OPINION
No. 04-10-00602-CV
MARIN REAL ESTATE PARTNERS, L.P., Derra Edwards, Hugh L. Lam, James P. Shee,
Cheng-Lein C. Shee, Ricardo Velasquez, Gary M. Maganaris, Robin K. Pang-Maganaris,
Dennis E. Gauthier, Cecilia G. Gauthier, Leal Urgin, Dresden & Goldberg Invesco, LLC,
Maganaris Family Trust, and Boerne Trust’s, G2 Assets, LLC,
Appellants
v.
John E. VOGT and Nelda L. Vogt,
Appellees
From the 216th Judicial District Court, Kendall County, Texas
Trial Court No. 06-150
Honorable N. Keith Williams, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice
Delivered and Filed: November 23, 2011
AFFIRMED
This is an appeal from a judgment in favor of appellees John E. Vogt and Nelda T. Vogt
on their claims for injunctive relief and damages for easement encroachment, diversion of
surface water, and malicious prosecution. On appeal, appellants Marin Real Estate Partners,
L.P., Derra Edwards, High L. Lam, James P. Shee, Cheng-Lein C. Shee, Ricardo Velasquez,
Gary M. Maganaris, Robin K. Pan-Maganaris, Dennis E. Gauthier, Cecilia G. Gauthier, Leal
04-10-00602-CV
Urgin, Dresden & Goldberg Invesco, LLC, Maganaris Family Trust, and Boerne Trust’s, G2
Assets, LLC (collectively “Marin”) raise nine issues challenging the judgment. The issues
include challenges to: the sufficiency of the evidence, the award of injunctive relief, the
admission of expert testimony, and the viability of judgment following a default judgment
against one of the original defendants. We affirm the trial court’s judgment.
BACKGROUND
In the early 1950s, the Vogts purchased a nineteen-acre tract of land in Kendall County,
Texas. The couple has lived on this property since it was purchased. In 1975, the Vogts
purchased an adjacent 0.911-acre tract (“the one-acre tract”). The Vogts’ deed to the one-acre
tract expressly granted the Vogts a twenty-foot easement for ingress and egress from the
highway to the one-acre tract. This easement was the only way for the Vogts to access the one-
acre tract without trespassing or driving through a field and across a drainage ditch on the
nineteen-acre tract.
In 2005, a real estate developer, Trada Partners VI, LP, purchased the property adjoining
the Vogts’ one-acre tract. The property purchased by Trada Partners adjoined the Vogts’ twenty-
foot easement. The City of Boerne notified the Vogts about a public meeting scheduled to
discuss Trada Partners’s rezoning request with regard to the property. Trada Partners wanted to
build a development on the property, which was to be called The Village at Stone Creek. The
development would consist of thirty-two four-plex apartment buildings. At the time of the
purchase, the adjoining property contained a few buildings and a baseball field.
According to the Vogts, at the public meeting they met John Sieckert who was either the
president or vice president of Trada Partners. Mr. Vogt testified he welcomed Sieckert to the
neighborhood and advised him about the twenty-foot easement. According to Marin, Mr. Vogt
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agreed to swap his easement for another easement to be provided as part of the new
development. The new easement would be paved and gated. Marin contends Trada Partners’s
development moved forward in reliance upon Mr. Vogt’s representation that he would “swap
easement for easement,” and it was only after Trada Partners had expended millions of dollars on
the development that the Vogts filed suit. 1 Mr. Vogt denied he ever agreed to swap his current
easement for a new easement, admitting only that on a single occasion he “casually mentioned to
someone with the City of Boerne that he might be willing to exchange easements” if it would
enable to him to access his one-acre tract. Mr. Vogt denied ever speaking to anyone with Trada
Partners or Marin about this, and claimed no one from Trada Partners or Marin ever even offered
to exchange easements with him or provide the Vogts with a new easement. It is undisputed
there was no written agreement concerning an exchange of easements.
In any event, Mr. Vogt ultimately became concerned when he saw dirt and debris being
piled onto his easement and tried to contact someone at Trada Partners. Mr. Vogt testified that in
January 2006, he met with Sieckert and showed him how construction crews were piling dirt on
the easement. According to Mr. Vogt, Sieckert stated, “If you think . . . we’re going to change
our plans because you say that’s your easement . . . you’re greatly mistaken.” Despite Sieckert’s
alleged statement, the subdivision plat for the development expressly recognized the Vogts’ “20'
ingress and egress easement.”
There was testimony that during construction, Trada Partners built pads, hauled in dirt,
and raised the level of the property, including the easement, by as much as two-and-a-half feet.
After Marin acquired part of the development, it continued the construction, encroaching on the
easement and raising the level of the property. In February of 2006, Mr. Vogt sent a letter to
1
Initially, the Vogts sued only Trada Partners. However, after construction of the development was complete, the
Vogts named subsequent purchasers of property within the development as defendants.
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Trada Partners that provided the developer with deed record references for the easement. Mr.
Vogt testified he sent the letter because Trada Partners and Marin had erected a fence that
blocked ingress and egress by way of the easement, built a rock and dirt wall on the easement,
and dug a large ditch that prohibited passage. In response, Mr. Vogt received a letter from
counsel for Trada Partners advising Mr. Vogt that Trada Partners had provided him with a
“private gate” for access, but the easement had been terminated by eminent domain, had been
unusable for years, and had been abandoned by non-use. According to Mr. Vogt, none of these
statements was true, and we have found nothing in the record to support any of Trada Partners’s
assertions. Trada Partners’s attorney concluded the letter by directing Mr. Vogt to “cease and
desist” from attempts to use the easement–despite the fact the Vogts owned the easement by
recorded deed.
After receiving the letter, Mr. Vogt hired an attorney, who wrote a letter to Trada
Partners’s attorney advising him the Vogts had a valid, recorded easement memorialized in the
plats Trada Partners filed with the City of Boerne. He further advised Trada Partners’s attorney
the easement never terminated and had been in use by the Vogts until that use was barred by
Trada Partners’s actions. The letter demanded the easement be returned to its original condition.
Evidence in the record shows Trada Partners did not restore the easement, but continued
encroaching on and blocking the easement. At this point, the Vogts filed suit against Trada
Partners. Marin and the other buyers were later added as defendants in the suit after they
acquired portions of the development.
In the suit, the Vogts alleged the development encroached upon their easement, rendering
it unusable. They further asserted the alterations, specifically increases in elevation, caused the
diversion of the natural flow of surface water onto the easement and the Vogts’ property, both
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nineteen and one-acre tracts, resulting in flooding. The Vogts sought temporary and permanent
injunctive relief, requiring the removal of any structures interfering with the easement, or
damages for the loss of use of the easement and for damages due to surface water diversion.
Before trial, the trial court granted a temporary injunction in favor of the Vogts. Trada
Partners VI, LP v. Vogt, No. 04-06-00723-CV, 2007 WL 163181, at *1 (Tex. App.—San
Antonio Jan. 24, 2007, no pet.). The temporary injunction enjoined Trada Partners and Marin
from interfering with the Vogts’ use of the easement. Id. Trada Partners and Marin appealed the
granting of the temporary injunction, and this court reversed, holding the Vogts had failed to
“establish a sufficient probability of irreparable injury in the absence of a temporary injunction”
because Mr. Vogt admitted the obstruction of the easement did not completely deprive the Vogts
of access to the one-acre parcel; they could access the one-acre parcel through their other tract of
land, which was contiguous to the one-acre tract. Id. at *1-*2. Because the Vogts would only
suffer inconvenience if the injunction was lifted, they did not establish a sufficient probability of
irreparable injury, an element that must be established to obtain a temporary injunction. Id. at
*2.
Trada Partners and Marin answered the suit. Marin asserted a general denial and the
affirmative defenses of estoppel, consent, fraud, and failure to mitigate. Marin later asserted a
counterclaim seeking declaratory relief, specific performance, a finding of promissory estoppel,
injunctive relief and damages based on the Vogts’ alleged negligent misrepresentations, fraud,
breach of contract, and trespass.
After suit was filed, the Vogts and Trada Partners entered into a Rule 11 agreement that
provided: (1) the Vogts owned the easement, which was recorded in the deed records; (2) Trada
Partners would not challenge the existence of continuing validity of the easement nor assert it
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has been extinguished in any manner; and (3) the Vogts were entitled to “repair and maintain the
Easement at their discretion” as long as they did not “unduly interfere with the servient estate,”
i.e., the development. When the easement became impassable, the Vogts’ counsel advised
counsel for Trada Partners by letter that if the easement were not restored to allow ingress and
egress, the Vogts would exercise their rights under the Rule 11 agreement to maintain the
easement themselves. When no action was taken, the Vogts hired a contractor to return the
easement to its original condition, and the Vogts’ counsel notified Trada Partners’s attorney, who
now represented Marin as well, of their intentions. In response, Trada Partners’s attorney asked
for the name of the contractor , claiming it was to coordinate activities. The Vogts’ attorney
disclosed the name of the contractor. Thereafter, someone from Trada Partners contacted the
contractor and threatened him with “immediate legal action” if during the work on the easement
he impeded the construction process or trespassed on property outside the easement. The
contractor was also advised that if he worked on the easement, he needed to contact counsel for
Trada Partners and Marin because the attorney would need to “depose [him] regarding [the]
exact and complete scope of work” he intended to perform for the Vogts. The contractor, fearing
involvement in the pending legal proceedings, refused to do the work for the Vogts, as did any
other contractor in the area.
The Vogts then attempted to do the work themselves, which ultimately resulted in a
report of criminal mischief and criminal trespass by someone from Trada Partners to the Boerne
Police Department. Later, in 2008, Mr. Vogt was arrested after there was a second report from
Susan Rogers, the manager of the apartments on the development, and a Trada Partners
construction superintendent, that Mr. Vogt had damaged fencing and marked encroachments on
the easement with orange spray paint. Sieckert was contacted during the police investigation and
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advised the investigator that Mr. Vogt had damaged the property once before, and suspected he
was responsible for this second round of “criminal mischief.” The Boerne investigator also had
contact with the attorney for Trada Partners and Marin, who advised him “Vogt had no need to
use Trada’s property since Vogt could access all of his property through his own property . . .
[and] Trada has also provided a paved route through the property and a private gate for Vogt’s
property, but Vogt does not acknowledge it.” The attorney did not advise the investigator about
the Rule 11 agreement that allowed the Vogts to remove encroachments on the easement if Trada
Partners and Marin refused. It was only after Mr. Vogt and his son showed the investigator the
Rule 11 agreement and asked the attorney about it that the attorney acknowledged its existence.
However, counsel for Trada Partners and Marin told the investigator this court’s judgment in the
temporary injunction action “overturned” the Rule 11 agreement and gave Trada Partners and
Marin the right to build on the easement. The attorney told the investigator, based on this court’s
opinion, Trada Partners and Marin could block the entire easement if they so chose. The
investigator called Sieckert again and Sieckert told him Rogers was his agent and would provide
an affidavit on his behalf, which she did. Based on information provided to the Boerne Police
Department by Trada Partners and Marin, Mr. Vogt was arrested for felony criminal mischief.
Trada Partners and Marin allegedly reported that Mr. Vogt had moved dirt and damaged fencing,
but eventually claimed he had caused some major structural damage costing thousands of dollars
to repair. Although Mr. Vogt was ultimately “no-billed” by the grand jury, he was arrested,
fingerprinted, and had his mug shot taken. Mr. Vogt testified that as a former Chief Deputy
Sheriff and constable, he was extremely embarrassed by the arrest, especially after his mug shot
was broadcast on television and counsel for Trada Partners and Marin talked about the case on
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the news of a San Antonio television station. This incident resulted in the Vogts asserting a
claim for malicious prosecution.
When the case was called for trial on May 5, 2009, Trada Partners, which the trial court
found received notice of the trial setting, failed to appear. Accordingly, on October 12, 2009, the
trial court entered a default judgment against Trada Partners. The damages awarded to the Vogts
against Trada Partners in the default judgment mirrored the damages ultimately found by the jury
at trial.
A jury trial was held between the Vogts and the remaining defendants. After all the
evidence was heard, the jury was asked, generally, whether:
$improvements on the development encroached on the Vogts’ easement, and if
so, what sum of money would fairly and reasonably compensate the Vogts for
loss of use of the easement from the time of the first encroachment to the present;
$the development resulted in a diversion of surface water onto the Vogts’ one-
acre tract, whether damages from the diversion were permanent or temporary, and
if there was a diversion caused by the development, what sum of money would
fairly and reasonably compensate the Vogts for loss of use of the one-acre tract
and the difference in market value of the one-acre tract after the water diversion;
$the diversion of surface water caused damage to the Vogts’ nineteen-acre tract,
whether such damage was permanent or temporary, and if there was a diversion,
what sum of money would fairly and reasonably compensate the Vogts for loss of
use of the nineteen-acre tract and the difference in market value of the nineteen-
acre tract after the water diversion;
$the act of diverting the surface water onto the Vogts’ nineteen-acre tract was
done with malice, and if so, what sum of damages should be awarded as
exemplary damages for the malicious act; and
$Marin maliciously prosecuted Mr. Vogt, and if so, what sum of money would
fairly and reasonably compensate him for his injuries.
The jury answered “yes” to all the liability questions and, where appropriate, found the
property damage permanent. The jury awarded the Vogts a total of $1,691,372 for their claims
of encroachment, surface water diversion, and malicious prosecution. The trial court thereafter
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entered a judgment based on the jury’s verdict, awarding the Vogts $1,691,372 in damages. The
trial court also awarded the Vogts’ $50,732.51 in attorney’s fees and contingent appellate
attorney’s fees. 2 In addition to the compensatory relief, the trial court also awarded the Vogts’
injunctive relief, requiring all encroachments be removed from the Vogts’ easement.
Marin filed for judgment notwithstanding the verdict and a motion for new trial; both
were denied. Thereafter, Marin perfected this appeal.
ANALYSIS
On appeal, Marin raises nine issues, contending:
$the evidence is legally and factually insufficient to support the award of
injunctive relief;
$the trial court erred in denying the motions for judgment notwithstanding the
verdict and for new trial because the verdict cannot support the judgment award
of damages for loss of use of the easement due to encroachment;
$the award of injunctive relief and damages for encroachment is erroneous
because it amounts to an improper double recovery;
$the trial court erred in admitting the testimony of expert Wayne Godsey because
his causation opinion regarding the surface water diversion was unreliable, based
on a faulty foundation, and amounted to mere speculation and supposition;
$the trial court erred in admitting the testimony of expert Lonnie Marquardt
because his opinions on the issue of damages for the surface water diversion and
the appraised value of the Vogts’ property were based on improper methodology
and a faulty foundation, and amounted to mere speculation and supposition;
$the trial court erred in admitting testimony from the Vogts’ experts despite
timely objections;
$the evidence is legally and factually insufficient to support the jury’s finding
regarding the Vogts’ surface water diversion claims because there is no evidence
or insufficient evidence of causation and damages;
$the evidence is legally and factually insufficient to support the jury’s malicious
prosecution finding because the Vogts failed to prove certain required elements of
the claim; and
2
The parties had agreed to submit the issue of attorney’s fees to the trial court for determination.
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$the trial court erred in granting judgment for the Vogts because the default
judgment taken against Trada Partners disposed of all parties and issues in the
suit.
Injunctive Relief
In its first issue, Marin contends “the evidence adduced at trial is legally and, in the
alternative, factually insufficient to support the injunctive relief granted by the trial court because
of the “‘law of the case.’” However, in an appeal from a permanent injunction, the standard of
review is clear abuse of discretion. Triantaphyllis v. Gamble, 93 S.W.3d 398, 402 (Tex. App.—
Houston [14th Dist.] 2000, pet. denied); W. Wendell Hall et al., Hall’s Standards of Review in
Texas, 42 ST. MARY’S L.J. 1, 121 (2010). Although a litigant is entitled to a jury trial when
seeking injunctive relief, the jury only determines ultimate factual issues. W. Wendell Hall et
al., Hall’s Standards of Review in Texas, 42 ST. MARY’S L.J. 1, 121 (2010). The trial court
determines the “expediency, necessity or propriety” of any award of this form of equitable relief.
Id. (quoting Priest v. Tex. Animal Health Comm’n, 780 S.W.2d 874, 875 (Tex. App.—Dallas
1989, no writ)).
In its final judgment, the trial court awarded the Vogts permanent injunctive relief. More
specifically, the trial court found that because of Marin’s action in encroaching upon the Vogts’
easement, the Vogts’ one-acre tract “no longer [had] passable deeded access making it
unmarketable,” and emergency personnel could not access the one-acre tract via the one-acre
tract’s 911 address. Concluding the Vogts had no adequate remedy at law and would continue to
suffer irreparable injury and imminent harm as a result of the encroachment, the trial court
ordered that “all buildings, fences, culverts, curbs, sidewalks, air conditioning units, and any
other items and structures . . . that encroach on the easement and interfere with use of the entire
twenty (20) foot easement” be removed. The trial court then permanently enjoined further
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building, construction, or alterations that would interfere with or obstruct the Vogts’ use of the
easement. This relief is the subject of Marin’s first issue.
As noted above, prior to trial, the Vogts sought a temporary injunction to restrain Trada
Partners and Marin from interfering with the Vogts’ use of the easement. Id. The trial court
granted the requested injunctive relief on October 6, 2006. Id. Trada Partners and Marin
appealed the granting of the temporary injunction, contending the Vogts had not established they
would suffer a probable irreparable injury in the absence of a temporary injunction. Id.
This court agreed, holding the Vogts had failed to “establish a sufficient probability of
irreparable injury in the absence of a temporary injunction” because Mr. Vogt admitted the
obstruction of the easement did not completely deprive the Vogts of access to the one-acre
parcel; they could access the one-acre parcel through their other tract of land, which was
contiguous to the one-acre tract. Id. at *1-*2. Because the Vogts would suffer only
inconvenience if the injunction was lifted, they did not establish a sufficient probability of
irreparable injury, an element that must be established to obtain a temporary injunction. Id. at
*2. In rendering our decision, we noted that our review was confined to the validity of the trial
court’s October 6, 2006 order. Id. at *1 (citing Reagan Nat’l Adver. v. Vanderhoof Family Trust,
82 S.W.3d 366, 370 (Tex. App.—Austin 2002, no pet.)).
Marin contends that our holding in the temporary injunction opinion operates as law of
the case to preclude any award of injunctive relief. Marin argues that because this court found
the Vogts have alternate access to the one-acre tract through the nineteen-acre tract, there has
been no change in the factual circumstances so as to permit injunctive relief. Marin claims the
law of the case doctrine requires we sustain their first issue. Marin is incorrect.
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Under the law of the case doctrine, a question of law previously decided on appeal
governs a case throughout its subsequent stages. Jones & Gonzalez, P.C. v. Trinh, 340 S.W.3d
830, 836 (Tex. App.—San Antonio 2011, no pet.) (citing Hudson v. Wakefield, 711 S.W.2d 628,
630 (Tex. 1986)); Lifshutz v. Lifshutz, 199 S.W.3d 9, 20 (Tex. App.—San Antonio 2006, pet.
denied). The doctrine operates to narrow the issues in successive stages of litigation and is based
on goals of uniformity of decisions and judicial economy. Lifshutz, 199 S.W.3d at 20 (citing
Hudson, 711 S.W.2d at 630). The doctrine applies only to questions of law and not to questions
of fact. Id. For example, in an earlier opinion in Trinh, this court had held Trinh breached a
lease as a matter of law because he failed to obtain insurance coverage. Trihn v. Richter, No. 04-
04-00644-CV, 2005 WL 2989278, *1 (Tex. App.—San Antonio Nov. 9, 2005, no pet.) (mem.
op.). We remanded the matter to the trial court for further proceedings. Id. When the matter
returned to this court on appeal after proceedings on remand, we held the trial court erred in
submitting the breach of lease issue to the jury on remand because we had already determined
that issue as a matter of law and it was the law of the case for all subsequent proceedings. Trinh,
340 S.W.3d at 836.
In the matter before us, the issue that Marin claims is “law of the case” and should govern
in this appeal was not a question of law previously decided by this court, but a finding that the
Vogts had failed to prove facts necessary to establish irreparable harm for purposes of the
temporary injunction. There is nothing in our opinion to suggest we held there was no
irreparable harm as a matter of law. We did not rule the evidence “legally insufficient,” which
would have invoked the doctrine. See Lifshutz, 199 S.W.3d at 20. A ruling on a question of law
is essential to the applicability of the law of the case doctrine. Id. (citing Hudson, 711 S.W.2d at
630). Accordingly, because we did not rule upon a question of law in our previous opinion, the
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law of the case doctrine is inapplicable and the trial court did not commit a clear abuse of
discretion in granting the permanent injunction based on Marin’s law of the case argument.
Moreover, the granting of the temporary injunction order and the subsequent appeal both
took place in 2006; the trial on the merits took place in 2009. Obviously, circumstances could
have changed or the Vogts could have presented different or more compelling evidence in 2009
than they did in 2006. Their failure or inability to present such evidence in 2006 is no bar to
presentation of such evidence in 2009 in support of their request for a permanent injunction.
Clearly, facts and circumstances may change over the course of three years. See Persyn v.
Ishihara, 608 S.W.2d 279, 280 (Tex. Civ. App.—San Antonio 1980, no writ) (holding that
granting or refusing of temporary injunction is subject to “very different character of appellate
review” from granting or refusing of permanent injunction).
The foregoing challenge is the only challenge to injunctive relief contained in Marin’s
opening brief. However, in its reply brief, Marin raises a myriad of other issues relating to the
permanent injunction, including: (1) there is no evidence of irreparable harm that would allow
the award of a permanent injunction because the evidence shows the Vogts have other means to
access the one-acre tract; (2) there is insufficient evidence specifically describing the
encroachments and the property boundaries so as to permit an award of a permanent injunction;
(3) there is no jury question or finding regarding the true and correct location of the boundary
line; (4) the uncontroverted evidence showed the encroachment of Marin’s culvert/drainage
basin extends onto a Texas Department of Highways right of way, not the easement, and
therefore the trial court erred in submitting jury question eleven; (5) the permanent injunction
lacks “the necessary specificity for enforcement and violate[s] Rule 683 of the Texas Rules of
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Civil Procedure”; and (6) the permanent injunction is unconstitutional because it is too vague to
be enforced.
We decline to address these issues. Although related to the award of injunctive relief, the
issues Marin raises in the reply brief are wholly different from the single issue raised and argued
in Marin’s opening brief, which only challenged the permanent injunction based on the law of
the case doctrine. See Bankhead v. Maddox, 135 S.W.3d 162, 164 (Tex. App.—Tyler 2004, no
pet.) (holding issues raised for first time in reply brief may not be considered, except perhaps in
exceptional cases) (citing Krumb v. Porter, 152 S.W.2d 495, 496 (Tex. Civ. App.—San Antonio
1941, writ ref’d)); see also Anderson Prod. Inc. v. Koch Oil Co., 929 S.W.2d 416, 424 (Tex.
1996) (court declined to consider issue first raised in reply brief); Lopez v. Montemayor, 131
S.W.3d 54, 61 (Tex. App.—San Antonio 2003, pet. denied) (court declined to consider issue not
raised in appellant’s original brief or raised in response to appellee’s brief). The many issues
raised in Marin’s reply brief with regard to the permanent injunction were not raised in the
original brief, and cannot be said to be responsive to the arguments contained in the Vogts’ brief,
other than for the fact that they relate to the injunction. See Tex. R. App. P. 38.3 (stating
appellant may file reply brief addressing any matter in appellee’s brief); Lopez, 131 S.W.3d at
61. Accordingly, these issues are not properly before the court.
Loss of Use
In the charge, the jury was asked to determine the value of the Vogts’ loss of use of the
easement from the date of the first encroachment to the present. The jury answered,
“$30,000.00.” Marin asserts the trial court erred in granting judgment for the Vogts on their loss
of use claims because “there was no evidence or insufficient evidence that any of the
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Appellants/Defendants were involved in the design, construction or placement of any structures
or other constructions [sic] onto the easement or of damages for loss of use of easement.”
Design, Construction, Placement
In the jury charge, the jury was asked in questions one through nine if improvements
from the eight lots in the development and the property owned by Marin encroached upon the
easement owned by the Vogts. Marin seems to contend that even though the jury answered
“yes” to each question, judgment could not be entered against it or the other property owners
because there was no evidence any individual property owner “designed, constructed or placed
any structures, improvements or other construction onto the easement.” Rather, the evidence at
trial showed only that the individual property owners, including Marin, purchased specific lots
from the developer, Trada Partners. Thus, it seems Marin’s position is that a property owner
cannot be responsible for loss of use even if his property encroaches upon the property of
another, rendering it useless, unless the property owner designed, constructed, or placed the
encroachment on the property of another.
Marin does not cite any authority, nor have we found any, for the proposition that a
property owner who encroaches upon the property of another must have designed, built, or
placed the encroachment on the other person’s property to be held liable for loss of use. And, in
fact, the authority cited by the Vogts is contrary to Marin’s assertion.
In Allen v. Va. Hill Water Supply Corp., the defendant’s predecessor in title constructed a
building that encroached onto the adjacent lot owned by the plaintiff. 609 S.W.2d 633, 634
(Tex. Civ. App.—Tyler 1980, no writ). When the defendant purchased his lot, he did not know
the building on the lot encroached upon the neighboring lot. Id. Nevertheless, he was sued by
the plaintiff and the trial court ordered him to remove the encroaching portion of the building and
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to pay damages to the plaintiff. Id. On appeal, the defendant claimed, as Marin does here, he
should not be held liable for removing a building which he had no part in placing upon the
plaintiff’s property. Id. Rejecting the defendant’s argument, the court of appeals held that even
though the building was built by the defendant’s predecessor in title and possession, the
defendant was required to remove the encroaching portion of the building and to pay the plaintiff
damages. Id. at 636.
Here, as in Allen, the fact that Trada Partners designed, built, and placed the
encroachments on the easement does not absolve the individual property owners from liability to
the Vogts. See id. The mere fact of ownership of an encroaching structure is sufficient to
establish liability. See id.
In addition to the foregoing argument, Marin also makes a somewhat confusing
argument, which is intertwined with the first argument, about the ambiguity of the verdict and its
insufficiency to support the judgment. Perhaps Marin is contending that because questions one
through eight in the jury charge did not specifically ask the jury if the lot owned by a particular
person encroached upon the Vogts’ easement, i.e., “Did improvements on Lot 1 owned by X
encroach on the Vogts’ easement?”, but merely asked if improvements on “Lot 1,” “Lot 2,” etc.
encroached upon the easement, judgment against the specific landowners was improper. This
argument is without merit.
First, this argument was not raised during the jury charge conference, or in either the
motion for judgment notwithstanding the verdict or motion for new trial. Therefore, it has been
waived. See TEX. R. APP. P. 33.1(a). Substantively, there is a good reason Marin did not raise
the argument below, and we find it disingenuous that Marin chose to assert it on appeal. In the
court below, Marin’s attorney, on behalf of Marin and the individual owners, and counsel for
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Vogt specifically agreed the encroachment claims against the individual lot owners would be
submitted to the jury on a lot-by-lot basis rather than by using the name of the individual owner
of the lot:
The Court: Counsel, before we bring the jury in, do you want to make that
stipulation in the record?
Mr. Schulte [Vogts’ counsel]: Yes, the parties have agreed as follows:
As to lots 1 through 8, we have stipulated that the owners of those lots are the
parties identified yesterday, Derra Edwards, Lot 1: Shees, Lot 2; Dresden &
Goldberg Investco, Lot 3; Leal Urgin is Lot 4; G2 Assets was Lot 5; The Boerne
Trust was Lot 6; Hugh Lam was Lot 7; and the Maganaris Trust was Lot 8.
* * *
The Court: Is that your stipulation, also, Mr. Prins?
Mr. Prins [Counsel for Marin]: Yes, it is, Judge.
The Court: On behalf of all your clients?
Mr. Prins: Yes.
The Court: And, likewise, the reason we are doing the stipulation on Lots 1
through 8, I don’t think you – references in proposed Question 1 through 8 in the
Court’s Charge deal with the encroachment of the easement or extension onto the
easement of the Vogts, and rather than name each person in each question, if there
is a finding of Lot 1 as referenced in the question, will pertain to that – that
particular owner as just stipulated to, Lot 2 and so forth. Is that understood,
counsel?
Mr. Prins: Yes.
Based on the exchange quoted above, Marin is complaining about alleged charge error
and error in the judgment that occurred as a result of its own stipulation. Marin, through counsel,
specifically stipulated to submit the questions regarding encroachment onto the easement by lot
number rather than by owner and agreed that any finding by lot number would relate to the
specific lot owner as stated in the stipulation–thereby justifying a judgment based on the lot
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finding. This agreement entered in open court on the record amounts to a valid Rule 11
agreement to which Marin is bound. See TEX. R. CIV. P. 11. With regard to question nine, it did
not submit the encroachment issue by lot, but asked if property owned by Marin encroached on
the easement. This jury finding clearly supports the judgment against Marin for loss of use.
Thus, contrary to Marin’s assertions, we need not speculate as to what the jury intended when
answering questions one through nine. Based on the jury findings and the parties’ stipulation,
we can determine exactly which property owned by which owner encroached, according to the
jury, on the Vogts’ easement. Thus, Marin’s argument is erroneous and unsubstantiated by the
record.
With regard to the damage question, jury question number ten, if Marin is likewise
contending this submission was erroneous because it did not sufficiently tie damages to each
individual defendant, this claim is waived. See Barnett v. Coppell N. Tex. Court, Ltd., 123
S.W.3d 804, 820 (Tex. App.—Dallas 2003, pet. denied) (holding appellant waived charge error
by failing to object to trial court’s failure to segregate damages for three separate theories of
liability); Domingues v. City of San Antonio, 985 S.W.2d 505, 512 (Tex. App.—San Antonio
1998, pet. denied) (holding that if City wanted to ensure attorney’s fees would not be included in
jury’s computation of arbitration expenses, it should have requested separate issue for each
damage element); cf. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 387 (Tex. 2000) (holding
appellant preserved complaint that trial court erred in submitting single broad-form question on
liability when thirteen independent grounds of liability were described in instructions by
objecting that one independent ground of liability was invalid). Marin did not object to the use
of a broad form damage question for damages, nor did it request that damages be parsed into
separate questions for each individual property owner.
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Insufficient Evidence of Damages
Although Marin broadly asserts there is no evidence or insufficient evidence as to
damages for loss of use, Marin wholly fails to argue this assertion. Marin merely states, with
regard to damages: (1) “Appellants/Defendants also objected to Question 10 on the basis that
there was no evidence of damages that have been quantified for loss of use of easement[;]” and
(2) “Further, the submission of Question 10 was improper because there was no evidence of
insufficient evidence of quantified damages for loss of use of easement.” Marin’s actual
argument is limited to the issues discussed above.
Accordingly, we hold Marin has waived its sufficiency challenge to the amount of
damages by failing to properly brief the issue. Rule 38.1(i) of the Texas Rules of Appellate
Procedure requires an appellant’s brief to contain a clear and concise argument for the
contentions made. TEX. R. APP. P. 38.1(i). This requirement is not satisfied by conclusory
statements. Taylor v. Meador, 326 S.W.3d 682, 683 (Tex. App.—El Paso 2010, no pet.); see
Eastin v. Dial, 288 S.W.3d 491, 501 (Tex. App.—San Antonio 2009, pet. denied) (holding
contention that affidavit in support of attorney’s fees was conclusory was waived for failure to
present argument or cite authority). A failure to provide substantive analysis of an issue waives
the complaint. Id.
As reflected in the description of Marin’s “argument” in support of its sufficiency claim
as to damages for loss of use, Marin’s brief failed to meet the basic requirements of a clear and
concise argument containing substantive analysis. Rather, the brief contains three conclusory
statements (the description of the issue and the two statements set out above), each of which
essentially says there was no evidence of damages. See, e.g., Garza v. Garza, No. 02-04-220-
CV, 2005 WL 1047589, *1 n.2 (Tex. App.—Fort Worth 2005, pet. denied) (mem. op.) (holding
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appellant’s one-sentence complaint that “the evidence is insufficient to support the judgment”
was waived based on inadequate briefing). Marin has therefore waived this portion of issue two
due to inadequate briefing. See generally Fredonia State Bank v. Gen. Am. Life Ins. Co., 881
S.W.2d 279, 284 (Tex. 1994) (holding error may be waived by inadequate briefing).
Improper Double Recovery
Marin contends, in its third issue, that the trial court erred in awarding the Vogts both
damages for loss of use and a permanent injunction because it amounts to an improper double
recovery. Whether the Vogts received a double recovery is a question of law, and therefore in
reviewing this issue, we conduct a de novo review. See In re Humphreys, 880 S.W.2d 402, 404
(Tex. 1994) (holding questions of law are always subject to de novo review); George v. Price,
321 S.W.3d 164, 166 (Tex. App.—Eastland 2010, no pet.) (same); Calstar Props., L.L.C. v. City
of Fort Worth, 129 S.W.3d 433, 440 (Tex. App.—Fort Worth 2004, no pet.) (recognizing that
whether plaintiff received double recovery is question of law).
A party is entitled to bring suit and seek damages on alternative theories; however, the
plaintiff may not recover on both theories because these would amount to a “double recovery.”
Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184 (Tex. 1998);
Foley v. Parlier, 68 S.W.3d 870, 882 (Tex. App.—Fort Worth 2002, no pet.). A double recovery
exists when a plaintiff is awarded more than one recovery for the same injury. Waite Hill Servs.,
959 S.W.2d at 184; Foley, 68 S.W.3d at 882-83. “Texas law does not permit double recovery.”
Parkway Co. v. Woodruff, 901 S.W.2d 434, 441 (Tex. 1995). The prohibition against double
recovery is a corollary to the one satisfaction rule, Foley, 68 S.W.3d at 883, which provides that
a plaintiff may recover only for the damages suffered as a result of a particular injury. Utts v.
Short, 81 S.W.3d 822, 833 (Tex. 2002).
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In this case, the jury was asked to determine, in the event it found any encroachment
upon the Vogts’ easement, what sum of money would compensate the Vogts for the loss of use
of the easement. The jury was specifically instructed that in considering damages for the Vogts’
loss of use, it should consider the value of the use from the date of the first encroachment to the
present. The jury was not asked about future damages for loss of use of the easement. Having
found there were encroachments upon the easement, the jury answered the loss of use damage
question and found $30,000.00 would compensate the Vogts for their loss from the date of the
first encroachment to the present. In its judgment, the trial court awarded the Vogts $30,000.00
for loss of use of the easement. The trial court also awarded the Vogts a permanent injunction,
which required removal of the encroachments.
As noted above, the Vogts did not ask for future damages for their lost use of the
easement. Rather, they sought only past damages. The permanent injunction, which required
removal of the encroachments, would negate any future losses based on an inability to use the
easement because once the encroachments are removed, the Vogts will again be free to access
the easement. Accordingly, we hold there was no double recovery. The supreme court has
specifically recognized that only when a judgment awards “both an injunction and damages as to
future effects” is there an impermissible double recovery. Schneider v. Nat’l Carriers, Inc. v.
Bates, 147 S.W.3d 264, 284 (Tex. 2004). In the absence of an award of future damages, there is
no double recovery. See id. As one court of appeals recognized, an award of permanent
injunctive relief and past damages was not a double recovery because no future damages were
awarded. F.S. New Prods., Inc. v. Strong Indus., Inc., 129 S.W.3d 606, 631-32 (Tex. App.—
Houston [1st Dist.] 2004), rev’d in part on other grounds, 221 S.W.3d 550 (Tex. 2006).
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These more recent cases, as noted in the Vogts’ brief, simply restate longstanding Texas
law. As stated by the Second Court of Appeals in 1945, in a case rejecting the appellant’s
argument that allowing the appellee to recover damages for past loss of value of their lands and
to obtain a permanent injunction preventing future interference with that use was an improper
double recovery:
There is no election of remedies in a case of this character. The equitable remedy
by injunctions to stop a wrong and remedy it, when it can be done, is not an
inconsistent remedy to the injured party’s right to have redress during the time the
wrong existed. In this state legal and equitable rights are blended and a choice of
remedies for either equitable or legal relief is not required in a case like this.
City of Wichita Falls v. Bruner, 191 S.W.2d 912, 920 (Tex. Civ. App.—Fort Worth 1945, writ
ref’d w.o.m.).
Marin’s complaint is identical to that rejected by the courts in F.S. New Prods. and
Bruner, and the trial court’s award of past damages and a future injunction is in line with the
supreme court’s statements in Bates. The Vogts were not awarded future damages and an
injunction; rather, they received damages to redress the time when they lost the use of their
easement due to the encroachments, and injunction to prevent future loss of use. Accordingly,
we overrule this issue
Admission of Expert Testimony
The Vogts alleged Trada Partners and Marin, through construction of the development,
diverted the natural flow of surface water in violation of the Texas Water Code, resulting in
damage to both the one-acre and nineteen-acre tracts. In issues four through six, Marin
challenges the admission of expert testimony presented by the Vogts in support of this allegation.
In issues four and five, Marin challenges the admission of testimony from Wayne
Godsey, a civil engineer who testified about surface water diversion, and Lonnie Marquardt, a
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real estate appraiser who testified about damages based on the alleged surface water diversion.
Issue six seems to be nothing more than a general procedural complaint about the admission of
the expert testimony complained of in issues four and five. It seems that Marin is generally
arguing the Vogts failed to establish the admissibility of their experts’ testimony–that is precisely
what is under review in issues four and five. Accordingly, issue six does not require separate
review. We will therefore proceed with our review of issues four and five.
“If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify thereto in the form of an opinion
or otherwise.” Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006) (quoting
TEX. R. EVID. 702); see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588-89 (1993).
Expert testimony is admissible when the expert is qualified and his testimony is relevant and
based on a reliable foundation. Mendez, 204 S.W.3d at 800. If the expert’s scientific evidence is
speculative or unreliable, it is not evidence. Id. The trial court’s determination that these
requirements are met is reviewed for abuse of discretion. Id. A trial court abuses its discretion if
it acts without reference to any guiding rules or principles. Id. Admitting expert testimony that
does not meet the reliability requirement is an abuse of discretion. Id.
The supreme court has held that bare, baseless opinions will not support a judgment, even
in the absence of an objection:
[A]lthough expert opinion testimony often provides valuable evidence in a case,
“it is the basis of the witness’s opinion, and not the witness’s qualifications or his
bare opinions alone, that can settle an issue as a matter of law; a claim will not
stand or fall on the mere ipse dixit of a credentialed witness.” Burrow v. Arce,
997 S.W.2d 229, 235 (Tex. 1999). Opinion testimony that is conclusory or
speculative is not relevant evidence, because it does not tend to make the
existence of a material fact “more or less probable.” See TEX. R. EVID. 401. This
Court has labeled such testimony as “incompetent evidence,” and has often held
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that such conclusory testimony cannot support a judgment. [citations omitted]
Furthermore, this Court has held such conclusory statement cannot support a
judgment even when no objection was made to the statement at trial. [citations
omitted]
City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex. 2009) (quoting Coastal Transp. Co.
v. Crown Central Petrol. Corp., 136 S.W.3d 227, 232 (Tex. 2004)). The supreme court has held
that when testimony is challenged as conclusory or speculative, no objection is necessary
because there is no need for the court to go beyond the face of the record to test its reliability. Id.
Only when the reliability of the expert’s testimony is challenged based on underlying
methodology, technique, or foundational data used by the expert is a timely objection required
because then the trial court is required to go beyond the face of the record to determine
reliability. Id.
Civil Engineer
In support of their claim of diversion, the Vogts proffered the testimony of Wayne
Godsey to establish the actions of Trada Partners and Marin caused the surface water diversion
that allegedly resulted in flooding of the Vogts’ property. In issue four, Marin complains about
the admission of Wayne Godsey’s testimony, arguing the trial court erred in admitting Godsey’s
testimony because his causation opinion was “unreliable and based on a faulty foundation and
amounted to no more than a mere speculation and supposition.” The Vogts respond by arguing
(1) Marin waived error by failing to object on the exact grounds raised on appeal, and (2)
contrary to Marin’s argument, Godsey’s testimony was not on the design of the drainage culvert
so his failure to study the design plan or determine what caused the culvert to overflow is not
fatal to his testimony.
First of all, with regard to waiver, the supreme court’s holding in Pollack disposes of the
Vogts’ claim that Marin has waived error with regard to Godsey’s testimony. We hold that
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Marin’s contention on appeal, and at trial, was that Godsey’s testimony was pure speculation.
This is the type of challenge for which an objection is not required because the court need look
no further than the face of the record to determine the reliability of the expert’s opinion. See
Pollock, 284 S.W.3d at 816. Accordingly we must review this issue.
Godsey is a civil engineer with twenty-five years’ experience in civil engineering, design,
planning, and construction management, and owns a firm specializing in “drainage and
infrastructure design related with drainage and land development projects.” The firm’s work
includes surface water control, flood studies, and dam inspections and design. Godsey testified
he has been involved in a project similar to the Trada Partners’s development.
When he was first contacted by Mr. Vogt, he told him he would like to take a look at the
development before agreeing to do any work on the Vogts’ behalf. He testified he and Mr. Vogt
drove around the project, which was still under construction, and at that time he noticed several
areas that impacted historical drainage patterns relative to the Vogts’ property. After this first
inspection, he agreed to work for the Vogts, stating he believed they had been impacted because
of the development.
Godsey testified he conducted a site visit and inspection, and then reviewed construction
plans for the development that Mr. Vogt provided and others that were on file with the City of
Boerne. He reviewed drainage documents from Pape-Dawson, the engineering firm hired to
work on the development, which were provided by the Vogts’ attorney. He also received
information from Mr. Vogt about the flooding and viewed pictures of the flooding. Godsey was
advised by Mr. Vogt that until the new development, the Vogts’ property had never flooded as it
did after the construction of the development. Godsey testified Mr. Vogt told him that
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historically there was a ditch that took surface water through the property upon which the
development was built.
Godsey used a drainage flow diagram from the Pape-Dawson files to show the jury the
historical flow of surface water before the development. According to Godsey, before the
development, rainwater would drain off through the development tract, but by elevating portions
of the development, the water flow was redirected so that the overflow drained onto the Vogts’
property when, during a heavy rainfall, a culvert backed up. Godsey testified he viewed the
property and observed the increase in elevation in relation to the Vogts’ property.
Godsey was also asked about a culvert that apparently backed up during a large
rainstorm. Godsey testified based on his inspection and the information provided by Mr. Vogt
and the documents he reviewed, there were several reasons the culvert may have overflowed.
On voir dire and during cross-examination, Godsey admitted he had not seen the culvert design,
had no opinion whether the design was improper because he had not seen it, and admitted any
opinion he had on what might have happened was a “potential” opinion because he was unaware
of the actual design of the culvert. Godsey also admitted he did not know why the culvert
backed up, and the only information he had regarding the culvert came from Mr. Vogt. He
admitted he knew nothing about the design of the culvert, had no knowledge if the culvert’s
capacity was exceeded, and could only speculate that the culvert had been blocked by debris.
Godsey stated he could not opine on any other possible causes–other than those he relayed
during his direct testimony–but admitted he did not know what caused the culvert in this case to
back up. He admitted his opinion on the cause of the back up in this case applies to any back up
in any culvert.
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Marin contends Godsey’s testimony is speculative and cannot support a finding of
causation because he cannot definitively say why the culvert backed up. The Vogts contend
Marin has misinterpreted Godsey’s testimony. After a thorough and detailed review of Godsey’s
testimony, we agree with the Vogts.
Godsey’s opinion was that the Vogts’ property flooded because of an increase in
elevation of the development relative to the Vogts’ property. This testimony was neither
speculative nor otherwise unreliable. Godsey specifically testified the increase in elevation
altered historical surface water drainage patterns, and his testimony was based on his own visual
inspection of the property where he noted diversions from the historical drainage patterns due to
increases in elevation, as well as a drainage area map used by Pape-Dawson, the company that
constructed the development. Godsey opined that historically water drained back onto the
property upon which the development was constructed, but Trada Partners and Marin “blocked
that flow” by increasing the elevation of the development in relation to the Vogts’ property,
forcing the surface water to flood the Vogts’ property. We hold this testimony is neither
speculative nor unreliable, and is supported by a proper predicate and a proper foundation.
As for Marin’s claims about Godsey’s testimony regarding the culvert, we agree it is
indeed speculative–Godsey could not say what actually blocked the culvert and caused it to
overflow. However, we do not interpret Godsey’s testimony to suggest the culvert was the cause
of the surface water diversion that resulted in the flooding of the Vogts’ property. As Godsey
noted, before the development, “the ground was lower and there was a ditch that headed off . . .
and the water would just head off . . . through the baseball field property.” However, as a result
of the development, the property was elevated, precluding historical run-off through the
development property. Thus, we hold Godsey did not opine that the culvert caused the flooding;
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rather, he opined that the increase in elevation due to construction of the development caused
surface water diversion that resulted in flooding of the Vogts’ property. We find Marin’s
complaints about the speculative nature of the “culvert testimony” unconvincing and we overrule
Marin’s challenge to Godsey’s testimony.
Real Estate Appraiser
Marin also complains the trial court erred in admitting the expert testimony of Lonnie
Marquardt on the issue of damages for the alleged surface water diversion. Marin contends “his
methodology was improper, his opinion was based on a faulty foundation, and his opinion
amounted to no more than speculation and supposition.” Although this is the complaint stated in
Marin’s fifth issue, a review of its argument reveals Marin is challenging the admission of
Marquardt’s testimony based on improper methodology and lack of foundation.
The Vogts contend, as they did with regard to Godsey’s testimony, that Marin failed to
preserve this issue for our review. Again, we disagree, but for a different reason. Because Marin
is challenging the reliability of Marquardt’s testimony based on alleged improper methodology
and lack of foundation, an objection was required. See Pollock, 284 S.W.3d at 816. However,
contrary to the Vogts’ assertion, Marin did object–in writing before trial and during Marquardt’s
testimony–in a manner sufficient to apprise the trial court of its complaints and allow the trial
court to rule. See TEX. R. APP. P. 33.1(a). We will, therefore, review this issue.
Marquardt is an independent real estate broker and appraiser. He testified he is certified
by the State, and has a “GAA,” which means he is a general accredited appraiser through the
National Association of Realtors. Marquardt stated he has been accepted as an expert appraiser
for the Texas Department of Transportation and numerous federal, district, and county courts in
south Texas.
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Marquardt testified he was asked by the Vogts to evaluate whether their property–both
the one-acre and nineteen-acre tracts–have suffered a diminution in value. As to the one-acre
tract, Marquardt was tasked with determining whether it had been devalued due to the loss of the
easement and the potential for flooding. With regard to the nineteen-acre tract, he was only to
determine any decrease in value based on the potential for flooding.
Marquardt stated that to make his determination, he performed what is known as a
“before and after” analysis for each property. For the one-acre tract, Marquardt had to develop
an estimate of the market value of the one-acre tract assuming legal ingress and egress provided
by a twenty-foot wide passable easement and no surface water flooding. He would then develop
an estimate of the market value of the one-acre tract as “landlocked” and prone to flooding due
to significant surface water drainage. Marquardt specifically stated he developed his estimate
based on the one-acre tract as a property independent from the nineteen-acre tract. To develop
his estimate, he researched comparable sales in an attempt to find the best comparison possible.
“Comparables,” according to Marquardt, are normally relied upon by appraisers in making these
types of determinations. Marquardt also prepared his appraisal using the “highest and best use”
analysis, which requires the appraiser to consider what is the potential best use for the property
being appraised, i.e., residential, commercial, agricultural, etc.
Using the foregoing methodology, Marquardt testified that the value of the one-acre tract
before the loss of the easement and before it was subject to flooding was $2.00 per square foot,
for a total value of $79,366.32 given the size of the property. However, in the absence of a
passable easement and a likelihood of flooding due to surface water diversion, the market value
of the property fell to $0.20 per square foot, for a total value of $7,936.63. This meant a change
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in value due to the loss of the easement and the increased chance of flooding of $71,429.69. The
jury found the Vogts’ damages to be $71,000.00 for Marin’s alleged diversion of surface water.
Marquardt stated he used the same methodology for the nineteen-acre tract, and
determined its value before the alleged increased potential for flooding to be $3.50 per square
foot, for a total value of $1,219,680.00. Marquardt indicated that in making this determination,
the highest and best use analysis called for him to consider only the eight acres on Highway 87
for commercial use–the remaining acreage was insignificant in this context. Marquardt then
testified the value of the nineteen-acre tract, given the flooding problems, decreased in value to
$2.10 per square foot, for a total value of $731,808.00. This was a change in value of
$487,872.00, which was the exact amount awarded by the jury.
Marin first argues the trial court should have excluded Marquardt’s testimony because
diminution of value was the improper measure of damages, and therefore Marquardt’s opinion
was based on an improper foundation and methodology. Marin’s argument is based on its
contention that the damages to the Vogts’ property were “temporary” as opposed to
“permanent.” However, we need not decide if Marquardt used an improper damage model
because Marin failed to raise an issue on appeal challenging the jury’s findings that the damage
to both the one-acre and nineteen-acre tracts was permanent.
Unchallenged jury findings are binding on this court. See Abatement, Inc. v. Williams,
324 S.W.3d 858, 862 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); Carbona v. CH
Med., Inc., 266 S.W.3d 675, 687 (Tex. App.—Dallas 2008, no pet.). Thus, the jury’s finding that
the damage to the one-acre and nineteen-acre tracts was “permanent” is binding on this court. Id.
And, case law holds that diminution in value is the proper measure of damages for permanent
injury to land. Royce Homes, L.P. v. Humphrey, 244 S.W.3d 570, 577 (Tex. App.—Beaumont
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2008, pet. denied); Mieth v. Ranchquest, Inc., 177 S.W.3d 296, 303 (Tex. App.—Houston [1st
Dist.] 2005, no pet.); Rocho v. U.S. Home/Homecraft Corp., 653 S.W.2d 53, 56 (Tex. App.—San
Antonio 1983, writ ref’d n.r.e.). Accordingly, because the jury found the damage to the Vogts’
land is permanent, and we are bound by this finding, the diminution in value model used by
Marquardt was the proper measure of damages.
Marin also challenges the reliability of Marquardt’s testimony based on his considering
of “highest and best use” given Mr. Vogts’ testimony that he did not intend to sell, develop, or
otherwise change the use of his property. However, Mr. Vogt explained that although he had no
present intention to sell the property, he was “just short of 80” and he did not mean to imply by
his testimony that his children or other successors in interest might have the same intentions.
Moreover, Mr. Vogt testified he did not believe he could even sell the one-acre tract given the
absence of the easement.
Marin has not cited any authority, nor have we found any, to suggest that an appraiser
may not use “best and highest use” when appraising property for a diminution in value. In fact,
in condemnation cases, the supreme court has held a factfinder may consider the highest and best
use of land in determining market value. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 628
(Tex. 2002). Moreover, in determining fair market value in condemnation proceedings, the
preferred method is to use comparable sales, just as Marquardt did here, and in making that
determination, consideration of highest and best use is proper. See City of Sugarland v. Home
and Hearth Sugarland, L.P., 215 S.W.3d 503, 512 (Tex. App.—Eastland 2007, pet. denied). We
can find no reason to hold highest and best use inapplicable here, particularly given Marquardt’s
undisputed testimony that appraised market value assumes “highest and best use” even if the
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property is not currently being used that way, and there is “no such thing” as appraising based on
“current use.”
The only authority cited by Marin simply recognizes that when valuing property using
comparables, the property used for comparison must actually compare to the property being
valued. See Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 806-07 (Tex. 2002). In that
case, the court found the expert’s testimony unreliable because he did not use a comparable sale
of property for his comparison; rather, he could not find a comparable sale, so he “reconfigured”
the client’s easement to a rectangular 3.2 acre tract and hypothetically “relocated” it to facilitate
his comparative analysis. Id. Here, there is no suggestion Marquardt did not use comparable
sales or “reconfigured” the Vogts’ property because he was unable to find comparable sales.
Thus, the authority cited by Marin is inapplicable.
Next, Marin claims Marquardt’s testimony was unreliable because “he did not follow the
methodology necessary for the admission of appraisal evidence.” Marin is contending that
because Marquardt did not prepare a complete appraisal report in accordance with the Uniform
Standards of Professional Appraisal Practice (“USPAP”), which would have been twenty-five to
thirty pages in length and contained certain information his summary report did not, Marquardt
did not use proper methodology, rendering his opinion unreliable. We disagree.
First, Marquardt specifically testified he did all the work necessary for a complete
USPAP report, he simply did not prepare a complete report, but instead prepared a summary
report. Marquardt described all of the items that would be in a full report as opposed to a
summary, e.g., identity of the client, intended users, intended use of appraisal, identify property,
signed certification, etc. Although he did not prepare a full report, Marquardt testified he used
the methodology required by the USPAP. The case cited by Marin to suggest Marquardt’s
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testimony was inadmissible is inapposite. See Bufkin v. Bufkin, 259 S.W.3d 343 (Tex. App.—
Dallas 2008, pets. denied). In that case, the court held the expert appraiser’s testimony regarding
the value of a ranch was properly stricken because he admitted using a method suggested by the
attorney that was not proper under the USPAP and he had never valued real estate “that way”
before. Id. at 351-52. Here, Marquardt used USPAP methodology, he simply did not prepare a
full report. Marin has cited no authority to suggest that the failure to prepare a specific kind of
report, when a summary report and testimony contains the necessary information required by the
accepted methodology, renders an expert’s testimony unreliable.
Finally, Marin argues Marquardt’s testimony was unreliable and should have been
excluded because it was based on information provided by the Vogts, which was insufficient.
We disagree. Marquardt was asked to determine the value of damages assuming a lost easement
and flooding–this is exactly what he did.
Surface Water Diversion
As previously noted, the Vogts sought damages for Marin’s alleged diversion of surface
water. In its seventh issue, Marin contends the evidence is legally and factually insufficient to
support the jury’s findings of causation and damage with regard to this claim.
When reviewing a legal sufficiency or “no evidence challenge,” we determine “whether
the evidence at trial would enable reasonable and fair-minded people to reach the verdict under
review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We view the evidence in
the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could
and disregarding contrary evidence unless reasonable jurors could not. Id. We must assume
jurors credited testimony favorable to the verdict and disbelieved testimony contrary to it.” Id. at
819. We will sustain a legal sufficiency challenge when: (1) there is a complete absence of
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evidence of a vital fact; (2) the court is barred by rules of law or 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 conclusively establishes the opposite of the vital
fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). In contrast, when
reviewing a factual sufficiency challenge, we consider and weigh all the evidence supporting and
contradicting the finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).
We will set aside the finding only if the evidence is so weak or the finding is so against the great
weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 242 (Tex. 2001). In undertaking either review, we are mindful that
jurors are the sole judges of the credibility of the witnesses and the weight to be given their
testimony. City of Keller, 168 S.W.3d at 819. Jurors may choose to believe one witness and
disbelieve another. Id. We may not substitute our judgment for that of the jury, even if we
might reach a different answer based on the evidence. Id.
Causation
In challenging the sufficiency of the evidence supporting causation, Marin first contends
the speculative nature and basis of Godsey’s testimony–the only causation testimony with regard
to surface water diversion–renders the evidence legally and factually insufficient. Because we
have held Godsey’s testimony was not speculative, and that it was based on more than anecdotal
evidence, we hold this contention is without merit. Godsey’s testimony was based on more than
Mr. Vogts’ words and flooding photographs. Godsey based his testimony on his own experience
regarding development of properties in light of surface water flow, his personal view of the
properties, and documents showing historical drainage patterns on the property.
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Marin next contends that even if Godsey’s testimony is reliable, there is still “no
evidence” of surface water diversion because Godsey’s testimony establishes the water that was
diverted was not “surface water” because the water allegedly diverted was controlled by a
culvert. See TEX. WATER CODE ANN. § 11.086 (West 2008).
Section 11.086 of the Texas Water Code provides that no person may divert the natural
flow of surface water in a manner that damages the property of another. Id. § 11.086(a). If a
person’s property is injured by an overflow of water caused by an unlawful diversion, that person
may seek remedies at law and in equity, including damages. Id. § 11.086(b).
Marin’s argument is based on its misplaced belief, as discussed with regard to the
admissibility of Godsey’s testimony, that the water that flooded the Vogts’ property was water
from the culvert, and that the Vogts sought recovery because rainwater was improperly
controlled by a ditch or culvert. Rather, the Vogts alleged surface water was diverted by an
increase in elevation, the building of earthen pads, and the deposit of debris and erection of
barriers. As we noted above, Godsey did not opine that the back up and overflow of water from
the culvert resulted in the flooding of the Vogts’ property. Rather, Godsey testified that when
the elevation of the development was increased relative to the Vogts’ property, historical
drainage patterns for surface water were altered and this caused the flooding. Thus, Godsey was
talking about surface water, i.e., water that is diffused over the ground from falling rain or
melting snow. See Dietrick v. Goodman, 123 S.W.3d 413, 419 (Tex. App.—Houston [14th
Dist.] 2004, no pet.). If anything, Godsey’s testimony was that surface water could not be
controlled by the culvert because of the disparity in elevation between the development and the
Vogts’ property. Thus, we hold the evidence is legally sufficient to establish that the water
which Godsey asserted flooded the Vogts’ property was not under the control of the culvert so as
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to remove it from the category of surface water for purposes of section 11.086 of the Water
Code. See id. (noting that chief characteristic of surface water is that it does not follow defined
course or channel and does not gather into or form natural body of water). We hold this case
involved a classic example of surface water – water diffused over the ground from falling rain –
diverted by a change in elevation because of the construction of the development. Accordingly,
we overrule this issue.
Damages
Marin also contends the evidence of damages for surface water diversion is insufficient–
specifically legally insufficient. Marin reurges its argument that the damage to the Vogts’ land
by flooding, if any, was temporary, and therefore Marquardt used an improper damage model.
For the reasons discussed in the portion of the opinion reviewing the admissibility of
Marquardt’s testimony, we overrule this issue.
Malicious Prosecution
In its eighth issue, Marin contends the evidence is legally and factually insufficient to
support Mr. Vogts’ claim for malicious prosecution. We note Marin has not challenged, in any
way, the jury’s damage award of $1,000,000.00 to Mr. Vogt based on his claim for malicious
prosecution. Rather, Marin has challenged only certain elements of the claim. Specifically,
Marin challenges the evidence to support the elements of procurement of prosecution, innocence,
absence of probable cause, and malice. We note that with regard to this issue, the jury finding in
favor of Mr. Vogt on malicious prosecution was against Marin only, not the individual property
owners.
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Standard of Review
The applicable standard of review is that previously stated for legal and factual
sufficiency. See City of Keller, 168 S.W.3d at 827; Plas-Tex, Inc., 772 S.W.2d at 445; Dow
Chem. Co., 46 S.W.3d at 242. As always, we must remember jurors are the sole judges of the
credibility of the witnesses and the weight to be given their testimony, and may choose to believe
some witnesses and not others. City of Keller, 168 S.W.3d at 819.
Application
Texas courts have long recognized a cause of action for those unjustifiably subjected to
criminal proceedings, but has made it clear that such a cause of action, known as malicious
prosecution, must sometimes yield to society’s interest in encouraging its citizens to report
crimes whether real or merely perceived. Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788,
792 (Tex. 2006). The elements necessary to recover for malicious prosecution reflect a balance
of these interests. Id. To recover for malicious prosecution, a plaintiff must prove: (1) a criminal
proceeding was commenced against the plaintiff; (2) the defendant initiated or procured the
proceeding; (3) the proceeding was terminated in the plaintiff’s favor; (4) the plaintiff was
innocent of the crime charged; (5) the defendant lacked probable cause to initiate the criminal
proceeding; (6) the defendant acted with malice; and (7) the plaintiff suffered damages. Id.
(citing Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997)). The fifth and sixth
elements protect a defendant from a jury’s “natural inclination” to punish a defendant who
erroneously, but with cause and no malice, commenced criminal proceedings that resulted in an
exoneration. Suberu, 216 S.W.3d at 792.
To understand the origins of the criminal proceedings against Mr. Vogt, we must begin
with the July 26, 2006 Rule 11 agreement between Trada Partners and the Vogts. After the
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Vogts filed suit, they entered into a Rule 11 agreement with Trada Partners concerning the
easement. In the Rule 11 agreement, the parties agreed, among other things, that the Vogts
owned the easement and were entitled to “repair and maintain the Easement at their discretion”
as long as they did not “unduly interfere with the servient estate,” i.e., the development. In
August 2006, when the easement became impassable due to the activities of Trada Partners and
Marin, the Vogts’ counsel advised counsel for Trada Partners and Marin by letter that if the
easement were not restored to allow ingress and egress, the Vogts would exercise their rights
under the Rule 11 agreement to maintain the easement themselves. When no action was taken,
the Vogts hired a contractor to return the easement to its original condition, and the Vogts’
counsel notified the attorney who represented Marin as well as Trada Partners of their intentions.
In response, the attorney for Trada Partners and Marin asked for the name of the contractor in
order to coordinate activities. The Vogts’ attorney disclosed the name of the contractor.
Thereafter, someone from Trada Partners contacted the contractor, Bradley Construction, and
threatened “immediate legal action” if during the work on the easement there was any
impediment to the construction process or any trespass on property outside the easement.
Bradley Construction was also advised that if it worked on the easement, it would have to
contact counsel for Trada Partners and Marin because he would need to “depose [the company]
regarding [the] exact and complete scope of work” it intended to perform for the Vogts. The
contractor, fearing involvement in the pending legal proceedings, refused to do the work for the
Vogts, as did any other contractor in the area.
The Vogts then attempted to do the work themselves, which ultimately resulted in a
September 19, 2006 report of criminal mischief and criminal trespass by Daniel Hill, a
construction assistant superintendent for Trada Partners, to the Boerne Police Department. Hill
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told the investigator dirt had been moved onto Trada Partner’s property, and there was damage
from excavation and to fencing along the easement. Hill advised that Trada Partners would file
charges or criminal trespass and criminal mischief against those involved. On September 21,
2006, Mr. Vogt went to the police department to speak to the Chief of Police about the incident.
Mr. Vogt admitting moving the dirt from the easement, but advised that Trada Partners had no
authority to impede his use of the easement. It seems nothing came of this initial report; no
charges were filed.
However, on Friday January 11, 2008, a second report involving Mr. Vogt and the
easement was made to the Boerne Police Department. Susan Rogers, a Trada Partners employee,
and the construction superintendent, Salvador Feliciano-Piedra, met with an officer concerning a
report of criminal mischief. Feliciano-Piedra advised the investigator that someone had cut
section of a steel fence and used orange spray paint to paint “Xs” on curbs, sidewalks, trees, and
air conditioning units. Feliciano-Piedra advised the investigator about the ongoing lawsuit with
the Vogts, and eventually provided a damage estimate of between $8,924.72 and $31,864.72.
The investigator spoke with some workers who apparently witnessed the spray painting,
but he also spoke with John Sieckert, who was an officer with Trada Partners and associated with
Marin. Sieckert called to advise that charges would be filed against the person responsible.
Sieckert told the investigator “Vogt had already damaged some of their properties when they first
started construction.” Sieckert said he suspected Vogt was responsible for this criminal mischief
as well.
The investigator then spoke with Mr. Vogt and his son. They provided the investigator
with a copy of the Rule 11 agreement, which gave the Vogts the right to maintain the easement.
Mr. Vogt admitted spray painting encroaching curbs, sidewalks, trees, and air conditioning units
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and cutting the fence, but advised that he took the action because the damaged items obstructed
his easement. Thereafter, the investigator spoke with the attorney, who represented both Trada
Partners and Marin. The attorney advised the investigator that this court’s opinion lifting the
temporary injunction overturned the Rule 11 agreement and gave “them the right to build on the
easement since there are other ways for the Vogts to access the back property.” See Trada
Partners VI, 2007 WL 163181, at *1. This court’s opinion did not hold as counsel for Trada
Partners and Marin claimed, nor did the opinion in any way suggest such a result. See id.
Rather, our opinion merely held the Vogts had failed to establish irreparable harm for purposes
of the temporary injunction. Id. We certainly did not state or even intimate that the existing
Rule 11 agreement was no longer effective, nor did we state or intimate that encroachment upon
the Vogts’ easement was permitted. Id. Nevertheless, counsel for Trada Partners and Marin told
the investigator he believed “Trada could completely block the easement since there is other
access.”
The investigator wanted to speak with Sieckert again, so he called him, but Sieckert was
out. Sieckert called back and the investigator asked him to provide an affidavit regarding the
filing of charges. Sieckert stated he would designate Rogers as his agent for purposes of the
affidavit, and that he would call her and have her contact investigators. At Sieckert’s request,
Rogers provided an affidavit in which she stated Sieckert designated her as his agent for
purposes of filing charges and that she did wish to file charges for the property damage.
Thereafter, the investigator, who had been in contact with the Kendall County District
Attorney’s office, obtained an arrest warrant for Mr. Vogt for the offense of criminal mischief, a
state jail felony given the estimated amount of damages. Mr. Vogt turned himself in, was
arrested, fingerprinted, and had his mug shot taken. Although Mr. Vogt was ultimately “no-
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billed” by the grand jury, he testified that as a former Chief Deputy Sheriff and constable, he was
extremely embarrassed by the arrest, especially after his mug shot was broadcast on television
and counsel for Trada Partners and Marin talked about the case on the news of a San Antonio
television station.
1. Procurement
Marin first argues there is no evidence or insufficient evidence to establish Marin
instigated or procured any criminal proceeding against Mr. Vogt. According to the Texas
Supreme Court, procurement, which is the causation element of a malicious prosecution action,
occurs when a person’s actions are enough to cause the prosecution, and but for the person’s
actions the prosecution would not have occurred. Browning-Ferris Indus., Inc. v. Lieck, 881
S.W.2d 288, 293 (Tex. 1994). A person does not procure a prosecution, however, when the
decision to prosecute is left to the discretion of a law enforcement official or grand jury unless
the person provides information he knows is false. Id.; King v. Graham, 126 S.W.3d 75, 78
(Tex. 2003).
Marin argues the only evidence shows a Trada Partners employee, Rogers, made the call
in January 2008 that led to the arrest of Mr. Vogt; Marin had nothing to do with it. However, as
the Vogts point out, although a Trada Partners employee did make the initial call, there was
involvement by Marin agents as well, specifically Marin’s attorney and Sieckert, and Trada
Partners’s involvement does not permit Marin to escape liability because a criminal prosecution
may be procured by more than one person. Lieck, 881 S.W.2d at 293; Daniels v. Kelly, No. 04-
09-00817-CV, 2010 WL 2935789, at * 4 (Tex. App.—San Antonio Jul. 28, 2010, no pet.) (mem.
op.).
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A malicious prosecution action against a corporate entity may be based on an agent
taking action to procure a prosecution. See Eans v. Grocery Supply Co., 580 S.W.2d 17, 21-22
(Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) (malicious prosecution judgment upheld
against corporation based on actions of corporate employees). There is evidence in the record
showing the attorney, who represented not only Trada Partners but also Marin, provided
extensive, but false, information to the Boerne Police Department investigator, essentially
advising him that Mr. Vogt had no right to the easement after our opinion in the temporary
injunction case. Additionally, Sieckert was involved in procuring the prosecution of Mr. Vogt.
Sieckert was not only a principal in Trada Partners, but according to evidence in the record, also
involved in the operation of Marin. The Vogts’ exhibit 53, which was admitted into evidence, is
a letter from the Kendall County Abstract Company to “Mr. John W. Sieckert” at “Marin Real
Estate Partners, LP,” enclosing a title commitment regarding the purchase of property in the
development. And, Mr. Vogt testified it was his understanding that Sieckert “was also involved
with Marin Partners.” Marin never introduced any evidence to suggest Sieckert was not a
principal or agent of Marin. Thus, there is some evidence Sieckert was associated not only with
Trada Partners, but with Marin. Sieckert designated Rogers as his agent for the purposes of
procuring charges against Mr. Vogt by the submission of an affidavit. Moreover, Sieckert
advised the investigator that he wanted charges filed against the perpetrator and told the
investigator “Vogt had already damaged some of their properties when they first started
construction,” and he suspected Vogt was responsible for this criminal mischief as well.
Accordingly, we hold there is evidence a reasonable jury could have credited in order to
find Marin, along with Trada Partners, procured the prosecution, and that the evidence is not so
weak as to render the jury’s verdict unjust.
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Marin posits a second argument as to procurement, stating that even if Marin did take
action in assisting the investigator, there is still no evidence of procurement because it was up to
law enforcement to decide whether to arrest and prosecute Mr. Vogt. Marin correctly points out,
as noted above, a person does not procure a prosecution when the decision to prosecute is left to
the discretion of a law enforcement official or grand jury. Id.; King v. Graham, 126 S.W.3d 75,
78 (Tex. 2003). However, if a person knowingly provides false information to those responsible
for procuring the prosecution, the person has procured the prosecution for purposes of a
malicious prosecution action. Id. This exception is satisfied not only when actual false
information is provided, but when the reporting person fails to report facts that might establish
the accused is not guilty of any offense. Eans, 580 S.W.2d at 20 (holding circumstantial
evidence was sufficient for jury to have concluded corporation procured prosecution where
reporting persons failed to disclose material facts favorable to accused).
We hold there is sufficient evidence in this case to establish the attorney for Marin and
Sieckert, as an agent for Marin, knowingly provided false information to the investigator, thereby
triggering the “false information” exception. No attorney could have reasonably believed that
our opinion in the temporary injunction case (1) overturned the Rule 11 agreement, which
permitted the Vogts to remove encroachments on their easement, or (2) allowed Trada Partners
or any other entity to encroach at will upon the easement. And, the jury could have found false
the statement provided by counsel for Trada Partners and Marin that the Vogts had been
provided a paved route to the one-acre tract, but refused to use it. Mr. Vogt testified at trial the
he did not receive a key to the gate on the paved road until a month before the 2009 trial, and he
did not receive the code for the gate at the other end of the paved road until he testified at trial
that he did not have the code. All of this was long after counsel for Trada Partners and Marin
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provided information to the investigator in 2008. Additionally, Sieckert advised the investigator
in a phone call that Mr. Vogt had previously damaged “their properties,” which the jury could
have found was false based on Mr. Vogt’s testimony. Mr. Vogt specifically testified the
information provided by Sieckert was untrue, as was the information provided by the attorney.
Based on the foregoing, we hold there is evidence a reasonable jury could have credited
in order to find that the attorney for Trada Partners and Marin and Sieckert, as agents of Marin,
provided false information to authorities, thereby placing Marin within the exception to the rule
that procurement is negated if the prosecution is actually instituted by law enforcement.
2. Innocence
Marin next argues the evidence is legally and factually insufficient as to the element of
innocence. Marin contends the grand jury’s failure to indict Mr. Vogt is insufficient to establish
his innocence, arguing the Vogts were required to provide more proof. Marin argues the Vogts
cannot provide such evidence because Mr. Vogt admitted “vandalizing” the property, but simply
escaped prosecution for his crime.
A person commits the offense of criminal mischief if, without the effective consent of the
owner, he intentionally or knowingly damages, destroys, tampers with, or makes markings on the
owner’s tangible property. TEX. PENAL CODE ANN. § 28.03 (West 2011) (emphasis added). We
hold there is evidence from which the jury could have determined Mr. Vogt did not act “without
the effective consent of the owner” when he cut the fence and spray painted the items
encroaching upon his easement.
At trial, the Vogts introduced the Rule 11 agreement, which was signed by counsel for
Trada Partners and Marin. Pertinent portions of the agreement were read to the jury, specifically
those portions recognizing the Vogts’ ownership of the easement and their right to “repair and
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maintain the Easement at their discretion so long as not to unduly interfere with the servient
estate.” And, contrary to counsel’s assertion, our opinion in the temporary injunction appeal did
not vacate or otherwise overturn this agreement. See Trada Partners VI, 2007 WL 163181, at
*1. In fact, the Rule 11 agreement is not mentioned anywhere in our opinion. Id. Mr. Vogt
testified that he took the actions he did in January of 2008, cutting the fence and marking
sidewalks, curbs, and air conditioning units, in preparation for removing them from the
easement.
We hold, based on the Rule 11 agreement and Mr. Vogt’s testimony, there was sufficient
evidence, both legally and factually, for the jury to answer Question 18. More specifically, the
jury could have found, pursuant to the Rule 11 agreement, that Mr. Vogt had the consent of the
owner to take the actions he did, especially given that all of the items cut and marked were on the
easement, and not on the servient estate.
In two sentences, Marin also complains that because there was no issue submitted to the
jury on “innocence,” the trial court erred in rending judgment for the Vogts on the malicious
prosecution claim. First, the trial court used broad form submission, as required by Texas law.
See TEX. R. CIV. P. 277 (stating broad form submission shall be used whenever feasible); see
also Romero v. KPH Consol., Inc., 166 S.W.3d 212, 230 (Tex. 2005) (reaffirming use of broad
form submission whenever practicable). This is true even after the court’s decisions in Crown
Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000) and Harris County v. Smith, 96 S.W.3d 230
(Tex. 2002). See Romero, 166 S.W.3d at 226 (recognizing that in certain cases broad from
submission is not appropriate, e.g., invalid theories of liability or damages submitted with valid
theories of liability in a single broad form question). As recognized by the supreme court, broad
form submission must be used unless extraordinary circumstances exist. Tex. Dep’t of Human
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Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). Second, the malicious prosecution charge
given to the jury was the long-standing charge contained in the Texas Pattern Jury Charge. See
STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES–GENERAL NEGLIGENCE, INTENTIONAL
PERSONAL TORTS, PJC 6.4 (2010). Although the Texas Pattern Jury Charges are a guide and not
binding on the court, well-settled pattern jury charges should not be embellished with addendum.
H.E. Butt Grocery Co. v. Bilotto, 928 S.W.2d 197, 201 (Tex. 1996); Weeks Marine, Inc. v.
Salinas, 225 S.W.3d 311, 319 (Tex. App.—San Antonio 2007, pet. dism’d). Marin has not
argued the current jury charge is insufficient.
Moreover, Marin did not object based on the absence of an issue, instruction, or
definition of “innocence,” nor did it submit in writing a substantially correct issue, instruction, or
definition. Thus, Marin has waived any complaint. See TEX. R. CIV. P. 274 (requiring party
objecting to charge to point out distinctly objectionable matter and grounds for objection; in
absence of proper objection, error is waived); see also Ford Motor Co. v. Ledesma, 242 S.W.3d
32, 43 (Tex. 2007) (recognizing requirements of Rule 274); Sears Roebuck & Co. v. Abell, 157
S.W.3d 886, 892 (Tex. App.—El Paso 2005 pet. denied) (holding Rule 274 is to be strictly
construed, requiring objections to jury charge to specify error and legal basis of objection).
Accordingly, Marin’s complaint is overruled.
3. Probable Cause
Marin next challenges the sufficiency of the evidence on the element of probable cause.
Marin correctly points out that a malicious prosecution case begins with the presumption that the
defendant acted reasonably and had probable cause to initiate the prosecution. See Suberu, 216
S.W.3d at 793. However, the plaintiff can rebut this presumption by producing evidence that the
motives, grounds, beliefs, or other information upon which the defendant acted did not constitute
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probable cause. Id. Marin contends the Vogts failed to produce evidence to rebut the
presumption that Marin had probable cause to report Mr. Vogt for the offense of criminal
mischief. Marin also points out that when it reasonably appears to a citizen that a crime has been
committed, the citizen has no duty before filing charges to inquire as to whether the suspect
might have had an alibi or explanation for his action. See id. at 794; First Valley Bank v. Martin,
144 S.W.3d 466, 470 (Tex. 2004).
Marin is correct regarding the presumption and the absence of duty to inquire as to why
the person against whom charges are filed acted as he did. However, the Vogts counter that the
record is replete with evidence they produced showing Marin filed charges against Mr. Vogt not
because they sincerely believed he had committed criminal mischief, but because Marin and
Trada Partners, through their agents, were doing anything and everything in their power to
intimidate the Vogts into giving up their easement and to gain an advantage against the Vogts in
the civil suit. Thus, according to the Vogts, they rebutted the presumption, the burden shifted to
Marin to establish probable cause, and the issue became one for the jury. See Thrift v. Hubbard,
974 S.W.2d 70, 79 (Tex. App.—San Antonio 1998, pet. denied).
The Vogts point to evidence showing: (1) Sieckert’s hostility toward the Vogts–“If you
think . . . we’re going to change our plans because you say that’s your easement . . . you’re
greatly mistaken.”; (2) Sieckert’s increasing frustration with the Vogts’ refusal to give up the
easement, e.g., Sieckert’s statement to Pape-Dawson Construction about the Vogts’ complaints
and attempts to stop the development; (3) intimidation of a contractor who planned to assist the
Vogts in clearing the easement; (4) Sieckert’s knowledge from the outset that the Vogts owned
the easement; (5) the Rule 11 agreement, memorializing the Vogts’ rights to use and maintain the
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easement; and (6) the provision of false evidence to authorities by Sieckert and counsel for Trada
Partners and Marin during the criminal mischief investigation.
This is certainly some evidence rebutting the presumption that Marin filed charges
against Mr. Vogt simply because he cut some fencing and spray painted sidewalks and air
conditioning units belonging to Trada Partners and Marin. The jury could have believed filing
charges was the culmination of a campaign by Trada Partners and Marin to wrest the easement
from the Vogts by whatever means possible. See, e.g., Thrift, 974 S.W.2d at 79-80 (holding jury
could have found defendant filed criminal complaint “to gain an advantage in the civil litigation
stemming from these same facts.”). And although we recognize a person has no duty to
investigate if there was some reason to justify an accused’s action, Marin had no need to
investigate in this case because it knew Mr. Vogt was simply doing what he had been trying to
do all along–retain the use of his easement and maintain it for use as permitted under the Rule 11
agreement. See Suberu, 216 S.W.3d at 794; Martin, 144 S.W.3d at 470.
Marin did not present any testimony to establish probable cause once the Vogts presented
evidence rebutting the presumption. In fact, the only evidence presented by Marin was the
testimony of a single property owner who testified she did not design or develop anything, but
simply purchased the property as an investment. Accordingly, we hold there was evidence from
which the jury could have found an absence of probable cause.
4. Malice
Finally, Marin contends there was no evidence or insufficient evidence of malice by
Marin. Marin argues that because it had a legal right to report Mr. Vogt’s vandalism, there can
be no finding of malice. See Closs v. Goose Creek Consol. Indep. Sch. Dist., 874 S.W.2d 859,
878 (Tex. App.—Texarkana 1994, no writ) (holding that summary judgment evidence
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established ranger with DPS did not act with malice because he was “charged with the duty to
investigate reported criminal activity” and averred his actions were not undertaken for improper
purpose but only in capacity as ranger).
A person acts with malice in a malicious prosecution case when he acts with ill will or
evil motive to the injury of another, or acts in reckless disregard of the rights of another and with
indifference as to whether the other person is injured so as to amount to wanton and willful
action knowingly and unreasonably done. Id. Malice can be established by either direct or
circumstantial evidence and may be inferred from a lack of probable cause. Thrift, 974 S.W.2d
at 80.
Of course a person has the legal right to report a crime. See Closs, 874 S.W.2d at 878.
However, if a person reports a crime with an improper purpose, or in reckless disregard of the
rights of another in a knowing and unreasonable manner, that is malice. Id. With regard to this
case, given the evidence that Marin lacked probable cause to report Mr. Vogt, and that it acted to
intimidate the Vogts or gain an advantage in the civil suit, the jury could have inferred Marin
acted with “ill will or evil motive.” Moreover, malice is shown by the false statements provided
to investigators by Sieckert and counsel for Trada Partners and Marin regarding Mr. Vogt’s prior
actions and the status of the Vogts’ rights to the easement, as well as their failure to disclose the
existence of the Rule 11 agreement and the Vogts’ rights thereunder when first questioned by the
investigator. See, e.g., Richey, 952 S.W.2d at 519-20 (holding that in malicious prosecution
action, failing to fully and fairly disclose all relevant facts or knowingly providing false
information to police is relevant to malicious intent of defendant); Thrift, 974 S.W.2d at 80
(holding defendant’s failure to disclose exculpatory facts was sufficient to demonstrate malice).
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Based on the standards of review, the applicable law, and the evidence, we hold there was
sufficient evidence, which the jury could have credited and believed, to sustain the Vogts’ claim
for malicious prosecution. As previously noted, jurors are the sole judges of the credibility of the
witnesses and the weight to be given their testimony, and may believe one witness and not
another. City of Keller, 168 S.W.3d at 819.
Effect of Default Judgment Against Trada
As noted above, when the trial court called the case for trial on May 5, 2009, Trada
Partners, which had filed an answer, failed to appear. The case proceeded to trial and verdict
without Trada Partners. Thereafter, on October 12, 2009, the trial court entered a default
judgment against Trada Partners and in favor of the Vogts. The default judgment recites that it
“disposes of all issues and claims as between John E. Vogt and Nelda L. Vogt and Trada
Partners VI, LP.” The judgment further states that it is severed, but failed to assign a separate
docket number.
Marin suggests, in its ninth issue, that the rendition of the default judgment against Trada
Partners and the subsequent rendition of a separate judgment disposing of the Vogts’ claims
against Marin violates the “one judgment rule” contained in Rule 301 of the Texas Rules of Civil
Procedure. In support of its contention, Marin argues the default judgment was a final judgment,
and given the absence of a severance, the subsequent rendition of judgment against Marin was
prohibited by Rule 301.
First, there is nothing in the record showing Marin raised this issue in the trial court.
Although we have found no cases specifically holding that a complaint involving violation of the
“one judgment rule” requires an objection in the trial court before it can be asserted on appeal,
Rule 33.1(a) of the Texas Rules of Appellate Procedure states that before a complaint can be
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presented for appellate review, the record must show the complaint was presented to the trial
court by “timely request, objection, or motion” that states the ground for the ruling sought with
sufficient specificity to make the trial court aware of the complaint, and the trial court ruled.
TEX. R. APP. P. 33.1(a). The only exceptions to the preservation requirement of Rule 33.1(a) in
civil cases are rare instances of “fundamental error,” which the supreme court has held includes
cases in which the face of the record shows the court lacked jurisdiction or in certain types of
error in juvenile delinquency cases. In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). Even
constitutional error can be waived if not raised in the trial court. See In re L.M.I., 119 S.W.3d
707, 711 (Tex. 2003); City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986) (per
curiam). Given Marin’s failure to bring this issue to the attention of the trial court, any error is
waived. However, even if Marin had not waived this issue, it has no substantive merit.
Substantively, Marin contends there was no severance in this case, making the October
12, 2009 default judgment the “sole final judgment,” and thereby precluding the subsequent
judgment rendered in April 2010 against Marin. Marin is incorrect.
When the trial court rendered the default judgment against Trada Partners, it specifically
stated in the judgment that the judgment against Trada Partners “is hereby severed from this
cause.” Marin seems to contend this was not effective to sever the Vogts’ claims against Trada
Partners from the remainder of the suit because: (1) there was no separate severance order, or the
language in the judgment was somehow conditional; and (2) the trial court failed to include a
docket number in the judgment for the severed cause, rendering the severance ineffective.
First, Marin has cited no authority for the proposition that a severance must be contained
in an order separate from the judgment. There is nothing in Texas law to prohibit a trial court
from including a severance order within the judgment to be severed–in fact, this is quite
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common. Moreover, the language in the trial court’s order was not conditional; rather, the court
specifically ordered the judgment against Trada Partners severed from the Vogts’ claims against
the remaining defendants. Accordingly, the severance was not ineffective for either of these
reasons.
Nor is the severance ineffective because it failed to assign a docket number to the severed
cause. Although the judgment stated it was assigned a new docket number, the blank for the new
docket number was not filled in, i.e., no new docket number was assigned to the severed cause.
The supreme court has held the granting of a severance is effective when signed. McRoberts v.
Ryals, 863 S.W.2d 450, 452-53 (Tex. 1993); Finlan v. Peavy, 205 S.W.3d 647, 651 (Tex. App.—
Waco 2006, no pet.). The severance becomes effective without the district clerk’s assignment of
a new docket number and without the creation of a separate physical file. Id. Moreover, the
severance is effective immediately whether or not the clerk ever creates a physically separate file
or assigns a new number to it. Id. Accordingly, the severance was not ineffective for the trial
court’s failure to assign a separate docket number to the severed cause. See id.
Therefore, contrary to Marin’s assertions, there was an effective severance. The question
then becomes, what effect does an effective severance have on Marin’s “one judgment rule”
argument? The answer: it defeats it.
A severance divides a lawsuit into two or more separate and independent causes that may
be resolved separately. In re Liu, 290 S.W.3d 550, 519-20 (Tex. App.—Texarkana 2009, no
pet.) (citing Hall v. City of Austin, 450 S.W.2d 836, 837-38 (Tex. 1970)). When a severance is
granted, the separated causes proceed to individual judgments–judgments that are separately
final and appealable. Liu, 290 S.W.3d at 520 (citing Hall, 450 S.W.2d at 838); see Van Dyke v.
Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 383 (Tex. 1985). In other words, after a
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severance, there are two separate causes resulting in two separate judgments. Accordingly, the
“one judgment rule,” which states “one final judgment shall be rendered in any cause” is not
implicated because there are two causes with separate judgments.
Because there was an effective severance, the “one judgment rule” is not implicated, and
therefore Marin’s argument is without merit and the issue is overruled.
CONCLUSION
Based on the foregoing, we overrule all of Marin’s issues and affirm the trial court’s
judgment in favor of the Vogts.
Marialyn Barnard, Justice
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