                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-448-CV


LARRY HUMPHRIES                                                  APPELLANT

                                       V.

ANDY BUTCHARD                                                      APPELLEE

                                   ------------

      FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

     Appellee Andy Butchard sued Appellant Larry Humphries asserting a claim

for harassment.     After a bench trial, the trial court entered judgment for

Butchard. We affirm.

     Butchard is a homebuilder. In 1999, Butchard’s company, Canis Major,

Inc. (Canis), agreed to build a home for Humphries. Disputes arose between



     1
         … See Tex. R. App. P. 47.4.
Canis and Humphries, and the parties arbitrated their claims. The arbitrator

ordered Canis to pay Humphries $10,000. Canis declared bankruptcy and did

not pay Humphries. Following completion of the bankruptcy, Butchard formed

a new home-building company, Endeavor, Inc. d/b/a Parkside Custom Homes

(Parkside).

      Butchard alleged in this lawsuit that Humphries, angry over the

unsatisfied arbitration award, engaged in a pattern of harassment against him

and Parkside. After a bench trial, the trial court entered a judgment awarding

Butchard $10,000 in damages, plus prejudgment and postjudgment interest. 2

      On appeal, Humphries asserts that there is no evidence, or alternatively

that the evidence is factually insufficient, that he caused damage to Butchard.

The trial court’s judgment does not specify the bases for the damage award and

Humphries did not request findings of fact and conclusions of law. We must,

therefore, presume that the trial court resolved all fact questions in support of

its judgment, and we will not disturb the judgment if there is sufficient evidence

to support the damage award on any legal theory contained in the pleadings. 3



      2
        … The judgment also included mutual permanent injunctions not relevant
to this appeal.
      3
       … See, e.g., Hanson v. Hanson, 672 S.W.2d 274, 276 (Tex.
App.—Houston [14th Dist.] 1984, writ dism’d) (“The trial judge did not make
any findings of fact and conclusions of law, so we must affirm the judgment if

                                        2
      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence 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 establishes conclusively the opposite

of a vital fact.4 In determining whether there is legally sufficient evidence to

support the finding under review, we must consider evidence favorable to the

finding if a reasonable factfinder could and disregard evidence contrary to the

finding unless a reasonable factfinder could not.5

      Any ultimate fact may be proved by circumstantial evidence. 6 A fact is

established by circumstantial evidence when the fact may be fairly and




it can be supported on any theory presented by the record.”); Peterson Sales
Co. v. Mica, Inc., 623 S.W.2d 679, 681 (Tex. App.—Houston [1st Dist.] 1981,
no writ) (stating that in the absence of findings of fact and conclusions of law,
“all questions of fact will be presumed to have been found in support of the trial
court’s judgment, . . . and the trial court’s judgment must be affirmed if it can
be upheld on any legal theory plead and supported by the evidence”) (internal
citation omitted).
      4
      … Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.
1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence"
and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63
(1960).
      5
          … City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
      6
          … Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993).

                                        3
reasonably inferred from other facts proved in the case. 7             However, to

withstand a legal sufficiency challenge, circumstantial evidence still must

consist of more than a scintilla.8

      An assertion that the evidence is factually insufficient to support a fact

finding means that the evidence supporting the finding is so weak or the

evidence to the contrary is so overwhelming that the answer should be set

aside and a new trial ordered.9 We are required to consider all of the evidence

in the case in making this determination, not just the evidence that supports the

finding.10

      Butchard alleged that Humphries vandalized Parkside property and caused

additional damage to his business. The following evidence connects Humphries

to acts of vandalism against Parkside and shows that he was involved in acts

calculated to damage Butchard’s business:

      •           Humphries parked his truck at the entrance to a Parkside marketing
                  event and displayed a sign disparaging Butchard and Parkside.




      7
          … Id.
      8
          … Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995).
      9
          … Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
      10
       … Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex.), cert.
denied, 525 U.S. 1017 (1998).

                                            4
      •     Humphries also displayed signs disparaging Butchard and Parkside
            in his yard and on his truck.

      •     A Parkside employee saw a silver truck that looked like
            Humphries’s truck speeding away from a Parkside model home that
            had just been vandalized.

      •     Parkside signs from the yards of this home and others close by
            were discovered to be missing. Humphries had several Parkside
            signs in his possession shortly thereafter.11

      •     Humphries acted in a violent manner toward Butchard on several
            occasions, including throwing rocks at Butchard and physically
            assaulting him.

      •     Humphries appeared at Parkside’s offices and took pictures of
            Parkside employees. During one such incident, Parkside employees
            saw Humphries doing this and they shut the office door. When
            they opened it thirty minutes later, a brass plaque that was
            displayed in the hall was missing.

This evidence is legally and factually sufficient to support the trial court’s

finding that Humphries vandalized Parkside property and caused damage to

Butchard’s business. 12




      11
        … Humphries testified that some of the Parkside signs in his possession
were left over from his home purchase of a home from Canis, and that he
obtained the others at an auction. The trial court, as factfinder, was free to
discredit this testimony.
      12
        … At the close of testimony, the trial court stated, “[A]lthough Mr.
Butchard has not been able to present to the Court any direct evidence that you
have engaged in some of the activities that he’s alleged against you, primarily
vandalism, it seems to me more than mere coincidence.”

                                      5
      Butchard also presented evidence that Humphries caused $2,600 in

damages to his truck and that he was physically harmed by Humphries’s

assault. Humphries does not dispute that he caused damage to Butchard’s

truck or that he assaulted Butchard, but asserts only that Butchard has already

received compensation for damages to the truck through restitution from

criminal proceedings against Humphries, and that Butchard never sought any

medical treatment for the assault.       The evidence shows, however, that

Butchard only received $750 in restitution for the damage to his truck. And,

the fact that Butchard may not have been treated for the injuries he sustained

during the assault does not preclude him from recovering damages for the

physical pain and suffering caused by the assault.

      We conclude that the trial court’s implicit finding that Humphries caused

damage to Butchard’s truck and physically harmed Butchard is supported by

legally and factually sufficient evidence.

      We overrule Humphries’s issues and affirm the trial court’s judgment.




                                                PER CURIAM

PANEL: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.

DELIVERED: December 11, 2008




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