Opinion issued March 12, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-13-00206-CV
                           ———————————
                         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



                                          8
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.



                                         9
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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