THE SHED, LLC AND MARY ELLEN MALONE v. EDOM WASH 'N DRY, LLC; from Van Zandt County;
12th district (Shed, LLC v. Edom Wash N'Dry, LLC, No. 12-07-00431-CV, ___ SW3d ___, 03-18-09, pet.
denied July 2009) 2 petitions (easement dispute, injunction, exemplary damages reversed, attorneys fees
must be segregated)
Because the evidence is insufficient to support a finding of malice by The Shed or
Malone, the awards of exemplary damages are not authorized. We therefore reverse
that portion of the trial court judgment awarding Edom Wash 'N Dry exemplary
damages. Because Edom Wash 'N Dry failed to segregate recoverable from
nonrecoverable attorney's fees, that portion of the trial court's judgment awarding
Edom Wash 'N Dry attorney's fees is reversed and this cause is remanded for a new
trial on attorney's fees. In all other respects, we affirm the trial court's judgment.
THE SHED, L.L.C. and MARY ELLEN MALONE,
EDOM WASH 'N DRY, L.L.C.,
Two neighboring businesses dispute the size and location of an access easement that burdens one and
benefits the other. The Shed, L.L.C. and Mary Ellen Malone, whose property the easement crosses, appeal
from the judgment in Edom Wash 'N Dry, L.L.C.'s suit to resolve their dispute. In nineteen issues raised by
The Shed and Malone and one cross issue raised by Edom Wash 'N Dry, we consider reasonable access,
unreasonable blocking, malice, compensatory and exemplary damages, admissibility of evidence, the jury
charge, the permanent injunction, and attorney's fees. We affirm in part, reverse and render in part, and
reverse and remand in part.
Lloyd and Delpha Garrett owned a tract of real property located at the intersection of FM 279 and FM 314
in Edom. They sold the portion of that property on which The Shed restaurant is located to Donna Dean,
but they reserved for themselves, their agents, heirs, successors, and assigns the "right of ingress and
egress over [The Shed restaurant property] for the purpose of access to [the remaining property owned by
the Garretts] located behind and at the rear of [The Shed restaurant]." The Garretts later sold the
remaining property, including the access easement, to Edom Wash 'N Dry. The Garretts did not, however,
identify the exact location of the easement.
When Edom Wash 'N Dry purchased the property from the Garretts, Edom Wash 'N Dry was owned by Earl
Berry; his wife, Ann Berry; and Malone. Edom Wash 'N Dry utilized its access easement across The Shed
property, but Dean complained. The Berrys and Malone discussed litigating the issue against Dean, but
because Malone did not want to participate in the litigation, the Berrys purchased Malone's interest in Edom
Wash 'N Dry. Through its attorney, Edom Wash 'N Dry then informed Dean of its right to cross The Shed
restaurant property to gain access to its property.
Some time later, Dean sold The Shed restaurant to The Shed, a limited liability corporation owned by
Malone; Malone's husband, Bernard "Bud" Malone; and JoAnne Martinez. Several months after purchasing
the restaurant, The Shed constructed a fence along the property line between its property and Edom Wash
'N Dry's property. The Shed left a seven and one-half foot opening in the fence so that most vehicles could
still pass, albeit very carefully, from its property to the Edom Wash 'N Dry property. Believing this action
unreasonably interfered with its right to ingress and egress under the easement, Edom Wash 'N Dry sued
The Shed and Malone.
In the trial of the case, The Shed and Malone attempted to present to the jury evidence of a proposed
location for the easement located over property that was not part of the original Garrett property. The trial
court excluded evidence related to this proposed location. The jury determined that the most reasonable
location for the access easement across The Shed's property is a fifteen foot path across the centerline of
the property. It also found that, acting with malice, The Shed and Malone intentionally caused an
"unreasonable blocking of [Edom Wash 'N Dry's] easement rights" causing compensatory damages of
$250.00. The jury assessed punitive damages of $100,000.00 against The Shed and $50,001.00 against
Malone. Finally, the jury determined that Edom Wash 'N Dry incurred reasonable attorney's fees for this
case in the amount of $183,832.15 for preparation and trial, $25,500.00 for appeal to this court, and
$15,500.00 for appeal to the Texas Supreme Court. The trial court's judgment reduced the punitive
damages assessed against Malone to $10,001.00 and the punitive damages assessed against The Shed
to $20,000.00, but incorporated the remainder of the jury's findings. The judgment further permanently
enjoined The Shed and Malone from blocking Edom Wash 'N Dry's access across the designated
easement. This appeal followed.
The Shed and Malone raise seven issues relevant to the location of a reasonable easement across their
property. In their sixteenth and seventeenth issues, The Shed and Malone argue that the trial court
excluded admissible evidence pertinent to the location of the easement. In their twelfth, thirteenth, and
fourteenth issues, The Shed and Malone argue that the trial court's jury charge omitted a proper and
necessary question and instructions pertinent to the location of the easement. In their first issue, The Shed
and Malone argue that the trial court should have disregarded the jury's determination as to the route and
width of the easement that would provide Edom Wash 'N Dry with the "most reasonable access" across The
Shed's property to its own property. Finally, in their second issue, The Shed and Malone argue that the
jury's determination of the route and width of the easement is not supported by legally or factually sufficient
Determining the Location of an Easement
To determine the scope of an express easement, the court applies basic principles of contract construction
and interpretation. Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002). When a contract is
unambiguous, the court interprets the contract as a matter of law. DeWitt County Elec. Coop., Inc. v. Parks,
1 S.W.3d 96, 100 (Tex. 1999). The contracting parties' intentions, as expressed in the document,
determine the scope of the easement. Id. at 103.
An access easement is a nonpossessory interest in land that authorizes its holder to use the land for
ingress and egress. See Krohn, 90 S.W.3d at 700. The land benefitted by the easement is the dominant
estate, and the land burdened by the easement is the servient estate. LaTaste Enters. v. City of Addison,
115 S.W.3d 730, 735 (Tex. App.-Dallas 2003, pet. denied). An access easement can be created by
language in a deed. See Vinson v. Brown, 80 S.W.3d 221, 227 (Tex. App.-Austin 2002, no pet.). An
easement includes "the right to do whatever is reasonably necessary for full enjoyment of the rights
granted." Whaley v. Cent. Church of Christ, 227 S.W.3d 228, 231 (Tex. App.-Houston [1st Dist.] 2007, no
pet.). Any rights implied must be reasonably necessary to the fair enjoyment of the easement and place as
little burden as possible on the servient owner. Id. An express easement is adequately identified when the
exact location of the easement is omitted as long as the tract of land that will be burdened by the express
easement is sufficiently identified. Vinson, 80 S.W.3d at 227.
When an express easement fails to specify its location, generally it is the servient estate owner's right to
select the location. Id. at 228. However, the servient estate owner must exercise this right in a reasonable
manner, and if he fails to establish a specific location for the easement, the dominant estate owner may do
so. Id. The dominant estate owner's use of the easement, with the consent or acquiescence of the servient
estate owner, is sufficient to establish the easement's location. Id. Under such circumstances, the location
of the easement becomes an issue for the fact finder. See Placke v. Lee-Fayette Counties W.C.I.D. #1, No.
03-04-00096-CV, 2005 Tex. App. LEXIS 3411, at *13 (Tex. App. - Austin May 5, 2005, pet. denied).
Admissibility of Evidence
We review a trial court's exclusion of evidence for abuse of discretion. Owens-Corning Fiberglas Corp. v.
Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court does not abuse its discretion as long as its decision is
within the zone of reasonable disagreement. Natural Gas Pipeline Co. of Am. v. Pool, 30 S.W.3d 618, 632
(Tex. App.-Amarillo 2000), rev'd on other grounds, 124 S.W.3d 188 (Tex. 2003). A trial court abuses its
discretion when its decision is unreasonable, arbitrary, or without regard for any guiding rules or principles.
Lively v. Blackwell, 51 S.W.3d 637, 641 (Tex. App.-Tyler 2001, pet. denied).
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than it would be without the
evidence. Tex. R. Evid. 401. If there is some logical connection either directly or by inference between the
evidence and a fact to be proved, the evidence is relevant. Pool, 30 S.W.3d at 632. Evidence that is not
relevant is inadmissible. Tex. R. Evid. 402.
Here, The Shed and Malone proffered evidence of a proposed location for the easement created after the
commencement of this litigation. After the trial court granted the temporary injunction, The Shed and
Malone removed trees and moved a water meter and a building to allow for a potential easement along the
west side of The Shed property as shown in their Exhibits 2 through 9. The trial court excluded all evidence
of the proposed location for the easement because it showed that the easement was to be located, in part,
through property that was not part of the original Garrett tract. Because locating the easement outside the
original Garrett tract could not have been the intent of the parties to the deed in which the easement was
reserved, the trial court properly found the proffered evidence of the proposed location to be irrelevant.
See Pool, 30 S.W.3d at 632. Further, because these actions occurred after the alleged actions related to
unreasonable blocking and malice, the proffered evidence was not relevant to those issues either. Thus,
the trial court properly excluded The Shed and Malone's evidence of the proposed location for the
easement along the west side of The Shed property and the related evidence contained in Defendants'
Exhibits 2 through 9. We overrule The Shed and Malone's sixteenth and seventeenth issues.
The Court's Charge
When a trial court refuses a requested jury instruction, we examine whether the instruction was reasonably
necessary to enable the jury to render a proper verdict. Tex. R. Civ. P. 277; Cleaver v. Cundiff, 203 S.W.3d
373, 379 (Tex. App.-Eastland 2006, pet. denied). Because the jury should not be burdened with surplus
instructions, not every correct statement of the law belongs in the jury charge. Id. A trial court's refusal to
include an instruction is reviewed under an abuse of discretion standard. Magro v. Ragsdale Bros., Inc.,
721 S.W.2d 832, 836 (Tex. 1986). To establish an abuse of discretion, the requested instructions must be
necessary to enable the jury to render a proper verdict so that the court's refusal probably caused the
rendition of an improper verdict. Pitts v. Sabine River Auth. of Tex., 107 S.W.3d 811, 819 (Tex.
App.-Texarkana 2003, pet. denied). A trial court is required to submit a jury question if it controls the
disposition of the case, is raised by the pleadings and evidence, and properly submits the disputed issues
for the jury's determination. Id. at 820.
Here, it is undisputed that Edom Wash 'N Dry owned an access easement across The Shed property. Thus,
the only fact issue related to the easement was its location. Because there was no express location for the
easement, the jury had to determine whether the servient estate owner had established a reasonable
location for the easement, and if not, whether the dominant estate owner had established a reasonable
location for the easement. See Vinson, 80 S.W.3d at 228. If neither established a reasonable location for
the easement, the fact finder was required to establish a location for the easement that is both reasonably
necessary to the fair enjoyment of the easement by the dominant estate and places as little burden as
possible on the servient owner. See Placke, 2005 Tex. App. LEXIS 3411, at *13.
The Shed and Malone complain that the trial court failed to submit the following instructions and question:
Easements of access do not guarantee access to any specific passageway, absent a specific grant.
When one has access to a part of his tract of land by way of travel over his own property, this, as a matter
of law, is a better and more direct route than one which burdens an adjacent landowner. This conclusion is
consistent with the general premise that easements, and the conditions placed on them, should be
construed in a manner that places as little burden as possible upon the servient estate. It does not matter
that the route across one's own land is longer, more circuitous, or in an inferior location physically.
Did the Shed and Malone fail during the relevant period to locate the access easement in a reasonable
manner, having due regard to the rights and interests of [Edom Wash 'N Dry] as owner of the dominant
Although it is uncontroverted that Edom Wash 'N Dry owned an easement across The Shed property, The
Shed and Malone attempted to deprive Edom Wash 'N Dry of this express access easement by charging
the jury on law applicable to an easement created by necessity or implication. See Adams v. Norsworthy
Ranch, Ltd., 975 S.W.2d 424, 429 (Tex. App.-Austin 1998, no pet.); Sentell v. Williamson County, 801
S.W.2d 220, 223 (Tex. App.-Austin 1990, no writ) (op. on reh'g). The requested instructions are
inapplicable to determining a reasonable location for an express access easement. The trial court did not
abuse its discretion by declining to include these instructions. See Cleaver, 203 S.W.3d at 379.
Regarding the requested question, if The Shed and Malone had proffered evidence that they had
designated the location of the access easement on property that had been conveyed by the Garrett deed,
this question would have been proper and necessary. However, The Shed and Malone instead attempted
to locate the easement in part on property not covered by the Garrett deed. That location could not have
been intended when the Garretts reserved the express easement, and the trial court did not abuse its
discretion by declining to include this question. See id. We overrule The Shed and Malone's twelfth,
thirteenth, and fourteenth issues.
Jury's Description of Easement
Jury question number two asked the jury to describe exactly the route and width of the easement across
The Shed's property that provides Edom Wash 'N Dry the most reasonable access from FM 279 to the
boundary line between The Shed's property and Edom Wash 'N Dry's property. Relying on a recorded
metes and bounds description, the jury described a certain fifteen foot wide easement across The Shed
and Malone's property. The Shed and Malone assert this finding is immaterial and should have been
disregarded inasmuch as the reservation lacked specificity, and the right to locate the easement belongs to
The Shed and Malone, who had provided reasonable access to the Edom Wash 'N Dry tract, albeit over a
different route. Further, they assert the evidence is neither legally nor factually sufficient to support the
To disregard a jury finding, the trial court must find the issue is immaterial or the finding is unsupported by
the evidence. Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994). The jury finding
may be immaterial because it should not have been submitted, it was properly submitted but rendered
immaterial by other findings, or calls for a finding beyond the province of the jury, such as a question of law.
When the appellant is challenging the legal sufficiency of the evidence to support a finding on which it did
not have the burden of proof at trial, the appellant must demonstrate on appeal that no evidence exists to
support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In reviewing for legal
sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict. See
AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008). The test for legal sufficiency "must always be
whether the evidence at trial would enable [a] reasonable and fair-minded [fact finder] to reach the [result]
under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Legal sufficiency review must
credit favorable evidence if a reasonable fact finder could, and disregard contrary evidence unless a
reasonable fact finder could not. Id. We sustain a legal sufficiency challenge when the record discloses one
of the following situations: (1) there is a complete absence of evidence establishing a vital fact, (2) the court
is barred by rules of law or of evidence from giving weight to the only evidence of 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 a vital fact. Id. at 810.
The fact finder is the sole judge of the credibility of the witnesses and the weight to be assigned to their
testimony. Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 557 (Tex. App.-Tyler 2007, pet. denied) (op. on
reh'g). The fact finder is free to believe one witness and disbelieve another, and reviewing courts may not
impose their own opinions to the contrary. Id. Accordingly, reviewing courts must assume that the fact finder
decided all credibility questions in favor of the verdict if a reasonable person could do so. Id. If a
reasonable finder of fact could have done so, we must assume that the finder of fact chose what testimony
to disregard in a way that was in favor of the verdict. Id. A fact finder "may disregard even uncontradicted
and unimpeached testimony from disinterested witnesses" where reasonable. Id.
In addition, it is within the finder of fact's province to resolve conflicts in the evidence. Id. Consequently, we
must assume that, where reasonable, the finder of fact resolved all conflicts in the evidence in a manner
consistent with the verdict. Id. Further, where conflicting inferences can be drawn from the evidence, we
must assume the finder of fact made all inferences in favor of the verdict if a reasonable person could do
Regarding factual sufficiency challenges, where a party who did not have the burden of proof on an issue
asserts that the fact finder's verdict is contrary to the evidence, we must overrule the complaint unless,
considering all the evidence, the finding is clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d
175, 176 (Tex. 1986). In conducting our review, we must consider, weigh, and compare all of the evidence
that supports and that which is contrary to the finding. See Sosa v. City of Balch Springs, 772 S.W.2d 71,
72 (Tex. 1989). "Reversal [can] occur because the finding [is] based on weak or insufficient evidence or
because the proponent's proof, although adequate if taken alone, is overwhelmed by the opponent's
contrary proof." Santa Fe Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630, 637 (Tex. App.-Tyler
2004, no pet.).
When reviewing factual sufficiency issues, we must remember that the fact finder is the sole judge of the
credibility of the witnesses. Canal Ins. Co., 238 S.W.3d at 557. The fact finder may take into consideration
all of the facts and surrounding circumstances in connection with the testimony of each witness and accept
or reject all or any part of that testimony. Id. at 557-58. Where enough evidence is before the fact finder so
that reasonable minds could differ on the meaning of the evidence, or the inferences and conclusions to be
drawn from the evidence, we may not substitute our judgment for that of the trial court. Id. at 558.
During the trial, the ultimate location of the easement was a hotly contested issue. Edom Wash 'N Dry
argued that it needed a thirty foot easement to provide it with adequate access. It further argued that an
easement of this size would not unnecessarily affect The Shed's parking. Meanwhile, The Shed and Malone
argued that any easement through the center of The Shed's parking lot would cause significant damage to
The Shed's business. The jury considered the evidence and determined that the most reasonable location
for the easement was in the center of The Shed's property and the most reasonable width of the easement
was fifteen feet.
The trial court determined, and we have agreed, that The Shed and Malone did not provide a reasonable
location for the easement because their proposed location included going across land not covered by the
Garrett deed. Further, the jury determined that Edom Wash 'N Dry's proposed location for the easement
was not reasonable. This finding has not been attacked on appeal and must be accepted as a proven fact.
See id. at 559. Thus, the jury's determination of a reasonable location for the easement was material and
should not be disregarded. See Spencer, 876 S.W.2d at 157. The evidence showed that normal traffic flow
went down the middle of The Shed's parking lot. Considering the normal width of most vehicles, the jury was
entitled to disregard Edom Wash 'N Dry's expert's claim that the easement should be thirty feet wide. Based
on the evidence at trial, a reasonable and fair minded fact finder could determine the most reasonable
access over The Shed's property to Edom Wash 'N Dry as the jury did. Therefore, the evidence is legally
sufficient. See City of Keller, 168 S.W.3d at 827. Finally, considering all the evidence, the finding is not
based on weak or insufficient evidence nor is Edom Wash 'N Dry's proof, which is adequate if taken alone,
overwhelmed by The Shed and Malone's contrary proof. Thus, the evidence is factually sufficient. See
Santa Fe Petroleum, L.L.C., 156 S.W.3d at 637. We overrule The Shed and Malone's first and second
Unreasonable Blocking of Easement
In their third, fourth, and sixth issues, The Shed and Malone argue that the jury's answers to Questions 4,
5, and 7, regarding unreasonable blocking of the easement and the damages associated with the
unreasonable blocking, are not supported by legally or factually sufficient evidence. The jury found that
The Shed and Malone built a fence along the boundary line between The Shed's property and Edom Wash
'N Dry's property in order to unreasonably block Edom Wash 'N Dry's easement rights, The Shed and
Malone thereby caused an unreasonable blocking of the easement rights of Edom Wash 'N Dry, and the
sum of $250.00 would compensate Edom Wash 'N Dry for resulting damages.
Two very different versions of this dispute were presented to the jury. Edom Wash 'N Dry presented
evidence that Malone knew of the importance of the access easement before she and the other owners of
The Shed purchased the restaurant and property from Dean. Further, The Shed had a fence constructed
that eliminated a pedestrian path which was being utilized by at least one person to gain access to Edom
Wash 'N Dry's property and significantly decreased the opening for vehicular traffic. Edom Wash 'N Dry
expended $250.00 to put gravel on its tract in an attempt to improve the limited access caused by The
Shed's construction of the fence. The Shed and Malone presented evidence that this fence created little
inconvenience to Edom Wash 'N Dry and that various other proposed solutions to the concerns of Edom
Wash 'N Dry were attempted. The servient estate cannot unreasonably interfere with or block the dominant
estate's use of the easement. See Whaley, 227 S.W.3d at 231. Further, it is generally for the fact finder to
resolve conflicts in the evidence. See Canal Ins. Co., 238 S.W.3d at 557. The evidence is both legally
sufficient and factually sufficient to support the jury's verdict. See City of Keller, 168 S.W.3d at 827; Santa
Fe Petroleum, L.L.C., 156 S.W.3d at 637. We overrule The Shed and Malone's third, fourth, and sixth
In their seventh, eighth, ninth, and tenth issues, The Shed and Malone argue that the jury's answers to the
issues related to exemplary damages are not supported by legally or factually sufficient evidence. In their
eleventh issue, The Shed and Malone argue that the exemplary damages awarded in the trial court's
judgment are unconstitutionally excessive. In its sole cross issue, Edom Wash 'N Dry argues that the trial
court erred in reducing the jury's award of exemplary damages.
The jury found that the harm to Edom Wash 'N Dry, caused by an unreasonable blocking of its easement
across The Shed's property, resulted from malice by Malone and The Shed. The jury assessed $50,001.00
against Malone and $100,000.00 against The Shed as exemplary damages for that conduct. The trial court
reduced those awards and ordered that Edom Wash 'N Dry recover $10,001.00 from Malone and
$20,000.00 from The Shed as exemplary damages.
Legal and Factual Sufficiency Analysis of the Exemplary Damages
Exemplary damages are authorized when the claimant proves by clear and convincing evidence that the
harm results from fraud, malice, or gross negligence. Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a)
(Vernon 2008); Dillard Dep't Stores, Inc. v. Silva, 148 S.W.3d 370, 372-73 (Tex. 2004). At trial, Edom Wash
'N Dry submitted malice as the predicate for exemplary damages. To establish that the unreasonable
blocking of the easement was committed with malice, Edom Wash 'N Dry had to prove a specific intent by
The Shed and Malone to cause substantial injury or harm to Edom Wash 'N Dry. Tex. Civ. Prac. & Rem.
Code Ann. § 41.001(7) (Vernon 2008). Malice may be proven by direct or circumstantial evidence. Transp.
Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994).
In a legal sufficiency review where the burden of proof is clear and convincing evidence, the reviewing court
must consider all of the evidence in the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction that its finding was true. See Tex. Civ.
Prac. & Rem. Code Ann. § 41.001(2) (Vernon 2008); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In
addressing a factual sufficiency of the evidence challenge, we must consider all the evidence in the record,
both that in support of and contrary to the trial court's findings. In re C.H., 89 S.W.3d 17, 27-29 (Tex. 2002).
This court must give due consideration to evidence that the fact finder could reasonably have found to be
clear and convincing. Id. at 25. We must determine whether the evidence is such that a fact finder could
reasonably form a firm belief or conviction in support of its finding. Id.
In considering the amount of exemplary damages, the fact finder considers the nature of the wrong, the
character of the conduct involved, the degree of culpability of the wrongdoer, the situation and sensibilities
of the parties concerned, the extent to which such conduct offends a public sense of justice and propriety,
and the net worth of the defendant. Tex. Civ. Prac. & Rem. Code Ann. § 41.011 (Vernon 2008). When
reviewing the evidence with respect to a finding by the fact finder concerning liability for exemplary
damages or the amount of exemplary damages, we shall address the evidence with specificity and state the
reasons for upholding or disturbing a finding or award. Tex. Civ. Prac. & Rem. Code Ann. § 41.013(a)
Here, Edom Wash 'N Dry presented evidence that The Shed and Malone purposely restricted its access
across The Shed property by the construction of a fence. Malone wanted the fence built. Further, the
owners of The Shed met and determined that the fence should be built. While The Shed and Malone
presented evidence that they wanted the fence built to improve the look of the restaurant and not to harm
Edom Wash 'N Dry, the jury was free to either partially or completely discount this testimony. See Sw. Bell
Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004). Also, Malone, through her previous position as a part
owner in Edom Wash 'N Dry, knew the importance that Edom Wash 'N Dry placed on the access easement
across The Shed property. The jury was free to infer that The Shed and Malone knew that the renter of a
portion of the Edom Wash 'N Dry building, who also was an employee of The Shed, utilized the walking path
that was blocked by the fence. And the jury knew that Edom Wash 'N Dry's property was used as storage
by a related business. Finally, the jury could infer that an opening of seven and one-half feet indicates an
intent to unreasonably restrict Edom Wash 'N Dry's access easement.
But even proof of an intent to unreasonably restrict an access easement is not proof of malice. See Cont'l
Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 454 (Tex. 1996) (Not every unlawful or wrongful act is
malicious.). Instead, Edom Wash 'N Dry was required to prove a specific intent by The Shed or Malone to
cause substantial injury or harm to it. While blocking a more direct walking path and having a small opening
in the fence for vehicular traffic might demonstrate an intent to cause injury, the requirement is substantial
injury. See Tex. Civ. Prac. & Rem. Code Ann. § 41.001(7). The evidence remains that The Shed and
Malone at all times provided Edom Wash 'N Dry's occupants access for ingress and egress across The
Shed's property. After reviewing the evidence, even in the light most favorable to the jury's finding of
malice, the evidence is not such that the jury could form a firm conviction that Malone acted with malice or
that an act of malice was committed for which The Shed was responsible. (1) We sustain The Shed and
Malone's seventh and eighth issues. Having sustained these two issues, we do not reach The Shed and
Malone's ninth, tenth, or eleventh issues, nor Edom Wash 'N Dry's cross issue. See Tex. R. App. P. 47.1.
In their fifth, fifteenth, and eighteenth issues, The Shed and Malone argue that the trial court erred in
awarding attorney's fees to Edom Wash 'N Dry. They assert that the jury's awards of $183,832.15 for
preparation and trial, $25,500.00 for an appeal to the court of appeals, and $15,500.00 for an appeal to
the Texas Supreme Court are not supported by legally or factually sufficient evidence. They contend that
the trial court erred in failing to require Edom Wash 'N Dry to segregate recoverable attorney's fees from
nonrecoverable attorney's fees. Finally, they assert that the 80% reduction in exemplary damages required
a retrial of the jury's award of attorney's fees.
Duty to Segregate Attorney's Fees
Whether the recovery of attorney's fees is permitted by statute or contract in a given instance is one of law.
See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999). In a proceeding under the Uniform
Declaratory Judgment Act, the trial court may award costs and reasonable and necessary attorney's fees
as are equitable and just. Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 2008); Rapid Settlements v.
SSC Settlements, L.L.C., 251 S.W.3d 129, 145 (Tex. App.-Tyler 2008, orig. proceeding). The court's
discretion to award attorney's fees is subject to the limitation that the attorney's fees be reasonable and
necessary, which are matters of fact. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Trial courts do
not have the inherent authority to award attorney's fees. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d
299, 311 (Tex. 2006). Thus, claimants must segregate fees between claims for which fees are recoverable
and claims for which they are not. Id. If any attorney's fees relate solely to a claim for which such fees are
not recoverable, the claimant must segregate the recoverable from the unrecoverable fees. Id. at 313. A
common set of underlying facts is not enough. Id. The intertwined facts exception applies only when
discrete legal services advance both a recoverable claim or claims and an unrecoverable claim or claims.
Id. at 313-14. Then, and only then, is it unnecessary to segregate attorney's fees. Id. at 314. If recoverable,
the amount of attorney's fees is for the trier of fact. Bocquet, 972 S.W.2d at 21.
A failure to segregate attorney's fees does not mean that the claimant can recover no attorney's fees.
Chapa, 212 S.W.3d at 314. The amount of unsegregated attorney's fees for the entire case is some
evidence of the amount of segregated attorney's fees. Id. Thus, if a claimant fails to segregate attorney's
fees, we reverse and remand for a new trial on attorney's fees, rather than reverse and render. Id.
The usual method of proof of the amount of reasonable attorney's fees is the opinion testimony of lawyers
testifying as expert witnesses. 2 William V. Dorsaneo, III, Texas Litigation Guide § 22.41 (2009). The
opinion testimony may come from a disinterested attorney, or from an attorney whose fees are in question
in the case. Id.
The general rule is that the testimony of an interested witness, such as the attorney whose fees are to be
determined, though not contradicted, does no more than raise a fact issue to be determined by the jury.
Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990). There is, however, an
exception to the rule whereby the testimony of an interested witness may establish facts as a matter of law.
Id. The exception applies when the testimony from the interested witness is not contradicted by any other
witness or attendant circumstances, and it is clear, direct, and positive, and free from contradiction,
inaccuracies, and circumstances tending to cast suspicion on the evidence. Id. "The exception to [this]
interested witness rule . . . is especially true where the opposing party has the means and opportunity of
disproving the testimony, if it is not true, and fails to do so." Id.
Here, Edom Wash 'N Dry claimed entitlement to attorney's fees based on the Uniform Declaratory
Judgments Act. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009. Edom Wash 'N Dry presented evidence of
its attorney's fees through the testimony of one of its attorneys, Jeffrey Hurt. Mr. Hurt testified that, through
trial, Edom Wash 'N Dry had incurred attorney's fees in the amount of $171,984.05 and expenses in the
amount of $11,848.10 for a total of $183,832.15. The jury awarded Edom Wash 'N Dry that amount for its
attorney's fees and expenses incurred through trial.
Edom Wash 'N Dry made no attempt, or at best an inadequate attempt, to segregate attorney's fees
incurred for recoverable claims from attorney's fees incurred for unrecoverable claims. Mr. Hurt testified
that Edom Wash 'N Dry was provided two credits related to attorney's fees:
Q. Did our billing allow for some credits in the billing?
A. Yes. We actually gave [Edom Wash 'N Dry] a credit of $20,000. . . . Let me be accurate. We gave two
credits; one in the amount of $5,641.25 and one in the amount of $20,000. We gave those credits in
coming up with the numbers that we are - that I am applying as reasonable in a case regarding this matter.
Thus, it appears that Edom Wash 'N Dry sought and recovered the full amount of attorney's fees that it paid
in this case.
The credit of $5,641.25 applied to research related to a motion to disqualify. Edom Wash 'N Dry's attorney
stated that he determined it was not reasonable to charge for that motion, and thus, those fees were not
recoverable. Therefore, Edom Wash 'N Dry correctly removed the $5,641.25 from its requested attorney's
fees. But we cannot determine from this record which entries were covered by the $20,000.00 credit. Edom
Wash 'N Dry presented testimony that the $20,000.00 credit was given because 1) Edom Wash 'N Dry
deemed it unreasonable to be charged for certain repetitive preparation caused by multiple trial settings, 2)
some time entries should have been charged to other ongoing litigation that Edom Wash 'N Dry was
involved in, and 3) Edom Wash 'N Dry had other theories of recovery in this case. Presumably, this third
reason references the unrecoverable claims. Edom Wash 'N Dry did not identify and separate the amount
credited because of the unrecoverable claims.
The attorney's fees incurred to obtain the declaratory judgment are the only attorney's fees charged for a
recoverable claim. A review of the invoices admitted into evidence indicates that Edom Wash 'N Dry should
have segregated more than $20,000.00 of its attorney's fees as unrecoverable. Edom Wash 'N Dry
incurred more than $20,000.00 that clearly related to its other claims such as preserving the status quo
through a temporary restraining order and a temporary injunction, prosecuting its claims regarding
unreasonable blocking of the easement, and seeking punitive damages. Edom Wash 'N Dry has offered no
basis or authority for recovery of attorney's fees related to these services, and we have found none. As
such, Edom Wash 'N Dry failed to adequately segregate its attorney's fees. See Chapa, 212 S.W.3d at 311.
Thus, the trial court erred in awarding Edom Wash 'N Dry the full amount of attorney's fees it paid.
We sustain The Shed and Malone's fifteenth issue. We do not reach The Shed and Malone's fifth or
eighteenth issues. See Tex. R. App. P. 47.1.
In their nineteenth issue, The Shed and Malone argue that the trial court's permanent injunction is too
vague to be valid. They contend the judgment did not describe with any specificity the identity, type,
dimensions, or location of the fencing or existing barriers or barricades to be removed. They further assert
that the judgment did not define with any specificity the conduct that would constitute restricting, blocking,
or interfering with Edom Wash 'N Dry's use in any manner, directly or indirectly, of the right of pedestrian
and vehicular ingress and egress. Therefore, they argue, the judgment does not contain sufficient detail for
them to determine what the court wants them to do.
Orders granting injunctions must be specific and describe in reasonable detail the act sought to be
restrained. See Tex. R. Civ. P. 683. An injunction must be definite, clear, and concise, leaving the person
enjoined in no doubt about his duties, without calling on him for inferences or conclusions about which
persons might differ. See id.; Vaughn v. Drennon, 202 S.W.3d 308, 316 (Tex. App.-Tyler 2006, no pet.).
The complained of injunction states:
Defendant, The Shed, LLC, shall within ten days of the entry of this order, remove any fencing or existing
barriers or barricades that prevent or hinder ingress and egress across the easement [of a fifteen foot path
in the center of The Shed property].
Defendants, their agents, heirs, successors, and assigns are hereby permanently enjoined from restricting,
blocking, [or] interfering with Plaintiff's use in any manner, directly or indirectly, of the right of pedestrian
and vehicular ingress and egress across the easement [of a fifteen foot path in the center of The Shed
The judgment incorporates a document setting out the metes and bounds description of the exact location
and width of the easement on the ground. The injunction prohibits The Shed and Malone from blocking the
easement. Therefore, any fencing or existing barricades that cross or intrude upon the easement as
described in that document must be removed. Further, they must refrain from all conduct that would restrict,
block, or interfere with Edom Wash 'N Dry's ability to use the easement. In other words, the easement must
remain clear. The injunction does not call on The Shed and Malone to infer or make conclusions about
which people might differ. See Vaughn, 202 S.W.3d at 316. We overrule The Shed and Malone's
Because the evidence is insufficient to support a finding of malice by The Shed or Malone, the awards of
exemplary damages are not authorized. We therefore reverse that portion of the trial court judgment
awarding Edom Wash 'N Dry exemplary damages. Because Edom Wash 'N Dry failed to segregate
recoverable from nonrecoverable attorney's fees, that portion of the trial court's judgment awarding Edom
Wash 'N Dry attorney's fees is reversed and this cause is remanded for a new trial on attorney's fees. In all
other respects, we affirm the trial court's judgment.
Opinion delivered March 18, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
1. Edom Wash 'N Dry also alleged that The Shed and Malone intentionally diverted sewage onto Edom
Wash 'N Dry's property. While there was some evidence that The Shed's ice machine leaked, Edom Wash
'N Dry failed to present any evidence that The Shed or Malone intentionally diverted leakage from the ice
machine onto its property. Further, Edom Wash 'N Dry failed to obtain a finding from the jury that The Shed
or Malone intentionally diverted sewage onto its property. Therefore, this allegation does not support a
finding of malice against The Shed or Malone.