Kenneth L. Cleaver and Cynthia Cleaver v. Charles Cundiff ( 2006 )

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.

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