IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)
January 24, 2012
MICHAEL S. TATE ET AL., PLAINTIFFS AND APPELLANTS,
RICHARD FIESELER ET AL., DEFENDANTS AND RESPONDENTS.
(Super. Ct. No. PC20080086)
The opinion of the court was delivered by: Raye , P. J.
Tate v. Fieseler
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Every lawsuit tells a story. This is the story of a 40-year friendship ending in years of acrimony, six days of trial, and this appeal. To an outside observer, very little is at stake here: a neighbor's easement for the continued use of 1,509 square feet of the adjoining neighbor's 12-acre parcel for the trees that have been growing there for 10 years or more; reformation of a grant deed to remedy small mistakes the neighbors made constructing a common driveway and installing a fence in 2003 while relationships remained amiable; a permanent injunction preventing one neighbor from closing and/or locking the shared gate when the other neighbor is home; and $763.90 in damages. Finding no abuse of discretion and ample evidence to support the trial court's imminently reasonable findings to preserve the status quo, we affirm the judgment.
Michael Tate and Richard Fieseler became friends in the 1960's. Eventually, Michael married Linda and Richard married Kristine, and over time the two couples cultivated a close relationship. In 2001 they purchased rural property in El Dorado County; the Fieselers purchased approximately 5 acres to the south of the 12 acres the Tates purchased. Both couples planned to build a house and barn on their respective properties.
In September or October 2001 they discussed the feasibility of installing a common driveway to provide access from Highway 49. The Tates agreed to give the Fieselers an easement across their property for access purposes. The parties agreed that they would share the common driveway and gate, and thereafter construct their own gates and separate driveways to their respective homes. Standing on the site of the proposed road, Richard pointed where the road would go and Mike and Linda said, "Fine, we don't care." No one took any measurements at the time. They agreed on a contractor, Del Beam Construction (Del Beam).
Del Beam began construction sometime that fall and cut enough dirt off the highway so the Fieselers would have access to their property. The contractor put a road up to the Tates' pad for their building and a road over to the Fieselers' pad for their barn before taking a few months off during the rainy season. But the driveway and the road over to the Fieselers were complete in their dirt form before construction temporarily ceased. Rather than a straight road as envisioned by the parties when they discussed the location of the easement, the road curved around a small marshy area located in the pathway. The Tates neither consented nor objected to the change in direction. By March or April, Del Beam had the dirt driveways into both properties and had completed the drainage ditch.
On March 2, 2002, the parties executed a road maintenance agreement. Richard Fieseler's understanding was that the parties had agreed to share the cost of maintaining the common area, including "[t]he blacktop in the front going to the highway" and the gravel on the "50-foot entrance section."
Sometime before June 3, 2002, the Tates used a 100-foot tape to measure where they remembered the Fieseler easement would be located. Linda Tate then downloaded a grant deed form from the Internet and filled in a legal description based on measurements she took herself. The parties executed the grant deed on June 2, 2002, without the advice of counsel, a survey, or any other measurements. The Fieselers stored their copy in a box of documents related to their property and did not look at it again until 2009. They did not know the legal description in the grant deed was inaccurate until after the Tates filed their lawsuit many years later.
During construction of their homes, the Tates spent one to three weekends a month as guests of the Fieselers. The record is murky about when the Fieselers constructed a fence between the properties and when Kristine planted six trees at $100 each on what everyone believed was Fieseler property. At least by late 2003 or early 2004, the Tates arrived at their property on a weekend and observed two workers constructing a boundary fence. The Fieselers testified the Tates gave them permission to construct the fence as marked. The Tates testified that they were told the fence would be temporary. Because they own horses and need to keep them confined, Richard denied he had stated the fence was temporary. Eventually, construction on both houses was complete and the couples moved into their homes. Neither conducted a survey to verify boundaries before building their homes. Both relied on the monuments the realtors showed them when they purchased the property. The location of the boundary fence was based in part on the monuments.
It is unclear how or why the acrimony between the parties began. It is clear, however, that Richard has faced a series of medical challenges including degenerative back disease, cancer, an injured knee, a head injury, and a serious arm infection. By the time of trial, he had numerous doctors and was on a daily regimen of various pharmaceuticals, including pain killers. Although the content of her letter dated January 25, 2008, indicates an awareness that Richard was undergoing tests because he was blacking out, Linda nevertheless wrote an expose of her hurt feelings to the Fieselers and concluded they had never been true friends. One of her grievances included the following: "You invited Mike and I [sic] over for cake on your birthday last year. You had told us that your sister was coming up to help celebrate and we had looked forward to meeting her and her family; however, when you called after she left it made US feel like we were second class citizens, not good enough to meet your family." She catalogued a list of other slights and grievances before expressing her regret that she had to add to all Richard had on his "plate." She felt "it had to be done." The letter was signed "Linda & Mike."
Within six weeks the Tates had filed a complaint against the Fieselers to quiet title, and hostilities escalated. By the summer of 2008 both couples had filed requests for temporary restraining orders against the other for harassment. The Tates alleged that Richard sat in his golf cart in the common driveway, slammed the gate, and called them names. The Fieselers alleged that Linda videotaped and photographed them constantly and watched them through binoculars. In fact, Mr. Tate testified he and his wife had taken about 50 to 60 hours of tape of the Fieselers. Linda would close the gates and wrap chains around them after the Fieselers opened them for visitors. The gates would appear locked. The parties were headed to court in August when negotiations began to bear fruit.
On September 17, they mutually agreed to withdraw their requests for temporary restraining orders. The Fieselers agreed not to use the common driveway, believing the agreement would only remain in effect pending resolution of the lawsuit. The Tates believed the Fieselers were relinquishing their right to the easement permanently. The Fieselers built an alternate driveway on their own property and did not use their easement while litigation ensued. The Tates locked the interior gate without the Fieselers' consent.
In December 2008 the Fieselers' expert, Richard Marino, surveyed the property and discovered that the northwest boundary monument was six feet north of its original location, thereby increasing the acreage of the Fieseler parcel and decreasing the acreage of the Tate parcel by less than .05 acres. He found no physical evidence that the monument had been "tampered with or disturbed" but had "suspicions that many years ago someone could have moved the corner from its original location," accidentally or intentionally. He notified the Fieselers' lawyer of the need to record a survey documenting the error. The Tates did not discover the error until February 2009 when they hired their own surveyors.
Shortly thereafter, Richard arrived home from a doctor's appointment to discover the Tates and six to eight others tearing down his fence with a backhoe. One of the men removing the fence was a surveyor. Richard pushed the surveyor's equipment onto the Tates' property and told the group he would sue them all. Kristine's employees reinstalled the fence that afternoon.
Both parties filed small claims actions against the other, and those claims were consolidated with the Tates' complaint and the Fieselers' cross-complaint for trial. The Fieselers cross-complaint is not at issue in this appeal. The Tates alleged damages to their surveyors' equipment of $763.90, and $450.00 to replace and restake the monument.
Following a six-day trial, the court found:
1. The Boundary Fence Area. There is no credible evidence that Richard moved the monument. The parties did discuss the location of the fence by "'working off the existing top (SW/NW) monument pin'" and agreeing that the fence would run straight from the top pin to the lower monument pin. The purpose of the fence was to keep the Fieselers' horses off the Tates' property. The Tates did not object.
By the time the parties discovered the error in 2009, "the Fieselers had not only installed significant improvements on the disputed portion of the property, including the fence to keep their horses off the Tates' property, but had also relied upon the presumed boundary line between the two monuments to plot their property boundaries, determine their set-backs, obtain permits, and construct their home and other out buildings. It would therefore be inequitable at this point in time to completely ignore such good faith reliance on the apparent boundary line."
The court, therefore, quieted title to the 1,509 square feet along the boundary line in favor of the Tates but granted the Fieselers an equitable easement under the relative hardship doctrine. The court ordered the Fieselers to pay the Tates $476.32 for the value of the disputed property.
2. The Roadway Easement. "Evidence established that the Cross-Complainants' lower driveway, drainage ditch, fence and related improvements for which the Roadway Easement was requested were already in place when the Tates agreed to provide the Fieselers with the requested Grant Deed for that Roadway Easement." As a result, the court concluded that the parties intended the legal description contained in the grant deed to conform to the location of the existing improvements. The court granted the Fieselers' request for reformation of the easement grant deed, quieted their title thereto as reformed, and found that the Tates had breached the roadway easement agreement.
3. Abatement of the Private Nuisance. The Tates failed to honor their agreement to install an individual gate on their private driveway and instead closed and locked the shared gate whenever they left the property, regardless of whether the Fieselers were home or expecting guests. The court imposed a permanent injunction against the Tates from "closing or locking the Parties' common gate to Highway 49 at any time that the Cross-Complainants Fieseler are at home."
4. Small Claims Court Damages. The court denied the Tates' claim for damages to the common gate since the Fieselers alone purchased and installed the gate. The court awarded the Tates $500 in damages for the damage to their surveyors' equipment caused by Richard.*fn1
The Tates appeal.
DISCUSSION I The Fence
The Tates prevailed on their cause of action to quiet title to the disputed 1,509 square feet along the fence line due to the misplaced monument pin. Nevertheless, they object to the equitable easement granted the Fieselers and assert the nominal sum of $476.32 for the easement was an undeserved bargain for the Fieselers. Because the trial court exercised its equity powers when fashioning the Fieselers' easement, we review the judgment for an abuse of discretion. (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 771 (Hirshfield).)
In citing Christensen v. Tucker (1952) 114 Cal.App.2d 554, the trial court apparently assessed the relative hardships to the parties. The Tates, in a vivid exemplar of the triteness of the dispute, rail against the notion that the Fieselers would suffer untoward hardships if denied the easement. From their perspective, the trees could be replanted, the "temporary" fence moved, and a variance for any setback violations obtained from the county. Moreover, in the Tates' view, the Fieselers are the villains, undeserving of equitable intervention given their complicity in moving the monument, failing to obtain a timely survey, and, worse yet, failing to promptly record the discovery of the misplaced monument. The trial court heard and rejected these very same arguments.
The court found "there is no question that at the relevant time, in March 2004, all parties believed the two monument pins to accurately represent the shared property corners of the two parcels, and all parties were also in agreement that the line between those two monuments was their common boundary line. It was not until early 2009 that the Parties first discovered that the one disputed monument had been moved approximately six feet off the surveyed boundary line." Thus, the court rejected the Tates' argument that the Fieselers had acted in bad faith.
It may be, as the Tates contend, that the Fieselers would not have suffered an extraordinary hardship in the absence of the easement. There is little at stake on either side of the ledger. But the court was forced to assess the "relative" hardships, even though in this case neither party had much to win or lose. In the exercise of the court's discretion, the hardship on the Fieselers may not have been great, but the hardship on the Tates was relatively far less.
After all, the trial court quieted legal title to the disputed area along the fence to the Tates. They simply have to allow the six trees to grow and a fence to meander a few inches or feet here and there from the boundary. The court concluded the disputed area was a small fraction of their 12 acres, impliedly finding that the easement would not significantly interfere with their enjoyment of their land.
It is obvious from a reading of the entire record that every inch of the property has taken on enormous emotional significance to the Tates. But we cannot say that the trial court abused its discretion by assessing the relative hardships and determining that the inconvenience to the Tates was less than the hardship imposed on the Fieselers if they had been ordered to relocate their fence and trees. The Tates have gone to extraordinary lengths to convince us that the equities favor them, but in rearguing their case on appeal, they have forgotten that we must defer to the trial court's determination in the absence of an abuse of discretion. And on this record, we can find no abuse of discretion.
We need not resolve the speculative arguments raised again by the Tates that the Fieselers could obtain a variance and that they might be unable to subdivide their property into two-acre equal parcels. Nor are we at liberty to make our own credibility determinations at odds with those of the trial court. The trial court considered the testimony of all four parties, as well as their experts, and concluded that the parties may have made mistakes but there was no malfeasance. In weighing the relative hardships, the court decided to preserve the status quo by allowing the Fieselers to continue to enjoy their trees and maintain their fence. We conclude "[t]hat decision, fashioned on the evidence and equities presented, and narrowly tailored to promote justice, will not be disturbed." (Hirshfield, supra, 91 Cal.App.4th at p. 772.)
II The Road Easement
There is no dispute that the Tates granted the Fieselers an easement over their property for access from Highway 49 to their house and barn. The dispute is over the precise location of the easement. The trial court reformed the grant deed Linda Tate prepared to conform the legal description to the roadway that is actually there.
Where a deed conveys or encumbers more or less property than the parties intended to convey or encumber, the party injured by the error may have the document reformed to correctly describe the land the parties intended to convey or encumber. (Vecki v. Sorensen (1954) 127 Cal.App.2d 407; Martinelli v. Gabriel (1951) 103 Cal.App.2d 818, 823.) "The purpose of reformation is to correct a written instrument in order to effectuate a common intention of both parties which was incorrectly reduced to writing." (Lemoge Electric v. County of San Mateo (1956) 46 Cal.2d 659, 663.)
The Tates challenge the trial court ruling on several grounds: 1) the statute of limitations, 2) abuse of discretion, and 3) relinquishment. All three lack merit.
Statute of Limitations
The Tates argued below, as they do on appeal, that the Fieselers failed to adequately plead and prove specific facts that they did not and could not have known the legal description in the grant deed did not accurately reflect the roadway so as to escape the three-year statute of limitations applicable to an action to reform a deed. (Code Civ. Proc., § 338, subd. (d).) They insist the Fieselers should have read the legal description before installing the road, should have surveyed their property or at least checked the measurements in the deed, and should have consulted with them before constructing the road around a marshy area. In sum, the Tates contend the statute of limitations began to run when the grant deed was delivered to the Fieselers in June 2003. If anyone was mistaken, in the Tates' view, it was the Fieselers in moving forward with a road that did not conform to the legal description in the deed. The trial court did not see it that way.
The Fieselers urge us to defer to the trial court's factual findings, supported as they are by substantial evidence. Indeed, the Fieselers contend that the court's factual finding is dispositive; that is, the fact that the improvements were installed before the deed was executed supports the court's finding that the statute did not begin to run until 2009, when the parties discovered the discrepancy between the description of the road in the deed and the appearance of the road across the Tates' property. We agree that the trial court's finding is supported by substantial evidence.
What was once a relaxed and forgiving understanding between friends has devolved into a bitter battle over a few feet of turf separating enemies. Everyone agrees that in 2001 Richard pointed out where he would like to place the road to the house and barn and that many months later Linda downloaded a form from the Internet, measured where she thought the parties agreed the easement would be located, and then wrote a legal description she believed was an accurate embodiment of the oral agreement between the parties. Richard, believing the deed a mere formality he needed to secure additional permitting by the county and having no reason to suspect his friend Linda's description was at odds with what they had agreed, did not check the accuracy of her description. Rather, he filed the deed and did not discover the error until the relationship had deteriorated, litigation ensued, and a trial was looming.
The critical fact found by the trial court was that much of the construction of the improvements was complete before Linda tried her hand at surveying and lawyering. The Tates point to various pieces of evidence, including photographs and snippets of testimony, that undermine the court's finding. This evidence presents nothing more than a factual dispute the trial court was well equipped to resolve and we must accept as long as there is substantial evidence in the record to support it. Richard's testimony supplies the requisite quantum of evidence.
Richard testified that Del Beam began construction of the road in the fall of 2001 and cut enough dirt off the highway so the Fieselers would have access to their property. The driveway and the road over to the Fieselers were complete in their dirt form before construction temporarily ceased for a few months during the rainy season. By March or April, Del Beam had the dirt driveways into both properties and had completed the drainage ditch.
Perhaps, as the Tates argue, the roads were not completely finished until after the grant deed was executed. But there is substantial evidence the road had been laid out, albeit perhaps in dirt, and the dirt road along with the ditch had been completed in the spring of 2002. If, as the trial court found and this evidence supports, the location of the road was visible before Linda drafted the deed, then the description appearing on the deed was a mistake. While section 338 of the Code of Civil Procedure makes clear that the statute of limitations for an action for reformation based upon mistake is three years from the date the aggrieved party discovers the mistake, we agree with the Fieselers that begs the question in this case of when the mistake was discovered. Here, the evidence is clear that the Fieselers did not discover the mistake until 2008, and as a result, the court did not err in concluding the statute of limitations did not begin to run until then.
The Tates maintain that the Fieselers had constructive notice years earlier and in the exercise of reasonable diligence should have known of the mistake. (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 648-650.) They insist that even if the improvements were in place before the deed was executed, the Fieselers had an affirmative obligation to verify the accuracy of the legal description by measuring the easement. According to the Tates, mere possession of the written document containing the error shifted the burden to the Fieselers to investigate the accuracy of what the Tates had prepared. In other words, the Fieselers had the duty to uncover the Tates' mistake.
We accept the basic proposition that the three-year statute of limitations is triggered when a party is charged with constructive or inquiry notice of a mistake. But here, if we accept the trial court's finding that the improvements were installed before the deed was prepared, there were not facts that, "in the exercise of reasonable diligence," would have compelled the Fieselers to verify that Linda Tate had accurately described the scope and location of the easement. We reject the Tates' argument that the Fieselers' cause of action to reform the deed was barred by the statute of limitations because the Fieselers had constructive notice of their mistake.
Abuse of Discretion
The Tates further argue that the trial court abused its discretion by reforming the grant deed based on the Fieselers' unilateral mistake. The only mistake, they contend, was the Fieselers' unilateral decision to change the course of the road without consulting with them.
Civil Code section 3399 provides: "When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value." The Tates insist there is no evidence to support a finding that they alone made a mistake the Fieselers suspected or that there was a mutual mistake, and thus the trial court abused its discretion by reforming the deed based on a theory of mistake.
Again, the Tates remain wedded to their version of the facts, facts the finder of fact rejected. The Fieselers have admitted they did not get the Tates' express permission to construct the road so as to avoid a marshy area. But they do not claim that the slight rerouting of the road constituted a mistake entitling them to reformation of the deed. And admittedly the record is somewhat foggy about precisely what improvements were constructed when.*fn2
Nevertheless, the court relied on the testimony that the location of the road was apparent before the deed was executed. There is no evidence that the Tates objected to the location of the road before the relationship soured in 2007 or 2008. In the court's view, therefore, the legal description set forth in the deed did not represent the reality on the ground, to wit, the easement to which the parties apparently agreed. We cannot say the court abused its discretion by attributing the mistake to Linda or, at a minimum, in concluding that there was a mutual mistake in that no one suspected the deed did not reflect the location of the road. The record may not be a model of clarity, but there is no evidence the court abused its discretion, and given the record before it, we conclude there is sufficient evidence to support its findings.
Relinquishment of the Easement
If the statute of limitations is not a bar to reformation and if the trial court did not abuse its discretion by reforming the grant deed, then the Tates insist we must find the Fieselers relinquished their right to the easement when they settled the battle of the competing temporary restraining orders. The problem, as the Fieselers point out, is the Tates failed to ask the trial court to address the issue in its final order. In the absence of a timely request to clarify or add to a statement of decision, we must presume that the trial court made all the factual findings necessary to support the judgment. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267 (Shaw).) The question is whether there is substantial evidence to support the implied findings. (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 59-60.)
The Tates object to the court's reliance on the Fieselers' testimony. Indeed, they testified that they agreed to relinquish their right temporarily; that is, they would forgo use of the easement until the lawsuit was resolved. This testimony alone constitutes substantial evidence to support the implied finding that they had not relinquished their right to use the road easement despite the Tates' belief the agreement was permanent.
The Tates rely on a letter written by the Fieselers' lawyer on September 17, 2008, memorializing the parties' agreement to dismiss their respective requests for temporary restraining orders. They claim the letter is not ambiguous and therefore extrinsic evidence should not be considered, and the interpretation of the letter is a question of law for us to decide. In their view, the letter unambiguously supports their allegation that the Fieselers gave up their right to an easement.
The letter does not state whether the Fieselers' relinquishment of their right to use the common road and gate was permanent or temporary. The duration of the relinquishment is not mentioned. That fact is argued to support both parties' positions. Either way, it is only one piece of evidence to be construed by the finder of fact. The trial court had the opportunity to consider the letter together with the parties' testimony. In reforming the deed, the court impliedly rejected the Tates' interpretation of the meaning of the letter. The Tates overstate the legal significance of the letter and ignore the deferential scope of appellate review.
Moreover, the Fieselers make the obvious observation that if the trial court had found they had relinquished their right to use the easement, the lion's share of the case would have been moot. Yet the Tates did not move to strike five of the six causes of action in the cross-complaint relating to the easement, nor did they demur or make any pretrial motions to exclude the evidence regarding the easement. Instead, testimony regarding the meaning of the letter settling the temporary restraining order dispute and the parties' understanding of the letter were admitted without objection, and after evaluating the evidence and the credibility of the witnesses, the trial court impliedly concluded that the agreement was temporary only. We agree with the Fieselers that the Tates have failed to carry their burden to provide an adequate record affirmatively proving error, and we must presume the court made all the factual findings necessary to support its judgment.
III The Common Gate
The court enjoined the Tates from closing and locking the common gate when the Fieselers were at home consistent with the oral agreement the parties reached in 2001. The court found the parties had agreed to install private gates beyond the common gate to secure their individual properties, but that the Tates failed to construct their private gate. The parties further agreed that the individual gates could be closed and/or locked at the sole discretion of the individual parties, but the common gate would only be closed and/or locked when both couples were away. The Tates, according to the court, used the common gate built and paid for by the Fieselers as their private gate, closing and locking it at will.
In yet another full-throttle attack on the trial court's ruling, the Tates assert there is insufficient evidence to support a finding of a private nuisance, there is insufficient evidence to support the terms of the agreement, there is insufficient evidence they breached the agreement, and common sense militates against the court's findings. The Fieselers respond that while the court's legal theory may be lacking, the injunction should be sustained on a sounder legal theory.
Thus, while the trial court issued its injunction to abate a private nuisance, the Fieselers urge us to affirm the injunction to prevent the ongoing breach of the parties' oral agreement. (Smith v. Mendonsa (1952) 108 Cal.App.2d 540, 543.) In Smith, one landowner agreed to limit the height of his trees to 15 feet so as not to shade his neighbor's adjacent orchard. When he failed to honor the agreement, the court granted the neighbor's request for injunctive relief to prevent the damages from recurring each year. (Id. at p. 542.) Similarly, the court below issued an injunction to prevent the Tates from continuing to close and/or lock the common gate when the Fieselers were home. We will not disturb a ruling, correct in law, simply because it may have been based on the wrong theory or for the wrong reasons. (J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15-16.) For that reason, if there is substantial evidence to support the trial court's factual findings, we will not vacate the injunction because the justification is to prevent recurring breaches of contract rather than to abate a private nuisance.
And so our review comes full circle once again. The Tates would have us ignore the Fieselers' testimony that the common gate has been closed or locked while they are home, causing substantial inconvenience to them and to their guests. Although the Tates have come to discredit any- and everything their neighbors say, the court has the prerogative to assess each witness's credibility and to determine whom to believe. In this case, the court accepted the Fieselers' description of the oral agreement they had with the Tates and the manner in which the Tates continued to breach their obligation to leave the gate open when the Fieselers were home, and to install their own private gate. This testimony provides ample evidence in support of the trial court's factual findings, and those findings amply support the injunctive relief the court provided. Because substantial evidence supports the court's findings, we need not consider the Tates' self-serving declarations that such an agreement would have been unlikely since they do not have livestock and would have no need for two gates.
IV Surveyors' Equipment and the Misplaced Monument
The Tates failed to ask the trial court to explain the basis for awarding $500. As before, we will presume that the trial court made all the factual findings necessary to support the judgment in the absence of a request for clarification. (Shaw, supra, 170 Cal.App.4th at p. 267.) The Tates believe they are entitled to $450 for a new boundary monument. We presume the court found the Fieselers were not responsible for the damage to the monument based on Richard's testimony he did not move it. Even assuming Kristine moved it, there was no evidence she damaged it.
The surveyor did not testify at trial. Linda testified she paid him $763.90 for repair of his equipment. Richard testified he pushed the equipment over to the Tates' side of the boundary. We presume the court found that Richard's mere "pushing" of the equipment did not cause the full amount of the damages charged in the invoice. Based on Richard's testimony, the court discounted the amount of damages to correspond to a reasonable estimate of the damage he caused. There was no error.
The judgment is affirmed.
We concur: BLEASE , J. MURRAY , J.