ACCEPTED
01-13-00206-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/19/2015 7:11:26 PM
CHRISTOPHER PRINE
CLERK
IN THE COURT OF APPEALS
FIRST JUDICIAL DISTRICT
HOUSTON, TEXAS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
LOUIS MCAFEE § 3/19/2015 7:11:26 PM
CHRISTOPHER A. PRINE
VS. § Cause No. 01-13-00206-CV Clerk
WILLIAM ADAMCIK §
APPELLANT’S MOTION FOR REHEARING
TO THE HONORABLE JUDGES OF SAID COURT:
COMES NOW LOUIS MCAFEE, through the undersigned attorney, and
would respectfully request this Honorable Court to grant this motion for rehearing.
In support of said motion, Appellant would show as follows:
I.
In his Sole Point of Error, Appellant McAfee urges that there was “no
evidence” to support the jury’s finding that his trespass upon Adamcik’s property
caused him any damage. Adamcik’s theory at trial was that McAfee had torn down
a convenience fence which caused five head of Adamcik’s cattle to escape and
ultimately perish. However, no evidence supports this finding.
II.
The key to McAfee’s argument that there was “no evidence” to support
Adamcik’s contention that he damaged the convenience fence and caused cattle to
perish is the lack of direct, positive evidence that the fence existed in March or
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April 2008, when McAfee was clearing the land. Adamcik insisted that a
convenience fence existed on the area in December 2007, when he inspected the
property just before taking out the lease. (3 RR. 51-56). However, this was no
evidence that the fence was still standing more than four months later in May 2008.
Indeed, Adamcik explained to the jury the difficulties of maintaining such a fence
in the soft and sandy soil near the river. (3 RR. 53). For this reason, it simply not
possible for the jury to have rationally concluded from Adamcik’s testimony on
this fact alone that the convenience fence was still standing at the time the area was
being cleared.
III.
This Court correctly holds that when the appealing party did not have the
burden of proof at trial, it must demonstrate that there is “no evidence” to support
the adverse finding, citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).
This Court found that the jury could have decided that the convenience
convenience fence did exist in March or April 2008. This Court wrote: “Although
he [Adamcik] 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.” Opinion at 8. However, where circumstances are equally
consistent with either of two facts, neither may be inferred. City of Keller v.
Wilson, 168 S.W.3d 802, 813-14 (Tex. 2005). It was equally likely that the
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convenience fence was or was not in existence in March or April 2008. A rational
trier of fact could not have resolved this issue against McAfee by a preponderance
of the evidence.
IV.
Because a rational trier of fact could not have found by a preponderance of
the evidence that the convenience fence was in existence in March or April 2008,
the record fails to support the jury’s finding of damages regarding the fence and
escaped cattle. This Court should reverse the judgment of the trial court, and enter
a judgment of no damages Tex. R. App. P. 43.2(c).
V.
In addition, where there are no monetary damages, no attorney fees can be
awarded. Green Int’l v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). This Court should
reverse the award of attorney’s fees to Adamcik. Rule 43.2(c).
WHEREFORE, PREMISES CONSIDERED, appellant prays this Honorable
Court to grant this motion for rehearing, find that the evidence fails to establish any
damages caused to Adamcik by any trespass upon his property by McAfee, and to
enter a judgment of no monetary damages or attorney fees against McAfee.
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Respectfully submitted,
Henry L. Burkholder III
HENRY L. BURKHOLDER III
State Bar No. 03416100
P.O. Box 890065
Houston, Texas 77289-0065
(281) 685-2203
1-(281) 377-4341 fax
hlburkholder@comcast.net
ATTORNEY FOR APPELLANT
LOUIS MCAFEE
CERTIFICATE OF SERVICE
I certify that on the 19th day of March, 2015, a true and correct copy of the
forgoing Appellant’s Motion for Rehearing was served on appellee by fax and
email to:
Mr. Bradley E. Featherston
The Mendel Law Firm LP
1155 Dairy Ashford Ste. 104
Houston, Texas 77079
Fax: (281) 759-3214
brad@mendellawfirm.com
Henry L. Burkholder III
HENRY L. BURKHOLDER III
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