On July 09, 2018 a
AMENDED FINDINGS OF FACT/CONCLUSION OF LAW - FINDINGS OF FACT/CONCLUSIONS OF LAW
was filed
involving a dispute between
Merwin, Betty,
Merwin, Lee,
Rushing, Janice,
Rushing, Lige, Jr,
and
Merwin, Betty,
Merwin, Lee,
Rushing, Janice,
Rushing, Lige, Jr.,
for PROPERTY
in the District Court of Dallas County.
Preview
FILED
12/2/2020 2:12 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Terri Kilgore DEPUTY
CAUSE N0. DC'18'08876
LEE MERWIN AND BETTY § IN THE DISTRICT COURT
MERWIN §
§
Plaintiffs, §
§
vs. § 192nd JUDICIAL DISTRICT
§
JANICE RUSHINC AND LICE §
RUSHINC JR.
g
Defendants. DALLAS COUNTY, TEXAS
g
PLAINTIFFS’ AMENDED PROPOSED FINDINGS OF FACT AND
CONCLUSIONS OF LAW
Plaintiffs Lee and Betty MerWin in the above-entitled cause, le these
proposed ndings of fact and conclusions of law:
I.
FINDING OF FACTS
1. The Merwins purchased the property, legally described as Lot 25, Block
4/5450 of Caruth Hills No. 8, an addition to the City of Dallas, Dallas County, Texas,
commonly known as 7507 Colgate Avenue, Dallas County, Texas (the “Merwin
Property”), in 1980 and have continuously lived there since its purchase.
2. Janice and Lige Rushing, Jr. obtained title to the real property and
improvements thereon legally described as Lot 24, Block 4/5450 of Caruth Hills No.
8, commonly known as 7515 Colgate Avenue, Dallas, Texas (the “Rushing Property”)
by Warranty Deed on February 8, 1999.
PLAINTIFFS’ AMENDED PROPOSED FINDINGS 0F FACT AND CONCLUSIONS OF LAW Page 1
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3. In 2003, the Rushings moved out of the Rushing Property, and did not
maintain the Rushing Property for the next 15 years, including failing to remove tree
limbs and other debris from the yard, and failing to water their yard.
4. The Rushings have not exercised actual and visible possession of the
real property in dispute between the Merwin Property and the Rushing Property (the
“Disputed Property”), including the one-half of green space nearest the Rushing
Property between the driveways of the Merwin Property and the Rushing Property
(the “Disputed Property Green Space Location”), nor the Disputed Property
pertaining to the fence location between the Merwin Property and Rushing Property
(the “Disputed Fence Location”), at any time since February, 1999.
5. The Rushings have not cultivated the Disputed Property Green Space
Location since 2003, and did not plant any shrubbery or owers thereon until after
the commencement of this lawsuit.
6. The Merwins have held the Disputed Property Green Space Location
adversely or hostile to a claim of ownership by the Rushings.
7. The Merwins have held the Disputed Fence Location adversely or hostile
to a claim of ownership by the Rushings.
8. The Merwins have had possession of the Disputed Property Green Space
Location that was open and notorious.
9. The Merwins have had possession of the Disputed Fence Location that
was open and notorious.
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10. The Merwins have held possession of the Disputed Property Green
Space Location exclusively, to the exclusion of the Rushings, for over 15 years.
11. The Merwins have held possession of the Disputed Fence Location
exclusively, to the exclusion of the Rushings, for over 37 years.
12. The “New Wooden Fence” replaced an old chain link fence that
separated the Merwin Property and the Rushing Property in 2018. The New Wooden
Fence sits on the same place as the previous chain link fence.
13. The New Wooden Fence does not prevent the Rushings from adequately
maintaining the Rushing Property and using it for its intended purposes.
14. The 2018 survey conducted by Land Point Surveyors shows the metal
fence posts sit over the boundary line between the Rushings Property and the Merwin
Property anywhere from .5’ to .75’.
15. The 2018 survey conducted by Land Point Surveyors shows the New
Wooden Fence’s brick sits .5’ over the boundary line between the Rushings Property
and the Merwin Property at various points.
16. The 2018 survey conducted by Land Point Surveyors shows the concrete
for the posts 0n the New Wooden Fence sits .88’-1.0’ over the boundary line between
the Rushings Property and the Merwin Property.
17. The 2018 survey conducted by Land Point Surveyors shows the fence
slat at the back of the Rushings Property sits .2’ over the boundary line between the
Rushings Property and the Merwin Property.
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18. In total, the New Wooden Fence occupies approximately 6 square feet of
the Rushing Property.
19. The Rushing Property is 3,955 square feet. The encroachment of the
New Wooden Fence occupies 0.15% 0f the Rushing Property.
20. Heavy equipment and machinery is necessary t0 remove the New
Wooden Fence’s concrete that sits on the Rushing Property. This equipment and
machinery would have to operate on the Merwin Property.
21. The weight of the equipment and machinery would cause damage to the
Merwins’ driveway on their property.
22. The Merwins have an electronic gate on the Merwin Property that
permits access to and from the garage on the Merwin Property.
23. To move the New Wooden Fence would require removing a portion of the
Merwins’ electronic gate.
24. Moving the fence and the electronic gate six inches west on the Merwin
Property would make the gate’s opening too narrow to t their vehicles through,
prohibiting the Merwins from accessing their driveway.
25. The removal of the fence, the fence posts, and the brick and concrete slab
that encroaches onto the Rushing Property will create an unnecessary hardship to
the Merwins, and create an unreasonable restriction on the Merwins use of the
Merwin Property.
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II.
CONCLUSIONS OF LAW
26. The fence, the gate, and the fence posts and the brick and concrete slab
that intrude onto the Rushing Property do not prevent the Rushings from using the
property for its intended purposes.
27. The intrusion of the New Wooden Fence onto the Rushing Property is
not material on the 3,955 square foot property.
28. The Rushings have no legal entitlement to a 6-foot setback between the
Rushings’ house and any fence.
29. Requiring the Merwins to move the fence, the fence posts, the brick, and
concrete slab that encroach 0n the Rushing Property is a drastic remedy for such a
minor transgression of the law.
30. The Rushings are not seeking monetary damages for loss of use of the
land 0r the loss of market value of their property.
31. The Merwins have acquired title to the Disputed Green Space Location
by way of adverse possession, pursuant to Texas Civil Practice and Remedies Code §
16.026.
32. The parties are responsible for paying their own attorney’s fees and costs
incurred.
PLAINTIFFS’ AMENDED PROPOSED FINDINGS 0F FACT AND CONCLUSIONS OF LAW Page 5
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Respectfully submitted,
Underwood Perkins, P.C.
/S/ScottM Gareljck
Scott M. Garelick
State Bar No. 24029053
Alex M. Campbell
State Bar No. 24095536
5420 LBJ Freeway, Suite 1900
Dallas, Texas 75240
Telephone: (972) 661-5114
Facsimilel (972) 661-5691
Email: sgarelick@unlawtx.com
acamnbell@uplawtx.com
Attorneys for Lee and Betty Merwjn
CERTIFICATE OF SERVICE
The undersigned certies that a true and correct copy of the above and
foregoing document was served upon all counsel of record pursuant to the Texas Rules
of Civil Procedure on December 2, 2020, as followsi
Robert K. Frisch
Attorney at Law
15150 Preston Road, Suite 240
Dallas, Texas 75248
rkfrischlaw@msn.com
Attorn ey for Defen clan ts
/S/ Scott M Garelick
Scott M. Garelick
PLAINTIFFS’ AMENDED PROPOSED FINDINGS 0F FACT AND CONCLUSIONS OF LAW Page 6
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Preview
FILED 12/2/2020 2:12 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Terri Kilgore DEPUTY CAUSE N0. DC'18'08876 LEE MERWIN AND BETTY § IN THE DISTRICT COURT MERWIN § § Plaintiffs, § § vs. § 192nd JUDICIAL DISTRICT § JANICE RUSHINC AND LICE § RUSHINC JR. g Defendants. DALLAS COUNTY, TEXAS g PLAINTIFFS’ AMENDED PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiffs Lee and Betty MerWin in the above-entitled cause, le these proposed ndings of fact and conclusions of law: I. FINDING OF FACTS 1. The Merwins purchased the property, legally described as Lot 25, Block 4/5450 of Caruth Hills No. 8, an addition to the City of Dallas, Dallas County, Texas, commonly known as 7507 Colgate Avenue, Dallas County, Texas (the “Merwin Property”), in 1980 and have continuously lived there since its purchase. 2. Janice and Lige Rushing, Jr. obtained title to the real property and improvements thereon legally described as Lot 24, Block 4/5450 of Caruth Hills No. 8, commonly known as 7515 Colgate Avenue, Dallas, Texas (the “Rushing Property”) by Warranty Deed on February 8, 1999. PLAINTIFFS’ AMENDED PROPOSED FINDINGS 0F FACT AND CONCLUSIONS OF LAW Page 1 100010331v1 - M1673.00002 201202 Merwin Amd Propd FFCL 3. In 2003, the Rushings moved out of the Rushing Property, and did not maintain the Rushing Property for the next 15 years, including failing to remove tree limbs and other debris from the yard, and failing to water their yard. 4. The Rushings have not exercised actual and visible possession of the real property in dispute between the Merwin Property and the Rushing Property (the “Disputed Property”), including the one-half of green space nearest the Rushing Property between the driveways of the Merwin Property and the Rushing Property (the “Disputed Property Green Space Location”), nor the Disputed Property pertaining to the fence location between the Merwin Property and Rushing Property (the “Disputed Fence Location”), at any time since February, 1999. 5. The Rushings have not cultivated the Disputed Property Green Space Location since 2003, and did not plant any shrubbery or owers thereon until after the commencement of this lawsuit. 6. The Merwins have held the Disputed Property Green Space Location adversely or hostile to a claim of ownership by the Rushings. 7. The Merwins have held the Disputed Fence Location adversely or hostile to a claim of ownership by the Rushings. 8. The Merwins have had possession of the Disputed Property Green Space Location that was open and notorious. 9. The Merwins have had possession of the Disputed Fence Location that was open and notorious. PLAINTIFFS’ AMENDED PROPOSED FINDINGS 0F FACT AND CONCLUSIONS OF LAW Page 2 100010331v1 - M1673.00002 201202 Merwin Amd Propd FFCL 10. The Merwins have held possession of the Disputed Property Green Space Location exclusively, to the exclusion of the Rushings, for over 15 years. 11. The Merwins have held possession of the Disputed Fence Location exclusively, to the exclusion of the Rushings, for over 37 years. 12. The “New Wooden Fence” replaced an old chain link fence that separated the Merwin Property and the Rushing Property in 2018. The New Wooden Fence sits on the same place as the previous chain link fence. 13. The New Wooden Fence does not prevent the Rushings from adequately maintaining the Rushing Property and using it for its intended purposes. 14. The 2018 survey conducted by Land Point Surveyors shows the metal fence posts sit over the boundary line between the Rushings Property and the Merwin Property anywhere from .5’ to .75’. 15. The 2018 survey conducted by Land Point Surveyors shows the New Wooden Fence’s brick sits .5’ over the boundary line between the Rushings Property and the Merwin Property at various points. 16. The 2018 survey conducted by Land Point Surveyors shows the concrete for the posts 0n the New Wooden Fence sits .88’-1.0’ over the boundary line between the Rushings Property and the Merwin Property. 17. The 2018 survey conducted by Land Point Surveyors shows the fence slat at the back of the Rushings Property sits .2’ over the boundary line between the Rushings Property and the Merwin Property. PLAINTIFFS’ AMENDED PROPOSED FINDINGS 0F FACT AND CONCLUSIONS OF LAW Page 3 100010331v1 - M1673.00002 201202 Merwin Amd Propd FFCL 18. In total, the New Wooden Fence occupies approximately 6 square feet of the Rushing Property. 19. The Rushing Property is 3,955 square feet. The encroachment of the New Wooden Fence occupies 0.15% 0f the Rushing Property. 20. Heavy equipment and machinery is necessary t0 remove the New Wooden Fence’s concrete that sits on the Rushing Property. This equipment and machinery would have to operate on the Merwin Property. 21. The weight of the equipment and machinery would cause damage to the Merwins’ driveway on their property. 22. The Merwins have an electronic gate on the Merwin Property that permits access to and from the garage on the Merwin Property. 23. To move the New Wooden Fence would require removing a portion of the Merwins’ electronic gate. 24. Moving the fence and the electronic gate six inches west on the Merwin Property would make the gate’s opening too narrow to t their vehicles through, prohibiting the Merwins from accessing their driveway. 25. The removal of the fence, the fence posts, and the brick and concrete slab that encroaches onto the Rushing Property will create an unnecessary hardship to the Merwins, and create an unreasonable restriction on the Merwins use of the Merwin Property. PLAINTIFFS’ AMENDED PROPOSED FINDINGS 0F FACT AND CONCLUSIONS OF LAW Page 4 100010331v1 - M1673.00002 201202 Merwin Amd Propd FFCL II. CONCLUSIONS OF LAW 26. The fence, the gate, and the fence posts and the brick and concrete slab that intrude onto the Rushing Property do not prevent the Rushings from using the property for its intended purposes. 27. The intrusion of the New Wooden Fence onto the Rushing Property is not material on the 3,955 square foot property. 28. The Rushings have no legal entitlement to a 6-foot setback between the Rushings’ house and any fence. 29. Requiring the Merwins to move the fence, the fence posts, the brick, and concrete slab that encroach 0n the Rushing Property is a drastic remedy for such a minor transgression of the law. 30. The Rushings are not seeking monetary damages for loss of use of the land 0r the loss of market value of their property. 31. The Merwins have acquired title to the Disputed Green Space Location by way of adverse possession, pursuant to Texas Civil Practice and Remedies Code § 16.026. 32. The parties are responsible for paying their own attorney’s fees and costs incurred. PLAINTIFFS’ AMENDED PROPOSED FINDINGS 0F FACT AND CONCLUSIONS OF LAW Page 5 100010331v1 - M1673.00002 201202 Merwin Amd Propd FFCL Respectfully submitted, Underwood Perkins, P.C. /S/ScottM Gareljck Scott M. Garelick State Bar No. 24029053 Alex M. Campbell State Bar No. 24095536 5420 LBJ Freeway, Suite 1900 Dallas, Texas 75240 Telephone: (972) 661-5114 Facsimilel (972) 661-5691 Email: sgarelick@unlawtx.com acamnbell@uplawtx.com Attorneys for Lee and Betty Merwjn CERTIFICATE OF SERVICE The undersigned certies that a true and correct copy of the above and foregoing document was served upon all counsel of record pursuant to the Texas Rules of Civil Procedure on December 2, 2020, as followsi Robert K. Frisch Attorney at Law 15150 Preston Road, Suite 240 Dallas, Texas 75248 rkfrischlaw@msn.com Attorn ey for Defen clan ts /S/ Scott M Garelick Scott M. Garelick PLAINTIFFS’ AMENDED PROPOSED FINDINGS 0F FACT AND CONCLUSIONS OF LAW Page 6 100010331v1 - M1673.00002 201202 Merwin Amd Propd FFCL