









Opinion filed June 1, 2006












 








 




Opinion filed June 1, 2006
 
 
 
 
 
 
                                                                        In The
                                                                              
    Eleventh Court of Appeals
                                                                 ____________
 
                                                          No. 11-04-00267-CV 
 
                                                    __________
 
           KENNETH L. CLEAVER AND CYNTHIA CLEAVER, Appellants
 
                                                             V.
 
                                      CHARLES
CUNDIFF, Appellee
 

 
                                          On
Appeal from the 32nd District Court
 
                                                          Nolan
County, Texas
 
                                                   Trial
Court Cause No. 18,356
 

 
                  O
N   A P P E L L A N T S =   M O T I O
N   F O R   R E H E A R I N G
 




In their motion for rehearing, the Cleavers
clarified their argument concerning the jury=s
finding that they were bona fide purchasers. 
The trial court disregarded that finding.  A jury finding may be disregarded if it is
immaterial or if it has no support in the evidence.  Tex.
R. Civ. P. 301;  Spencer v.
Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994).  As we indicated in our original opinion, to
be a bona fide purchaser, the purchase must be made for valuable consideration
and without notice, either actual or constructive, of the adverse claim.[1]  There was no evidence that the Cleavers were
without notice of the claimed easement over the road.  Thus, the bona-fide-purchaser finding had no
support in the evidence.  To the
contrary, the evidence conclusively showed notice.  The road and gate leading into the adjacent
property were open and obvious, and Kenneth Cleaver had seen somebody driving
down that road.  Therefore, as we held in
our original opinion, the trial court did not err in disregarding the bona-fide-purchaser
finding.  
The motion for rehearing is overruled.  
 
 
JIM R. WRIGHT
CHIEF JUSTICE
 
June 1, 2006
Panel
consists of:  Wright, C.J., and
McCall,
J., and Strange, J.




[1]We note that the question in this case, as submitted by
the Cleavers, improperly omitted any mention of Aconstructive@ notice.  


