Opinion issued March 12, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00206-CV
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LOUIS MCAFEE, Appellant
V.
WILLIAM E. ADAMCIK, Appellee
On Appeal from the 155th District Court
Austin County, Texas
Trial Court Case No. 2010V-0046
MEMORANDUM OPINION
Louis McAfee appeals the judgment following a jury trial rendered in favor
of William E. Adamcik in Adamcik’s suit for trespass to real property. In his sole
point of error, McAfee contends that there is legally insufficient evidence to
support the jury’s implicit finding that Adamcik’s convenience fence was
destroyed by McAfee’s bulldozing activities. We affirm the trial court’s judgment.
Background
In January 2008, Adamcik leased five hundred acres of land on the banks of
the Brazos River for grazing cattle (“the Sprain Ranch”). The ranch was separated
from McAfee’s neighboring property by a boundary fence. The section of the fence
line that extended down to the river was held up by brush, trees, and T-posts. This
type of fence is often called a “convenience fence” because the barbed wire is tied
to anything sturdy and “convenient.” Although the convenience fence separated the
two properties, the fence was located well inside the Sprain Ranch property line.
Adamcik and a friend inspected the ranch’s fence line, including the convenience
fence, prior to leasing the property in December 2007 and found the fence to be
intact and suitable to contain his herd.
McAfee rented a bulldozer in late May 2008 and hired two men to clear the
underbrush on approximately seven acres of his property, including the area
adjacent to the Sprain Ranch where Adamcik’s convenience fence was located.
McAfee mistakenly believed that the fence line demarcated the boundary between
his property and the Sprain Ranch and instructed his workers to bulldoze all of the
underbrush on his side of the fence posts. As a result, in addition to clearing
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McAfee’s land, the workers also bulldozed a portion of the Sprain Ranch
approximately 50’ wide and 63’ deep.1
The Sprain Ranch lease was divided by three cross fences into four separate
pastures or paddocks and Adamcik routinely rotated his cattle between the pastures
to conserve the land. On July 15, 2008, Adamcik released his cattle into the pasture
next to McAfee’s property, just as he had done three or four months before without
incident. Two days later Adamcik received a telephone call from one of his
neighbors informing him that some of his cattle had escaped.
After collecting most of his wayward cattle, Adamcik inspected his fence
line and discovered that his convenience fence by the river was missing. With the
help of Chris Toman, Adamcik erected a temporary fence where the convenience
fence had previously stood. Although Adamcik had managed to find most of his
missing herd, five of his heifers had gotten mired in the muddy river bank and
died.
At trial, Adamcik testified that he examined his fence line after his cattle
escaped and discovered that the convenience fence was missing and that the area
where the fence had been located had been cleared by a bulldozer. Adamcik
observed hoof prints in the area and believed that this was the area where the cows
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McAfee acknowledges that he was mistaken about the location of the property line
and concedes that he trespassed on the Sprain Ranch when he instructed Loper and
Shaw to bulldoze all of the underbrush on McAfee’s side of the fence.
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had escaped. This was the only time the cattle escaped from the Sprain Ranch
during Adamcik’s three-year lease of the property. According to Adamcik, there
was no underbrush or trees left standing in the area, only bulldozer tracks, large
uprooted trees, and remnants of his old convenience fence. Adamcik and Toman
had to construct the temporary fence using T-posts because the large trees that
supported most of the original fence were gone. Given the steep and unsteady
terrain and bulldozer tracks in the area, Adamcik believed that the convenience
fence had been torn down by a bulldozer. Adamcik testified that he had not given
anyone permission to bulldoze the area.
Chris Toman testified that he helped Adamcik erect a temporary fence after
Adamcik’s cattle escaped. In addition to the cattle tracks he observed, Toman also
noticed bulldozer tracks, bent T-posts buried deep in the ground that were scarred
with track marks from a bulldozer, and a “pile of brush where the fence was
pushed and cleared away.” When asked if it were possible for the river to have
caused the damage, Toman testified that it was not possible for the river to have
inflicted the damage he witnessed. Although he acknowledged that he had not seen
the convenience fence prior to May 2008, Toman testified that he knew it had been
there because the old fence “was on the pile in the brush right beside where we
built the new fence.” Based on his observations, Toman believed that Adamcik’s
fence had been knocked down by a bulldozer.
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McAfee testified that although there had been a complete fence to the river
five or six years before, there was no longer a barbed wire fence in the thick brush
separating his property from the Sprain Ranch. He could see the remnants of an old
fence, including at least three T-posts, but no barbed wire. McAfee believed that
the river had come up and washed the fence away. He was not sure when the river
had done this, but was certain that the fence “wasn’t there at the end of May when
[he] went down there to look at it.” McAfee painted three T-posts orange to mark
what he believed to be the property line, and later pointed those T-posts out to his
workers and instructed them to not go beyond those posts when they bulldozed the
area.
McAfee’s daughter testified that she saw the remnants of an old fence in
May 2008, but no barbed wire. She also testified that it appeared as though the
river had flooded and taken the barbed wire and bent a couple of T-posts as well.
McAfee’s employees also offered similar testimony. In particular, McAfee’s ranch
hand, Joe Speckmeirer, testified that he was familiar with the property and that, to
the best of his knowledge, there was no fence between McAfee’s wooden fence
and the river in May 2008. He also testified that there had never been a fence there
since he began working for McAfee in 1993 or 1994 and he did not recall seeing
any T-posts in the area prior to June 2008. The two men who bulldozed the area in
May 2008 testified that they did not see a fence in the area down by the river.
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Other witnesses familiar with the Sprain Ranch testified that ranchers had
been grazing cattle on the property for over thirty years before Adamcik leased the
property and they had not had a problem with cattle escaping in the area by the
river where Adamcik’s convenience fence stood. They also testified that although
the brush was so dense that it normally protected the fence from the occasional rise
of the Brazos River, there had been times in the past when the river had risen up
and damaged the convenience fence, and the fence had to be repaired in order to
prevent cattle from escaping.
After a three-day trial, the jury found that McAfee, either individually or
jointly, trespassed upon Adamcik’s property and awarded Adamcik $8,000 in
damages for the convenience fence and the five dead cattle. The jury also awarded
Adamcik $72,000 in attorney’s fees for trial; $10,000 in fees for an appeal to the
court of appeals; and $5,000 in fees for an appeal to the Supreme Court of Texas.
The court entered judgment in accordance with the jury’s award. This appeal
followed.
Legal Sufficiency
In his sole point of error, McAfee contends that there is legally insufficient
evidence to support the jury’s implied finding that Adamcik’s convenience fence
was standing when McAfee bulldozed the land.
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When, as here, an appellant attacks the legal sufficiency of an adverse
finding on an issue for which it did not have the burden of proof, it must
demonstrate that there is no evidence to support the adverse finding. Croucher v.
Croucher, 660 S.W.2d 55, 58 (Tex. 1983). We will sustain a no-evidence point
only if (1) the record reveals a complete absence of a vital fact; (2) the court is
barred by rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no
more than a mere scintilla; or (4) the evidence conclusively establishes the
opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.
2005); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
“Evidence is conclusive only if reasonable people could not differ in their
conclusions.” City of Keller, 168 S.W.3d at 816. If more than a scintilla of
evidence exists to support the finding, the legal sufficiency challenge fails. Haggar
Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005). Although direct
evidence is not required, circumstantial evidence must still consist of more than a
scintilla to withstand a no-evidence challenge. See Blount v. Bordens, Inc., 910
S.W.2d 931, 933 (Tex. 1995); see generally Russell v. Russell, 865 S.W.2d 929,
933 (Tex. 1993) (stating that any ultimate fact may be proved by circumstantial
evidence for purposes of legal sufficiency review). Evidence does not exceed a
scintilla if jurors “would have to guess whether a vital fact exists.” City of Keller,
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168 S.W.3d at 813. The “final test” for legal sufficiency is “whether the evidence
at trial would enable reasonable and fair-minded people to reach the verdict under
review.” Id. at 827.
In conducting a legal sufficiency review, we consider the evidence in the
light most favorable to the finding and indulge every reasonable inference that
would support it. Id. at 822. We will not substitute our judgment for that of the jury
and we credit favorable evidence if a reasonable factfinder could and disregard
contrary evidence unless a reasonable factfinder could not. Id. at 819–20, 827.
Although they are the sole judge of the evidence’s credibility and weight, “[[j]urors
cannot ignore undisputed testimony that is clear, positive, direct, otherwise
credible, free from contradictions and inconsistencies, and could have been readily
controverted.” Id. at 819–20.
Whether the convenience fence was standing when the property was
bulldozed in May 2008 was a hotly contested issue at trial. Although McAfee and
his witnesses testified that there was no convenience fence when they bulldozed
the area, Adamcik and Toman testified to the contrary. Adamcik testified that the
fence was in place in December 2007. Although he did not inspect the fence line at
the time, the jury could infer that the fence was in place in March or April 2008
because the cattle were in the pasture and none escaped. Furthermore, Toman
testified that he noticed bulldozer tracks, bent T-posts buried deeply in the ground
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that were scarred with indentations from a bulldozer, and a “pile of brush where
the fence was pushed and cleared away,” and that, based on his observations, he
concluded that a bulldozer, not the river, had destroyed Adamcik’s convenience
fence. Toman also testified that he knew that the fence had been there when the
area was cleared by the bulldozer because the old fence “was on the pile in the
brush right beside where we built the new fence.” Thus, contrary to McAfee’s
contention, there is circumstantial evidence from which a jury could reasonably
infer that Adamcik’s convenience fence was standing when McAfee bulldozed the
area in May 2008.
McAfee argues that this evidence is not sufficient to carry Adamcik’s burden
of proof because McAfee’s position that the fence had been washed away by the
river beforehand was equally supported by the same evidence. See City of Keller,
168 S.W.3d at 813 (“When the circumstances are equally consistent with either of
two facts, neither fact may be inferred.”). We disagree. Although there is testimony
establishing that it is possible for the Brazos River to flood and cause damage to
the convenience fence, and that such events have occurred in the past, there is no
evidence in the record that the river actually flooded or otherwise rose to such an
extent at any time between December 2007 and July 17, 2008. Without such
evidence, a jury could not have reasonably inferred that Adamcik’s convenience
fence was destroyed by the Brazos River prior to McAfee’s bulldozing of the area.
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Although there is no evidence of any river flooding during the relevant time period
there is, however, undisputed evidence that McAfee bulldozed the underbrush in
the area in May 2008 and testimony that the damage to the fence’s remnants was
consistent with the fence having been destroyed by a bulldozer. As such, the
evidence in this case is not equally consistent with McAfee’s and Adamcik’s
competing explanations for the fence’s destruction. Furthermore, as the sole judge
of the weight and credibility of the evidence, it was the jury’s province to evaluate
the credibility of the witnesses and their testimony to draw reasonable inferences
from that testimony. See City of Keller, 168 S.W.3d at 819–20. We will not
substitute our judgment for the jury’s. Id.
Applying the proper standard of review, we conclude that there is more than
a scintilla of evidence supporting the jury’s implied finding that Adamcik’s
convenience fence was standing when McAfee bulldozed the land and hold that the
evidence was legally sufficient to support the finding. See City of Keller, 168
S.W.3d at 827 (stating that “final test” for legal sufficiency is whether evidence
would “enable reasonable and fair-minded people to reach the verdict under
review”).
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Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
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