On Appeal from the 155th District Court Austin County, Texas Trial Court Case No. 2006V-0037
Panel consists of Justices Keyes, Higley, and Massengale.
Laura Carter Higley Justice
A jury determined that William and Linda Reaves could place a fence and gates on their property along the easement held by Sheldon and Elaine Lindsay. In two issues, the Lindsays argue the jury's determination was legally insufficient because an implied easement prohibited the construction of the fence and gates.
The Reaveses own property along F.M. Road 2502 in Austin County. The Lindsays own adjoining property and access F.M. Road 2502 through an easement along the Reaveses' property. Both properties were once owned by Everett Luhn, and the easement was created when he divided and sold the properties. In 2006, the Reaveses sought to fence and gate their property, including the easement, for the purpose of raising cattle.
The Lindsays brought suit, seeking a declaratory judgment to prevent the installation of fences and gates along the easement. The Reaveses counterclaimed, seeking a declaratory judgment establishing their right to install gates and fences. The parties filed cross-motions for summary judgment, disputing whether an express or implied easement prevented the installation of the fence and gates. The trial court ruled in favor of the Lindsays and the Reaveses appealed. On appeal, we held that a fact issue existed for both the express and implied easement theories.
We remanded the case, and the matter was brought to trial before a jury. The jury determined that the Reaveses were permitted to construct fences and gates along the easement. The Lindsays now appeal.
In two issues, the Lindsays argue the jury's determination was legally insufficient because an implied easement prohibited the construction of the fence and gates. In their first issue, they argue the trial court should have granted their motion for directed verdict. In their second issue, they argue the trial court should have granted their motion for judgment notwithstanding the verdict (JNOV). The Reavses argue that the Lindsays have waived this issue because the jury was never asked to consider whether an implied easement prevented the construction of the fence and gates.
A. Standard of Review
We review a trial court's ruling on a motion for directed verdict or a motion for judgment notwithstanding the verdict under a legal-sufficiency standard. City of Keller v. Wilson, 168 S.W.3d 802, 823–24 (Tex. 2005); City of Houston v. Proler, 373 S.W.3d 748, 754 (Tex. App.—Houston [14th Dist.] 2012, no pet.). We must determine whether there is any evidence of probative force to raise a fact issue on the question presented. Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684 (Tex. 2004); B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 21 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). In reviewing the sufficiency of the evidence in support of the judgment, we "must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." City of Keller, 168 S.W.3d at 827. "A directed verdict is warranted when the evidence is such that no other verdict can be rendered and the moving party is entitled, as a matter of law, to judgment." B & W Supply, 305 S.W.3d at 21.
A trial court may grant a motion for JNOV if a directed verdict would have been proper, and it may disregard any jury finding on a question that has no support in the evidence. Tex.R.Civ.P. 301. In reviewing the rendition of JNOV, the reviewing court must determine whether there is any evidence upon which the ...