Briones v. Solomon

• Decision Date: 29 March 1989
• Docket Number: No. 04-88-00067-CV,04-88-00067-CV
• Parties: Jesus Enrique BRIONES and Rebecca Briones, Appellants, v. Lucy SOLOMON, Appellee.
• Court: Texas Court of Appeals

Page 312

769 S.W.2d 312

Jesus Enrique BRIONES and Rebecca Briones, Appellants, v. Lucy SOLOMON, Appellee.

No. 04-88-00067-CV.

Court of Appeals of Texas,

San Antonio.

March 29, 1989.

Rehearing Denied May 16, 1989.

Hector Leal, Jr., Leal & Bratt, Julio A. Gracia, Laredo, for appellants.

Bill Blackburn, Corpus Christi, for appellee.

Before REEVES, CHAPA and PEEPLES, JJ.

OPINION

CHAPA, Justice.

This is an appeal from a declaratory judgment. On remand from this court, trial was before a jury which again found the existence of an implied easement across appellants' land. ¹ The suit involved two tracts of land in Zavala county known as El Varal Pasture and La Copa Pasture. A prior judicial adjudication established an implied easement of ingress and egress across the El Varal pasture in favor of appellee's predecessors in title. Zapata County v. Llanos, 239 S.W.2d 699 (Tex.Civ.App.--San Antonio 1951, writ ref'd n.r.e.). Appellees contend that they are also entitled to an implied easement across the La Copa pasture.

The issues before this court now are:

(1) whether the trial court "reversibly erred in overruling appellants' Motion For Judgment Non Obstante Veredicto and Motion For New Trial inasmuch as the jury's answers to Special Issues Nos. 1, 2, 3, and 5 [are] not supported by the evidence, and [are] legally and factually insufficient";

(2) whether the trial court reversibly erred in refusing to submit appellants' version of Special Issue No. 1;

(3) whether the trial court "reversibly erred when it submitted Special Issue No. 6 [and] No. 7 on attorney's fees";

(4) whether the jury answer to Special Issue No. 12 is supported legally and/or factually by the evidence;

(5) whether the trial court erred in refusing appellants' requested instructions to Special Issue No. 12;

(6) whether the jury answers to Special Issue Nos. 9 and 11 are supported legally and/or factually by the evidence;

(7) whether the trial court erred in overruling appellants' Motions For Judgment Non Obstante Veredicto and Motions For New Trial with regard to that part of the judgment granting the 20 foot easement to share # 4;

(8) whether the trial court erred in ordering the parties to share pro rata in the maintenance and repair of the implied easement;

(9) whether Sections 3 and 5 of the Court's judgment are void because they are vague, uncertain, and indefinite; and

(10) whether the trial court committed reversible error in admitting the former trial testimony of August Oscar Hein, deceased.

Initially, appellants contend the trial court reversibly erred in overruling appellants' Motion For Judgment Non Obstante Veredicto and Motion For New Trial because the jury's answers to Special Issues 1, 2, 3 and 5 were not legally and/or factually supported by the evidence.

A complaint on appeal of factual insufficiency of the evidence to support a jury finding requires as a predicate that the point have been presented to the trial court in a motion for new trial. TEX.R.CIV.P. 324(b)(2).

A legal insufficiency complaint on appeal requires as a predicate that the same contentions have been "made clear to the court in time for the court to correct any error, if any existed." Rosas v. Shafer, 415 S.W.2d 889, 890 (Tex.1967).

In this case, appellants specifically claim that their non obstante veredicto motions and new trial motions should have been granted. Thus, they declare that their sufficiency complaints were made clear to the court in these motions. A review of appellants' Motions For New Trial and Motions For Non Obstante Veredicto discloses that appellants properly complained therein only about the insufficiency of the evidence as to Special Issue No. 2. Therefore, appellants have failed to show the court erred in denying the said motions as to Special Issues 1, 3, and 5.

A legal sufficiency point is a question of law and we can consider only that evidence and the reasonable inferences which, viewed in the most favorable light, support the jury findings and we must reject all evidence or reasonable inferences to the contrary, Glover v. Texas General Ind. Co., 619 S.W.2d 400, 401 (Tex.1981); McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 904 (Tex.1980). In determining the factual sufficiency of the evidence "the court of appeals must consider and weigh all evidence, and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456-457 (Tex.1985). We must further remain cognizant that it is for the jury to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve any conflicts or inconsistencies in the evidence. Town & Country Mobile Homes, Inc. v. Bilyeu, 694 S.W.2d 651, 656 (Tex.App.--Fort Worth 1985, no writ).

Special Issue No. 2 read as follows:

Special Issue No. 2

Have Helen Pena, Jesus Enriguez Briones and Geraldine Sisco substituted other roads for the old roadway down as far as the Chevron Well?

Answer "yes" or "no"

Answer: Yes

A review of the record reveals evidence of a relocation of the old road easement to the new Chevron road in both the partition deed and caliche agreement between Helen Pena and Chevron U.S.A., Inc. Testimony of all appellants and others established to some degree appellants' use of roads other than the old road since 1977, when the Chevron road was built. Although there was conflict in the testimony, the jury had the right to resolve it.

Considering all of the record, we cannot say that the jury's finding as to Special Issue No. 2 was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, supra. Point of error number two is overruled as is point of error number five which is merely a summation of the first four points of error.

Appellants next contend that the trial court erred in refusing to submit their version of Special Issue No. 1.

The court submitted the following Issue:

Special Issue No. 1

At the time of the 1928 and 1929 partition was there a continuous, apparent, permanent and necessary road easement across La Copa and El Varal pastures from La Copa gate on the north to the property now owned by Leroy Solomon on the south?

Answer "yes" or "no"

Answer: Yes

Appellants' requested issue on the subject read:

Do you find from a preponderance of the evidence that at the time of the 1928 partition; plaintiff had a continuous, apparent, permanent and necessary roadway easement across the property owned by defendant, Helen L. Pena, as depicted in Plaintiffs' Exhibit No. 1 and 1A?

TEX.R.CIV.P. 278 provides in pertinent part that a judgment shall not be reversed because of the failure to submit other and various phases or different shades of the same question. We conclude that appellants' requested issue was a different shade of the same question which the court had submitted. No error has been shown, and the point is overruled.

Appellant next contends that Special Issue Nos. 6 and 7 regarding attorney fees were improperly submitted to the jury "because the evidence was legally and/or factually insufficient to warrant their submission." However, the thrust of appellants' argument does not concern the quantity or quality of the attorney fee evidence in the record; rather, that attorney fees are not in order under the Declaratory Judgment Act absent proof that they have been actually incurred and paid by the prevailing party. In this regard, appellants have failed to provide any authority as required by TEX.R.APP.P. 74(f). We will nevertheless address this point.

In a case involving the Declaratory Judgment Act, the court stated in Contact Products, Inc. v. Dixico Inc., 672 S.W.2d 607 (Tex.App.--Dallas 1984, no writ):

We note that the statute provide that the trial court "may make such award of ... reasonable and necessary attorney's fees as may seem equitable and just." TEX.REV.CIV.STAT.ANN. art. 2524-1 § 10 [repealed, now Tex.Code Annotated Civil Practice and Remedies § 37.009]. We interpret this provision to give the trial court discretion in making this award. Therefore, we hold that an abuse of discretion standard should be involved upon review of the award.

Appellant here does not contend, and certainly has not shown an abuse of discretion on the part of the trial judge. The point is overruled.

Appellant next argues that the jury answer to Special Issue No. 12 is not supported by legally or factually sufficient evidence.

Special Issue No. 12 read as follows:

Have plaintiffs or their predecessors in title abandoned the old easement?

Answer "yes" or "no"

Answer: No

A review of the record revealed the testimony of several witnesses denying any intent to abandon the old easement. Appellants apparently rely erroneously on a contention that a mere showing of non-use of an easement is sufficient as a matter of law to extinguish the easement.

The material question [in abandonment issues] is the intention to abandon, and that intention must be established by clear and satisfactory evidence. Mere non-use of an easement will not extinguish it. (citations omitted)

Dallas County v. Miller, 166 S.W.2d 922, 924 (Tex.1942).

Applying the no evidence standard of review discussed in earlier points of error, we cannot say that the jury's finding as to Special Issue No. 12 was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, supra. The point is overruled.

Appellants' next point complains about the court's refusal of appellants' requested instruction to Special Issue No. 12.

The court's charge contained the following instruction to Special Issue No. 12:

In answering the following Special Issue No. 12, you are instructed that abandonment may be established by circumstances, but in order for there to be abandonment those circumstances must disclose some definite act showing an intention to...