AFFIRMED as Modified; Opinion Filed December 7, 2015.




                                                          In The
                                          Court of Appeals
                                   Fifth District of Texas at Dallas
                                                    No. 05-14-00108-CV

   UNITED SERVICES PROFESSIONAL GROUP, INC. D/B/A PYRAMID REALTY,
   MAJID HAMMASI, SADAT BASSAMPOUR FATEMEH, AND AL DANESHIAN,
                              Appellants
                                 V.
  DAVID M. HURT, KIMBERLY R. HURT, NATIONAL AUDUBON SOCIETY, INC.,
         AND DALLAS COUNTY AUDUBON SOCIETY, INC., Appellees

                               On Appeal from the 162nd Judicial District Court
                                            Dallas County, Texas
                                    Trial Court Cause No. DC-10-04892-I

                                         MEMORANDUM OPINION
                                    Before Justices Fillmore, Stoddart, and Richter1
                                             Opinion by Justice Stoddart
            This is an appeal from a partial summary judgment and a judgment rendered after a

bench trial. The dispute between the parties arises out of an easement.                The trial court’s

judgment provides appellees with declaratory relief and awards damages in their favor. On

appeal, appellants argue four issues: (1) the trial court erred by providing appellees with

declaratory relief as to a matter not sought in their pleadings; (2) the trial court’s judgment is

inconsistent with the plain language of the easement; (3) the trial court erred by rendering an




   1
       The Hon. Martin Richter, Justice, Assigned
indefinite and uncertain judgment; and (4) the trial court’s award of damages is not supported by

sufficient evidence. We modify the trial court’s judgment and affirm as modified.

                                                     FACTUAL BACKGROUND

          In the 1960s, the Mobley family—which is not a party to this lawsuit—owned 287 acres

of land in Cedar Hill, Texas. When the Mobleys divided their property, easements were granted

to landlocked parcels. The parties to this lawsuit own neighboring pieces of property that used to

be part of the Mobley estate. Appellants’ properties are landlocked, and they have a road

easement that crosses property owned by the Audubon appellees (the Easement). The Easement

states: “SAID TRACT BEING SUBJECT to a 50 foot road easement for egress and ingress,

being 25 feet on either side of centerline as shown on plat of subdivision of BF Mobley and Julie

Viola Mobley Estate Partition.”

          Appellees’ land is part of an area known as “Dogwood Canyon” and the “Cedar Hill

Escarpment.” For nearly 20 years, appellees worked to preserve their land and create a bird

sanctuary. A substantial portion of the testimony at trial was about the unique qualities of

appellees’ land, the types of vegetation that grow on their properties, and appellees’ future plans

to use the land as a nature preserve.

          In April 2010, appellant Al Daneshian,2 president of appellant United Services

Professional Group, Inc., hired a person to use a backhoe3 and remove vegetation from an area he

believed was on the Easement. He sought to clear a path so a truck could drive along the

Easement from the main road to his property. Clearing the path was part of the preliminary work

for appellants’ plans to develop their properties into home sites for resale. However, the backhoe

     2
       Al Daneshian is married to appellant Sadat Bassampour Fatemeh and is business partners with appellant Majid Hammasi. Daneshian,
Fatemeh, and Hammasi purchased land to develop into residential home sites. They had an oral agreement giving Daneshian authority to develop
the property for residential use.
     3
       There also is testimony the person used a bulldozer, a tractor, or a front-end loader to remove the vegetation. Which type of machinery
was used is not important to the resolution of this appeal and we will use the term backhoe.



                                                                    –2–
driver cleared vegetation from an area outside the Easement on property owned by appellee

David Hurt.

       The parties dispute the extent of the damage the backhoe caused to the Hurts’ property.

Witnesses for appellees testified the damage was substantial. Mr. Hurt said the area looked like

a tornado cleared the vegetation. As a result of the clearing, trees were pushed over, trees were

stripped of lower limbs and bark, and there were multiple, large piles of trees and brush left

behind. Some trees that remained standing were damaged. As a result of the demolition of trees,

the tree canopy was opened, which caused more damage to the natural habitat. An expert

testified “this trespass is a major infraction” on appellees’ preservation efforts and the Hurts’

property would require ongoing work and could never be fully restored.

       Appellees’ witnesses further testified that prior to the trespass, a trail approximately 6-

feet wide existed on the Hurts’ property. After the trespass, the cleared area was approximately

17-feet wide. Appellees’ expert testified “there were 11 feet added to the original trail at 635

feet deep. That’s 6,985 square feet.” He estimated about 690 individual trees were destroyed.

Three years after the event, on August 20, 2013, the expert visited the site again to “review the

site of the trespass.” He provided Mr. Hurt with a “reclamation plan that would provide for an

immediate canopy replacement and a replacement of native understory trees that were removed

as a result of the damage to the property in 2010.” His estimated cost to accomplish these goals

was $88,493.00.

       Daneshian portrayed the damage differently.           He testified the backhoe did not

significantly damage the Hurts’ property: “They had scuffed some of the tree [sic] at the end of

the trail, two or three trees. Basically, that’s all I could see. Couple - - few trees were damaged,

but the trees are still live [sic]. The trees are recovering. They’re in good shape.” He also noted

the backhoe driver cleared some underbrush and moved broken limbs already on the ground.

                                                –3–
Daneshian testified he has not seen any large openings in the canopy of trees on the property, his

worker did not do anything to cause any large openings in the canopy, and there are openings in

the canopy throughout the Audubon’s property. Daneshian testified that in order to create the

development planned by appellants, trees and natural vegetation must be removed from the

Easement.

        The Hurts sued appellants for trespass and Audubon sought a declaratory judgment:

                a.      That the scope of any easement along [appellee’s] Land owned by
        [appellants] is limited to providing [appellants] with a right to ingress and egress
        only;
                b.      That the scope of any easement along [appellee’s] Land owned by
        [appellants] does not provide [appellants] with any right to use the easement for
        development purposes, including, but not limited to, (1) running water, power,
        internet cable, or other utility lines along the easement, (2) building a road along
        the easement, and/or (3) transporting machinery or materials along the easement;
        and
                c.      That [appellants] have no right to bulldoze, destroy, remove,
        conceal, encumber, or otherwise damage [appellee’s] Land.


                                       PROCEDURAL HISTORY

        Appellees filed a partial traditional motion for summary judgment on their claim for

declaratory judgment. The trial court granted the motion in part and denied it in part. The trial

court’s order states that the scope of the road Easement “is limited to providing [appellants] with

a right to ingress and egress only” and the scope of the Easement does not provide appellants

“with the right to use the road easement for any development that would result in any violation

of applicable city, state, or federal ordinances, statutes, or laws.”

        Following a bench trial, the trial court rendered judgment that appellants trespassed on

land owned by the Hurts and they were entitled to actual damages of $88,493 caused by the

trespass.   The trial court also rendered judgment in favor of Audubon, declaring the road

Easement: (1) is “limited to providing the owner(s) of the Dominant Estates with a right to

ingress and egress only;” (2) “Does not provide the owner(s) of the Dominant Estates with the
                                                  –4–
right to use the road easement for any purpose that would result in any violation of applicable

city, state, or federal ordinances, statutes, or laws;” (3) “Does not provide the owner(s) of the

Dominant Estates with any right to install power lines, water lines, cable lines, internet lines, or

any other utility line along the easement;” and (4) “Does not provide the owner(s) of the

Dominant Estates with any right to excavate the land or otherwise clear or remove trees along the

easement.”

                                            LAW & ANALYSIS

A.     Judgments Conform to Pleadings

       In their first issue, appellants assert the trial court erred by rendering final judgment

providing declaratory relief as to a matter not sought by appellees in their pleadings, and the trial

court erred by granting partial summary judgment to appellees as to a matter not sought in their

summary judgment motion. In response, appellees assert the trial court’s order and judgment are

supported by the pleadings or, alternatively, the declaratory relief granted was tried by consent.

       Appellees’ third amended petition sought declaratory relief as to three matters: (1) the

scope of the road Easement is limited to ingress and egress; (2) appellants do not have the right

to use the Easement for “development purposes”; and (3) appellants do not have the right to

bulldoze, destroy, remove, conceal, encumber, or otherwise damage appellees’ land.

Appellees’ partial motion for summary judgment sought declaratory relief as to the same matters.

However, the trial court’s order granting the partial summary judgment in part declares that the

scope of the Easement does not provide appellants “with the right to use the road easement for

any development that would result in any violation of applicable city, state, or federal

ordinances, statutes, or laws.” The final judgment includes similar language, although the issue

was not litigated during the bench trial.




                                                 –5–
       1.      Law

       A court’s jurisdiction to render judgment is invoked by the pleadings, and a judgment

unsupported by the pleadings is void. Bever Props., LLC v. Jerry Huffman Custom Builders,

L.L.C., No. 05-13-1519-CV, 2015 WL 4600347, at *14 (Tex. App.—Dallas July 31, 2015, no

pet.) (mem. op.) (citing In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.—Dallas 2009, no pet.);

Holden v. Holden, 456 S.W.3d 642, 650 (Tex. App.—Tyler 2015, no pet.)). Therefore, a trial

court’s judgment must conform to the pleadings. Id. (citing TEX. R. CIV. P. 301; Holden, 456

S.W.3d at 650). Absent trial by consent, a plaintiff may not be granted a favorable judgment on

an unpleaded cause of action and judgment on an unpleaded cause of action is void. Id.

       Issues not raised in the pleadings can be tried by express or implied consent of the

parties. TEX. R. CIV. P. 67; Hampden Corp. v. Remark, Inc., 331 S.W.3d 489, 495 (Tex. App.—

Dallas 2010, pet. denied). However, this rule “applies only where it appears from the record that

the issue was actually tried, although not pleaded.” Hampden Corp., 331 S.W.3d at 495 (quoting

Case Corp. v. Hi–Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 771 (Tex. App.—Dallas 2005,

pet. denied)). To determine whether the issue was tried by consent, the court must examine the

record not for evidence of the issue, but rather for evidence that the issue was tried. Id. The

unpleaded issue may be deemed tried by consent when the evidence on the issue is developed

without objection under circumstances indicating both parties understood the issue was being

contested. Id. at 496 (citing Ingram v. Deere, 288 S.W.3d 886, 893 (Tex. 2009) (“When both

parties present evidence on an issue and the issue is developed during trial without objection, any

defects in the pleadings are cured at trial, and the defects are waived.”); Case Corp., 184 S.W.3d

at 771). An issue is not tried merely because there is evidence on the issue, but can be deemed

tried by consent when both parties present conflicting evidence on the subject. Id. (citing

Ingram, 288 S.W.3d at 893). On the other hand, an issue is not tried by consent when the

                                               –6–
evidence relevant to the unpleaded issue is also relevant to a pleaded issue because admitting that

evidence would not be calculated to elicit an objection and its admission ordinarily would not

prove the parties’ “clear intent” to try the unpleaded issue. Id. (citing Case Corp., 184 S.W.3d at

771).

        The trial court has broad discretion to determine whether an unpleaded issue was tried by

consent. Id. at 495 (citing Case Corp., 184 S.W.3d at 771). Although that discretion is to be

exercised liberally in favor of justice, trial by consent is the exception, not the rule, and should

not be inferred in doubtful cases. Id. (citing Case Corp., 184 S.W.3d at 772).

        2.     Analysis

        There are no allegations in appellees’ live pleading, their partial summary judgment

motion, or anywhere else in the record that appellants must be restrained from violating state or

federal ordinances, statutes, or laws. No evidence was admitted with respect to any state or

federal laws that might be applicable to the parties’ properties. Therefore, we conclude the trial

court lacked jurisdiction to render judgment that the Easement does not provide appellants “with

the right to use the road easement for any development that would result in any violation of . . .

state, or federal ordinances, statutes, or laws.” See Bever Props., 2015 WL 4600347, at *14; In

re S.A.A., 279 S.W.3d at 856. This portion of the judgment is void. See Bever Props., 2015 WL

4600347, at *14; In re S.A.A., 279 S.W.3d at 856.

        Likewise, neither appellees’ live pleading nor their motion for partial summary judgment

requests a declaration that the Easement does not provide appellants “with the right to use the

road easement for any development that would result in any violation of applicable city . . .

ordinances, statutes, or laws.” However, in their third amended petition and motion for partial

summary judgment, appellees alleged the City of Cedar Hill has ordinances and escarpment zone

regulations strictly limiting development and clearing rights and appellees’ properties are

                                                –7–
protected by those regulations. Appellees further claimed that appellants entered their land and

cleared it in violation of a Cedar Hill Tree Preservation Ordinance and the Escarpment

Development Regulations, which are intended to preserve Cedar Hill’s distinctive character.

Appellees attached copies of a Cedar Hill ordinance and regulation to their third amended

petition and partial motion for summary judgment. The partial summary judgment motion

provided more discussion about the City’s ordinances and regulations, but did not request the

declaration made by the trial court in its order and final judgment.

       Although appellees’ live pleading and motion for partial summary judgment allege

appellants’ destruction of trees and vegetation violate the City of Cedar Hill’s ordinances and

regulations, appellees never pleaded a cause of action arising from the alleged violation of those

ordinances and regulations or requested relief on those bases. Thus, the trial court’s order and

judgment grant relief that was not requested and do not conform to the pleadings.

       We also conclude the issue was not tried by consent. Appellees’ discussion of the Cedar

Hill ordinances and regulations did not seek judgment from the trial court prohibiting appellants

from violating any ordinances and regulations. Rather, appellees included the City’s regulations

as part of their extensive description about the uniqueness and fragility of their properties and

why their properties need to be protected from development—including development of the road

Easement proposed by appellants.        For example, in their motion for summary judgment,

appellees stated: “Because of the fragile, unique nature of Dogwood Canyon, the City of Cedar

Hill created ordinances and escarpment zone regulations strictly limiting development and

clearing rights.”   Appellants presented no evidence regarding the City’s ordinances and

regulations.

       After examining the record, we conclude the evidence does not show the issue of whether

the trial court should prohibit appellants from violating the City of Cedar Hill’s ordinances and

                                                –8–
regulations was tried by consent. The ordinances and regulations were presented to illuminate

that appellees’ land is unique and fragile and has been recognized as such by the City which has

afforded appellees’ land protection. The circumstances do not indicate both parties understood

the issue of prohibiting appellants from violating those ordinances was being tried by consent.

See Hampden Corp., 331 S.W.3d. at 495-96.

           3.         Conclusion

           We sustain appellants’ first issue. We modify the trial court’s judgment and delete the

trial court’s declaration that the road Easement “Does not provide the owner(s) of the Dominant

Estates with the right to use the road easement for any purpose that would result in violation of

applicable city, state, or federal ordinances, statutes, or laws.”4

B.         Plain Language of the Easement

           In their second issue, appellants argue the trial court’s judgment is inconsistent with the

plain language of the Easement. The judgment states the road Easement “Does not provide the

owner(s) of the Dominant Estates with any right to excavate the land or otherwise clear or

remove trees along the easement.” In response, appellees argue the trial court’s judgment does

not prevent appellants from building a road, although it may preclude appellants from building

the type of road they desire.

           1.         Interpretation of Easements

           A property owner’s right to exclude others from his or her property is recognized as

“‘one of the most essential sticks in the bundle of rights that are commonly characterized as

property.’” Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002) (quoting

Dolan v. City of Tigard, 512 U.S. 374, 384 (1994)). A landowner may grant an easement which

     4
        We do not conclude appellants have the right to violate ordinances and regulations of the City of Cedar Hill. We only conclude the trial
court lacked jurisdiction to enter judgment precluding appellants from violating ordinances and regulations because the issue was not pleaded or
tried by consent.



                                                                     –9–
relinquishes a portion of the right, but the relinquishment is limited in nature. Id. An easement

is a nonpossessory interest that authorizes its holder to use the property for only particular

purposes. Id. (citing RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 1.2 cmt. d).

       An easement exists for the benefit of the easement holder, and allows another to use the

property for a specific purpose. Severance v. Patterson, 370 S.W.3d 705, 721 (Tex. 2012). An

easement implies a grant of “unlimited reasonable use such as is reasonably necessary and

convenient and as little burdensome as possible to the servient owner.” Id. at 736. The “burden

on the servient estate is secondary to ensuring that the purpose of the easement is reasonably

fulfilled.” Id. The owner of the servient estate may not interfere with the easement holder’s

right to use the servient estate for the purposes of the easement. Id. at 721.

       We review the trial court’s interpretation of the easement de novo. See Eddins Enterps.,

Inc. v. Town of Addison, 280 S.W.3d 544, 548 (Tex. App.—Dallas 2009, no pet.). The rules of

contract construction and interpretation apply to an express easement agreement. N. Tex. Mun.

Water Dist. v. Ball, 466 S.W.3d 314, 319 (Tex. App.—Dallas 2015, no pet.) (citing DeWitt Cnty.

Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999)); Eddins Enters., 280 S.W.3d at 548

(citing Krohn, 90 S.W.3d at 700–01). Unless the agreement is ambiguous, we interpret its

provisions as a matter of law. Ball, 466 S.W.3d 319. As we interpret the easement provision at

issue here, our primary concern is to ascertain the true intentions of the parties as expressed in

the instrument. Id. (citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)). We strive to

harmonize and give effect to all the provisions of the agreement so that none will be rendered

meaningless. Id.

       When the grant’s terms are not specifically defined, they should be given their plain,

ordinary, and generally accepted meaning. Krohn, 90 S.W.3d at 701. The easement’s express

terms provide the purpose for which the easement holder may use the property. Id.; see also

                                                –10–
Canyon Reg’l Water Auth. v. Guadalupe-Blanco River Auth., 258 S.W.3d 613, 616 (Tex. 2008)

(“The express terms of the easement determine the scope of the easement holder’s rights”). Only

what is necessary to “fairly enjoy the rights expressly granted” passes by implication. Krohn, 90

S.W.3d at 701. The contracting parties’ intentions, as expressed in the grant, determine the

scope of the conveyed interest. Id. at 700-01.

       2.      Meaning of “Road”

       The Easement states the servient estates are subject to “a 50 foot road easement for egress

and ingress, being 25 feet on either side of centerline.” The parties agree appellants have a “road

easement” but disagree about whether that term entitles appellants to excavate the land or

otherwise clear or remove trees along the Easement.

       To resolve appellants’ second issue, we must determine the meaning of the term “road,”

which is not defined by the Easement. Webster’s dictionary defines road to mean:

       a: an open way or public passage for vehicles, persons, and animals: a track for
       travel or transportation to and fro serving as a means of communication between
       two places usu. having distinguished names b: a public way outside of an urban
       district: HIGHWAY—contrasted with street c: the part of a thoroughfare over
       which vehicular traffic moves: the space between curbs: ROADWAY

WEBSTER’S 3RD NEW INT’L DICTIONARY 1963 (1981). See also TEX. TRANSP. CODE ANN.

§541.302(9) (defining “private road or driveway” to mean “a privately owned way or place used

for vehicular travel and used only by the owner and persons who have the owner’s express or

implied permission), 541.302(11) (defining “roadway” to mean a highway . . . that is improved,

designed, or ordinarily used for vehicular travel); Harris v. State, 499 S.W.2d 9, 10 (Tex. Crim.

App. 1966) (concluding a parking lot was not a road because the parking lot “was neither a way,

a passage nor a line of travel from place to place”).




                                                 –11–
       3.      Road Easement

       Applying the plain, ordinary, and generally accepted meaning of the term road, we

conclude a 50-foot road easement for egress and ingress is a passageway over which vehicular

traffic can move. The history of this Easement also indicates it must be fit for vehicular traffic.

The Easement was created when the Mobley family divided its 287 acre piece of property and

obtained zoning that the properties would be used as one-acre residential lots. The parcels now

owned by appellants were then landlocked. The limited road Easement for ingress and egress

gave the appellants’ parcels of land access to the main road. At the time the 287 acre tract was

subdivided, vehicular transportation was commonplace and persons living on property zoned for

one-acre residential homes would need access for their vehicles to be driven between their homes

and the main road. The road Easement provided such access.

       The plain terms of the Easement allow the easement holders—here the appellants—to use

the Easement for a narrowly defined purpose: a fifty-foot road for ingress and egress. See

Patterson, 370 S.W.3d at 721. Although appellees presented the trial court with extensive

testimony about the negative impacts they believe will result if appellants build a road, the

Audubon appellees, as owners of the servient estates, may not interfere with appellants’ right to

use the servient estates for the purposes of the Easement. See id. As the holders of the

Easement, appellants have the legal right to build and use a road on the Easement for the

purposes of ingress and egress.

       The trial court’s judgment that appellants do not have the right to excavate the land or

otherwise clear or remove any trees along the Easement conflicts with the plain meaning of the

Easement. The record shows the land within the Easement is lush with vegetation, which is

incompatible with creating a fifty-foot wide passageway or thoroughfare over which vehicular

traffic can move. Therefore, we conclude the trial court’s declaration that the Easement “[d]oes

                                              –12–
not provide the owner(s) of the Dominant Estates with any right to excavate the land or

otherwise clear or remove trees along the easement” is incompatible with the rights granted by

the Easement.

       4.       Conclusion

       We sustain appellants’ second issue. We modify the trial court’s judgment and delete the

trial court’s declaration that the road Easement “Does not provide the owner(s) of the Dominant

Estates with any right to excavate the land or otherwise clear or remove trees along the

easement.”

C.     Definiteness of Judgment

       In their third issue, appellants argue the trial court’s judgment is indefinite and uncertain.

The judgment declares the easement “[i]s limited to providing the owner(s) of the Dominant

Estates with a right to ingress and egress only.” Appellants assert this language does not

sufficiently define the parties’ rights.   They argue appellees pleaded for declaratory relief

prohibiting appellants from “transporting machinery or materials along the easement” and it is

unclear whether the trial court’s judgment prohibits such activity.

       In their third amended petition, appellees sought declarations:

               a.      That the scope of any easement along [appellee’s] Land owned by
       [appellants] is limited to providing [appellants] with a right to ingress and egress
       only;
               b.      That the scope of any easement along [appellee’s] Land owned by
       [appellants] does not provide [appellants] with any right to use the easement for
       development purposes, including, but not limited to, (1) running water, power,
       internet cable, or other utility lines along the easement, (2) building a road along
       the easement, and/or (3) transporting machinery or materials along the easement;
       and
               c.      That [appellants] have no right to bulldoze, destroy, remove,
       conceal, encumber, or otherwise damage [appellee’s] Land.


The trial court’s final judgment states the Easement “[i]s limited to providing the owner(s) of the

Dominant Estates with a right to ingress and egress only.”            Thus, the trial court granted
                                               –13–
appellees’ request defining the scope of the easement as being for ingress and egress only.

Although the trial court’s judgment also granted appellees the relief they requested by declaring

the owners of the dominant estates do not have the right to “install power lines, water lines, cable

lines, internet lines, or any other utility,” the judgment does not grant the requested relief that the

dominant estate cannot use the Easement for transporting machinery or materials along the

easement. The judgment concludes: “The Court denies any other relief requested by the parties

in this action.” Applying the terms of the judgment, the trial court denied appellees’ requested

relief that appellants cannot transport machinery or materials along the Easement.

       We overrule appellants’ third issue.

D.     Damages for Trespass

       In their fourth issue, appellants assert the evidence is legally and factually insufficient to

support the $88,493 in damages the trial court awarded to the Hurt appellees for the trespass on

their land. Appellants concede they trespassed onto property outside of the Easement and the

trespass caused some amount of damage.            However, they claim most of the damaged or

destroyed vegetation was on the Easement and they had a right to remove it. They argue that

appellees’ expert failed to segregate damage caused by the trespass from “damage” to vegetation

on the Easement. In response, appellees assert all of the damage was caused to land outside of

the Easement and, therefore, their expert was not required to segregate.

       1.      Standard of Review

       When examining a legal sufficiency challenge, an appellate court reviews the evidence in

the light most favorable to the challenged finding and indulges every reasonable inference that

would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). An appellant

attacking the legal sufficiency of an adverse finding on which it did not have the burden of proof

at trial, must demonstrate that there is no evidence to support the adverse finding. See Exxon

                                                –14–
Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). The ultimate test for

legal sufficiency is whether the evidence would enable a reasonable and fair-minded fact finder

to reach the verdict under review. City of Keller, 168 S.W.3d at 827. The fact finder is the sole

judge of witness credibility and the weight to give their testimony. See id.

       In a factual sufficiency review, an appellate court considers and weighs all the evidence,

both supporting and contradicting the finding. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d

402, 406–07 (Tex. 1998). When an appellant challenges the factual sufficiency of the evidence

supporting a finding for which it did not have the burden of proof, an appellate court will set

aside the verdict only if the evidence that supports the jury finding is so weak as to make the

verdict clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.

1986). The appellate court may not substitute its judgment for that of the trier of fact or pass on

the credibility of the witnesses. See Ellis, 971 S.W.2d at 407.

       2.      Analysis

       Daneshian testified his backhoe cleared vegetation both on and off the Easement. Mr.

Hurt testified he and his wife own the property on which appellants trespassed. On cross-

examination, an Audubon executive testified:

               Q.      So Audubon doesn’t have any ownership interest in the property
       that my client [appellants] went onto with his tractor, correct?
               A.      The property that was damaged by the trespass was the property of
       David Hurt. Much of the debris was pushed onto our property . . ..”
               Q.      Okay. But the damage that we’re talking about was contained
       within the David Hurt property, which is not owned by Audubon?
               A.      That is correct.

       The arborist who testified as an expert witness discussed damage to the Hurts’ property.

He testified about damage to the “the trespassed area” and estimated cost to begin replacing the

damaged canopy is $88,493.



                                               –15–
       Although Daneshian stated most of the destroyed vegetation was on the Easement, there

also is evidence all of the damage was on the Hurts’ property. Further, the arborist testified he

examined the “trespassed area,” which would be the Hurts’ property. The record is not well

developed on this point. However, there is some evidence showing all the vegetation that was

destroyed was on the Hurts’ land and the arborist limited his consideration to this damage.

       After reviewing the entire record, we cannot say there is no evidence to support the trial

court’s conclusion that the damage to the Hurts’ property is $88,493. See Exxon Corp., 348

S.W.3d at 215; City of Keller, 168 S.W.3d at 827. Nor can we conclude the evidence supporting

the judgment is so weak as to make it clearly wrong and manifestly unjust. See Cain, 709

S.W.2d at 176.

       3.        Conclusion

                 We overrule appellants’ fourth issue.

                                            CONCLUSION

       We modify the trial court’s judgment by deleting the trial court’s declarations that the

road Easement:

       “Does not provide the owner(s) of the Dominant Estates with the right to use the

       road easement for any purpose that would result in violation of applicable city,

       state, or federal ordinances, statutes, or laws” and

       “Does not provide the owner(s) of the Dominant Estates with any right to

       excavate the land or otherwise clear or remove trees along the easement.”




                                                –16–
      As modified, we affirm the trial court’s judgment.




                                                 /Craig Stoddart/
                                                 CRAIG STODDART
                                                 JUSTICE

140108F.P05




                                            –17–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

UNITED SERVICES PROFESSIONAL                         On Appeal from the 162nd Judicial District
GROUP, INC. D/B/A PYRAMID REALTY,                    Court, Dallas County, Texas
MAJID HAMMASI, SADAT                                 Trial Court Cause No. DC-10-04892-I.
BASSAMPOUR FATEMEH, AND AL                           Opinion delivered by Justice Stoddart.
DANESHIAN, Appellants                                Justices Fillmore and Richter participating.

No. 05-14-00108-CV         V.

DAVID M. HURT, KIMBERLY R. HURT,
NATIONAL AUDUBON SOCIETY, INC.,
AND DALLAS COUNTY AUDUBON
SOCIETY, INC., Appellees

    In accordance with this Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:

       We DELETE the words “Does not provide the owner(s) of the Dominant Estates
       with the right to use the road easement for any purpose that would result in
       violation of applicable city, state, or federal ordinances, statutes, or laws” and
       “Does not provide the owner(s) of the Dominant Estates with any right to
       excavate the land or otherwise clear or remove trees along the easement” from the
       judgment.

It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.

        It is ORDERED that appellants United Services Professional Group, Inc. d/b/a Pyramid
Realty, Majid Hammasi, Sadat Bassampour Fatemeh, and Al Daneshian recover their costs of
this appeal from appellees David M. Hurt, Kimberly R. Hurt, National Audubon Society, Inc.
and Dallas County Audubon Society, Inc.


Judgment entered this 7th day of December, 2015.




                                              –18–
