Affirm in part; Reverse in part and Remand and Opinion Filed September 26, 

2023

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-22-00236-CV

WILLIAM LISLE AND SMITH-LISLE HOLDINGS, LTD., Appellants

V.

DO-MO JOINT VENTURE, Appellee

On Appeal from the 416th Judicial District Court

Collin County, Texas

Trial Court Cause No. 416-00639-2015

MEMORANDUM OPINION ON REHEARING

Before Justices Partida-Kipness, Nowell, and Rosenberg1

Opinion by Justice Nowell

Before the Court is the motion for rehearing filed by appellant Smith-Lisle 

Holdings, Ltd. We grant the motion for rehearing in part and deny the motion in part. 

We withdraw our May 10, 2023 opinion and vacate our judgment of that date. The 

following is now the opinion of the Court.

DO-MO Joint Venture owns property on 14th Street in Plano, Texas, where it 

operates medical and dental practices. Dr. Curtis Crandall and Dr. John Findley work 

 

1 The Hon. Barbara Rosenberg, Justice, Assigned
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at the DO-MO office. Smith-Lisle Holdings, Ltd. (SLH) purchased the lots adjacent 

to DO-MO in 2013, and its sole owner, William Lisle, operated a landscaping 

business from the SLH property. A series of disagreements arose between the Lisle 

Parties and DO-MO, and those disagreements culminated in this lawsuit. After 

submitting their disputes to a jury, the jury found in DO-MO’s favor. The Lisle 

Parties appeal from the final judgment and raise seven issues on appeal. We reverse 

the trial court’s judgment in part, affirm in part, and remand for further proceedings. 

FACTUAL BACKGROUND

SLH’s and DO-MO’s properties both front 14th Street near its intersection 

with N Avenue. An alley from N Avenue runs behind the DO-MO property and 

dead-ends into SLH’s property.
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A. Border Vegetation and Wall

Seeking to improve the appearance of SLH’s property, Lisle tore down an 

existing abandoned house, built a small office building, and started landscaping. As 

part of the re-landscaping work, Lisle removed vegetation on the SLH—DO-MO 

property line, installed a trench to build a wall near the property line, and diverted 

the flow of rain water away from SLH’s property. 

Lisle began by removing a hackberry tree that was wholly on SLH’s property. 

After cutting down the first tree, the Lisle Parties received a letter dated October 4, 

2013, from DO-MO’s counsel, which states:

Since your purchase of 1414 14th Street, you have violated 

Domo’ [sic] property rights by committing trespass and by unlawfully 
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destroying Domo’s trees.2 And based on representations made by you, 

you intend on committing further unlawful acts by destroying more of 

Domo’s trees, its shrubbery, and the root system to its trees.

You are hereby ordered to cease and desist from violating 

Domo’s property rights. If you insist on committing trespass, 

destroying Domo’s property, and further violating Domo’s property 

rights, I will [sic] no option but to seek a temporary restraining order 

and an injunction against you.

Three days later, DO-MO’s counsel sent a second letter to the Lisle Parties:

My client is concerned about the trees/vegetation that form the 

border between its property and Smith-Lisle Holdings, Ltd.’s property 

and the root systems of its trees/vegetation.

The trees and vegetation that comprise the border between the 

two properties belong to Domo and Smith-Lisle Holding’s [sic] jointly 

or as tenants in common. As such, neither party is at liberty to cut these 

trees/vegetation without the consent of the other, nor cut away the part 

which extends into its land. . . . Thus, Smith-Lisle Holdings, Ltd. does 

not have the right to cut down/cut back or damage the trees/vegetation 

the [sic] form the common border between the two properties. 

Regarding the root system of Domo’s trees/vegetation, SmithLisle Holdings, Ltd. does not have the absolute right to damage their 

root systems.

On October 16, 2013, the Lisle Parties’ counsel responded:

I am writing to respond to your letter to my client of October 7, 2013. 

My client would like to do everything in its power to minimize the risk 

of damage to surrounding property, but he is entitled to develop his 

property in compliance with applicable law.

Border Trees/Vegetation and Root Systems

We agree that it is settled law in Texas that parties may not remove or 

cut back border trees or vegetation without the consent of the owner of 

the adjacent tract of land. You also assert (and we agree) that [SLH]

must act reasonably in how it develops its property in order to avoid 

 

2 DO-MO conceded at trial that the hackberry tree that Lisle first cut was not on its property and its 

lawyer’s representation to the contrary was incorrect.
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damage to the root systems. [SLH] might damage roots in the process, 

but, as long as it acts reasonably, such damage will not be actionable.

At the time the October 16 letter was sent, Lisle had only removed the 

hackberry tree. Despite knowing DO-MO wanted to keep the trees on the property 

line, Lisle proceeded to remove vegetation on the property line without DO-MO’s 

permission, including a 20-inch, healthy ash tree that straddled the property line. The 

jury saw pictures of some of the vegetation Lisle removed. Lisle testified his attorney 

told him he had to act reasonably with respect to border trees. He interpreted this 

instruction to mean it was reasonable to remove something he did not want on his 

property, but it was not reasonable to leave half of a tree because it was on someone 

else’s property. Lisle testified he did not intend to injure DO-MO when he cut down 

the tree, and he did not view the tree as something valuable to DO-MO.

Lisle conceded that to remove the ash tree, he or his employees went “[a] few 

inches” onto DO-MO’s property; he also testified “the blade would have had to cross 

the property line in making the cut.” Additionally, the stump grinder used to remove 

the stump from a pecan tree he cut down crossed the property line. 

Lisle also wanted to build a six-foot stone screening wall between the 

properties. He testified he reached out to DO-MO’s manager, Dr. Curtis Crandall,

about building the wall and provided a picture of the proposed wall, but Crandall did 

not respond. Because Crandall did not respond to his calls, Lisle “[e]ventually . . .
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just got started on my wall.” To build the wall, Lisle severed the roots of vegetation 

along the property line without DO-MO’s permission. 

In contrast to Lisle’s testimony, the record includes a November 21, 2014 

letter that DO-MO’s counsel sent to counsel for the Lisle Parties. The letter states:

Bill Lisle provided my client with a copy of the attached proposal 

for a “6’ New Fence, 6’ brick with 7’ rock columns,” and asked for my 

client’s response. I wanted to contact you today because Mr. Lisle said 

that he planned to start construction next week (the week of November 

24), if he didn’t hear from DOMO.

. . . 

Second, Mr. Lisle proposes to “remove all existing vegetation.” 

To the extent that DOMO has an ownership in any vegetation to be cut

or removed, or whose root system is to be damaged or affected, DOMO 

doesn’t currently agree to Mr. Lisle’s proposal.

Third, DOMO is concerned with Mr. Lisle’s proposal insofar as 

it will likely worsen the drainage problem he has already created at the 

southeast edge of the property and possibly cause further diversion or 

retention of water on DOMO’s property, thus creating additional 

damage to DOMO’s property.

. . .

In any event, DOMO is willing to consider further information 

about Mr. Lisle’s project.

B. Flooding DO-MO’s Property

Historically, rainwater flowed from DO-MO’s parking lot, into the alley, and

on to the SLH property. Approximately six months after SLH purchased the 

property, Lisle noticed water running through the alley and on to his property “like 

a river” after a rainstorm. Lisle told Crandall “to keep your water on your property”

and he was considering building a wall to stop the water. Lisle then built a concrete 

driveway that is approximately eight inches above the DO-MO parking lot and a 

gravel ramp to connect the driveway to the city alley. After Lisle installed the new 
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driveway and ramp, rainwater stopped flowing from DO-MO’s parking lot on to 

SLH’s property and instead it collected on DO-MO’s parking lot. 

Lisle testified the water from DO-MO’s property historically did not flow on 

to the SLH property. Rather, the water from DO-MO’s property flowed into the 

alley, so he did not block the flow of water from DO-MO’s property when he built 

the driveway and ramp. Lisle testified: 

Q. And what you were intending to do was stop the flow of 

water that had been flowing there before you bought the property? You 

were trying to stop it flowing onto your property, right?

A. Yes.

Q. And you intentionally set about to stop that water from 

getting onto your property?

A. Yes. 

. . . 

Q. Sir, did you tell [DO-MO] you were going to stop - - told 

[DO-MO] you were going to stop the water from either the City or their 

property flowing onto your property?

A. Yes. I let them know, and I also let the City engineering 

department know that there’s no easement for flooding my property 

with everyone else’s water.

. . . 

Q. . . . that’s the pitch point for where all the water will flow, 

correct?

A. Yes.

Q. And so if the water is stopped there, it’s got to go 

somewhere, right?

A. Yes, water’s going to seek its own level.

Q. And is going to seek its level not only in the city alley but 

on my client’s property, and you’ve actually seen that, haven’t you?

A. Yes, it pools there. 

Q. The water did not pool there before you started this 

project, did it?

A. That’s correct.

Q. And after you started all the project, it began pooling there, 

correct?
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A. That’s correct.

Q. So in effect, what you did was have [sic] diverted the flow 

of the water onto the alley and my client’s property, right?

A. Yes. 

. . . 

Q. And you intentionally did that, didn’t you?

A. Yes. 

Q. And you knew my clients were opposed to you doing that?

A. Yes. 

Q. So it’s not just going back in the city alley is it, the water?

A. No, it expands onto your client’s property. 

. . . 

Q. And it was solely through your actions that the water has 

begun now pooling on my client’s property, right?

A. Yes. 

After building the driveway and ramp, Lisle testified he went “through 

extensive efforts to make sure that water does not stand on the DO-MO property,”

including working with the City to build a drainage swale. Lisle testified that at the 

time of trial, 100 percent of the water from DO-MO’s property flowed off of DOMO’s property and into the drainage swale unless “it’s really raining hard and the 

swale is not handling all the water, [then] the water will still come down next to the 

southern edge of my driveway and still flood into my property.”

C. DO-MO’s Driveway and Parking Lot

Lisle owns and operates a landscaping business from the property. His 

landscaping crews drive pickup trucks (some with trailers) through the alley behind 

DO-MO’s property. The landscaping business also receives deliveries that may be 

transported on large trucks.
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Findley and Crandall testified that before SLH purchased its property, they 

had not seen any large trucks around DO-MO’s property. However, after SLH 

purchased the property, “semitrucks, the grass trucks, and stone trucks, and those 

kinds of things” began driving on DO-MO’s parking lot. Findley testified: “To the 

best of my knowledge, I never remember semis coming through our parking lot until 

Mr. Lisle moved in.”

The jury saw pictures of several dozen trucks, heard testimony about whether 

the trucks belonged to the Lisle Parties, and heard testimony about whether the 

trucks were in the alley or on DO-MO’s parking lot. As to a picture of one truck, 

Lisle testified it was not his truck, but the truck appeared to be coming from his 

property and on to the alley; Lisle gave the driver permission to be on his property. 

When asked why the truck drove “through the DO-MO property,” Lisle replied: 

“Because they were idiots.”

Findley testified he saw trucks that were driving to or from SLH’s property 

on to DO-MO’s property. Findley provided conflicting testimony about ownership 

of the trucks. When he was asked if he knew whether any of the trucks in the pictures 

belong to Lisle, he replied: “Yes, sir, I do very definitely.” He also testified he did 

not know who the trucks belonged to. Findley did not know whether Lisle told any

driver to drive on the DO-MO parking lot, but he thought Lisle approved of the 

various trucks driving through DO-MO’s property. 
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When asked whether he had actual knowledge whether the trucks were Lisle’s 

trucks or coming from Lisle’s property, Crandall testified “Yes, it’s very easy to see 

that they were coming in and out of his property.” Later in his testimony, when 

looking at the trucks in the pictures, Crandall could not testify whether the trucks 

belonged to Lisle or people acting at Lisle’s direction.

Lisle testified his trucks did not cross on to DO-MO’s property and “[t]here 

are no truck pictures of my trucks on their property.” Lisle explained: “I can tell you 

that I have made it very clear to them they could use the alley, and they should never 

cross the parking lot.”

DO-Mo hung “no trespassing” signs four times to try to divert traffic off its 

the parking lot, but, Findley testified, “the next morning when I’d come in, [the signs 

would] be gone.” Lisle testified he had “no idea” what happened to the signs, but 

neither he nor his employees removed them. DO-MO’s legal counsel sent an email 

on April 7, 2015, to the Lisle Parties’ counsel stating: 

Unfortunately, your client is not telling you the truth. Your client 

continues to trespass and I’m formally notifying you, pursuant to 

applicable Texas law that DO-MO property is POSTED NO 

TRESPASSING as the property relates to your client. Please advise 

him immediately of this notification. 

He is not a business invitee and is specifically prohibited either 

directly or indirectly by his employees or independent contractors from 

trespassing on any of my clients’ property.

I am attaching photographs of your client’s trucks driving all 

over my clients’ property over the last four business days. The last 

photo, as it says, is one of your client’s trucks in my client’s parking lot 

this morning. Those trucks are going to destroy the asphalt driveway 

and we intend to sue your client to replace the entire parking lot.
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Despite the signs and the April 2015 email, the trucks did not stop driving on DOMO’s property. Crandall testified: “Sometimes we talked about it like a parade”

because there were so many trucks. Eventually DO-MO erected “big concrete 

barricades” with connecting steel cables to keep the trucks off their parking lot. 

Findley testified the trucks damaged DO-MO’s asphalt parking lot. Crandall 

also testified the trucks damaged the parking lot by creating more potholes and

cracks in the asphalt. Conversely, Lisle argued there was no evidence that the trucks 

destroyed DO-MO’s parking lot. Lisle believed the damage to DO-MO’s parking lot 

was caused by the trash trucks that entered DO-MO’s property to empty its 

dumpsters.

The case was submitted to a jury, and the jury found in favor of DO-MO. The 

jury found Lisle and SLH trespassed on DO-MO’s property, diverted or impounded 

the natural flow of surface waters in a manner that damaged DO-MO’s property, and 

were negligent. The jury awarded damages and exemplary damages. The trial court 

entered its final judgment based on the jury’s verdict. This appeal followed.

LAW & ANALYSIS

A. Trespass on DO-MO’s Property

In their first issue, the Lisle Parties argue DO-MO failed to present more than 

a scintilla of evidence that their trucks trespassed on DO-MO’s property or they 

caused any other trucks to trespass on DO-MO’s property and, as a result, the 
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evidence is insufficient to support the jury’s trespass finding or award of 

corresponding damages.

“Trespass to real property is an unauthorized entry upon the land of another, 

and may occur when one enters—or causes something to enter—another’s 

property.” Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 46 

(Tex. 2017); see also Envtl. Processing Sys., L.C. v. FPL Farming Ltd., 457 S.W.3d 

414, 419 (Tex. 2015) (listing elements of trespass as: (1) entry (2) onto the property 

of another (3) without the property owner’s consent or authorization). “[E]very 

unauthorized entry upon land of another is a trespass even if no damage is done or 

injury is slight.” Lightning Oil Co., 520 S.W.3d at 46. 

1. Standard of Review

When, as here, a party challenges the legal sufficiency of the evidence to 

support an adverse finding on which it did not have the burden of proof, the party 

must demonstrate that no evidence supports the finding. Tex. Champps Americana, 

Inc. v. Comerica Bank, 643 S.W.3d 738, 744 (Tex. App.—Dallas 2022, pet. denied).

When determining whether the evidence is legally sufficient to support the 

challenged finding, we review the evidence in the light most favorable to the finding. 

Id. We credit favorable evidence if a reasonable factfinder could and disregard 

contrary evidence unless a reasonable factfinder could not. Id. 

Anything more than a scintilla of evidence is legally sufficient to support the 

challenged finding. Id. More than a scintilla of evidence exists “when the evidence 
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as a whole rises to a level enabling reasonable and fair-minded people to have 

different conclusions.” Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 

434 S.W.3d 142, 156 (Tex. 2014). When a legal sufficiency point is sustained, the 

appellate court’s duty is to reverse and render. Thomas v. Am. Express Nat’l Bank, 

No. 05-22-00024-CV, 2022 WL 17843546, at *1 (Tex. App.—Dallas Dec. 22, 2022, 

no pet.) (mem. op.) (citing Heritage Resources, Inc. v. Hill, 104 S.W.3d 612, 619 

(Tex. App.—El Paso 2003, no pet.)).

2. Analysis

The jury was asked whether the Lisle Parties trespassed on DO-MO’s property 

in Question 1, which states: 

Did any of those named below trespass on Plaintiff DoMo 

Joint Venture’s property? 

“Trespass” means an entry on the property of another without 

having consent or authorization of the owner. To constitute trespass, 

entry upon another’s property need not be in person, but may be made 

by causing or permitting a thing to cross the boundary of the property.

Any person who assists, advises, or encourages the commission 

of the trespass is liable as a trespasser.

The jury answered “yes” for both Lisle and SLH. 

Although the Lisle Parties challenge the sufficiency of the evidence showing 

their trucks or trucks authorized by them trespassed on DO-MO’s property, Question 

1 is not limited to whether truckstrespassed on DO-MO’s property. The Lisle Parties 

do not challenge the sufficiency of the evidence that they trespassed on DO-MO’s 

property when they removed the border vegetation, and there is sufficient evidence 
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to support the jury’s answer to Question 1 on this basis alone. Lisle testified he 

removed the ash tree, including the portion on DO-MO’s property. To do so, he (or 

persons he employed) crossed the property line and the blade to cut the tree had to 

cross the property line. Additionally, the stump grinder crossed the property line on 

to DO-MO’s property. 

There is also sufficient evidence that trucks trespassed on DO-MO’s property.

Before SLH purchased its property, Crandall and Findley had not seen any 

semitrailers or large trucks around DO-MO’s property. However, after SLH 

purchased the property, “semitrucks, the grass trucks, and stone trucks, and those 

kinds of things” began driving on DO-MO’s parking lot. Findley and Crandall both 

testified the Lisle Parties’ trucks or trucks authorized by them drove on DO-MO’s 

property. Findley testified: 

Q. In fact, can you swear as a witness under oath that any of 

the trucks that you have seen in these pictures that [DO-MO’s counsel] 

showed you belong to Bill Lisle?

A. Yes, sir, I do very definitely.

Similarly, when asked whether he had actual knowledge the trucks were Lisle’s 

trucks or coming from Lisle’s property, Crandall testified “Yes, it’s very easy to see 

that they were coming in and out of his property.”

Viewing this and other evidence in the light most favorable to the jury’s 

finding and crediting favorable evidence where a reasonable factfinder could and 

disregarding contrary evidence unless a reasonable factfinder could not, we conclude 
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there is more than a scintilla of evidence to support the jury’s finding that the Lisle 

Parties trespassed on DO-MO’s property. We overrule the Lisle Parties’ first issue.

B. Damages

The Lisle Parties also challenge the damages awarded for trespassing on DOMO’s property. In their fourth issue, the Lisle Parties argue the evidence is legally 

insufficient to support any amount of damages awarded to repair DO-MO’s parking 

lot.3 The Lisle Parties assert Crandall’s testimony is insufficient to support the 

damages award because Crandall’s testimony is conclusory and speculative and he 

did not testify about the cost to repair as charged in Question 6. In response, DOMO argues Crandall’s testimony is sufficient evidence and the Lisle Parties failed to 

object to much of the testimony. We again apply the legal sufficiency standard set 

forth above. 

1. Jury Question 6

The jury found Lisle and SLH trespassed on DO-MO’s property (Question 1) 

and Lisle and SLH diverted or impounded the natural flow of surface waters or 

permitted a diversion or impounding of surface waters to continue in a manner that 

damaged DO-MO’s property by the overflow of the water diverted or impounded 

 

3 The Lisle Parties do not challenge the damages awarded to DO-MO to compensate for the Lisle Parties

destroying trees and other vegetation. 
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(Question 2).4 Based on these findings, the jury was instructed to answer Question 

6, which asks:

What sum of money, if paid now in cash, would fairly and 

reasonably compensate DoMo Joint Venture for its property 

damages [sic] to the parking lot, if any, that resulted from the 

following actions in question regarding the parking lot?

Consider only the reasonable cost to restore the parking lot to the 

condition it was in immediately before the occurrences in question.

Do not include any amount for any condition not resulting from 

the acts or omissions in question.

Do not include any amount for any condition existing before the 

damages in question.

Do not include any amount for any condition resulting from the 

failure, if any, of DoMo Joint Venture to have acted as a person of 

ordinary prudence would have done under the same or similar 

circumstances in mitigating its damages, if any, that resulted from the 

actions or omissions in question.

Do not include interest on any amount of damages you find. 

Answer in dollars and cents for damages, if any.

Alleged impounding of natural flow of surface waters in the 

southeastern area of the DoMo parking lot adjacent to the City 

alley.

Answer: $35,000.00

Alleged traversing of parking lot by Defendants’ trucks.

Answer: $125,000.00

 

4 We assume for purposes of our analysis that the evidence is sufficient to support the jury’s answer to 

Question 2.
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2. Property-Owner Rule5

The Property Owner Rule establishes that an owner is qualified to testify to 

property value. Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156 (Tex. 

2012). The rule “falls under Texas Rule of Evidence 701, which allows a lay witness 

to provide opinion testimony if it is (a) rationally based on the witness’s perception 

and (b) helpful to a clear understanding of the witness’s testimony or the 

determination of a fact in issue.” Id. at 157 (citing TEX. R. EVID. 701). Under the 

Rule, an owner’s valuation testimony fulfills the same role that expert testimony 

does. Id.

The property owner’s testimony must meet the same requirements as any 

other opinion evidence. Id. at 156. Opinion testimony “that is conclusory or 

speculative is not relevant evidence, because it does not tend to make the existence 

of a material fact ‘more probable or less probable.’” Id. In Justiss, the Texas Supreme 

Court elaborated:

Because property owner testimony is the functional equivalent of 

expert testimony, it must be judged by the same standards. Thus, as 

with expert testimony, property valuations may not be based solely on 

a property owner’s ipse dixit. An owner may not simply echo the phrase 

“market value” and state a number to substantiate his diminished value 

claim; he must provide the factual basis on which his opinion rests. This 

burden is not onerous, particularly in light of the resources available 

today. Evidence of price paid, nearby sales, tax valuations, appraisals, 

online resources, and any other relevant factors may be offered to 

support the claim. But the valuation must be substantiated; a naked 

assertion of “market value” is not enough. Of course, the owner’s 

 

5 Because the parties agree Crandall could testify to damages pursuant to the Property Owner Rule, for 

purposes of this appeal, we assume the Property Owner Rule applies to Crandall’s testimony.
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testimony may be challenged on cross-examination or refuted with 

independent evidence. But even if unchallenged, the testimony must 

support a verdict, and conclusory or speculative statements do not. 

Id. at 159.

3. Crandall’s Proffered Damages Testimony 

As the managing partner of DO-MO, Crandall testified about damages to DOMO’s parking lot. He explained that asphalt parking lots like DO-MO’s must be 

maintained and have a life span. In July 1998, DO-MO received an estimate to repair 

its parking lot; the estimate states the parking lot “appears to be about 25 years old 

and has reached the end of its normal life cycle.” Crandall agreed that when SLH 

purchased its property in 2013, DO-MO’s parking lot was more than thirty years old 

and at least needed maintenance. 

Historically, DO-MO repaired the parking lot every “three years or so.” The 

record includes several written work proposals and invoices from companies to 

repair the asphalt or striping; these documents are dated before 2011. Crandall 

believed that when SLH purchased its property in 2013, DO-MO’s parking lot 

needed another application of asphalt as it was near the end of the three-to-four year 

cycle. However, DO-MO did not repair the lot because trucks continued trespassing 

on and causing damage to its lot, and DO-MO wanted to fix the driveway only once. 

Crandall testified that in 2017, DO-MO’s parking lot had been sufficiently 

damaged by trucks and traffic that DO-MO opted to pour a large concrete pad in the 

parking lot and a small concrete pad at the exit to N Avenue; DO-MO did not 
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resurface or replace the entire lot at that time. The cost of the two concrete pads was 

$44,000. 

Crandall testified that as a result of the trucks irreparably damaging the DOMO parking lot, the entire parking lot needed to be replaced. Crandall explained his 

understanding that, pursuant to the City of Plano codes,6 when forty percent of a 

parking lot needs to be replaced in a twelve-month time period, then the entire lot 

must be replaced. Accordingly, to bring the parking lot into code compliance, 

Crandall believed DO-MO needed to replace the entire lot. Explaining what must be 

done to fix the asphalt parking lot, Crandall testified: 

The estimates and the people that I talked to that came out and the 

reading that I’ve done, I’ve learned that - - this is kind of interesting - -

what they call the base, the 10-inch or 11-inch depth, has to be

essentially redone. And so they grind up and take away excess 

pavement that’s already there and then they mix in - -

Crandall’s testimony was interrupted by the Lisle Parties’ request for a bench 

conference, and this line of questioning did not resume.

Crandall testified he attempted to determine the size of the parking lot: “When 

I get comparative bids from different companies, they give me an estimate of their 

measurement, and the two most recent ones estimated 25,600 square feet and the 

other one was 26,600 square feet. And then I also used Google Earth and tried to do 

 

6 Crandall testified about “the City of Plano’s codes” without specifying which code or codes. 
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my own, and it came up lower at about 22,500 square feet.” The bids do not appear 

in the record.

Crandall testified $200,000 would allow DO-MO to “fix” the parking lot: 

Q. And you arrived at that number from talking to different 

estimators?

A. Correct.

Q. And did you look at various numbers about what you’d 

already paid people?

A. Yes, and conversation.

Q. Okay. And do you have an opinion on whether that amount 

is reasonable to repair the damage from both water and these 18-

wheelers and the trucks driving on your parking lot?

MR. DOWNS: Your Honor, I object that the question - -

or excuse me - - the witness has not yet been qualified to give this 

testimony.

THE COURT: Overruled.

A. As the property owner, it’s my opinion that the $200,000 

would allow us to fix the parking lot. 

The $200,000 estimate did not include the $44,000 repair from 2017.

When asked how he educated himself about the cost to repair the parking lot, 

Crandall testified he has received multiple estimates from contractors, including 

Rose Paving and Elite Asphalt. He stated an Elite Asphalt company representative 

visited DO-MO’s property to provide an estimate “to make us a good parking lot.”

He went through a similar process with a representative from Rose Paving. With 

respect to the estimates he received, Crandall did not testify about how much the 

companies stated the work would cost or whether they were to repair the damage 

caused by the Lisle Parties or to replace the entire lot, and the estimates do not appear 
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in the record. The $200,000 figure did not include depreciation because, Crandall 

testified, “that doesn’t help me get a new one [parking lot].”

When asked whether he attempted “to determine what the fair market value 

would be to fix the parking lot at DO-MO,” Crandall responded he “spent a good 

amount of time on that,” but provided no additional information. 

4. Analysis

Crandall testified that $200,000 would allow DO-MO to “fix” the parking lot,

and he explained he asked an estimator “to make us a good parking lot.” Crandall’s 

testimony is unclear whether the amount to “fix” the parking lot or to “make us a 

good parking lot” is the cost of replacing the lot or repairing the damage caused by 

the Lisle Parties. The jury was asked to provide the reasonable amount to repair the 

parking lot. 

If we assume the evidence shows $200,000 is the cost to repair the parking lot 

as provided for in the jury charge, Crandall provided no factual basis for this amount 

of money. Crandall testified he solicited estimates, but he provided no information 

about these estimates and the bids do not appear in the record. Crandall testified that 

representatives from two companies looked at the parking lot, but he did not testify 

about their estimates to repair the parking lot. Crandall did not testify that either of 

them bid $200,000 or more or less to do the work he believed was needed.

While Crandall testified that the City of Plano codes require an entire parking 

lot be replaced when forty percent of it will have to be replaced in a twelve month 
–22–

period of time, he did not testify that forty percent of the DO-MO parking lot would 

need to be replaced in a twelve month period of time or, if he had, on what basis he 

reached this conclusion.

Further, Crandall provided three inconsistent estimates of the size of the 

existing parking lot, but he did not explain why the size of the parking lot was

relevant to the amount of damages DO-MO sought. Crandall’s testimony does not 

indicate whether $200,000 is the cost to repair a 26,600, 25,600, or 22,500 square 

foot parking lot; the difference between the largest and smallest size estimates is 

4,100 square feet and more than fifteen percent. Presumably a fifteen percent 

difference in size affects the cost of repair. 

There also is no evidence that the $200,000 figure is a reasonable amount to 

repair the parking lot; the only evidence related to the $200,000 figure is that it is 

the amount Crandall thinks would allow DO-MO to “fix” the parking lot.

Additionally, the jury was instructed to only consider the reasonable cost to 

restore the parking lot to the condition it was in immediately before the occurrences 

in question and not to consider any amount for any condition existing before the 

damages in question. At the time SLH purchased its property, the parking lot needed 

to a new application of asphalt or needed to be replaced entirely. Crandall’s 

testimony that he did not consider depreciation indicates he did not account for the 

existing state of the parking lot before any damage by the Lisle Parties. Instead, he 

asked for an amount he believed would allow him to fix a parking lot that was in 
–23–

need of repair prior to SLH’s purchase of the property. Crandall’s testimony 

indicates he failed to account for any condition existing before the damages in 

question or not resulting from the acts or omissions in question. 

Finally, the jury was asked to make separate awards for the damage caused by 

flooding and by trespassing trucks. However, Crandall made no effort to provide 

damages calculations resulting from these two categories; instead, Crandall provided 

a blanket, unsupported figure of $200,000 to fix the parking lot. 

5. Conclusion

Crandall’s declaration that $200,000 is the amount needed to “allow us to fix 

the parking lot,” is mere ipse dixit, which is insufficient to support DO-MO’s request 

for damages as awarded in Question 6. The valuation he provided is wholly 

unsubstantiated; Crandall provided no factual basis on which his opinion rests. See 

Justiss, 397 S.W.3d at 159. Instead, he provided “a naked assertion” of the cost to 

repair or replace the parking lot. See id. Because Crandall’s testimony is conclusory, 

it is not relevant; it does not make the existence of a material fact more or less 

probable. See id. at 156. The fact that much of his testimony was not objected to is 

not determinative. See id. at 159 (“But even if unchallenged, the testimony must 

support a verdict, and conclusory or speculative statements do not.”). DO-MO did 

not present any other damages evidence. Accordingly, we conclude DO-MO 

presented no evidence to support the damages awarded in Question 6. We sustain 

the Lisle Parties’ fourth issue.
–24–

6. Exemplary Damages

On rehearing, SLH asks that we re-evaluate the award of exemplary damages 

in light of our resolution of the Lisle Parties’ fourth issue. See Bunton v. Bentley, 

153 S.W.3d 50, 53 (Tex. 2004) (“A complaint that arises from the court of appeals’ 

judgment itself . . . may be raised either in a motion for rehearing in the court of 

appeals or in a petition for review in this Court.”). “[E]xemplary damages must be 

reasonably proportionate to compensatory damages, and that adjustment of 

compensatory damages therefore requires reevaluation of the factors supporting an 

award of exemplary damages.” Id. Exemplary damages should not be adjusted by a 

mathematical formula; instead, each of the factors supporting the exemplary 

damages should be reevaluated in light of the actual harm suffered by the plaintiff. 

Id.

Sustaining the Lisle Parties’ fourth issue results in a significant reduction in 

the actual damages that will be awarded to DO-MO, which changes the ratio between 

actual damages and exemplary damages awarded unless the exemplary damages are 

reassessed. In light of the reduced award of actual damages, we vacate the trial 

court’s exemplary damages award. We remand the issue for the trial court to 

consider the amount of exemplary damages, if any, to assess against SLH. See 

Sohani v. Sunesara, No. 01-20-00114-CV, 2023 WL 1112165, at *21 (Tex. App.—

Houston [1st Dist.] Jan. 31, 2023, pet. filed) (mem. op.) (remanding for calculation 

of exemplary damages) (citing State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 
–25–

408, 418, 426 (2003) (setting out three “guideposts” for determining whether 

exemplary damages award is grossly excessive in violation of federal due process 

protections and stating that courts “must ensure that the measure of punishment is 

both reasonable and proportionate to the amount of harm to the plaintiff and to the 

general damages recovered”); Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 

(Tex. 1981) (stating that whether actual and exemplary damages awards are 

reasonably proportioned depends on facts of particular case); JNM Express, LLC v. 

Lozano, 627 S.W.3d 682, 700 (Tex. App.—Corpus Christi–Edinburg 2021, pet. 

filed) (setting out factors to consider when determining whether exemplary damages 

award is excessive)); see also Suarez v. Fernandez, No. 05-18-00921-CV, 2019 WL 

1922732, at *4 (Tex. App.—Dallas Apr. 30, 2019, no pet.) (mem. op.) (remanding 

for trial court to consider amount of exemplary damages, if any, to award).

7. Unaddressed Issues

In light of our resolution of the Lisle Parties’ fourth issue, we need not 

consider their second issue in which they argue the evidence is insufficient to support 

the jury’s finding that they caused damage to DO-MO’s parking lot; their third issue

in which they argue the trial court abused its discretion by overruling their motion 

to exclude DO-MO’s evidence about the amount of damages to the parking lot 

because DO-MO failed to disclose the amount and method of calculating damages; 

or their seventh issue in which they argue the trial court incorrectly charged the jury 
–26–

in Questions 1 and 2 by including an instruction on “assisting trespass” and 

excluding the definition of “natural flow.”

7 See TEX. R. APP. P. 47.1.

C. Bifurcation of the Trial

In their fifth issue, the Lisle Parties argue the trial court abused its discretion 

by denying their motion to bifurcate the trial as required by civil practice and 

remedies code section 41.009. See TEX. CIV. PRAC. & REM. CODE ANN. § 41.009.

Before voir dire began, counsel for the Lisle Parties stated: 

Your Honor, if I may, one more housekeeping matter before voir dire 

begins. Defendant [sic] moves [sic] for a bifurcated trial on the issue of 

punitive damages which may impact what people ask during voir dire.

The judge responded: “Let’s go off the record,” and the reporter’s record indicates 

there was a discussion off the record. The record provides no additional information 

about what occurred with respect to the Lisle Parties’ oral motion, but the trial was 

not bifurcated. The Lisle Parties assert the court denied the motion.8

The record does not reflect whether the trial court made a ruling on the motion 

to bifurcate. The relevant arguments, discussions, and ruling, if any, were held off 

the record, and the trial court’s ruling, if any, was not later put on the record. 

Accordingly, we cannot determine the trial court’s ruling, if any, from the record 

 

7 To the extent the Lisle Parties’ seventh issue includes the single sentence that “the evidence is legally 

insufficient to support the finding that the water at issue is ‘surface water’ as Appellees were required to 

prove,” we conclude this purported argument is not briefed, and we do not consider it. See TEX. R. APP. P

38.1 (requirements of appellant’s brief). 

8 The Lisle Parties and DO-MO filed post-submission letters with this Court providing their 

recollections about what occurred during the off-the-record discussion. Their recollections of the discussion 

and trial court ruling, if any, are inconsistent. 
–27–

before us. We conclude the Lisle Parties have not preserved any complaint regarding 

any ruling by the trial court about bifurcation for review. See TEX. R. APP. P. 33.1; 

see also In re A.D.M., No. 11-19-00131-CV, 2019 WL 5078595, at *3 (Tex. App.—

Eastland Oct. 10, 2019, no pet.) (mem. op.) (complaint about off-the-record 

exchange not preserved for appeal).; Drake v. Chase Bank, No. 02-13-00340-CV, 

2014 WL 6493411, at *3 (Tex. App.—Fort Worth Nov. 20, 2014, no pet.) (mem. 

op.) (same).

The Lisle Parties also argue the trial court implicitly denied the motion to 

bifurcate and, accordingly, the issue is preserved for our review.

9 See TEX. R. APP.

P. 33.1. To support this argument, the Lisle Parties cite the following comments the 

judge made on the record after jury selection: 

 We’ve already said you were going to be able to talk about his finances 

for the purposes of punitive damages.

 We’ve already said you could do that 

 We had already said you could do that so I’m trying to figure out why 

we’re still having this conversation. 

“An implicit overruling is one that, though unspoken, reasonably can be 

inferred from something else.” Trevino v. City of Pearland, 531 S.W.3d 290, 299 

(Tex. App.—Houston [14th Dist.] 2017, no pet.). To preserve error, an implicit 

ruling must be ascertainable from the record. Strunk v. Belt Line Rd. Realty Co., 225 

S.W.3d 91, 99 (Tex. App.—El Paso 2005, no pet.). A ruling might be implied from 

 

9 We note the Lisle Parties’ argument that the motion was implicitly denied is inconsistent with their 

representation to the Court that the trial court denied their motion during the off-the-record conversation. 
–28–

the record when the implication is “clear.” Seim v. Allstate Tex. Lloyds, 551 S.W.3d 

161, 166 (Tex. 2018). 

In this case, the trial judge’s statements cited by the Lisle Parties do not imply 

the trial court’s ruling on their motion to bifurcate; the trial judge’s statements 

indicate a decision was made that financial information could be discussed but do 

not indicate the motion to bifurcate was denied. In his post-submission letter, DOMO’s counsel represented to the Court that the parties reached an agreement not to 

bifurcate the trial; the Lisle Parties’ counsel disputes this representation. The trial 

judge’s statements cited by the Lisle Parties are as consistent with DO-MO counsel’s 

representations to this Court as they are to the Lisle Parties’ assertion the trial court 

denied the motion to bifurcate. We conclude the trial court’s ruling is not clear from 

the statements upon which the Lisle Parties rely. Based on this record, it is not 

reasonable for us to conclude that the trial court implicitly denied the motion to 

bifurcate.

We overrule the Lisle Parties’ fifth issue. 

D. Evidence of Malice

In their sixth issue, the Lisle Parties argue DO-MO presented legally 

insufficient evidence that they harbored a specific intent to cause substantial harm 

to DO-MO, as is required to support a finding that the Lisle Parties acted with malice. 

Exemplary damages may be awarded only if the claimant proves by clear and 

convincing evidence that the harm with respect to which the claimant seeks recovery 
–29–

of exemplary damages results from fraud, malice, or gross negligence. TEX. CIV.

PRAC. & REM. CODE. ANN. § 41.003. Jury Questions 7 and 8 asked whether the jury 

found by clear and convincing evidence that the damages to DO-MO resulted from 

malice on the part of Lisle (Question 7) or SLH (Question 8). In both questions, 

malice was defined as a specific intent by Lisle (Question 7) or SLH (Question 8) to 

cause substantial injury or harm to DO-MO. 

In a legal sufficiency review of findings requiring proof by clear and 

convincing evidence, an appellate court must “look at all the evidence in the light 

most favorable to the finding to determine whether a reasonable trier of fact could 

have formed a firm belief or conviction that its finding was true.” Sw. Bell Tel. Co. 

v. Garza, 164 S.W.3d 607, 609 (Tex. 2004). We presume that the trier of fact 

resolved disputed facts in favor of its findings if a reasonable factfinder could do so. 

Id. at 627. We disregard all evidence that a reasonable fact finder could have 

disbelieved or found to be incredible. Id.

As to the removal of border vegetation, the Lisle Parties agree the evidence 

shows they intended to act when they removed the border vegetation, but, they argue, 

the work was done in an effort to improve their property and is not evidence they 

intended harm DO-MO. In response, DO-MO argues the evidence shows the Lisle 

Parties knew they could not remove the border vegetation without DO-MO’s consent 

and DO-MO opposed the removal of the vegetation, but the Lisle parties proceeded 

anyway. 
–30–

After Lisle removed the hackberry tree on SLH’s property, the Lisle Parties 

received a letter notifying them that DO-MO opposed any removal of vegetation 

from its property. A few days later, the Lisle Parties received another letter informing 

them that the border vegetation was owned by DO-MO and SLH jointly or as tenants 

in common and, as such, neither party could cut the trees or vegetation without the 

consent of the other. Further, the letter stated, the Lisle Parties did not have the 

absolute right to damage the root system of DO-MO’s trees and vegetation. The Lisle 

Parties’ counsel responded: 

We agree that it is settled law in Texas that parties may not remove or 

cut back border trees or vegetation without the consent of the owner of 

the adjacent tract of land. You also assert (and we agree) that [SLH] 

must act reasonably in how it develops its property in order to avoid 

damage to the root systems. [SLH] might damage roots in the process, 

but, as long as it acts reasonably, such damage will not be actionable.

(Emphasis added). Shortly after their counsel acknowledged DO-MO’s rights, Lisle 

removed a 20-inch, healthy ash tree that straddled the property line along with other 

border vegetation. Lisle knew that removing the portion of the tree on his property 

would necessitate removing the portion of the tree on DO-MO’s property. He also 

knew that cutting the root systems of the vegetation would damage the vegetation 

on DO-MO’s property and DO-MO was opposed.

Shortly before the Lisle Parties began trenching for the border wall, they 

received a letter from DO-MO’s counsel stating DO-MO did not agree to the 

removal or damage of their vegetation on the property line. However, they 
–31–

disregarded DO-MO’s wishes and the damage they knew would be caused to DOMO’s vegetation because they wanted to build their border wall. 

The Lisle Parties’ actions in removing the tree and other vegetation without 

DO-MO’s consent reveal their disregard for DO-MO’s right to maintain its property 

in the way it saw fit. See Wilen v. Falkenstein, 191 S.W.3d 791, 801 (Tex. App.—

Fort Worth 2006, pet. denied) (affirming jury’s malice finding when party “topped”

neighbor’s tree because tree blocked his view). By the time the Lisle Parties removed 

the border vegetation to install the trench and start building the border wall, the 

parties had on-going disputes and had engaged legal counsel. From this evidence, 

the jury could have formed a firm belief or conviction that there was nothing 

accidental about the Lisle Parties’ repeated conduct and they specifically intended 

to injure DO-MO when they removed the trees and later when they began building 

the trench. See Bennett v. Reynolds, 315 S.W.3d 867, 872 (Tex. 2010) (“The jury 

could have reasonably formed a firm belief or conviction, from the theft itself and 

from the ongoing hostilities between the parties, that there was nothing accidental 

about Bennett’s conduct and that he specifically intended to injure Reynolds by 

taking his property.”).

Lisle testified he believed he was entitled to remove the portion of the tree 

that was on his property, and he believed he acted in accordance with his attorney’s 

direction to act reasonably. However, the jury could have disbelieved his testimony 

or concluded Lisle’s actions were not reasonable. Despite their counsel’s 
–32–

correspondence stating a party may not “cut back border trees or vegetation without 

the consent of the owner of the adjacent tract of land” and noting a party “must act 

reasonably in how it develops its property in order to avoid damage to the root 

systems,” the Lisle Parties did neither of these things. The jury could have concluded 

they did not act reasonably to avoid damage to root systems.

Looking at all the evidence in the light most favorable to the finding, we 

conclude a reasonable trier of fact could have formed a firm belief or conviction that

the Lisle Parties had a specific intent to cause substantial injury or harm to DO-MO

and their actions resulted from malice. We overrule the Lisle Party’s sixth issue.

CONCLUSION

We reverse the trial court’s judgment awarding monetary damages arising 

from damage to DO-MO’s parking lot from Lisle and SLH. We render judgment 

that DO-MO cannot recover the jury’s award in Jury Question 6 of monetary 

damages arising from damage to its parking lot from either Lisle or SLH. 

We vacate the trial court’s exemplary damages award.

We remand the case to the trial court to recalculate actual damages based on 

the jury’s award in response to Jury Question 5, to consider and calculate the amount 

of exemplary damages, if any, to assess against SLH, and to calculate pre-judgment 

interest.
–33–

In all other respects, we affirm the trial court’s judgment.

220236f.p05 /Erin A. Nowell//

ERIN A. NOWELL

JUSTICE
–34–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

WILLIAM LISLE AND SMITHLISLE HOLDINGS, LTD., 

Appellants

No. 05-22-00236-CV V.

DO-MO JOINT VENTURE, 

Appellee

On Appeal from the 416th Judicial 

District Court, Collin County, Texas

Trial Court Cause No. 416-00639-

2015.

Opinion delivered by Justice Nowell. 

Justices Partida-Kipness and 

Rosenberg participating.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED in part and REVERSED in part. We REVERSE that portion 

of the trial court's judgment awarding monetary damages arising from damage to 

DO-MO Joint Venture’s parking lot from William Lisle or Smith-Lisle Holdings, 

Ltd. We render judgment that DO-MO Joint Venture cannot recover the jury’s 

award in Jury Question 6 of monetary damages arising from damage to its parking 

lot from either William Lisle or Smith-Lisle Holdings, Ltd.

We vacate the trial court’s exemplary damages award.

We remand the case to the trial court to recalculate actual damages based on 

the jury’s award in response to Jury Question 5, to consider and calculate the 

amount of exemplary damages, if any, to assess against Smith-Lisle Holdings, 

Ltd., and to calculate pre-judgment interest.

In all other respects, we AFFIRM the trial court’s judgment.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 26th day of September, 2023.