Jerry Mullendore v. Kurt Michael Muehlstein
441 S.W.3d 426
| Tex. App. | 2014Background
- Mullendore owns a four-unit rental property in Little Elm, Texas, with a sewer line originally installed by his father in 1961.
- A portion of that sewer line ran through a neighboring lot later owned by Muehlstein, who purchased the lot in 2002.
- In 2004, Mullendore's tenants reported sewage backing up; a plumber diagnosed a break in the line under Muehlstein’s lot.
- Muehlstein initially allowed repairs but later withdrew permission; both sides dispute who authorized the work.
- The line problem rendered Mullendore’s apartments uninhabitable and unrented as of trial.
- Mullendore sued in 2006 seeking injunctive relief, damages, and a prescriptive easement; trial occurred in 2011; jury awarded $30,000 to Mullendore.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Damages measure for temporary loss of use | Mullendore argues the instruction used a lost profits approach, not loss of rentals. | Muehlstein contends the instruction permitted proper damages measurement under applicable law. | Error if any was waived; court held the issue waived and affirmed judgment. |
Key Cases Cited
- Allied Vista, Inc. v. Holt, 987 S.W.2d 138 (Tex.App.--Houston [14th Dist.] 1999) (improper measure of damages reviewed de novo)
- Hall v. Robbins, 790 S.W.2d 417 (Tex.App.--Houston [14th Dist.] 1990) (damages for temporary injuries to real property tailored to circumstances)
- Etex Tel. Co-op., Inc. v. Sanders, 607 S.W.2d 278 (Tex.Civ.App.--Texarkana 1980) (loss of use damages framework)
- City of Austin v. Teague, 570 S.W.2d 389 (Tex. 1978) (loss of rentals as measure of temporary loss of use; rental value defined)
- Z.A.O., Inc. v. Yarbrough Drive Center Joint Venture, 50 S.W.3d 531 (Tex.App.--El Paso 2001) (proper measure is to place owner in same position as before injury)
- Lone Star Development Corp. v. Reilly, 656 S.W.2d 521 (Tex.App.--Dallas 1983) (supporting measure of damages for temporary injury to land)
- Kraft v. Langford, 565 S.W.2d 223 (Tex. 1978) (foundational damages principles for property injuries)
- Betts v. Reed, 165 S.W.3d 862 (Tex.App.--Texarkana 2005) (out-of-pocket expenses recoverable for loss of use)
- San Antonio River Auth. v. Garrett Bros., 528 S.W.2d 266 (Tex.Civ.App.--San Antonio 1975) (lost profits recoverable in temporary taking/damage)
- City of Carrollton v. RIHR Inc., 308 S.W.3d 444 (Tex.App.--Dallas 2010) (affirming flexible damage measure aligned with circumstances)
- Teague (City of Austin v. Teague), 570 S.W.2d 389 (Tex. 1978) (discussion on rental value and damage measurement for temporary loss of use)