Bounds, Terry Christopher v. Parker, Jackson H. and Linda L. Parker ( 2000 )

NUMBER 13-98-651-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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TERRY CHRISTOPHER BOUNDS, Appellant,

v.

JACKSON H. PARKER AND LINDA L. PARKER, Appellees.

____________________________________________________________________

On appeal from the 105th District Court of Kleberg County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Hinojosa and Yañez

Opinion by Justice Hinojosa

Appellees, Jackson H. Parker and Linda L. Parker, sued appellant, Terry Christopher Bounds, for placing a barbed wire fence across an easement and obstructing appellees' access to the driveway of their residence. A jury found that: (1) a sixty-feet easement existed across appellant's land, (2) the easement was not abandoned or lost by adverse possession, (3) the installation of the fence by appellant across the easement constituted a nuisance, and (4) appellees suffered damages. The trial court entered a judgment against appellant based on the jury's verdict for actual damages, exemplary damages, and attorney's fees. The trial court's judgment declares that a sixty-feet easement exists and that appellees "have the right to remove any obstructions, including any fences, which may now obstruct said easement." By six points of error, appellant challenges the trial court's judgment. We affirm.

A. Judgment for Money Damages

By his first three points of error, appellant challenges that part of the trial court's judgment awarding appellees actual damages, exemplary damages, and attorney's fees.

In his first point of error, appellant complains the trial court erred in allowing appellees to amend their petition because the amended petition sought a declaratory judgment with new causes of action and "caused him surprise and denied [him] a reasonable opportunity to prepare to defend the new causes of action."

On the day the trial began, the trial court granted appellees' motion for leave to file an amended petition. The denial or allowance of a pleading amendment is reviewed for abuse of discretion. Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990); Vermillion v. Haynes, 215 S.W.2d 605, 609 (Tex. 1948). Texas Rule of Civil Procedure 63 governs the amendment of pleadings:

Parties may amend their pleadings . . . provided that any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter . . . shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.

Tex. R. Civ. P. 63. In Greenhalgh, the supreme court stated:

Not only did the trial court not abuse its discretion in granting the amendment, it would have been an abuse of discretion if the trial court had refused the amendment. Under Rules 63 and 66 a trial court has no discretion to refuse an amendment unless: 1) the opposing party presents evidence of surprise or prejudice, Tex. R. Civ. P. 63 and 66; or 2) the amendment asserts a new cause of action or defense, and thus is prejudicial on its face, and the opposing party objects to the amendment. The burden of showing prejudice or surprise rests on the party resisting the amendment. (citations omitted).

Greenhalgh, 787 S.W.2d at 939. After reviewing the record, we conclude appellant has not met this burden.

The amended petition did not change the factual or legal basis for the relief previously sought by appellees. The amended petition was filed in response to appellant's request for a more specific pleading. On June 18, 1998, appellant filed special exceptions to appellees' original petition. In his special exceptions, appellant asked that appellees replead: (1) to provide statutory authority for appellees' demand for attorney's fees; (2) to provide legal authority for appellees' claim for exemplary damages; and (3) to specify the amount of damages appellees requested. At a pre-trial conference one week later, the parties agreed that appellees would replead their claims for damages, attorney's fees, and exemplary damages after pending depositions were completed. Although the depositions were scheduled for July 2, 1998, they were not concluded until July 31, 1998.

On Friday, July 31, 1998, appellees filed: (1) their motion for leave to file the amended petition and (2) their amended petition. Appellees sought leave of court to file their amended petition because the trial was to begin on Tuesday, August 4, 1998, four days after the parties finished their depositions. See Tex. R. Civ. P. 63.

In their original petition, appellees described appellant's conduct:

On February 10, 1998, the [appellant] wrongfully obstructed the [appellees'] use of [their] easement by building a fence across the eastern boundary. The [appellant's] actions have obstructed access to the road easement, and [appellees'] access to the driveway of their residence. These acts have made ingress and egress to the [appellees'] residence impossible. By installing the fence, the [appellant] prevents the [appellees] from using the right-of-way, and will prevent the [appellees] from access to their own home unless restrained by this Court.

In their amended petition, appellees retained the above description of appellant's conduct and added to it the elements of nuisance to describe appellant's conduct:

These acts of the [appellant] constitute nuisance under the laws of the State of Texas. Specifically, the [appellant's] actions constitute an intentional invasion of the [appellees'] interests and land resulting in substantial interference with the [appellees'] use and enjoyment of their property.

Appellees had already alleged specific conduct by appellant in their original petition. Appellees only clarified and made more specific their claim, but they did not add a new cause of action. Appellees merely described appellant's conduct in greater detail. Appellant should not be surprised that appellees' claim that his blocking their driveway with a barbed wire fence absent authority to do so constitutes a nuisance. The specific facts alleged in the prior pleading were sufficient to put him on notice of the nuisance cause of action. See Tex. R. Civ. P. 45, 47; Gulf, Colorado & Santa Fe Ry. Co. v. Bliss, 368 S.W.2d 594, 599 (Tex. 1963) ("The petition will be construed as favorably as possible for the pleader. . . . Every fact will be supplied that can reasonably be inferred from that [which] is specifically stated.").

Appellant also argues that the language used by appellees in their claim for exemplary damages in their amended petition alleges a new cause of action. The amended petition states: "The damages which [appellees] seek to recover result from [appellant's] malice, willful acts or omissions, and/or gross negligence." These descriptions relate to appellant's state of mind and are not separate causes of action. See, e.g., Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245, 245 (Tex. 2000) (differentiating negligence from gross negligence on culpable party's state of mind). A state of mind is a term used in connection with evidence regarding a person's reasons or motives for acting. See Black's Law Dictionary 1409 (6th ed. 1990). Malice, intent and gross negligence cannot stand on their own as causes of action without being related to underlying tortious claims.

Appellant also argues that appellees' request for declaratory relief in the amended petition adds a new cause of action. Declaratory relief does not a create a cause of action or substantive rights; it is a procedural device. See Tex. Civ. Prac. & Rem. Code Ann. § 37.002 (Vernon 1997); see Kadish v. Pennington, 948 S.W.2d 301, 303-04 (Tex. App.--Houston [1st Dist.] 1995, no writ).

The record reflects that appellant did not establish any prejudice resulting from the amended petition. See Hardin v. Hardin, 597 S.W.2d 347, 349-50 (Tex. 1980) (appellant has burden of proving to the trial court some specific prejudice as a result of a claimed surprise from an amended petition). Appellant did not show prejudice by specifying what witnesses he would need to call because of the amended petition or that any potential witness he needed to call would be unavailable for trial. Further, appellant did not specify what evidence he would need to present as a result of the amended petition and that such evidence was unprepared or unavailable for trial.

Appellant argues that appellees' amended petition was not filed with due diligence. It is within the trial court's discretion to permit a party to amend his pleadings when the defending party claims the amendment was made with a lack of due diligence. See Sanchez v. Mathews, 636 S.W.2d 455, 460 (Tex. App.--San Antonio 1982, writ ref'd n.r.e.); Fry v. Guillote, 577 S.W.2d 346, 348 (Tex. Civ. App.--Houston [14th Dist.] 1979, writ ref'd n.r.e.). Here, we see no lack of due diligence. Appellees filed their original petition in February 1998. In June 1998, appellant specially excepted and specifically asked that appellees replead their causes of action. The parties agreed that appellees would replead after the completion of depositions scheduled for July 1998. The depositions were completed on Friday, July 31, 1998, and appellees repleaded that same day. Because trial was to commence in four days, appellees also filed a motion for leave to file the amended petition. The trial commenced on Tuesday, August 4, 1998. We see no abuse of discretion.

Finally, appellant contends the amended petition was not based on newly discovered facts. Appellant cites Merit Drilling Co. v. Honish, 715 S.W.2d 87 (Tex. App.--Corpus Christi 1986, writ ref'd n.r.e.), in support of this contention. Honish is distinguishable from this case for three reasons. First, in Honish, a new cause of action was added to the plaintiff's petition. Id. at 91. In this case, appellees did not add a new cause of action to their amended petition. In Honish, there was no prior agreement between the parties that the plaintiff was to amend its pleading to make the allegations more specific. Id. In this case, the parties agreed that appellees would amend their petition after the depositions were completed. Finally, in Honish, the party opposing the amendment met its burden of proving prejudice as a result of the amendment. Id. In this case, appellant did not meet his burden of establishing prejudice as a result of the amendment. Appellant has cited no authority, and we have found none, which requires that an amended pleading be based on newly discovered facts.

We hold the trial court did not err in allowing appellees to amend their petition. We overrule appellant's first point of error.

In his second point of error, appellant contends the trial court erred in allowing appellees to amend their petition because the amended petition sought a declaratory judgment for issues which could have been disposed of under the original petition.

Under this point of error, an analysis for an abuse of discretion is unnecessary because any possible error made by the trial court in allowing appellees to file their amended petition could not have caused harm. Under the Uniform Declaratory Judgments Act ("UDJA"), there are no particular pleading requirements. See Canales v. Zapatero, 773 S.W.2d 659, 661 (Tex. App.--San Antonio 1989, pet. denied) (citing James v. Hitchcock Indep. Sch. Dist., 742 S.W.2d 701, 704 (Tex. App.--Houston [1st Dist.] 1987, writ denied)). Pleadings under the UDJA are to be liberally construed. Canales, 773 S.W.2d at 661 (citing Frost v. Sun Oil Co., 560 S.W.2d 467, 473 (Tex. Civ. App.--Houston [1st Dist.] 1977, no writ)). The settlement and clarification of rights with respect to easements falls within the scope of the UDJA. Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) (Vernon 1997); Canales, 773 S.W.2d at 661.

Because appellees could have obtained declaratory relief under their original petition, we hold the trial court did not err in allowing appellees to file their amended petition. We overrule appellant's second point of error.

In his third point of error, appellant complains the trial court erred in allowing appellees to amend their petition because appellees, "in their original pleadings, are not entitled to attorney['s] fees and sought a [d]eclaratory [j]udgment for the sole purpose of recovering attorney['s] fees."

Although appellees' amended petition made no change to the factual or legal basis for the relief they previously sought, it was filed because appellant filed special exceptions to appellees' original petition. In his special exceptions, appellant asked that appellees replead to provide statutory authority for appellees' demand for attorney's fees. Appellees merely complied with appellant's request.

We have already concluded that appellees could have obtained declaratory relief under their original petition. In a suit filed under the UDJA, the trial court may award reasonable and necessary attorney's fees that are equitable and just. Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 1997). We hold the trial court did not err in awarding appellees their attorney's fees. See Canales, 773 S.W.2d at 661 (citing First Nat'l Bank v. Anderson Ford-Lincoln-Mercury, Inc., 704 S.W.2d 83, 85 (Tex. App.--Dallas 1985, writ ref'd n.r.e.)). We overrule appellant's third issue.

B. Declaratory Judgment

The jury found that a sixty-feet easement exists across appellant's land and that it was not abandoned or lost by adverse possession. The trial court's judgment declares that a sixty-feet easement exists over appellant's land and that appellees "have the right to remove any obstructions, including any fences, which may now obstruct said easement." By his last three points of error, appellant challenges this declaratory judgment.

In his fourth, fifth, and sixth points of error, appellant contends the trial court erred in overruling his objections to the proposed judgment, motion to disregard the jury's findings, motion for judgment notwithstanding the verdict, and motion for a new trial because the evidence is legally and factually insufficient to support the jury's findings that: (1) a sixty-feet easement exists across appellant's land, (2) appellant did not adversely possess the easement, and (3) the easement was not abandoned. Appellant contends a sixty-feet easement does not exist across his land.

On June 1, 1999, the Kleberg County Sheriff's Office, pursuant to a writ of execution, sold all of appellant's interest in the property in question. Because appellant no longer has any interest in the property in question, any determination we make regarding this issue will have no effect on the ownership rights he asserts in this case. We, therefore, dismiss appellant's fourth, fifth, and sixth points of error as moot.

We affirm the judgment of the trial court.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

31st day of August, 2000.