Jason Barnett v. Charles Michael Havard Jr.

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-12-00310-CV
_________________
JASON BARNETT, Appellant
V.
CHARLES MICHAEL HAVARD JR., Appellee
________________________________________________________________________
On Appeal from the 1st District Court
Jasper County, Texas
Trial Cause No. 31557
________________________________________________________________________
MEMORANDUM OPINION
Appellant Jason Barnett appeals the trial court’s judgment in favor of
appellee Charles Michael Havard Jr., which declared the scope of an easement and
the respective rights of Barnett as owner of the servient estate and Havard as owner
of the dominant estate. Barnett challenges the trial court’s interpretation of the
express easement and the trial court’s dismissal of his trespass and negligence per
se claims. We affirm the trial court’s judgment in part and reverse and render in
part.
1
Factual and Procedural History
Valerie Maynard co-owned a piece of property in Jasper County, Texas.
Havard’s grandfather owned an adjacent piece of property to Maynard’s property.
In 1974, Maynard conveyed an easement across her property to Havard’s
grandfather. The easement granted the following to Havard’s grandfather:
the free and uninterrupted use, liberty and privilege of the passage in,
along, upon and across the existing right-of-way from the location
where it leaves the north side of County Road and crosses our land out
of H. T. & B. Section 1, Abstract 1079 in Jasper County, Texas, and
Abstract 232 in Newton County, Texas, and goes into lands now
owned by Charles M. Havard out of H. T. & B. Section 9, Abstract
1078 in Jasper County, Texas, and Abstract 177 in Newton County,
Texas.
The purpose of this easement is to provide the perpetual right of
passage to the Grantee, his heirs or assigns.
The road that provides passage to Havard’s property under the easement is known
as Private Road 8395, and generally runs due south from the southern boundary of
Havard’s property. Havard’s grandfather conveyed the property to his wife,
Havard’s grandmother, who ultimately conveyed the tract of land to Havard in
June 2002. Havard has resided on the property and has continuously used the
easement since that time.
In 1983, Valerie Maynard conveyed her forty-five-acre tract of land to MWI
Land, Inc. The forty-five-acre conveyance was expressly made subject to two
easements, the easement to Havard’s property and an easement to Gulf States
2
Utilities Company (“GSU”). Barnett introduced into evidence a land survey that
was prepared for MWI Land in 1985, when it purchased the land from Maynard.
The survey reflects both easements.
Out of the forty-five-acre tract, MWI conveyed a 3.168-acre tract of land to
Kenneth Mendoza, who conveyed the property to another. Eventually, Shirley
Ausherman held title to the property and she conveyed her interest in the 3.168-
acre tract (Lot 6 as depicted on inserted survey) to Barnett in November 2010,
along with her interest in an adjoining .518-acre tract of land. Barnett testified that
Ausherman never communicated to him that she thought the easement burdening
the property was a forty-foot easement.
Private Road 8395 is about twelve feet wide. It is a slag road. The western
boundary of Barnett’s property runs to the center of the roadway; Havard’s father
owns the property from the center of the road on the opposite side. In the MWI
Land Survey, the private road is located between lots 6 and 7 and identified only as
“Existing Road[.]”
3
Havard testified that over the years he and his family have repaired the road
probably two or three dozen times with slag. Havard testified that he does not have
any trouble gaining ingress to and egress out of the property. He also testified that
he did not think emergency personnel would have problems getting to his home
using Private Road 8395.
Havard testified that for as long as he could remember, he and his family
have maintained and mowed both sides of the road up to a distance of thirty-four
feet from the center of the private road. During his testimony, Havard read his
4
statement into the record. In his statement, he indicated that the road has sloping
contours on both sides, which were established, maintained, and mowed for
drainage purposes to help move water to the county-maintained ditches. He further
stated that the road is maintained in this manner to prevent flooding. He explained,
“the 80-foot width was established and maintained so that gentle sloping and
drainage could be achieved and maintained with private equipment, rather than
continuous ditch dredging[.]” Barnett testified that he has never noticed any
flooding problems related to the road. Havard testified that the prior owners of
Barnett’s property had no objection to Havard mowing the thirty-four-foot section
on the side of the private road. Havard testified that an easement, which only gives
him nine feet on either side of the road, is not reasonable because it does not permit
him to bring heavy equipment in if necessary to maintain the road.
Barnett testified that prior to moving onto the property, he had informed
Havard that he did not want Havard to mow in excess of fifteen-feet from the
center of the private road. Shortly after purchasing the property, Barnett contended
that Havard was trespassing on his property by continuously mowing past
Barnett’s property line. Barnett testified that he had a survey done by Quin Land
Surveying which, according to Barnett, reflected only a thirty-foot easement,
fifteen-feet from the center of Private Road 8395 on each side. Barnett testified
5
that once he had the results from the completed survey, he asked Havard to stop
coming onto his property.
Barnett began the process of building a fence around his property, both to
prevent Havard from entering his property and to keep some cows on his property.
Barnett sought to build a fence that would run parallel to and abutting the
easement; however, the fence would not cross the road or limit Havard’s access to
his property. Havard testified that Barnett was building his fence at the fifteen-foot
marker and he believed that Barnett had placed a corner post inside the easement.
Barnett testified that Havard used his tractor to knock down the fence post and
Havard admitted that he physically removed the post. Havard testified that while
removing the post, he remained within fifteen feet of the center of the private road.
In May 2011, Havard filed suit against Barnett seeking a permanent
injunction to prevent Barnett from interfering in any way with Havard’s exercise of
his easement rights. Barnett filed an answer to Havard’s lawsuit and filed a
counterclaim wherein he sought declaratory judgment, and damages for trespass,
assault, false imprisonment, and negligence per se for violating the Criminal
Mischief Statute. Defendant also asserted a federal cause of action under 42 U.S.C.
§ 1983.
6
After a bench trial, the court found the width of the easement granted to
Havard’s predecessor in title to be thirty feet on either side from the center of the
private road.1 The court further granted Havard the right to mow and maintain the
full width of such easement. The court found that Havard was entitled to construct
a fence along the eastern boundary of the easement provided Havard constructs the
fence within six months of the date of the trial court’s judgment. The court then
dismissed all other claims Havard had against Barnett, and dismissed all of
Barnett’s claims against Havard with prejudice. Barnett appealed the trial court’s
decision.
Barnett did not request, and the trial court did not issue, findings of fact and
conclusions of law. In a nonjury trial, when no findings of fact or conclusions of
law are requested or issued, all facts necessary to support the trial court’s judgment
1
We note that the judgment finds that the width of the easement granted to
Havard’s predecessor in title is thirty feet on either side of the center of the private
road. However, Barnett only owns the eastern side of the private road. The western
side of the private road is owned by Havard’s father. Havard’s father was not made
a party to this lawsuit. Neither party argued to the trial court or on appeal that
Havard’s father was an indispensable party to this litigation and that the trial court
lacked jurisdiction in his absence. See Tex. R. Civ. P. 39. Furthermore, we note
that although “all persons who have or claim any interest that would be affected by
the declaration must be made parties” to a declaratory action, those not made a
party to the action are not prejudiced by any declaration. Tex. Civ. Prac. & Rem.
Code Ann. § 37.006(a) (West 2008). Accordingly, the trial court’s judgment only
affects the rights of the parties to the suit, and the trial court’s jurisdiction was not
compromised by the absence of any parties. See id.
7
and supported by the evidence are implied. BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 795 (Tex. 2002). However, when the record on appeal
contains a full reporter’s record, a party may challenge the trial court’s implied
findings for legal and factual sufficiency under the same standards that govern
challenges to a jury’s findings. Id.; Whaley v. Cent. Church of Christ of Pearland,
227 S.W.3d 228, 231 (Tex. App.—Houston [1st Dist.] 2007, no pet.). For the party
to prevail on the sufficiency challenge, he must demonstrate that the trial court’s
judgment cannot be sustained by any theory raised by the evidence. Whaley, 227
S.W.3d at 231.
Barnett does not specify in his appellate brief whether he challenges the
court’s findings for legal or factual sufficiency. With regard to both of his issues,
Barnett characterizes the evidence as “undisputed[.]” Accordingly, we construe
Barnett’s issues as legal sufficiency challenges. See Regal Fin. Co., Ltd. v. Tex Star
Motors, Inc., 355 S.W.3d 595, 603 (Tex. 2010) (noting that evidence is legally
insufficient when it “conclusively establishes the opposite of the vital fact”)
(quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
When a party challenges the legal sufficiency of the evidence, we review the
entire record and credit favorable evidence if a reasonable factfinder could, and we
disregard contrary evidence unless a reasonable factfinder could not. See City of
8
Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We must assume that the
factfinder decided questions of credibility or conflicting evidence in favor of the
verdict if it reasonably could do so. Id. at 819-20. The test for legal sufficiency is
whether the evidence at trial would enable reasonable and fair-minded people to
reach the verdict under review. Id. at 827. If the evidence would enable reasonable
and fair-minded people to differ in their conclusions, then the factfinder must be
allowed to do so. Id. at 822. We cannot substitute our judgment for that of the trier
of fact if the evidence falls within the “zone of reasonable disagreement.” Lee v.
Hasson, 286 S.W.3d 1, 13 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)
(citing City of Keller, 168 S.W.3d at 822). We will sustain a legal-sufficiency
challenge if the record shows one of the following: (1) a complete absence of
evidence of a vital fact; (2) rules of law or evidence bar the court 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 scintilla; or (4) the evidence conclusively
establishes the opposite of the vital fact. City of Keller, 168 S.W.3d at 810.
Reasonable Easement
In his first issue, Barnett argues the trial court erred by deciding that the
appropriate width of the easement encumbering Barnett’s property should be thirty
feet on either side of the centerline of the road. Barnett argues the trial court did
9
not apply the appropriate law in making this determination and disregarded the
evidence before it.
An easement is a nonpossessory interest in another’s property that authorizes
its holder to use that property for a particular purpose. Marcus Cable Assocs. v.
Krohn, 90 S.W.3d 697, 700 (Tex. 2002). The owner of the dominant estate has a
duty to maintain the easement, and the owner of the servient estate has no right to
interfere with the dominant estate. Roberts v. Friendswood Dev. Co., 886 S.W.2d
363, 367 (Tex. App.—Houston [1st Dist.] 1994, writ denied); Reyna v. Ayco Dev.
Corp., 788 S.W.2d 722, 724 (Tex. App.—Austin 1990, writ denied). The owner of
the dominant estate must make reasonable use of the right and not unreasonably
interfere with property rights of the owner of the servient estate. San Jacinto Sand
Co. v. Sw. Bell Tel. Co., 426 S.W.2d 338, 345 (Tex. Civ. App.—Houston [14th
Dist.] 1968, writ ref’d n.r.e.).
When an easement does not state the width of the right-of-way created, the
easement holder is entitled to a suitable and convenient way sufficient to afford
ingress and egress to the owner of the dominant estate. Lakeside Launches, Inc. v.
Austin Yacht Club, Inc., 750 S.W.2d 868, 871 (Tex. App.—Austin 1988, writ
denied); Crawford v. Tenn. Gas Transmission Co., 250 S.W.2d 237, 240 (Tex. Civ.
App.—Beaumont 1952, writ ref’d). The suitable width depends on the purpose of
10
the easement. If the easement merely states the object for which the easement is
granted, then we will infer those dimensions that are reasonably sufficient for that
purpose. Crawford, 250 S.W.2d at 240.
No interest in real property passes by implication as incidental to a
grant except what is reasonably necessary to its fair enjoyment. A
grant or reservation of an easement in general terms implies a grant of
unlimited reasonable use such as is reasonably necessary and
convenient and as little burdensome as possible to the servient owner.
Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974). Therefore, every easement
holder has the right to do whatever is reasonably necessary to enjoy fully the rights
granted in the easement. Roberts, 886 S.W.2d at 367. However, to determine the
scope of an easement we may only imply “‘those rights reasonably necessary to the
fair enjoyment of the easement with as little burden as possible to the servient
owner.’” Whaley, 227 S.W.3d at 231 (quoting Lakeside Launches, 750 S.W.2d at
871). “As a general rule, the questions of whether the use of an easement by the
dominant estate is reasonably necessary and convenient and of whether the use is
as little burdensome as possible on the servient estate are questions of fact for the
trial court or jury.” Reaves v. Lindsay, 326 S.W.3d 276, 282 (Tex. App.—Houston
[1st Dist.] 2010, no pet.).
Here, the grant expressly provides “the free and uninterrupted use, liberty
and privilege of the passage in, along, upon and across the existing right-of-way[.]”
11
It further expressly notes the purpose of the easement is to provide the easement
holder with “the perpetual right of passage[.]” It is undisputed that the easement
has remained unaltered and that the original grant is currently in effect. It is also
undisputed that the recorded easement document does not expressly indicate the
width of the easement. While the easement makes no mention of any other rights
of the user, we may imply that Havard’s use of the easement to maintain the
easement and prevent its flooding is reasonably necessary for Havard’s reasonable
use of the easement. See Coleman, 514 S.W.2d at 903.
Havard contends that he has “the right of passage over the reasonable
portion of the servient estate, with consideration for sloped contours to be
maintained in order to provide for drainage to prevent flooding of the road.” He
argues that the easement must be wide enough “to control drainage and prevent
flooding which would result in not being able to use the road.”
Maintaining and repairing the road is Havard’s duty as the owner of the
dominant estate and providing for a means to prevent flooding may be reasonably
necessary to fulfill the purposes of the easement—the free and uninterrupted
passage to Havard’s property. See Roberts, 886 S.W.2d at 367; see also Whaley,
227 S.W.3d at 231-32. On appeal, Barnett argues, “an easement of fifteen feet on
either side of the centerline (thirty feet total) would clearly be sufficient to achieve
12
the stated purpose of the conveyance.” However, Havard testified at trial that he
could not maintain the road with only nine feet on either side of the twelve-foot
road because he would be unable to get heavy equipment into the area. Havard also
explained that he and his family use the thirty-four feet of property on both sides of
the road to create gentle sloping contours for drainage of the road. He explained
that this method of drainage allowed them to maintain the road with private
equipment, rather than continuous ditch dredging. While Barnett testified that he
has not noticed flooding of the road, the trial court could have reasonably
concluded that the road has not flooded because of the sloping contours maintained
by Havard. See City of Keller, 168 S.W.3d at 819-20. Moreover, there is no
evidence in this record that an alternative form of effective drainage for the road
would be less burdensome to the servient estate. Considered in a light most
favorable to the judgment, we conclude that reasonable and fair-minded people
could determine that the sixty-foot easement was proper. See id. at 827. We hold
that the evidence is legally sufficient to support the trial court’s judgment that the
width of the easement should be thirty feet on either side of the center of the
private road designated as Private Road 8395, and therefore affirm that part of the
trial court’s judgment.
13
The trial court also granted Havard the right to construct a fence along the
eastern boundary of the easement. Under the easement, while Havard is entitled to
use the road, he is not entitled to fence the road or exclude Barnett from access to
the road. Barnett is entitled to access his entire tract of land. Havard must make
reasonable use of his easement right and he must not unreasonably interfere with
Barnett’s property rights. See San Jacinto Sand Co., 426 S.W.2d at 345. We expect
Barnett and Havard “‘to exercise their respective rights and privileges in a spirit of
mutual accommodation.’” See Baer v. Dallas Theater Ctr., 330 S.W.2d 214, 219
(Tex. Civ. App.—Waco 1959, writ ref’d n.r.e.) (quoting Restatement, Property—
Servitudes, Sec. 485, p. 3026.). Therefore, we reverse and strike that portion of the
trial court’s judgment finding that Havard has a right to install a fence along the
western boundary of the easement on Barnett’s property.
Trespass Claim
In his second issue, Barnett complains that the trial court erred in not ruling
in his favor on his trespass claim because Havard failed to offer a defense and the
evidence was undisputed that Havard trespassed on Barnett’s property. Trespass to
real property is defined as the unauthorized entry upon the land of another. Barnes
v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011). While a property owner has a right to
exclude others from his property, the property owner may choose to relinquish a
14
portion of the right to exclude by granting an easement. See Marcus Cable, 90
S.W.3d at 700. For a plaintiff to recover damages for trespass to real property, he
must prove “(1) the plaintiff owns or has a lawful right to possess real property, (2)
the defendant entered the plaintiff’s land and the entry was physical, intentional,
and voluntary, and (3) the defendant’s trespass caused injury to the plaintiff.”
Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex. App.—Fort Worth 2006, pet.
denied). The plaintiff must prove that the defendant exceeded the bounds of any
legal rights he may have possessed. Koelsch v. Indus. Gas Supply Corp., 132
S.W.3d 494, 497 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
Havard contends that he had consent to enter Barnett’s property. Consent is
an affirmative defense to a cause of action for trespass. Gen. Mills Rests., Inc. v.
Tex. Wings, Inc., 12 S.W.3d 827, 835 (Tex. App.—Dallas 2000, no pet.). Havard
did not expressly plead consent as a defense. As a general rule, a judgment must be
supported by the pleadings and proof at trial. See Cunningham v. Parkdale Bank,
660 S.W.2d 810, 813 (Tex. 1983). To determine whether a judgment conforms to
the pleadings, we review the pleadings as a whole. Raymond v. Raymond, 190
S.W.3d 77, 83 (Tex. App.—Houston [1st Dist.] 2005, no pet.). “When issues not
raised by the pleadings are tried by express or implied consent of the parties, they
shall be treated as if they had been raised in the pleadings.” Tex. R. Civ. P. 67. To
15
determine whether an issue was tried by consent, we examine the record not for
evidence of the issue, but rather for evidence of trial of the issue. Moneyhon v.
Moneyhon, 278 S.W.3d 874, 879 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
After examining the record as a whole, we find ample evidence that the issue of
consent was tried below. Therefore, we conclude the issue of consent is properly
before this Court on appeal.
Consent to enter property may be implied if the owner has actual knowledge
that people have been entering the land and fails to take reasonable steps to prevent
or discourage those persons from entering the land. Gen. Mills Rests., 12 S.W.3d at
835. Consent to enter property may also be based on an express easement. See
Marcus Cable, 90 S.W.3d at 700; see also Koelsch, 132 S.W.3d at 498 (finding no
liability for trespass when defendant’s use of property fell within rights conveyed
by easement). There is no dispute that Havard entered Barnett’s property.
Accordingly, liability for trespass is dependent on whether Havard’s entry was
with consent.
Barnett complains that Havard trespassed each time he travelled past fifteen
feet from the centerline of the private road. However, as discussed above, the trial
court found the easement to be thirty feet from the centerline on each side of the
private road. Havard’s easement entitles him, and, in fact, requires him to maintain
16
the easement. Because Havard’s entry onto the property was for purposes
authorized by the easement and within the boundaries of the easement as found by
the trial court, Barnett cannot prevail on his trespass claim for this entry.
Barnett argues that the evidence showed that Havard did not just trespass on
the portion of property at issue in the easement. He complains that Havard
trespassed on his property by mowing the easement owned by GSU along the
northern boundary of Barnett’s property. At trial, Havard admitted that he mowed
the easement owned by GSU. He also admitted that he did not have an interest or
right in the easement owned by GSU. He admitted that he had no express authority
to mow the easement and had never asked GSU for permission to mow the area.
He testified that he and his family have mowed that portion of the property for
years. He explained that the prior owners did not object to his family mowing the
property. He testified that when Barnett indicated he had an issue with him
mowing the property, he stopped.
Havard essentially argues that he was justified in entering the property to
mow the GSU easement because the prior owners had consented to his entry onto
the property. Viewing the evidence in a light most favorable to the verdict, we hold
that the trial judge could have reasonably found that the prior owners of the
property had impliedly consented to Havard’s entry onto the property and that
17
when Barnett revoked that consent, Havard stopped entering the property. We
conclude the evidence is legally sufficient to support the trial court’s judgment
dismissing Barnett’s cause of action for trespass.2 We overrule Barnett’s second
issue to the extent it concerns his trespass cause of action.
Negligence Per Se Claim
In his second issue, Barnett also argues that he is entitled to a new trial
because the trial court failed to rule in his favor on his negligence per se claim
when Havard admitted to destroying Barnett’s fence post and knew that destroying
the post was a violation of the Penal Code. Barnett’s negligence per se claim is
based on his allegation that Barnett violated the criminal mischief statute, which
provides in relevant part:
(a) A person commits an offense if, without the effective consent of
the owner:
(1) he intentionally or knowingly damages or destroys the tangible
property of the owner;
(2) he intentionally or knowingly tampers with the tangible
property of the owner and causes pecuniary loss or substantial
inconvenience to the owner or a third person; or
(3) he intentionally or knowingly makes markings, including
inscriptions, slogans, drawings, or paintings, on the tangible property
of the owner.
Tex. Penal Code Ann. § 28.03(a) (West 2011).
2
The trial court’s judgment, dismissing Barnett’s claims with prejudice, will
not bar claims for damages proximately caused by future acts of trespass. See
generally Mossler v. Shields, 818 S.W.2d 752, 753 (Tex. 1991).
18
“Negligence per se is a tort concept whereby the civil courts adopt a
legislatively imposed standard of conduct as defining the conduct of a reasonably
prudent person.” Moughon v. Wolf, 576 S.W.2d 603, 604 (Tex. 1978). “Where the
Legislature has declared that a particular act shall not be done, it fixes a standard of
reasonable care, and an unexcused violation of the statute constitutes negligence or
contributory negligence as a matter of law.” Mo. Pac. R.R. Co. v. Am. Statesman,
552 S.W.2d 99, 103 (Tex. 1977). We recognize that while all persons have a duty
to obey the criminal law, not all criminal statutes provide a standard for civil
liability. See Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278
(Tex. 1979). Texas courts will only impose civil liability based on a criminal
statute when the statute provides an appropriate basis for doing so. See Perry v.
S.N., 973 S.W.2d 301, 305 (Tex. 1998).
Assuming, without deciding, that a violation of the criminal mischief statute
triggers liability in tort, we find legally sufficient evidence to support the trial
court’s dismissal of Barnett’s cause of action for negligence per se. In certain
circumstances, the courts have found that an easement owner may protect his
easement rights by self-help. For example, an easement owner may remove
obstacles that interfere with the exercise of his easement privileges. See Stuart v.
Larrabee, 14 S.W.2d 316, 320 (Tex. Civ. App.—Beaumont 1929, writ ref’d). In
19
Stuart, the court found that the appellee was not liable for damages for cutting and
removing gates and two trees that had prevented him from using a road that he had
an easement right to use. Id. In so acting, the easement owner was acting to abate a
nuisance which interfered with his privilege of use. Id.
Barnett contends that Havard admitted to destroying Barnett’s fence post
with his tractor. At trial, Havard testified that he believed the fence post was placed
inside the easement, and he removed the post from the ground because he believed
it interfered with his easement privileges. Barnett testified that Havard did not
destroy the post, but simply pulled it out of the ground and left it on the ground.
There is no evidence in the record that in removing the post Havard did other
injury to Barnett’s property. The evidence suggests that the post was located
approximately fifteen feet from the center of the private road, an area that is within
the width of the easement as determined by the trial court.
Viewing the evidence in a light most favorable to the verdict, the trial judge
could reasonably have concluded Havard had a right under the easement to remove
the post to abate the nuisance. We hold that the evidence is legally sufficient to
support the trial court’s judgment dismissing Barnett’s cause of action for
negligence per se. We overrule Barnett’s second issue.
20
We affirm the trial court’s judgment to the extent that the trial court
determined it was reasonable and necessary for the width of the easement to extend
thirty feet from the center of the private road to enable Havard to fully enjoy the
right of passage over Private Road 8395. However, we reverse the trial court’s
judgment that Havard had a right to construct a fence along the eastern boundary
of the easement and strike such language from the judgment. We affirm the trial
court’s judgment dismissing all other claims of Havard and Barnett.
AFFIRMED IN PART; REVERSED AND RENDERED IN PART.
______________________________
CHARLES KREGER
Justice
Submitted on December 5, 2013
Opinion Delivered June 12, 2014
Before McKeithen, C.J., Kreger and Horton, JJ.
21