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Click here for the full text of this decision FACTS:When William Falkenstein moved into his Frisco home, he had Fannin Tree Farm plant 30 trees around the property, including a matching pair on each side of the pool. Falkenstein’s neighbor, John Wilen, complained to Falkenstein that one of the pair of trees was beginning to obstruct the view of the neighborhood clubhouse Wilen enjoyed from his balcony. Falkenstein rejected Wilen’s offer to pay for a tree service to trim the tree, but Falkenstein did have the tree trimmed on his own. A month after trimming the tree, Falkenstein left for a two-week vacation. When he returned home, he noticed that a big portion of his tree was missing. There were no branches or debris around, so Falkenstein concluded the tree had been cut. Falkenstein asked Wilen if he knew anything about it, but Wilen said he did not. Wilen offered to pay for the cost of cutting the tree down, but he refused to pay to replace the tree. Falkenstein sued Wilen for trespass. At trial, Wilen testified that TLS Landscaping, who had done work for him before and with whom he discussed Falkenstein’s tree, called Wilen during Falkenstein’s vacation about doing some work for him. According to Wilen, Scott Story asked Wilen which trees needed to be trimmed, and Wilen pointed to the view-blocking tree by Falkenstein’s pool. Wilen invited Story up to the balcony to ascertain how much of the tree should be trimmed, which Story did. Wilen said he assumed Story had permission from Falkenstein to trim the tree. Wilen testified that he did not see the tree being cut, and he did not get a bill for it. Story testified at the trial, too. He said that he was told by his boss to go to Wilen’s house and perform whatever work was asked of him. He confirmed that Wilen took him to the balcony to show him how much of Falkenstein’s tree needed to be cut. Story said that Wilen told him it was “okay” to cut the tree, and that Wilen stood in the yard directing Story and a co-worker where to start cutting and observed Story cut approximately five feet off the top of the tree. A representative of Fannin Tree Farm testified that the tree was “butchered” and would never be able to catch up to the other tree it was supposed to match. He estimated that it would cost $4,151 to replace the tree. The jury ruled for Falkenstein, awarding him $5,300 in actual damages, $18,000 in exemplary damages and $29,700 in attorneys’ fees. HOLDING:Affirmed as modified. A trespass can occur when a person intentionally causes a third person to enter land in possession of another. Here, the evidence shows that Story and his co-worker entered Falkenstein’s property at Wilen’s direction and request. There was no evidence that Story had permission to enter Falkenstein’s property. The evidence was thus legally and factually sufficient to support the jury’s verdict that Wilen trespassed on Falkenstein’s property. The court then assesses the jury’s determination of damages. In cases of damages to a tree due to trespass, damages can be based on the diminution in value of the land or the value of the damaged trees, which was applicable in this case. The court finds that in light of the estimate that it would cost $4,151 to replace the tree and the fact that Falkenstein asked Wilen for $5,000 as a guaranty and to replace the tree, the jury’s award of $5,300 was within the jury’s discretion. Next, the court reviews the exemplary damages award. The court finds the evidence supported the jury’s finding of malice on Wilen’s part. The jury was free to discredit Wilen’s protestations that he intended no harm or that he assumed Falkenstein gave Story permission to be on his property. The evidence supported a finding that Wilen acted intentionally in having the tree cut without Falkenstein’s permission. The exemplary damages award is less than the $200,000 cap allowed by statute. The evidence showed that Wilen acted intentionally, and against Story’s warning that cutting of the top of the tree would be inappropriate. The evidence also showed that Wilen’s net worth, not including his house, was nearly $500,000. “The character of Wilen’s conduct, his degree of culpability, the situation and sensibility of the parties involved, and a public sense of justice, as well as Wilen’s significant net worth, support the award of $18,000.00 in exemplary damages.” The court upholds the trial court’s jury instruction on trespass, noting that it is consistent with case law that the only relevant intent is that of the actor to enter the property or to “aid, assist, advise, or encourage” another to enter the property. The court does find, however, that the award of attorneys’ fees was improper. Falkenstein’s action was not based on contract interpretation, and attorneys’ fees were not authorized by statute. OPINION:Sue Walker, J.; Dauphinot, Walker and McCoy, JJ.

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