. at 736. The “burden
on the servient estate is secondary to ensuring that the purpose of the easement is reasonably
fulfilled.” Id. The owner of the servient estate may not interfere with the easement holder’s
right to use the servient estate for the purposes of the easement. Id. at 721.
We review the trial court’s interpretation of the easement de novo. See Eddins Enterps.,
Inc. v. Town of Addison, 280 S.W.3d 544, 548 (Tex. App.—Dallas 2009, no pet.). The rules of
contract construction and interpretation apply to an express easement agreement. N. Tex. Mun.
Water Dist. v. Ball, 466 S.W.3d 314, 319 (Tex. App.—Dallas 2015, no pet.) (citing DeWitt Cnty.
Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999)); Eddins Enters., 280 S.W.3d at 548
(citing Krohn, 90 S.W.3d at 700–01). Unless the agreement is ambiguous, we interpret its
provisions as a matter of law. Ball, 466 S.W.3d 319. As we interpret the easement provision at
issue here, our primary concern is to ascertain the true intentions of the parties as expressed in
the instrument. Id. (citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)). We strive to
harmonize and give effect to all the provisions of the agreement so that none will be rendered
meaningless. Id.
When the grant’s terms are not specifically defined, they should be given their plain,
ordinary, and generally accepted meaning. Krohn, 90 S.W.3d at 701. The easement’s express
terms provide the purpose for which the easement holder may use the property. Id.; see also
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Canyon Reg’l Water Auth. v. Guadalupe-Blanco River Auth., 258 S.W.3d 613, 616 (Tex. 2008)
(“The express terms of the easement determine the scope of the easement holder’s rights”). Only
what is necessary to “fairly enjoy the rights expressly granted” passes by implication. Krohn, 90
S.W.3d at 701. The contracting parties’ intentions, as expressed in the grant, determine the
scope of the conveyed interest. Id. at 700-01.
2. Meaning of “Road”
The Easement states the servient estates are subject to “a 50 foot road easement for egress
and ingress, being 25 feet on either side of centerline.” The parties agree appellants have a “road
easement” but disagree about whether that term entitles appellants to excavate the land or
otherwise clear or remove trees along the Easement.
To resolve appellants’ second issue, we must determine the meaning of the term “road,”
which is not defined by the Easement. Webster’s dictionary defines road to mean:
a: an open way or public passage for vehicles, persons, and animals: a track for
travel or transportation to and fro serving as a means of communication between
two places usu. having distinguished names b: a public way outside of an urban
district: HIGHWAY—contrasted with street c: the part of a thoroughfare over
which vehicular traffic moves: the space between curbs: ROADWAY
WEBSTER’S 3RD NEW INT’L DICTIONARY 1963 (1981). See also TEX. TRANSP. CODE ANN.
§541.302(9) (defining “private road or driveway” to mean “a privately owned way or place used
for vehicular travel and used only by the owner and persons who have the owner’s express or
implied permission), 541.302(11) (defining “roadway” to mean a highway . . . that is improved,
designed, or ordinarily used for vehicular travel); Harris v. State, 499 S.W.2d 9, 10 (Tex. Crim.
App. 1966) (concluding a parking lot was not a road because the parking lot “was neither a way,
a passage nor a line of travel from place to place”).
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3. Road Easement
Applying the plain, ordinary, and generally accepted meaning of the term road, we
conclude a 50-foot road easement for egress and ingress is a passageway over which vehicular
traffic can move. The history of this Easement also indicates it must be fit for vehicular traffic.
The Easement was created when the Mobley family divided its 287 acre piece of property and
obtained zoning that the properties would be used as one-acre residential lots. The parcels now
owned by appellants were then landlocked. The limited road Easement for ingress and egress
gave the appellants’ parcels of land access to the main road. At the time the 287 acre tract was
subdivided, vehicular transportation was commonplace and persons living on property zoned for
one-acre residential homes would need access for their vehicles to be driven between their homes
and the main road. The road Easement provided such access.
The plain terms of the Easement allow the easement holders—here the appellants—to use
the Easement for a narrowly defined purpose: a fifty-foot road for ingress and egress. See
Patterson, 370 S.W.3d at 721. Although appellees presented the trial court with extensive
testimony about the negative impacts they believe will result if appellants build a road, the
Audubon appellees, as owners of the servient estates, may not interfere with appellants’ right to
use the servient estates for the purposes of the Easement. See id. As the holders of the
Easement, appellants have the legal right to build and use a road on the Easement for the
purposes of ingress and egress.
The trial court’s judgment that appellants do not have the right to excavate the land or
otherwise clear or remove any trees along the Easement conflicts with the plain meaning of the
Easement. The record shows the land within the Easement is lush with vegetation, which is
incompatible with creating a fifty-foot wide passageway or thoroughfare over which vehicular
traffic can move. Therefore, we conclude the trial court’s declaration that the Easement “[d]oes
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not provide the owner(s) of the Dominant Estates with any right to excavate the land or
otherwise clear or remove trees along the easement” is incompatible with the rights granted by
the Easement.
4. Conclusion
We sustain appellants’ second issue. We modify the trial court’s judgment and delete the
trial court’s declaration that the road Easement “Does not provide the owner(s) of the Dominant
Estates with any right to excavate the land or otherwise clear or remove trees along the
easement.”
C. Definiteness of Judgment
In their third issue, appellants argue the trial court’s judgment is indefinite and uncertain.
The judgment declares the easement “[i]s limited to providing the owner(s) of the Dominant
Estates with a right to ingress and egress only.” Appellants assert this language does not
sufficiently define the parties’ rights. They argue appellees pleaded for declaratory relief
prohibiting appellants from “transporting machinery or materials along the easement” and it is
unclear whether the trial court’s judgment prohibits such activity.
In their third amended petition, appellees sought declarations:
a. That the scope of any easement along [appellee’s] Land owned by
[appellants] is limited to providing [appellants] with a right to ingress and egress
only;
b. That the scope of any easement along [appellee’s] Land owned by
[appellants] does not provide [appellants] with any right to use the easement for
development purposes, including, but not limited to, (1) running water, power,
internet cable, or other utility lines along the easement, (2) building a road along
the easement, and/or (3) transporting machinery or materials along the easement;
and
c. That [appellants] have no right to bulldoze, destroy, remove,
conceal, encumber, or otherwise damage [appellee’s] Land.
The trial court’s final judgment states the Easement “[i]s limited to providing the owner(s) of the
Dominant Estates with a right to ingress and egress only.” Thus, the trial court granted
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appellees’ request defining the scope of the easement as being for ingress and egress only.
Although the trial court’s judgment also granted appellees the relief they requested by declaring
the owners of the dominant estates do not have the right to “install power lines, water lines, cable
lines, internet lines, or any other utility,” the judgment does not grant the requested relief that the
dominant estate cannot use the Easement for transporting machinery or materials along the
easement. The judgment concludes: “The Court denies any other relief requested by the parties
in this action.” Applying the terms of the judgment, the trial court denied appellees’ requested
relief that appellants cannot transport machinery or materials along the Easement.
We overrule appellants’ third issue.
D. Damages for Trespass
In their fourth issue, appellants assert the evidence is legally and factually insufficient to
support the $88,493 in damages the trial court awarded to the Hurt appellees for the trespass on
their land. Appellants concede they trespassed onto property outside of the Easement and the
trespass caused some amount of damage. However, they claim most of the damaged or
destroyed vegetation was on the Easement and they had a right to remove it. They argue that
appellees’ expert failed to segregate damage caused by the trespass from “damage” to vegetation
on the Easement. In response, appellees assert all of the damage was caused to land outside of
the Easement and, therefore, their expert was not required to segregate.
1. Standard of Review
When examining a legal sufficiency challenge, an appellate court reviews the evidence in
the light most favorable to the challenged finding and indulges every reasonable inference that
would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). An appellant
attacking the legal sufficiency of an adverse finding on which it did not have the burden of proof
at trial, must demonstrate that there is no evidence to support the adverse finding. See Exxon
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Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). The ultimate test for
legal sufficiency is whether the evidence would enable a reasonable and fair-minded fact finder
to reach the verdict under review. City of Keller, 168 S.W.3d at 827. The fact finder is the sole
judge of witness credibility and the weight to give their testimony. See id.
In a factual sufficiency review, an appellate court considers and weighs all the evidence,
both supporting and contradicting the finding. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d
402, 406–07 (Tex. 1998). When an appellant challenges the factual sufficiency of the evidence
supporting a finding for which it did not have the burden of proof, an appellate court will set
aside the verdict only if the evidence that supports the jury finding is so weak as to make the
verdict clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986). The appellate court may not substitute its judgment for that of the trier of fact or pass on
the credibility of the witnesses. See Ellis, 971 S.W.2d at 407.
2. Analysis
Daneshian testified his backhoe cleared vegetation both on and off the Easement. Mr.
Hurt testified he and his wife own the property on which appellants trespassed. On cross-
examination, an Audubon executive testified:
Q. So Audubon doesn’t have any ownership interest in the property
that my client [appellants] went onto with his tractor, correct?
A. The property that was damaged by the trespass was the property of
David Hurt. Much of the debris was pushed onto our property . . ..”
Q. Okay. But the damage that we’re talking about was contained
within the David Hurt property, which is not owned by Audubon?
A. That is correct.
The arborist who testified as an expert witness discussed damage to the Hurts’ property.
He testified about damage to the “the trespassed area” and estimated cost to begin replacing the
damaged canopy is $88,493.
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Although Daneshian stated most of the destroyed vegetation was on the Easement, there
also is evidence all of the damage was on the Hurts’ property. Further, the arborist testified he
examined the “trespassed area,” which would be the Hurts’ property. The record is not well
developed on this point. However, there is some evidence showing all the vegetation that was
destroyed was on the Hurts’ land and the arborist limited his consideration to this damage.
After reviewing the entire record, we cannot say there is no evidence to support the trial
court’s conclusion that the damage to the Hurts’ property is $88,493. See Exxon Corp., 348
S.W.3d at 215; City of Keller, 168 S.W.3d at 827. Nor can we conclude the evidence supporting
the judgment is so weak as to make it clearly wrong and manifestly unjust. See Cain, 709
S.W.2d at 176.
3. Conclusion
We overrule appellants’ fourth issue.
CONCLUSION
We modify the trial court’s judgment by deleting the trial court’s declarations that the
road Easement:
“Does not provide the owner(s) of the Dominant Estates with the right to use the
road easement for any purpose that would result in violation of applicable city,
state, or federal ordinances, statutes, or laws” and
“Does not provide the owner(s) of the Dominant Estates with any right to
excavate the land or otherwise clear or remove trees along the easement.”
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As modified, we affirm the trial court’s judgment.
/Craig Stoddart/
CRAIG STODDART
JUSTICE
140108F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
UNITED SERVICES PROFESSIONAL On Appeal from the 162nd Judicial District
GROUP, INC. D/B/A PYRAMID REALTY, Court, Dallas County, Texas
MAJID HAMMASI, SADAT Trial Court Cause No. DC-10-04892-I.
BASSAMPOUR FATEMEH, AND AL Opinion delivered by Justice Stoddart.
DANESHIAN, Appellants Justices Fillmore and Richter participating.
No. 05-14-00108-CV V.
DAVID M. HURT, KIMBERLY R. HURT,
NATIONAL AUDUBON SOCIETY, INC.,
AND DALLAS COUNTY AUDUBON
SOCIETY, INC., Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
We DELETE the words “Does not provide the owner(s) of the Dominant Estates
with the right to use the road easement for any purpose that would result in
violation of applicable city, state, or federal ordinances, statutes, or laws” and
“Does not provide the owner(s) of the Dominant Estates with any right to
excavate the land or otherwise clear or remove trees along the easement” from the
judgment.
It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellants United Services Professional Group, Inc. d/b/a Pyramid
Realty, Majid Hammasi, Sadat Bassampour Fatemeh, and Al Daneshian recover their costs of
this appeal from appellees David M. Hurt, Kimberly R. Hurt, National Audubon Society, Inc.
and Dallas County Audubon Society, Inc.
Judgment entered this 7th day of December, 2015.
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