Affirmed and Memorandum Opinion filed May 30, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00207-CV

                     EMIEL W. OWENS, JR., Appellant
                                       V.

          JAMES E. MASON AND SHELLY GODFREY, Appellees

                   On Appeal from the 506th District Court
                          Grimes County, Texas
                       Trial Court Cause No. 32,045

                MEMORANDUM                      OPINION


      Appellant, Emiel Owens, Jr., appeals the trial court’s judgment in favor of
appellees, James E. Mason and Shelly Godfrey (collectively, “the Masons”), on
their claims for nuisance and a permanent injunction. We affirm.

                           I. FACTUAL BACKGROUND

      On July 7, 2003, Anderson Hills, Ltd, the developer of the Anderson Hills
Subdivision, Grimes County, Texas, conveyed three tracts of land by deed to the
Masons. The deed also conveyed the following easement:

      TOGETHER WITH non-exclusive road easement for the purpose of
      ingress and egress to a public road containing 1.588 acres of land,
      more or less, out of and a part of the A. D. KENNARD SURVEY.
      Abstract No. 34. Grimes County, Texas, and being described by metes
      and bounds on Exhibit “D” attached hereto and made part hereof for
      all purposes.
      On October 25, 2010, Craig and Dixie Matlock conveyed two tracts of land,
also in the Anderson Hills Subdivision, by deed to Owens. The Matlock deed
conveyed the same easement to Owens.

      The Masons’ three tracts and Owens’s two tracts abut the sixty-foot
easement. A rock and dirt road known as Greenmeadow Drive was built in the
easement. It is undisputed that Owens tore up the road on April 5, 2011, when he
removed the culvert in the road.

      Godfrey testified that, on April 5, 2011, when she was coming home from
work and turned onto Greenmeadow Drive, she was unable to drive any farther
than the point where her property line and her neighbors’ property line met.
Godfrey described the condition of the road:

      The road was all tore up. There were mounds of dirt and rock to
      where I could not access our property on the road. I could not access
      our property on our side of the road on the easement because [Owens]
      had also taken a bulldozer and pushed mounds of dirt and rock onto
      the right side of the easement.1
      Godfrey explained that they were able to access their property for one day
by driving on the side of road that was in the part of the easement that was located
on Owens’s property. The next day, however, Owens put in a berm, and the

      1
        Godfrey mistakenly said that the dirt had been pushed onto the “right” side of the
easement. She immediately corrected her mistake and said she meant the “left” side.

                                            2
Masons could no longer access their property by that part of the easement located
on Owens’ property. With their neighbors’ permission, the Masons accessed their
property by driving onto their neighbors’ property. Godfrey testified that “we were
basically tearing up their yard with our vehicles and making tracks in their yard
just so we could access our property.” Godfrey testified that it was a week before
they could use the road again to access their property. Several photographs taken
by Godfrey showing the road in its damaged condition were admitted into
evidence.

      Godfrey testified that the road had not been repaired to the condition that
existed before April 5, 2011. They could use the road after Mason had smoothed
out the road with a tractor and a front-end loader. Godfrey described the road at
the time of trial as “very bumpy and very holey”; “it is not a smooth drive like we
had.” Godfrey explained that “You can drive on” the road, but “[i]t is not in the
condition before it was tore up.” Mason described the road as “[m]aybe passable,
but unacceptable.” Both Mason and Godfrey testified that Greenmeadows Drive
was the only road by which to access their property and Owens knew the road was
the only way to access their property.

      Owens testified that he removed the culvert because it drained water from
the Masons’ property onto his property. Owens stated that it was not his intention
to destroy the road or obstruct the easement. When shown the photographs of the
road taken by Godfrey, Owens denied that photographs were of the road or even
the subdivision, and claimed that they were “fabricated.” Owens stated that he did
not do as much damage as was shown in the photographs. Brenda Jackson,
Owens’s wife, testified that the photographs were of Greenmeadow Drive, but she
had never seen the road in that condition.



                                             3
                             II. PROCEDURAL BACKGROUND

       On April 8, 2011, three days after Owens had torn up the road, the Masons
filed their original petition alleging a claim for nuisance and seeking a declaratory
judgment for construction and declaration of their rights in the easement. The
Masons requested a temporary restraining order, a temporary injunction, and a
permanent injunction to enjoin Owens from obstructing the easement and
interfering with their use of, and access to, their property. The Masons also
brought a claim for a violation of the Texas Water Code for obstruction of a creek
that flowed from their property to Owens’s property. Owens has neither an answer
nor affirmative pleadings seeking relief on file.2 On April 8, 2011, the trial court
signed a temporary restraining order, and, on May 2, 2011, the parties entered into
an agreed order for a temporary injunction prohibiting Owens from obstructing the
easement or interfering with the Masons’ use of, and access to, their property.

       On September 16, 2011, the trial court held a one-day bench trial. At trial,
the Masons nonsuited all of their claims pertaining to the alleged obstruction of the
creek. Thus, after the trial court heard evidence, it signed findings of fact and
conclusions of law in favor of the Masons regarding the easement alone.
Specifically, on November 7, 2011 the trial court signed the final judgment (1)
declaring the easement a “non-exclusive road easement for the purpose of ingress

       2
          In their brief, the Masons correctly point out that the reporter’s record of this cause
contains no pleadings filed by Owens until after the trial of this matter. By his reply brief,
Owens urges that his counsel mailed an original answer to the court and attaches a copy of a
general denial as an appendix to his reply brief. Such answer does not bear a file stamp. Owens
has not attempted to supplement the record. Therefore, we do not consider the pleading. See
Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 342 n.2 (Tex. App.—Houston [14th
Dist.] 2003, no pet.) (“[I]n our review, we cannot consider documents attached as appendices to
briefs and must consider a case based upon the record filed.”); Nguyen v. Intertex, Inc., 93
S.W.3d 288, 293 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (“The attachment of
documents as exhibits or appendices to briefs is not formal inclusion in the record on appeal and,
therefore, the documents cannot be considered.”).

                                                4
and egress to a public road”; (2) enjoining Owens from interfering with the
Masons’ use of the easement; and (3) awarding the Masons $3,000 in actual
damages, $9,000 in exemplary damages, and $2,040 in attorney’s fees.              On
December 1, 2011, Owens filed a motion for new trial. On December 9, 2011, the
trial court held a hearing on Owens’s motion for new trial, and signed the order
denying the motion on December 14, 2011. On January 13, 2012, Owens filed a
motion for reconsideration.        There is no written ruling on the motion for
reconsideration, but a notation on the docket sheet shows that the trial court denied
the motion on January 17, 2012. Owens then brought this appeal.

                                     III. ANALYSIS
                                A. Conclusions of Law
      In his first issue, Owens claims the evidence is legally insufficient to support
“the conclusions of law and the judgment.” At the outset we note that Owens does
not challenge any of the trial court’s specifically-stated conclusions of law.
Therefore, he has waived any error with regard to the trial court’s stated
conclusions of law for insufficient briefing. See TEX. R. APP. P. 38.1(h).

      Instead, Owens complains that the trial court did not construe the easement
and the parties’ rights under the easement as it relates to drainage and the culvert.
Specifically, Owens argues that (1) the Masons have only the right to the non-
exclusive easement of ingress and egress, not an easement for drainage; (2) the
drainage easement violates Section 11.086 of the Texas Water Code;3 and (3) the
Masons’ actions constitute a trespass onto Owens’s property.

      The trial court’s judgment must conform to the pleadings. T EX. R. CIV. P.
301; Moneyhon v. Moneyhon, 278 S.W.3d 874, 878 (Tex. App.—Houston [14th
Dist.] 2009, no pet.). The purpose of pleadings is to give reasonable notice of the
      3
          TEX. WATER CODE ANN. § 11.086 (West 2008).

                                            5
claims asserted. Moneyhon, 278 S.W.3d at 878. A party may not be granted relief
in the absence of pleading to support that relief. In re Estate of Gaines, 262
S.W.3d 50, 60 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Unpleaded claims
or defenses that are tried by implied or express consent are treated as if they had
been raised by the pleadings. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d
492, 495 (Tex. 1991). An unpleaded issue may be deemed tried by consent if
evidence on the issue was developed under circumstance indicating that the parties
understood the issue was part of the case and the other party failed to properly
complain. TEX. R. CIV. P. 67; Frazier v. Havens, 102 S.W.3d 406, 411 (Tex.
App.—Houston [14th Dist.] 2003, no pet.).

      Owens did not plead any affirmative claims against the Masons related to
the presence of the culvert, i.e., whether the Masons have the right to a “drainage
easement”; whether the “drainage easement” violated the Texas Water Code; or
whether the drainage of water onto Owens’s property constituted a trespass. Nor
was the issue of the drainage easement tried by consent.        The only evidence
regarding the culvert was (1) the Masons’ testimony that the culvert existed when
they bought their property; and (2) Owens’s testimony that he removed the culvert
because he did not want the water draining from the Masons’ property onto his
property. However, this evidence does not address whether Masons’ are entitled to
a “drainage easement”; whether such easement violated the Texas Water Code; or
whether the Masons’ actions constituted a trespass. Thus, the record shows no
evidence concerning the drainage easement was developed at trial. Consequently,
in the absence of pleadings or trial by consent of any claims related to the culvert
and the drainage easement, the trial court did not err by not declaring the parties’
rights with regard to the “drainage easement.” See In re Marriage of Little, No.
07-10-00134-CV, 2011 WL 3207768, at *2 (Tex. App.—Amarillo July 28, 2011,


                                         6
no pet.) (mem. op.) (holding it was not error for trial court not to enter money
judgment in favor of wife in the absence of pleading or trial by consent).

      We overrule Owens’s first issue.

               B. Variance between the Pleadings and the Proof

      In his third issue, Owens claims there is a fatal variance between the
pleadings and the proof. Specifically, Owens complains that the Masons’ petition
requested a declaratory judgment regarding their rights in the easement, but did not
address whether (1) Owens had the right to remove the culvert; or (2) the removal
of the culvert resulting in a “dip” in the road constituted a material or substantial
obstruction of the easement and an interference with their right to use and
enjoyment of the easement.

      Texas follows a “fair notice” pleading standard, which looks to whether the
opposing party can ascertain from the pleading the nature and basic issues of the
controversy and what testimony will be relevant. Horizon/CMS Healthcare Corp.
v. Auld, 34 S.W.3d 887, 896 (Tex. 2000).          The purpose of the fair notice
requirement is to provide the opposing party with sufficient information to enable
him to prepare a defense. Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d
491, 494 (Tex. 1988). The pleadings and the evidence must coincide. In re
Canales, 113 S.W.3d 56, 66 (Tex. Rev. Trib. 2003) (citing Safety Cas. Co. v.
Wright, 160 S.W.2d 238, 245 (Tex. 1942)). A variance between the pleadings and
proof is fatal only if the divergence is substantial, misleading, and prejudicial.
Stone v. Lawyers Title Ins. Co., 554 S.W.2d 183, 187 (Tex. 1977).

      Here, there is no variance between the Masons’ pleadings and the evidence
presented at trial. The Masons’ pleaded that Owens “destroyed the road providing
access to [the Masons’] Property” and “thereby obstructed the Easement and


                                          7
prevented [the Masons’] use of the Easement.” Owens cannot ask this court to
resolve issues regarding the drainage easement and the existence of the culvert,
which, as we addressed above, were neither pleaded nor tried by consent. A
review of the record shows that the evidence coincides with the Masons’ pleadings.
See In re Canales, 113 S.W.3d at 66.

       Owens further contends that the evidence is not legally sufficient to establish
a private nuisance because the Masons failed to show (1) they had a legal right to
install the culvert; (2) they had legal ownership of the land where the culvert was
installed; and (3) the interference was “substantial.” Again, Owens is requesting
that this court rule on his complaints regarding the existence of the culvert and the
trial court’s purported grant of a drainage easement to the Masons. Owens failed
to plead any affirmative claims for relief with respect to the culvert and the
drainage easement, and the parties did not try those issues by consent as no
evidence was developed on them. See In re Estate of Gaines, 262 S.W.3d at 60;
Frazier, 102 S.W.3d at 411. Therefore, we do not address Owens’s arguments
regarding the culvert or the drainage easement.

       We overruled Owens’s third issue.

                                     C. Findings of Fact

       In his fourth issue, Owens claims the evidence is legally and factually
insufficient to support the findings of fact.4 Owens specifically challenges findings
of fact nos. 4, 5, 7, 8, 9, 10, and 11.



       4
          Owens states his fourth issue as “Whether the evidence is factually sufficient to support
the findings of fact.” However, because Owens includes the standard of review for legal
sufficiency of the evidence, he appears to be challenging the legally sufficiency of the evidence
supporting the findings of facts. Erring on the side of caution, we address both the legal and
factual sufficiency of the evidence.

                                                8
Nuisance

      Findings of fact nos. 4, 5, 7, 9, and 10 relate to the elements of a claim for
nuisance.5 Findings of fact entered in a case tried to the court are entitled to the
same force and dignity as a jury’s verdict on jury questions. Catalina v. Blasdel,
881 S.W.2d 295, 297 (Tex. 1994). We apply the same standards in reviewing the
legal and factual sufficiency of the evidence supporting the trial court’s fact
findings as we do when reviewing the legal and factual sufficiency of the evidence
supporting a jury’s finding. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per
curiam).

      In reviewing the legal sufficiency of the evidence, we view the evidence in
the light most favorable to the fact finding, crediting favorable evidence if
reasonable persons could, and disregarding contrary evidence unless reasonable

      5
          Findings of fact nos. 4, 5, 7, 9, and 10 are as follows:
      4.      On or about April 5, 2011, Defendant damaged a road providing access to
      Plaintiff’s Property. Such road had been constructed by Plaintiffs within the
      Easement which is commonly known as Greenmeadow Drive in the Anderson
      Hills Subdivision, Grimes County, Texas. Defendant thereby obstructed the
      Easement and, thus, interfered with Plaintiffs’ use and enjoyment of the Easement
      and Plaintiffs’ Property; and thereby invaded Plaintiffs’ interest in such property.
      5.     On or about April 7, 2011, Defendant constructed a dirt embankment in
      the Easement thereby further interfering with Plaintiff’s use and enjoyment of the
      Easement and, consequently, the use and enjoyment of Plaintiffs’ Property; and
      thereby further invading Plaintiff’s interest in such property.
                                            *      *     *
      7.        Defendant’s conduct was intentional and unreasonable.
                                            *      *     *
      9.     Defendant’s conduct resulted in a condition that substantially interfered
      with Plaintiffs’ use and enjoyment of the Easement and, consequently, Plaintiffs’
      Property.
      10.    Plaintiffs were injured by (a) damage to the road which had been
      constructed by Plaintiffs’; (b) the loss of the use and enjoyment of the Easement
      and Plaintiffs’ Property; and (c) emotional harm.

                                                   9
persons could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex.
2005). When the appellant attacks the legal sufficiency of a finding on which it
did not have the burden of proof, it must demonstrate that there is no evidence to
support the finding. Id. at 810. We may not sustain a legal sufficiency, or “no
evidence” point unless the record demonstrates that: (1) there is a complete
absence of a vital fact; (2) the court is barred by the rules of law or of evidence
from giving weight to the only evidence offered to prove a vital fact; (3) the
evidence to prove a vital fact is no more than a scintilla; or (4) the evidence
established conclusively the opposite of the vital fact. Id.
      To evaluate the factual sufficiency of the evidence to support a finding on
which the appellant did not have the burden of proof, we consider all the evidence
and will set aside the finding only if the evidence supporting the finding is so weak
or so against the overwhelming weight of the evidence that the finding is clearly
wrong and unjust. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex.
1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).
      Unchallenged findings of fact are binding on the appellate court unless the
contrary is established as a matter of law, or if there is no evidence to support the
finding. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986).

      A nuisance is a condition that substantially interferes with the use and
enjoyment of land by causing unreasonable discomfort or annoyance to persons of
ordinary sensibilities attempting to use and enjoy it. Warwick Towers Council of
Co-Owners v. Park Warwick, L.P., 298 S.W.3d 436, 444 (Tex. App.—Houston
[14th Dist.] 2009, no pet.). A nuisance may arise by causing (1) physical harm to
property, such as by the encroachment of a damaging substance; (2) physical harm
to a person on his property from an assault on his senses or by other personal
injury; or (3) emotional harm to a person from the deprivation of the enjoyment of


                                          10
his property through fear, apprehension, or loss of peace of mind.           Kane v.
Cameron Int’l Corp., 331 S.W.3d 145, 147–48 (Tex. App.—Houston [14th Dist.]
2011, no pet.). Actionable nuisance may arise from an invasion of another’s
interests attributable to activity that is intentional, negligent, or abnormal and out
place in its surroundings. Warwick Towers Council of Co-Owners, 298 S.W.3d at
444.

       Owens initially argues that (1) the Masons do not have a valid cause of
action against him because they were trespassers when they installed a culvert
under the road; and (2) there is no evidence to support the trial court’s granting the
Masons a drainage easement. As previously addressed with regard to Owens’s
first and third issues, Owens did not plead any causes of action related to the
culvert or the drainage easement, and the parties did not try any issues related to
the culvert or drainage easement by consent. See In re Estate of Gaines, 262
S.W.3d at 60; Frazier, 102 S.W.3d at 411. Therefore, we do not address these
contentions.

       As to the Masons’ nuisance claim, it was undisputed that Owens damaged
the road, although the parties disputed how much damage he caused. Owens
testified that he never intended to obstruct the easement or prevent the Masons’ use
of the easement. Owens claimed that he merely removed the culvert, which did
not encompass the entire road, and that the only damage caused by the removal of
the culvert was a “dip’” in the road. Owen argues that the testimony of both
Godfrey and Mason confirmed that their right of ingress and egress was not
affected, and they were able to drive on the road. Therefore, according to Owens,
the damage shown in the photographs taken by Godfrey was not consistent with
the removal of the culvert, but was more consistent with the reconstruction of the



                                         11
road by the Masons two years before trial.6               Owens claimed at trial that
photographs were “fabricated.”7

        Godfrey, on the other hand, described the condition of the road as “all tore
up.” Initially, the Masons accessed their property for a day by driving on the part
of the easement located on Owens’s property. When Owens put in the berm, the
Masons had to drive on their neighbors’ property, “tearing up their yard with our
vehicles and making tracks in their yard just so we could access our property.” It
was a week before the Masons could drive on the road, which was after Mason had
smoothed the road with a tractor and a front-end loader. Even then, the road was
“very bumpy and very holey” unlike “the smooth” road they had before. The
Masons could drive on the road; however, its condition was “passable, but
unacceptable.” Godfrey testified that the photographs of the road were fair and
accurate representations of the condition of the road after the damage had been
done.

        Moreover, with respect to Owens’s claim that the “dip” in the road was the
only damage to road, Owens takes Godfrey’s testimony out of context. A review
of the record shows that Godfrey was describing the damage shown in the
photographs, when she pointed out in one of the photographs “the hole where the
culvert once was and which is a dip now in the roadway along with the
destruction.” Godfrey did not testify that the “dip” in the road was the only
damage done.

        6
        Both Mason and Godfrey testified that the road was reconstructed about two or two-
and-one-half years before trial.
        7
          Owens states in his appellate brief that he provided, in support of his motion for
reconsideration, photographs purportedly showing the true condition of the road after he had
removed the culvert. We do not consider those photographs because they were not offered at
trial. Moreover, as discussed below with regard to Owens’s second and sixth issues, the trial
court did not rule on Owens’s motion for reconsideration before its plenary power expired.

                                             12
      The Masons presented undisputed evidence of emotional harm caused by the
damaged road. Godfrey described the stress the situation caused her family: “It
was a lot of stress. Had we needed EMS, fire department, there was no way.
There would have been no way for them to have access to our property when this
happened the first week.” Godfrey also explained the stress the situation caused
her children:

      My children were very stressed. My child would cry. My seven-year
      old would cry and worry when the Owens — she would always want
      to know — when I would pick her up from school, she would like,
      [M]om, are the neighbors there, are they there? I’d try to calm her
      and soothe her not to have to worry about if they were going to be
      there or not.
      Godfrey further testified that the damaged road caused “[t]he fear of not
being able to get in and out” and it caused her apprehension, worry, and to lose her
peace of mind. Mason testified that damage to the road caused stress to his family,
him to lose his peace of mind, his wife and children to “worr[y] everyday.”

      Here, it was uncontroverted that Owens caused the damage to the road. The
trial court could have believed testimony by the Masons that there was sufficient
damage to the road to block access to their property, and the photos taken by
Godfrey accurately represented the condition of the road on April 5, 2011, and the
following days. The trial court could have rejected Owens’s testimony that he did
not obstruct the road and that the photos were “fabricated.” See Rich v. Olah, 274
S.W.3d 878, 884 (Tex. App.—Dallas 2008, no pet.) (“In a bench trial, the trial
court is the sole judge of the credibility of the witnesses, assigns the weight to be
given their testimony, may accept or reject all or any part of their testimony, and
resolves any conflicts or inconsistencies in the testimony.”). The trial court also
could have accepted the Masons’ uncontroverted testimony that they and their
children suffered emotional harm. Finally, because was it undisputed that Owens

                                         13
knew the road was the only access to the Masons’ property, the trial court could
have inferred that Owens acted intentionally and unreasonably. We conclude that
the evidence is legally and factually sufficient to support findings of fact nos. 4, 5,
7, 9, and 10 to establish the Masons’ nuisance claim.

Malice

      Owens also challenges the legal and factual sufficiency of the evidence to
support finding of fact no. 8—that he acted with malice or the specific intent to
cause substantial injury or harm to the Masons. Exemplary damages may be
awarded in cases where a claimant proves by clear and convincing evidence that
the harm resulted from fraud, malice, or gross negligence. TEX. CIV. PRAC. & REM.
CODE ANN. § 41.003(a) (West Supp. 2012). The trial court found that Owens acted
with malice. Malice is defined as a specific intent by the defendant to cause
substantial injury or harm to the claimant. TEX. CIV. PRAC. & REM. CODE ANN. §
41.001(7) (West 2008). Specific intent means that the actor desires to cause the
consequences of his act, or that he believes the consequences are substantially
certain to result from it. Seber v. Union Pac. R.R., 350 S.W.3d 640, 654 (Tex.
App.—Houston [14th Dist.] 2011, no pet.). Malice may be shown by direct or
circumstantial evidence. Id.

      When the standard of proof at trial is elevated, the standard of appellate
review must likewise be elevated. Sw. Bell Tele. Co. v. Garza, 164 S.W.3d 607,
627 (Tex. 2004). In a legal sufficiency review where the burden of proof is clear
and convincing evidence, we must consider all the evidence “in the light most
favorable to the finding to determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true.” Romero v. KPH
Consol., Inc., 166 S.W.3d 212, 220 (Tex. 2005). “If, after conducting its legal
sufficiency review, a court determines that no reasonable factfinder could form a

                                          14
firm belief or conviction that the matter that must be proven is true, then the court
must conclude that evidence is legally insufficient.” In re J.F.C., 96 S.W.3d 256,
266 (Tex. 2002).

      When reviewing the factual sufficiency of the evidence, we determine
“whether the evidence is such that a fact finder could reasonably form a firm belief
or conviction about the truth of the allegations.” In re C.H., 89 S.W.3d 17, 25
(Tex. 2002). We consider whether the disputed evidence is such that a reasonable
fact finder could not have resolved the disputed finding in favor of its finding. In
re J.F.C., 96 S.W.3d at 266. “If, in light of the entire record, the disputed evidence
that a reasonable factfinder could not have credited in favor of the finding is so
significant that a factfinder could not have reasonably formed a firm belief or
conviction, then the evidence is factually insufficient.” Id.

      Owens contends that he had the “right to protect his property,” i.e., remove
the culvert because water was draining onto his property.           As we observed
previously, the issue of the drainage easement was not pleaded or tried by consent
by the parties.

      Owens further argues that the Masons did not establish a “substantial
injury.” The deed by which the property was conveyed to Owens showed that he
obtained a “non-exclusive road easement for the purpose of ingress and egress to a
public road.” Owens also testified that he understood that he was purchasing the
property subject to existing easements. Owens knew where the easement was
located because he had the property surveyed. Owens also knew the road was the
Masons’ only access to their property.

      The Masons presented evidence that that the entire road was blocked due to
the destruction of the road by Owens and the berm Owens put in and, therefore,
they had no access to their property. The Masons resorted to driving on their
                                          15
neighbors’ property and tearing up their neighbors’ yard while doing so. This
situation lasted for a week until Mason smoothed the road. Owens claimed that
taking out the culvert did not obstruct the entire road and the photographs showing
the damaged road were “fabricated.” Here, the trial court could have accepted the
Masons’ testimony and rejected Owens’s. See Rich, 274 S.W.3d at 884.

      The trial court could have inferred that Owens had the specific intent, when
he removed the culvert, to cause substantial harm or injury to the Masons by
obstructing access to their property, or that he believed that would be the
consequences of his actions. Cf. Seber, 350 S.W.3d at 654–55 (holding, as a
matter of law, there was no evidence of specific intent to cause substantial injury or
harm where evidence of a purposeful restriction of access to land that merely made
ingress and egress less convenient did not raise a material fact issue regarding a
substantial injury); Shed, L.L.C. v. Edom Wash ’N Dry, L.L.C., No. 12-07-00431-
CV, 2009 WL 692609, at *8–9 (Tex. App.—Tyler Mar. 18, 2009, pet. denied)
(mem. op.) (holding that proof of intent to unreasonably restrict an access
easement is not proof of malice: “[w]hile blocking a more direct walking path and
having a small opening in the fence for vehicular traffic might demonstrate an
intent to cause injury, . . . [t]he evidence remains that [the appellants] at all times
provided [the appellee’s ] occupants access for ingress and egress across [the
appellee’s] property”). We conclude that, by clear and convincing evidence, the
evidence is legally and factually sufficient to support finding of fact no. 8.

Permanent Injunction

      Owens also challenges legal and factual sufficiency of the evidence to grant
a permanent injunction. Finding of fact no. 11 provides that the obstruction of the
easement still exists, the Masons will suffer irreparable injury should the
obstruction continue, and the benefit of issuing a permanent injunction will

                                          16
outweigh the harm to Owens. A permanent injunction is appropriate if a party
shows (1) the existence of a wrongful act; (2) the existence of imminent harm; (3)
the existence of irreparable injury; and (4) the absence of an adequate remedy at
law.   Wiese v. Healthlake Cmty. Ass’n., 384 S.W.3d 395, 399 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). We review the grant or denial of a permanent
injunction for an abuse of discretion. Id.

       Owens challenges only the element of irreparable injury.       An injury is
irreparable if the injured party cannot be adequately compensated in damages or if
the damages cannot be measured by any certain pecuniary standard. Cytogenix,
Inc. v. Waldroff, 213 S.W.3d 479, 487 (Tex. App.—Houston [1st Dist.] 2006, pet.
denied). That is, the party must establish that there is no adequate remedy at law.
Millee-Jackson Joint Venture v. Dallas Area Rapid Transit, 350 S.W.3d 772, 782
(Tex. App.—Dallas 2011, no pet.). An adequate remedy at law is one that is as
complete, practical, and efficient to the prompt administration of justice as is
equitable relief. Id. We have already concluded that the evidence is legally and
factually sufficient to support the Masons’ nuisance claim. The obstruction of the
road and, thereby, access to the Masons’ property cannot be measured by any
pecuniary standard.    Therefore, the Masons have established the element of
irreparable injury. Owens does not challenge any of the other elements of a
permanent injunction. Therefore, we conclude that the trial court did not abuse its
discretion by granting a permanent injunction.

       We overrule Owens’s fourth issue.

                              D. Excessive Damages

       In his fifth issue, Owens claims the trial court abused its discretion by
awarding excessive damages. The standard of review for a complaint of excessive
damages is factual sufficiency of the evidence. Ellis, 971 S.W.2d at 406.
                                         17
      Owens first argues that the Masons are not entitled to any damages because
of the Masons’ trespass and installation of the culvert creating a drainage
easement.   Owens contends that his abatement of the drainage easement and
removal of the culvert were consistent with his rights as a property owner to
protect his property from trespassers. Again, because no claim regarding Owens’s
complaint about the culvert or drainage easement was pleaded or tried by consent,
we do not address this argument.

      Owens further urges that the evidence does not support the award of actual
damages. At trial, an invoice from Surface Dirt Works dated April 23, 2010, was
admitted into evidence showing an estimate of $3,013.33 to repair the road to its
condition before April 5, 2011. Owens asserts that the invoice did not reflect the
cost to repair the damage due to the removal the culvert. Relying on the April
2010 date on the invoice and the amount of materials listed, Owens argues that the
invoice, instead, referred to the reconstruction of the road six months prior to
Owens’s buying his property in the subdivision and was not consistent with the
damage caused by merely removing the culvert.

      Owens testified that he obtained an estimate to repair the road from “Mr.
Paul Gonzalez in Hempstead, Texas.” Gonzalez gave Owens an estimate of “$840
for material,” and Owens had his own tractor with a box blade to do the work.

      Mason testified that a company called Surface Dirt Works reconstructed the
road two or two-and-one-half years before trial. Mason asked Billy Surface, the
owner of Surface Dirt Works, to give him an estimate of the cost to put the road
back to its condition prior to Owens’s damaging the road. Mason identified the
April 23, 2010 invoice as the estimate Billy Surface gave him to repair the road.
Mason further testified that he worked for the highway department, building and
repairing highways. Mason was familiar with the use of heavy equipment used for

                                        18
road work and the cost of rocks used for roads. Based on his knowledge of road
work and the estimate Billy Surface gave him, Mason stated that the cost to repair
the road would be about $3,000 or $3,100.

       Notwithstanding the date discrepancy, the trial court was entitled to believe
Masons’s testimony that the invoice was the estimate to repair the damage to the
road done by Owens and that Mason was familiar with the equipment used on
roads and the costs of rocks used for roads. See Rich, 274 S.W.3d at 884. The trial
court could have believed Mason’s testimony about the cost to repair the road as
well. We conclude that the evidence is factually sufficient to support an award of
actual damages in the amount of $3,000.

       Owens also contends that the Masons are not entitled to any exemplary
damages because they did not prove that he acted with malice.8 Owens argues that
he agreed to the temporary restraining order and refrained from any further
conduct that would be seen as obstructing the easement demonstrated his desire to
prevent any more conflict. Owens further asserts that the diversion of water onto
his property interfered with the use of his property.           Therefore, according to
Owens, the Masons “should not be awarded exemplary damages for their own
violation but should be enjoined from further action of this type.”

       Because Owens did not plead any claims regarding the drainage easement
and the parties did not try any such issue by consent, we do not address this
argument. In any event, we have previously concluded with regard to Owens’s
third issue that, by clear and convincing evidence, factually sufficient evidence
supports the trial court’s finding of malice.


       8
          Although Owens challenges the amount of actual damages as excessive, he does not
challenge the exemplary damage award as excessive. His complaint is that “[t]he evidence did
not dictate an award of exemplary damages.”

                                            19
      We overrule Owens’s fifth issue.

                          E. Newly Discovered Evidence

      In his second issue, Owens claims the trial court abused its discretion by
denying his motion for new trial based on newly discovered evidence. Owens
argued in his motion that the installation of the culvert violated the Grimes County
standards; the removal of the culvert did not result in the destruction of the entire
road, which could be and was still used; and new evidence in the form of testimony
by Billy Surface would show that no culvert was part of the road when he installed
the new culvert a couple of years prior to trial.

      A party seeking a new trial on grounds of newly discovered evidence must
demonstrate to the trial court that (1) the evidence has come to his knowledge since
the trial; (2) his failure to discover the evidence sooner was not due to lack of
diligence; (3) the evidence is not cumulative; and (4) the evidence is so material it
would probably produce a different result if a new trial were granted. Waffle
House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). We review the denial
of a motion for new for abuse of discretion. Id.

      “When a party seeks a new trial based on newly discovered evidence, the
motion for new trial must verify that the evidence is true and correct.” Raymond v.
Raymond, 190 S.W.3d 77, 82 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A
trial court does not abuse its discretion by denying a motion for new trial when the
motion is not verified. See Xenos Yuen v. Fisher, 227 S.W.3d 193, 205 (Tex.
App.—Houston [1st Dist.] 2007, no pet.); Brown v. Brown, No. 09-06-473-CV,
2007 WL 2324303, at *5 (Tex. App.—Beaumont Aug. 16, 2007, no pet.) (mem.
op.); In re A.A.E., No. 13-03-528-CV, 2005 WL 1364084, at *6 (Tex. App.—
Corpus Christi June 9, 2005, no pet.) (mem. op.). Owens’s motion for new trial
was not verified.
                                           20
      Moreover, a movant’s mere allegations will not suffice to obtain a new trial
on the basis of newly discovered evidence; rather, the movant must introduce
admissible evidence at a hearing on the motion for new trial establishing such
essential facts as no prior knowledge on the part of the movant, the prior diligence
exercised by the movant, and the nature of the newly discovered evidence. Strong
v. Strong, 350 S.W.3d 759, 772 (Tex. App.—Dallas 2012, pet. denied); Bell v.
Showa Denko K.K., 899 S.W.2d 749, 757 (Tex. App.—Amarillo 1995, writ
denied). Here, Owens’s motion for new trial did not mention the required elements
for granting a new trial and, therefore, did not include even “mere allegations” of
those required elements. At the hearing on Owens’s motion for new trial, Owens’s
attorney told the trial court that she would not be presenting any witnesses but
“[s]trictly argument and law.”

      Because Owens’s motion was not verified and Owens did not present any
evidence at the hearing on any of the elements necessary to establish that a new
trial was warranted, we conclude that the trial court did not abuse it discretion by
denying the motion for new trial.

      In his brief, Owens states that he wanted a new trial so that expert testimony
would “clarify and affirm the Easement rights of the parties.” Owens states that
Adolph G. Assenheimer, the developer of Anderson Hills Subdivision, would
provide new evidence that the easement was solely for ingress and egress, not
drainage, and the deed restrictions require homeowners to follow the Grimes
County standards for installing a culvert. Owens further states that Bob Cochrane,
engineer for the Grimes County Road and Bridge Department, would provide
expert testimony on specific requirements and specifications governing the
installation of culverts in accordance with the Grimes County Standards.

      Owens, however, did not mention either Assenheimer or Cochrane or the

                                        21
evidence they would purportedly provide at a new trial in his motion for new trial.
Owens filed a motion for reconsideration after the trial court denied his motion for
new trial. In his motion for reconsideration, Owens asserted for the first time that
“the Developer of the Anderson Hills Subdivision” would testify about the purpose
of the easement, and Cochrane would testify about requirements and specifications
governing the installation of culverts in accordance with the Grimes County
standards.

      A trial court has plenary power to grant a new trial within thirty days after
the judgment is signed. TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co. v. Smith S.
Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). The filing of a motion for new trial
within the thirty-day period extends the trial court’s plenary power over the
judgment for seventy-five days, depending on when or whether the court acts on
the motion. TEX. R. CIV. P. 329b(e); Lane Bank Equip. Co., 10 S.W.3d at 310. If
the motion is denied, the trial court’s plenary power is extended for thirty days
after the motion is denied. TEX. R. CIV. P. 329b(e).

      The First Court of Appeals has considered very similar facts. See In re
Valdes, No. 01-08-00165-CV, 2008 WL 1829790 (Tex. App.—Houston [1st Dist.]
Apr. 24, 2008, orig. proceeding) (mem. op.). In Valdes, the real party in interest
filed a motion to reconsider twenty-eight days after the trial court had denied the
motion for new trial, which was two days before the trial court’s plenary power
expired. Id. at *1. The trial court granted the motion to reconsider more than a
month later. Id. The court of appeals held that the trial court abused its discretion
by granting the motion to reconsider because that motion was essentially an
amended motion for new trial that did not extend the trial court’s plenary power
and, therefore, the order was void. Id. at *1–2.

      Here, the trial court denied Owens’s motion for new trial by written order on

                                         22
December 14, 2011. The trial court’s plenary power was then extended until
January 13, 2012, which was the thirtieth day after the trial court had denied the
motion for new trial. See TEX. R. CIV. P. 329b(e). Owens filed his motion for
reconsideration on January 13, 2012; the motion for reconsideration did not extend
that trial court’s plenary power. See In re Dickason, 987 S.W.2d 570, 571 (Tex.
1998) (orig. proceeding) (per curiam) (holding that the filing of an amended
motion for new trial does not extend the trial court’s plenary power). Therefore,
the trial court’s plenary power expired without the court’s having ruled on the
motion for reconsideration, and granting the motion for reconsideration would
have been an abuse of discretion.

      We overrule Owens’s second issue.

                              F. Bias and Prejudice

      In his sixth issue, Owens claims the trial court’s denials of his motion for
new trial and motion for reconsideration were the result of bias and prejudice.

      Owens complains that the trial court denied his motion for new trial without
a full hearing on and consideration of the evidence and, thereby, showing that the
court was predisposed to make a “hostile and quick decision.” During trial, when
Owens was shown photographs taken by Godfrey of the road, Owens stated that
the pictures were “fabricated.” The trial court then stated:

      Well, I’ll tell you what, you just called Jon Fultz [the Masons’
      attorney] a liar. I have known Jon Fultz four years plus. I have never
      known the man to fabricate evidence. Do you want to reconsider your
      testimony?
      At the hearing on Owens’s motion for new trial, when Owens’s attorney
stated that she was not going to present any evidence, the Masons’ attorney argued
that Owens’s motion should be denied because the motion did not address the
elements necessary to grant a new trial on newly discovered evidence, it was not
                                          23
verified, and Owens was not presenting any evidence in support of the motion.
The trial court denied Owens’s motion stating:

      Well, Ms. Wallace [Owens’s attorney], you know, I recall this trial
      and I recall the pictures. I recall the testimony. I recall the deeds that
      were admitted and the restrictions that are included in the deeds and
      the references thereto; and I find your Motion for New Trial to be
      insufficient on its face because of lack of the evidentiary averments
      that are necessary, as well as the fact that it is contrary to the
      testimony and evidence that was actually presented at trial.
      The record shows that the trial court denied Owens’s motion for new trial
because it was deficient. As we concluded in Owens’s second issue, the trial court
did not abuse its discretion by denying Owens’s motion for new trial because the
motion was not verified and Owens’s did not present any evidence at the hearing
on his motion for new trial. Again, because of the deficiencies in Owens’s motion
and his failure to put on any evidence at the hearing, we cannot say that the trial
court’s denial of his motion for new trial without holding a “full hearing” was the
result of bias or prejudice. See Strong, 350 S.W.3d at 772 (holding that the
appellant did not show the trial court abused its discretion by not granting the
motion for new trial where he did not present any evidence at the hearing that the
failure to discover the evidence until after trial was not due to lack of diligence);
Xenos Yuen, 227 S.W.3d at 205 (holding that the trial court did not abuse its
discretion in denying motion for new trial because it was not verified).

      Owens further complains that the trial court denied him the right to have a
hearing on his motion for reconsideration when he had obtained a hearing date and
expended funds to subpoena the developer and the Grimes County Engineer to
provide expert testimony concerning the deed restrictions and the county standards.
As explained in our analysis of Owens’s second issue, it would have been an abuse
of discretion for the trial court to have granted the motion because the trial court’s

                                         24
plenary power had expired. See In re Valdes, 2008 WL 1829790, at *1–2.

      We overrule Owens’s sixth issue.

                                IV. CONCLUSION

      Having overruled all of Owens’s issues, we affirm the trial court’s judgment.




                                      /s/     Sharon McCally
                                              Justice



Panel consists of Justices Christopher, Jamison, and McCally.




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