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Mullendore v. Muehlstein

Court of Appeals of Texas, Eighth District, El Paso

January 15, 2014

JERRY MULLENDORE, Appellant,
v.
KURT MICHAEL MUEHLSTEIN, Appellee

Petition for review filed by, 02/27/2014

Appeal from 393rd District Court of Denton County, Texas. (T.C. # 2006-60010-393).

Before McClure, C.J., Rivera, and Rodriguez, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice

Page 427

Jerry Mullendore appeals a judgment awarding him $30,000 in damages following a jury trial in a prescriptive easement and temporary loss of use of land case. For the reasons that follow, we affirm.

FACTUAL SUMMARY

Mullendore owns a four-unit rental property located in the Town of Little Elm, in Denton County, Texas. He purchased the property from his father, Reverend F.K. Mullendore, who had owned it since 1961. Sometime in 1966, Reverend Mullendore installed a sewer line, a section of which he ran through a neighboring lot that he did not own. Muehlstein purchased that lot in December 2002.

In November or December 2004, Mullendore's tenants reported that sewage was backing up into their bathtubs. Mullendore hired a plumber who determined that the source of the problem was a break in the sewage line. The break, of course, was in the portion of the line located underneath Muehlstein's lot. Muehlstein testified that although he initially gave Mullendore permission to make the repair, he withdrew it before the task was undertaken.[1] Mullendore, on the other hand,

Page 428

testified that Muehlstein had simply refused permission. Regardless, the problem with the sewage line endured through at least the date of trial. Mullendore testified that the condition made his apartments uninhabitable and that they were unrented as of that date.

PROCEDURAL HISTORY

Mullendore sued Muehlstein in early 2006. He sought permanent injunctive relief, unspecified damages, and a declaration that a prescriptive easement existed in connection with the sewage line. In November 2011, the case proceeded to trial before a jury. The jury answered all questions in favor of Mullendore, and determined $30,000 to be reasonable compensation for damages Mullendore " sustained as a result of not being able to repair his sewer line where it crossed [Muehlstein's] property." The trial court entered its final judgment on January ...


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