Louis McAfee v. William E. Adamcik

Opinion

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

1 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

2 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.

3 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