author: ADELE HEDGES, Chief Justice.

text:
    Kay J. ANDERSON a/k/a Kerine J. Anderson, Appellant, v. STATE of Texas, Appellee.
    No. 14-08-01054-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 31, 2010.

      Vivian R. King, Houston, for Appellant.
    Bridget Holloway, Houston, for Appel-lee.
    Panel consists of Chief Justice HEDGES and Justices YATES and BOYCE.
   OPINION

ADELE HEDGES, Chief Justice.

Appellant, Kay J. Anderson a/k/a Kerine J. Anderson, was convicted of misapplication of fiduciary property and theft based on her handling of investment funds. She was sentenced to 20 years in prison on each conviction, the sentences to run concurrently. In three issues, appellant contends that (1) the evidence is legally and factually insufficient to uphold her convictions and (2) prosecution for the offense of theft was barred by the applicable statute of limitations. We affirm appellant’s conviction for misapplication of fiduciary property, reverse appellant’s conviction for theft, and render judgment of acquittal on the theft conviction.

I. BACKGROUND

Texoil Corporation, created in 1979, developed oil reserves and oil property. The company created 20 general partnerships; under these general partnerships, thousands of limited partnerships were created. The limited partnerships were capitalized by investors who each agreed to execute promissory notes payable to Tex-oil Corp. in the amount of $250,000. The terms of the promissory notes required the limited partnership investors to make annual contributions. For their $250,000 investment in Texoil Corp., the investors were entitled to tax deductions for the face value of the note.

Under the tax scheme, the limited partnership investors did not pay the full $250,000. In the first year, investors made minimal cash contributions but took a tax deduction on the full value of the note. In the following years, the investors did not make cash contributions but executed additional promissory notes to pay the required annual contribution. The investors continued to take tax deductions on the entire $250,000. Ultimately, the Internal Revenue Service determined that the limited partnerships were illegal tax shelters and disallowed tax deductions for the face value of the promissory notes. No further contributions or investments were made to Texoil Corp.

Appellant acquired Texoil Corp. in 1989. At the time, the limited partnership investors owed as much as one billion dollars on the promissory notes. In 1996, appellant created Texoil L.L.C. to liquidate the promissory notes. Five of the 20 general partnerships in Texoil Corp. were transferred to Texoil L.L.C, leaving Texoil Corp. with 15 of the general partnerships and Texoil L.L.C. with five. Appellant then attempted to collect on the approximately 4,000 limited partnership notes. Appellant claimed that she had planned to monetize the notes by (1) allowing the limited partnership investors to settle their Texoil debt for a fraction of the amount due, $50,000, and (2) buying a life insur-anee policy on the lives of these investors. Texoil Corp. and Texoil L.L.C. could immediately use the policies as collateral and would be paid cash proceeds, $250,000, upon each of the investors’ deaths. Appellant persuaded the complainants, David Lamonica, Patricia Bond, and Charles Steinberg, to invest funds in Texoil L.L.C. in order to assist her collection of the limited partnership notes.

A. David Lamonica

David Lamonica, a licensed insurance producer, was the first complainant to invest in Texoil L.L.C.’s collection efforts. According to Lamonica, appellant represented that she owned Texoil Corp. and Texoil L.L.C. and that she was in possession of the thousands of limited partnership notes executed in the 1980s. Appellant explained to Lamonica that she had planned to monetize the notes by allowing the limited partnership investors to settle their Texoil debt for a fraction of the amount due and, in turn, obtain life insurance policies on the lives of the investors. Appellant offered Lamonica two investment opportunities: (1) 10% of the funds recovered by the limited partnership investors if Lamonica invested in appellant’s collection efforts, and (2) commissions on any insurance policies he sold on the lives of the limited partnership investors.

In December 1998, Lamonica began a series of investments, which ultimately totaled $175,000 over the next year. With each investment, Lamonica demanded that the investment be used solely for collection efforts on the notes. Even though appellant and her attorney assured Lamo-nica that the notes were in appellant’s possession and that his investments would be used for collection purposes, appellant never produced the notes, even upon La-monica’s demands. Furthermore, no settlement letters were sent to the original limited partnership investors, and no life insurance policies were obtained on the lives of the investors. After appellant failed to collect on the notes, Lamonica stopped investing in Texoil L.L.C. He later sued appellant for her handling of his $175,000 investment in Texoil L.L.C.

B. Patricia Bond

Patricia Bond was the second complainant to invest in Texoil L.L.C.’s collection efforts. According to Bond, appellant represented that she owned Texoil L.L.C. and was in possession of the thousands of limited partnership notes worth a billion dollars. In 1999, appellant offered Bond a 1% interest in Texoil L.L.C. and a return investment of $300,000 by the third quarter of 2000 in consideration of a $100,000 investment. Bond did not have $100,000 in cash but was able to use an interest in her ex-husband’s retirement plan acquired during her divorce. Because Bond’s interest was in a tax deferred retirement plan, if the $100,000 was not repaid to the plan within 90 days, severe tax penalties would be assessed. Appellant convinced Bond that she would be able to repay the $100,000 before the tax penalties were triggered and that she would receive three $100,000 payments by the third quarter of 2000. Based on appellant’s representations, in August 1999, Bond withdrew the $100,000 from the retirement plan, invested in Texoil L.L.C, and waited for the return on her investment.

When Bond failed to receive the $100,000, she was unable to timely repay the plan; consequently tax penalties were assessed at $150,000. Bond never received any return on her investment. Lamonica later contacted Bond and persuaded Bond to join his civil suit against appellant.

C. Charles Steinberg

Charles Steinberg was the third complainant to invest in Texoil L.L.C.’s collection efforts. Appellant represented that she owned Texoil L.L.C. and was in possession of the thousands of limited partnership notes worth a billion dollars. Initially, Steinberg was approached to help contact the original limited partnership investors and communicate settlement offers. Through his company, AON, Stein-berg would also assist in brokering the life insurance policies that were part of the settlement offers. Steinberg introduced appellant to Fleet Bank of Boston (“Fleet Bank”), which could monetize the notes.

Fleet Bank required $100,000 to monetize the notes. Because neither appellant nor Texoil L.L.C. had the funds, Steinberg paid $100,000 to appellant, who forwarded the payment to Fleet Bank. When the bank subsequently required an additional $100,000, Steinberg paid the second $100,000 to appellant, who did not forward this $100,000 to Fleet Bank. As a condition of a line of credit to appellant, Fleet Bank required copies of the life insurance policies obtained on the lives of the original limited partnership investors. Appellant rejected this condition. Fleet Bank returned $93,000 from the first $100,000 to appellant and made no further efforts to monetize the notes. No funds were returned to Steinberg.

After many attempts to recover his $200,000 investment, Steinberg obtained a promissory note from appellant in the amount of $200,000. Appellant did not pay the note. Thereafter, Lamonica contacted Steinberg and persuaded Steinberg to participate in a forced bankruptcy proceeding against Texoil L.L.C. In 2004, Lamonica, Bond, and Steinberg forced Texoil L.L.C. into Chapter 11 bankruptcy. During the bankruptcy proceeding, the trustee determined that the limited partnership notes were the only assets belonging to Texoil L.L.C. Accordingly, the bankruptcy judge ordered appellant to produce the notes to the trustee. Appellant attempted to produce the 20 general partnership notes but could not produce the limited partnership notes. She admitted that she was not in possession of the limited partnership notes and did not know their location.

D. Underlying Criminal Proceedings

In August 2005, a grand jury indicted appellant for (1) misapplication of fiduciary property, (2) theft, and (3) misrepresentation of material facts under the Texas Securities Act. Appellant pleaded not guilty, and her case was tried before the court. Prior to trial, appellant sought to quash the indictment for theft, arguing that it was barred by the applicable statute of limitations. The trial court denied her motion.

At trial, appellant disputed evidence that she told the complainants she possessed the limited partnership notes. According to appellant, she never solicited an investment from Bond, and she told Lamonica that she intended to collect only on the general partnership notes. After hearing testimony from the three complainants, the bankruptcy trustee, appellant, and security and accounting experts, the trial court found appellant guilty of misapplication of fiduciary property and theft. Appellant received two concurrent 20 year sentences for these convictions. The trial court found appellant not guilty of the securities fraud offense because it was barred by the statute of limitations.

In three issues, appellant contends that (1) the evidence is legally and factually insufficient to uphold her convictions, and (2) prosecution for the offense of theft was barred by the applicable statute of limitations.

II. MISAPPLICATION OF FIDUCIARY PROPERTY

A. Legal and Factual Sufficiency: Standards of Review

In her first two issues, appellant challenges the legal and factual sufficiency of the evidence to uphold her conviction for misapplication of fiduciary property and theft. In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether a rational fact-finder could have found the defendant guilty of all the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Williams v. State, 270 S.W.3d 140, 142 (Tex.Crim.App.2008). The fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App.2008). Reconciliation of conflicts in the evidence is within the fact-finder’s exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App.2000) (quoting Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986)). We must resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

In a factual sufficiency review, we review all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006). We then ask (1) whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the verdict seems clearly wrong and manifestly unjust, or (2) whether, considering the conflicting evidence, the verdict is against the great weight and preponderance of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006); Watson, 204 S.W.3d at 414-17. We cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the fact-finder’s resolution of that conflict. Watson, 204 S.W.3d at 417. If an appellate court determines that the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Id. at 414-17.

B. Misapplication of Fiduciary Property

A person commits misapplication of fiduciary property if she misapplies property, held as a fiduciary, and such misapplication involves a substantial risk of loss to the owner of the property or to a person for whose benefit the property is held. See Tex. Penal Code Ann. § 32.45(a)-(b) (Vernon Supp.2009). “Misapply” means to deal with property contrary (1) to an agreement under which the fiduciary holds the property; or (2) by law prescribing the custody or disposition of the property. Id. § 32.45(a)(2). The agreement need not be written, but must merely be a harmonious understanding as to a course of action. Bynum v. State, 767 S.W.2d 769, 777 (Tex.Crim.App.1989). “[A] fiduciary is one in whom another has justifiably reposed confidence to act in a certain manner.” Talamantez v. State, 790 S.W.2d 33, 35 (Tex.App.-San Antonio 1990, pet. ref'd); see also Coplin v. State, 585 S.W.2d 734, 735 (Tex.Crim.App.1979) (holding that fiduciary capacity includes joint adventurers, partners and other fiduciary relationships not specifically mentioned in the statute). Appellant challenges the “misapplication” element, arguing that she acted in conformity with her agreements with the complainants by exercising due diligence to monetize the notes.

The record reflects that appellant, acting as a fiduciary to each of the complainants, misapplied the investment funds by acting contrary to the investment agreements. Lamonica testified that he invested a total of $175,000 in Texoil L.L.C. under purchase and joint venture agreements. Section 1.04 of the purchase agreement reflected that Lamonica’s investment was necessary to implement a collection program for certain notes receivable. Section 1.03(a) of the joint venture agreement with Texoil L.L.C. indicated that the primary purpose of the venture was to collect certain notes receivable. Lamonica further testified that he and appellant agreed that the investment funds would be used exclusively for the purpose of monetizing the limited partnership promissory notes. The evidence reflects that appellant did not use the investment funds for that purpose.

Lamonica testified that no settlement letters were sent to the original limited partnership investors and that no life insurance policies were obtained on the lives of the investors. There was evidence that appellant was never in possession of the limited partnership notes and made no effort to monetize the notes; in fact, she abandoned a number of opportunities to monetize the notes. Furthermore, there is evidence that appellant spent Lamonica’s investment funds on legal fees associated with her federal criminal case in Illinois and with an automobile dealership.

Bond testified that she withdrew $100,000 from a tax deferred retirement plan and gave the funds to appellant as an investment in Texoil L.L.C. Appellant agreed that the investment funds would be used to monetize the limited partnership notes. Appellant convinced Bond that she would be able to repay the $100,000 before the tax penalties were triggered and that she would receive three $100,000 payments in the first three quarters of 2000. Bond withdrew the $100,000 from the retirement plan and invested in Texoil L.L.C. Because she did not receive any return on her investment, Bond was unable to timely repay $100,000 to the plan; consequently tax penalties were assessed at $150,000. Furthermore, the evidence reflects that none of Texoil’s expenditures went to the collection of the limited partnership notes.

Steinberg testified that he invested $200,000 in Texoil L.L.C. for the purpose of monetizing the limited partnership notes. Steinberg and appellant agreed that the funds would be transferred to Fleet Bank, who in turn would assist in monetizing the notes. While appellant forwarded Steinberg’s initial $100,000 to Fleet Bank, she did not forward the second $100,000 to the bank. Although Fleet Bank returned $93,000 to appellant when she refused to provide copies of the life insurance policies, no funds were returned to Steinberg. The evidence reflects that appellant made no further efforts to monetize the notes. The evidence also reflects that none of Texoil L.L.C’s expenditures went to the collection of the limited partnership notes.

Appellant heavily disputed the complainants’ testimony and identifies on appeal some inconsistencies in the complainants’ testimony. The judge, as the fact finder, was the sole judge of the weight and credibility given to any witness’s testimony. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). The trial court’s verdict in this case was not manifestly unjust merely because it resolved conflicting views of the evidence in favor of the State. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App.1997).

We conclude that the evidence is legally and factually sufficient to prove that appellant misapplied the complainants’ property by using the investment funds contrary to the investment agreements. The record reflects that Texoil L.L.C. held the investment funds for the purpose of monetizing the limited partnership notes. However, no settlement letters were executed, no insurance policies were obtained, and no monetization of the notes ever occurred. Appellant admitted that she never possessed the limited partnership notes. Appellant abandoned many opportunities to monetize the notes, and no complainant received his or her money back. We overrule appellant’s first issue.

III. AGGREGATE THEFT

Appellant challenges her theft conviction in her second and third issues. In her second issue, she claims that the evidence is legally and factually insufficient to sustain her theft conviction. In her third issue, appellant argues that prosecution for theft was barred by the statute of limitations. We address the latter issue first.

Before trial, appellant filed a motion to quash the indictment on the theft count based on the expiration of the statute of limitations. Appellant renewed her limitations challenge during trial. The trial court overruled both motions.

A theft occurs when (1) property is (2) unlawfully appropriated (3) by someone (4) with intent to deprive the owner of that property. Tex. Penal Code Ann. § 31.03. The statute of limitations for felony theft is five years. Code Crim. Proc. Ann. art. 12.01(4)(A) (Vernon 2005). The Texas Penal Code allows multiple thefts committed pursuant to one scheme or continuing course of conduct — at different times and against different victims — to aggregate within one offense for purposes of the offense grade. Tex. Penal Code Ann. § 31.09. Aggregation under section 31.09 creates a single new offense for jurisdiction, punishment, and statute of limitations purposes. Graves v. State, 795 S.W.2d 185, 187 (Tex.Crim.App.1990). Each individual theft and its elements become an element of the aggregate theft offense. State v. Weaver, 982 S.W.2d 892, 893 (Tex.Crim.App.1998). The limitations period for aggregate theft begins to run after the last theft is completed. Tita v. State, 267 S.W.3d 33, 35 n. 1 (Tex.Crim.App.2008). A theft is complete when all the elements have occurred. Barnes v. State, 824 S.W.2d 560, 562 (Tex.Crim.App.1991), overruled on other grounds by Proctor v. State, 967 S.W.2d 840, 842 (Tex.Crim.App.1998). Theft is not a continuing offense — it does not continue as long as the actor retains control of the stolen property. Barnes, 824 S.W.2d at 562; see also Cupit v. State, 122 S.W.3d 243, 246 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd.). Nor does the aggregate theft statute convert theft into a continuing offense. See Dickens v. State, 981 S.W.2d 186, 188 (Tex.Crim.App.1998) (“Aggregated theft is the sum of all its parts. A part is a completed theft whose elements have all been proven.”)- Rather, aggregated theft is an offense with continuing conduct that ends with the last theft, and not after. Tita, 267 S.W.3d at 35 n. 1 (noting that the date of the last theft is the end date of the scheme or continuing course of conduct under the aggregate theft statute). Moreover, “[tjheft by exercising control is committed and the statute of limitations commences once possession of the property becomes unlawful.” Barnes, 824 S.W.2d at 562-63.

The statute of limitations began to run in this case when appellant committed the last theft; this occurred when she unlawfully appropriated Steinberg’s money. See id. The evidence presented at trial shows that the last transfer Steinberg made to appellant was on June 1, 2000. Appellant did not appropriate any additional funds after the June 1, 2000 transfer. Therefore, the statute of limitations on the offense of theft began to run on June 1, 2000, meaning that it expired on June 1, 2005. Appellant was indicted on August 17, 2005 — outside the statute of limitations.

The State does not dispute the date of the last unlawful appropriation but characterizes other acts as an element of theft triggering the statute after June 1, 2000. The State argues that appellant’s subsequent misrepresentations — made until well within the statute of limitations— completed the theft. According to the State, the theft was completed when appellant made the last misrepresentation regarding the monetizing of the notes. We reject the State’s interpretation of the theft statute. A theft has occurred when (1) property is (2) unlawfully appropriated (3) by someone (4) with intent to deprive the owner of that property. Tex. Penal Code Ann. § 31.03. When appellant unlawfully appropriated Steinberg’s second $100,000, the other theft elements were present. Therefore, the theft was complete when appellant appropriated the last $100,000. While appellant continued to make misrepresentations regarding the investment funds, those misrepresentations did not create a new theft offense within the scheme because no additional property was appropriated. See id. A theft occurs only when there is an unlawful appropriation of property. The subsequent misrepresentations, alone, did not create a new theft in the scheme.

Accordingly, we conclude that the prosecution for theft was barred by the statute of limitations. We sustain appellant’s third point of error. We reverse appellant’s conviction for theft and render judgment of acquittal for the theft conviction. We affirm the verdict for misapplication of fiduciary property.

      . "Monetize” means to coin into money, assigning a present dollar value to something lacking an easily ascertainable present value. See Webster’s Third New Int’l Dictionary 1458 (1993). In this case, the limited partnership promissory notes would not have had a present value because they would be paid for with the insurance policies on the lives of the original investors. The cash proceeds from those insurance policies would not be paid out until the death of the investor. Therefore, in order to use the notes as ready money, the notes would have had to be monetized based on the present value of the life insurance policies used to purchase the notes.

      . Having concluded that the theft count was barred by the statute of limitations, we do not reach appellant’s second issue challenging the sufficiency of the evidence.


source: Caselaw Access Project

author: SAM GRIFFITH, Justice.

license: Public Domain

text:
    ENERGY TRANSFER FUEL, L.P., Appellant, v. Clifton BRYAN and Cindy Bryan, Appellees.
    No. 12-09-00063-CV.
    Court of Appeals of Texas, Tyler.
    Aug. 31, 2010.

      Julie P. Wright, Melanie S. Reyes, for Appellant.
    Fred Head, for Appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
   OPINION

SAM GRIFFITH, Justice.

In one issue, Appellant, Energy Transfer Fuel, LP (“ETF”), contends that the trial court abused its discretion by failing to release the bond ETF posted after obtaining a temporary restraining order against the Appellees, Clifton Bryan and Cindy Bryan. ETF’s complaint pertains to two orders: the trial court’s order denying ETF’s motion to release the bond and its order denying ETF’s motion to reconsider that ruling. We reverse the trial court’s orders and remand with instructions.

Background

ETF is a public gas utility and has the right of eminent domain. As a condemning authority, ETF has the right to enter upon property to make preliminary surveys of proposed routes along which its gas pipelines may be constructed. ETF requested permission to enter the Bryans’ property to conduct surveying activities in connection with a proposed pipeline route, but was refused entry. Thereafter, on July 23, 2008, ETF petitioned the court for a temporary restraining order (“TRO”) as well as a temporary injunction and a permanent injunction against the Bryans. On the same day, the trial court signed an order granting a TRO prohibiting the Bryans from interfering or attempting to interfere with ETF’s right to enter and survey the route of its pipeline across the Bryans’ property. As a condition of issuing the TRO, the trial court ordered ETF to post a $25,000 bond. The order also set a hearing for July 31, 2008, “to determine whether this temporary restraining order should be made a temporary injunction pending a full trial on the merits.” ETF deposited $25,000 cash in lieu of a bond, which was approved by the Henderson County District Clerk.

After obtaining the TRO, ETF immediately began its surveying activities on the Bryans’ property and completed its work on July 29, 2008. The following events then occurred in the trial court:

July 29, 2008
ETF filed a notice of nonsuit, and sent the Bryans notice of the filing.
July 31, 2008
ETF filed a motion requesting the return of its $25,000 cash bond.
•August 11, 2008
The trial court denied ETF’s motion requesting the return of its cash bond.
• August 28, 2008
ETF filed a motion requesting the trial court to reconsider its refusal to release the bond.
September 4, 2008
Counsel for ETF and counsel for the Bryans appeared for a hearing on ETF’s motion to reconsider. Counsel for the Bryans requested additional time to prepare, and the hearing was reset for September 10, 2008.
September 10, 2008
The trial court conducted a hearing on ETF’s motion to reconsider. Counsel for ETF, counsel for the Bryans, and Clifton Bryan were present. Counsel for ETF presented oral argument, and the trial court ruled from the bench that ETF’s motion to reconsider was denied.
September 11, 2008
The Bryans filed an original answer and a counterclaim seeking damages from ETF.
November 17, 2008
The trial court signed an order denying ETF’s motion to reconsider.
December 29, 2008
ETF filed a petition for writ of mandamus in this court requesting an order directing the trial court to (1) release ETF’s bond, (2) issue an order of non-suit, and (3) dismiss the Bryans’ counterclaim for lack of subject matter jurisdiction.
February 3, 2009
The trial court signed an order dismissing “[the] cause,” but did not release the bond.
• March 3, 2009
ETF filed a notice of appeal complaining of the trial court’s failure to release the bond.

The trial court’s dismissal order rendered ETF’s petition for writ of mandamus moot except as to ETF’s complaint about the trial court’s failure to release the bond. We denied mandamus relief after concluding that appeal was an adequate remedy for ETF to challenge the trial court’s rulings on the bond. See In re Energy Transfer Fuel, L.P., 298 S.W.3d 348, 352 (Tex.App.-Tyler 2009, orig. proceeding). Specifically, we concluded that the order denying ETF’s motion to release the bond and the order denying ETF’s motion to reconsider that ruling merged into the final order dismissing the case and were appealable. See Webb v. Jorns, 488 S.W.2d 407, 408-09 (Tex.1973) (interlocutory order merges into final judgment and becomes final for purposes of appeal); Douglas v. Am. Title Co., 196 S.W.3d 876, 877, 879 n. 6 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (vexatious litigant order merged into final judgment and was ap-pealable even though final judgment not appealed). ETF now appeals from those orders.

Failure to Release the Bond

ETF contends that, in light of its non-suit and the subsequent order dismissing the underlying proceeding, the trial court was required to release the $25,000 cash bond. The Bryans have not filed a brief.

Standard of Review

ETF states in its brief that the trial court’s orders are reviewable for abuse of discretion. We have not located any authority prescribing the standard of review for the precise issue presented here. But typically, the abuse of discretion standard is applied to procedural or other trial management determinations. In re Doe, 19 S.W.3d 249, 253 (Tex.2000). Consequently, we will review the appealed orders for an abuse of discretion. See id.

A trial court commits an abuse of discretion when it acts “without reference to any guiding rules and principles.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). The “mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion occurred.” Id. at 242. A trial court has no discretion in determining what the law is, which law governs, or how to apply the law. Univ. of Tex. Health Sci. Ctr. v. Gutierrez, 237 S.W.3d 869, 871 n. 1 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). To the extent that an issue turns on a question of law, the standard of review is the same “regardless of whether it is described as abuse of discretion or de novo.” Id.

Applicable Law

In the order granting any TRO, the court must fix the amount of security to be given by the applicant. Tex.R. Civ. P. 684. Before the issuance of the TRO, the applicant must execute and file with the clerk a bond to the adverse party, with two or more good and sufficient sureties, to be approved by the clerk, in the sum fixed by the judge. Id. The bond must be conditioned that the applicant will abide the decision made in the cause, and will pay all sums adjudged against it if the TRO is dissolved, either in whole or in part. Id. The applicant may instead deposit cash in lieu of filing the bond. See Tex.R. Civ. P. 14c.

A plaintiff may take a nonsuit at any time before it has introduced all of its evidence other than rebuttal evidence. Tex.R. Civ. P. 162. In a bench trial, a plaintiff can take a nonsuit at any time before the decision in the case is announced. See Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex.1995) (stating that “[o]nce a judge announces a decision that adjudicates a claim, that claim is no longer subject to the plaintiffs right to nonsuit”). A plaintiffs right to take a nonsuit is unqualified and absolute as long as the defendant has not made a claim for affirmative relief. BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 840-41 (Tex.1990). A nonsuit may be taken after a temporary restraining order has been obtained but before the hearing on the temporary injunction. See Payne v. Nichols, 176 S.W.2d 961, 963-64 (Tex.Civ.App.-Galveston 1943, writ ref'd w.o.m.) (holding that nonsuit may be taken after temporary injunction obtained but before hearing on permanent injunction, even where suit had been pending for two years and nonsuit was taken when case came up for trial) (interpreting and applying predecessors to rules 162 and 684). But the nonsuit does not defeat the right of a restrained party who is damaged by the temporary restraining order to sue for wrongful injunction. See id. at 963.

It has long been established that a party who wrongfully obtains injunctive restraint against another is liable for damages caused by the issuance of the injunction. See Parks v. O’Connor, 70 Tex. 377, 388, 8 S.W. 104, 107 (1888). An injunction is wrongful if its issuance was wrongful at its inception or if it was continued in effect due to some wrong on the part of the proponent. I.P. Farms v. Exxon Pipeline Co., 646 S.W.2d 544, 545 (Tex.App.-Houston [1st Dist.] 1982, no writ); Craddock v. Overstreet, 435 S.W.2d 607, 609 (Tex.Civ.App.-Tyler 1968, writ ref'd n.r.e.). Texas recognizes two separate causes of action for wrongful injunction, one upon the bond ordinarily filed to obtain the TRO or injunction, and the other for malicious prosecution. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 685 (Tex.1990). The two actions differ in the kind of wrong that must be shown to establish liability and in the amount of recovery. Id. A claim for wrongful injunction can be predicated upon the wrongful issuance of a TRO. Id. at 685-86.

A cause of action upon an injunction bond is predicated upon a breach of the condition of the bond. Id. at 685. As pertinent to the case at hand, the claimant must prove that the TRO was issued when it should not have been, and that it was later dissolved. Id. at 685-86. The claimant need not prove that the TRO was obtained maliciously or without probable cause. Id. at 686. The purpose of the bond is to protect the defendant from the harm he may sustain as a result of temporary relief granted upon the reduced showing required of the injunction plaintiff, pending full consideration of all issues. Id. The damages under this claim are limited by the amount of the bond. Id.

A cause of action for malicious prosecution requires the claimant prove the injunction suit was prosecuted maliciously and without probable cause, and was terminated in his favor. Id. In this instance, the injunction defendant recovers the full amount of his damages. Id.

Under either cause of action, the claimant must prove that issuance of the TRO resulted in damages. Id. Unless the TRO was wrongfully issued, damages, except to property, are precluded as a matter of law. See I.P. Farms, 646 S.W.2d at 545. But the claimant “cannot recover for having been prohibited from doing something which he had no right to do.” DeSantis, 793 S.W.2d at 686; see also Beathard Joint Venture v. W. Houston Airport Corp., 72 S.W.3d 426, 435 (Tex.App.-Texarkana 2002, no pet.) (injunction not wrongfully issued where airport’s efforts to obtain injunction were based on an assertion of its own legal rights not to have Beathard or Beathard’s tenants trespass on airport facilities).

Application

Here, the trial court denied ETF’s motion to release its bond. ETF filed a motion for reconsideration of that ruling, and the trial court conducted a hearing on the motion. At the hearing, the court agreed with ETF that it had a right to take a nonsuit, but expressed concern that ETF did so before the restrained parties’ answer date and before the temporary injunction hearing set for July 31.

ETF’s counsel briefly recounted the procedural history of the case, and asserted that ETF was required to dismiss its suit when its surveying activities were completed to avoid wrongfully prolonging the TRO. Counsel then argued that if the restrained parties believed their property had been harmed, they had the right to “come back and seek property damages from [ETF] at any time.” Counsel further offered to present testimony regarding the propriety of obtaining the TRO, but the trial court did not allow the testimony.

The trial court responded that the restrained parties still had a right to bring an action on the propriety of the TRO, and that if the bond were released, they could not sue on the bond. The court cited that outcome as the reason it refused to release the bond. ETF’s counsel pointed out that the Bryans had not filed “anything” even though they were present at the hearing. When asked by ETF’s counsel whether the bond would be held indefinitely, the court responded that it would “until there is some either disposition or loss of [the restrained parties’] right to sue on the TRO.” Counsel stated that she presumed the statute of limitations for any action on the TRO would be two years, and asked whether the court intended to hold the bond for two years. The court did not specifically answer counsel’s inquiry. Counsel for the Bryans did not present any argument or otherwise respond to ETF’s motion to reconsider or its counsel’s argument in support of the motion.

Initially, we note that we have located no authority supporting the retention, after final judgment, of a bond posted as a condition to the issuance of a TRO. See Lovall v. Yen, No. 14-07-00770-CV, 2008 WL 361373, at *2 (Tex.App.-Houston [14th Dist.] Feb. 12, 2008, no pet.) (mem. op.) (stating that bond disbursement order is merely a ministerial act incident to final judgment). Even assuming, however, that the bond could be retained after final judgment under special circumstances, no such circumstances are present here.

As ETF points out, the Bryans did not appear and move for dissolution or modification of the TRO. See Tex.R. Civ. P. 680 (“On two days’ notice to the party who obtained the [TRO] without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification .... ”). Moreover, they did not (1) plead a claim for affirmative relief prior to ETF’s nonsuit, (2) file a response to ETF’s motion for release of the bond, (3) object to the release of the bond at the September 10, 2008, hearing, (4) inform the court that they intended to assert a wrongful injunction claim against ETF; or (5) otherwise provide the trial court with any argument or authority in opposition to ETF’s motion for reconsideration. In other words, the Bryans did nothing to show that they objected to the release of ETF’s bond or would be adversely affected by its release.

In light of the Bryans’ inaction resulting in an absence of pleadings or objections in opposition to ETF’s motion to release its bond and its motion to reconsider the trial court’s ruling, we hold that the trial court abused its discretion in denying the motions. See Goodin v. Jolliff, 257 S.W.3d 341, 353 (Tex.App.-Fort Worth 2008, no pet.) (error to release bond to enjoined party in absence of pleading or proof that she was damaged by issuance of temporary injunction); Am. Jet Charter, Inc. v. Cobbs, 184 S.W.3d 369, 377 (Tex.App.-Dallas 2006, no pet.) (trial court did not err in denying posttrial request to reinstate injunction bond where enjoined party did not object to prejudgment release of bond). Accordingly, we reverse the trial court’s orders denying ETF’s motion to release its bond and denying ETF’s motion for reconsideration of the order denying release of the bond, and remand with instructions to the trial court to order i’elease of the bond to ETF.

      . At ETF's request, we have taken judicial notice of our file in appellate cause number 12-08-00500-CV. See, e.g., Tello v. Bank One, N.A., 218 S.W.3d 109, 113 n. 4 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (appellate court took judicial notice of pertinent pleadings included in appellate record for another appeal in same trial court case).

      . Rule 684 also applies to temporary injunctions. Therefore, in our analysis, we cite authority relating to TROs and also authority relating to temporary injunctions.

      . We do not suggest that recovery of damages for wrongful injunction is foreclosed if the restrained party does not avail itself of this procedure. See Lindsey v. Hart, 260 S.W. 286, 289 (Tex.Civ.App.-Beaumont 1924), modified on other grounds, 276 S.W. 199 (Tex. Comm'n App.1925, jdgmt. adopted) (holding that enjoined party is not estopped to claim damages by failing to sooner move to dissolve the injunction).

      . As we noted in our Background section, the Bryans filed a counterclaim the next day after the hearing on ETF’s motion for reconsideration of the trial court's order denying release of the bond. The counterclaim was untimely filed, and therefore did not prevent ETF’s nonsuit. We note, however, that the Bryans did not allege in their counterclaim that the TRO was wrongfully granted. Instead, they alleged generally that ETF "went beyond the limits of the rights, if any, to which [ETF] was entitled under the terms of the [TRO] ... and committed acts and omissions ... [it] had no right to commit and that ... caused substantial damages to [the Bryans’] property which was the subject of the above mentioned [TRO]."


author: PATRICK A. PIRTLE, Justice.

text:
    Kelly Kanton LABAJ and Third Coast Auto Group, LP, Appellants, v. DeeAnn VANHOUTEN, Appellee.
    No. 07-09-0241-CV.
    Court of Appeals of Texas, Amarillo, Panel A.
    Sept. 1, 2010.
    Rehearing Overruled Oct. 4, 2010.

      Lloyd Robles, Robles & Associates, Austin, TX, for Appellants.
    Charles L. Levy, Caroline L. Badinelli, Rosenthal & Watson, PC, Austin, TX, for Appellee.
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
   OPINION

PATRICK A. PIRTLE, Justice.

Appellants, Kelly Kanton Labaj and Third Coast Auto Group, LP (collectively “TCAG”), appeal from a judgment rendered in favor of Appellee, DeeAnn Van-Houten, following a jury trial of her dog bite case. VanHouten was awarded $50,000 in actual damages. TCAG asserts the trial court erred in failing to grant its motions for: (1) summary judgment; (2) directed verdict; and (3) a new trial because there was no evidence that the dog in question had dangerous propensities that were abnormal for an animal of her class. We affirm.

Background

In May 2007, TCAG operated a used car lot in Travis County, Texas. VanHouten was a TCAG employee working at the lot as a title clerk. On May 30, VanHouten left the front office to check her car for licensing papers. When she reached the garage, she asked Jose Salguero where her car was located. He indicated her car was in the back lot. VanHouten was unaware there was a dog on the back lot.

As VanHouten was walking through the back lot, she saw a Ford Mustang in the “make ready” area that she thought she might like to purchase. As she was looking in the Mustang, she heard a movement or rustle and observed the roof of a doghouse through the car’s rear window. Believing a dog might be nearby, she decided to walk away. At that moment, a dog came from behind the Mustang and startled VanHouten. She froze and the dog lunged, attached its jaws to her leg, began shaking her, and pulled her to the ground. When her screams were heard in the repair garage, Jose approached and removed the dog. A portion of VanHouten’s leg muscle had been detached from her leg during the attack. An ambulance was called and VanHouten was taken to a local hospital.

VanHouten subsequently filed suit alleging in her amended petition three theories of liability against TCAG: (1) strict liability, (2) negligent handling, and (3) negligence. Under the first theory, she alleged TCAG was liable for her injuries because it knew or should have known of the dog’s dangerous and vicious propensities. Her second theory alleged TCAG failed to exercise reasonable care to prevent the dog from injuring her. And, her third theory alleged TCAG failed to keep the premises safe, properly contain the dog, or warn others of its presence.

Following a two day trial, the trial court submitted the following Questions to the jury, in pertinent part, and received the following answers:

QUESTION NO. 2.
At the time of the occurrence in question, did [the dog] have dangerous propensities abnormal to its class?
ANSWER: No.
QUESTION NO. 5.
On the occasion in question, was Van-Houten an invitee on that part of [TCAG’s] premises under consideration?
ANSWER: Yes.
QUESTION NO. 6.
Did the negligence, if any, of those named below proximately cause the occurrence in question?
ANSWER: Yes [as to Labaj and TCAG].

In accord with the jury’s verdict, the trial court issued a judgment awarding $50,000 in actual damages to VanHouten. Thereafter, TCAG filed a motion for new trial asserting VanHouten’s evidence was legally insufficient because she failed to show the dog had dangerous propensities. TCAG’s motion was denied and this appeal followed.

Issues One and Two: Summary Judgment and Directed Verdict

TCAG appeals the trial court’s denial of its motions for summary judgment and directed verdict asserting VanHouten failed to prove as a matter of law that the dog in question had dangerous propensities that were abnormal for an animal of her class.

Neither ruling by the trial court is reviewable on appeal. Texas law is settled that the denial of a motion for summary judgment may not be challenged on appeal from a final judgment following trial. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex.1966). See Moore v. Jet Stream Investments, Ltd., 261 S.W.3d 412, 427 (Tex.App.-Texarkana 2008, pet. denied) (collected cases cited therein). Texas law is also settled that a defendant who moves for a directed verdict after the plaintiff rests, but thereafter elects not to stand on his motion for directed verdict and proceeds with the presentation of evidence, waives any complaint regarding the denial of that motion. Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 412 (Tex.App.-Amarillo 2003, pet. denied) (citing Cliffs Drilling Co. v. Burrows, 930 S.W.2d 709, 712 (Tex.App.Houston [1st Dist.] 1996, no writ)). See Vermillion Constr. Co. v. Fidelity & Deposit Co. of Maryland, 526 S.W.2d 744, 748 (Tex.Civ.App.-Corpus Christi 1975, no writ) (collected cases cited therein). Accordingly, TCAG’s first two issues are overruled.

Issue Three

TCAG asserts the trial court erred in denying its motion for a new trial for the single reason that the jury did not find that the dog in question had dangerous propensities which were abnormal for an animal of her class. A motion for a new trial is a proper predicate for preserving a legal sufficiency challenge. Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex.1985). See Allison v. Acel Parks, 763 S.W.2d 606, 607 (Tex.App.-Fort Worth 1989, pet. denied).

Standard of review

In reviewing rulings on motions for directed verdicts, motions for new trial based on no-evidence and judgments notwithstanding the verdict, appellate courts apply the no-evidence standard. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005); McGuire, Craddock, Strother & Hale, P.C. v. Transcontinental Realty, 251 S.W.3d 890, 895 (Tex.App.-Dallas 2008, pet. denied); Arroyo Shrimp Farm, Inc. v. Hung Shrimp Farm, Inc., 927 S.W.2d 146, 149 (Tex.App.-Corpus Christi 1996, no pet.). The court considers the evidence in a light most favorable to the challenged finding, indulges every reasonable inference to support it; Wilson, 168 S.W.3d at 822, credits favorable evidence if reasonable jurors would and disregards contrary evidence unless reasonable jurors would not. Id. at 827.

A challenge to the legal sufficiency of evidence will be sustained when, among other things, the evidence offered to establish a vital fact does not exceed a scintilla. Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex.2006). Evidence does not exceed a scintilla if it is so weak as to do no more than create a mere surmise or suspicion that the fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004)(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). And, so long as the evidence falls within the zone of reasonable disagreement, we may not invade the fact-finding role of jurors, who alone determine the credibility of witnesses, the weight to be given their testimony, and whether to accept or reject all or part of their testimony. Wilson, 168 S.W.3d at 822.

Negligent Handling

TCAG asserts VanHouten could only establish her negligence action if she proved TCAG knew or should have known the dog had dangerous propensities that were abnormal to her class. Because the jury answered “No” to Question 2 and determined that the dog did not have dangerous propensities abnormal to her class, TCAG asserts VanHouten’s evidence was legally insufficient to establish TCAG was negligent in handling or keeping the dog.

If an animal is vicious or has aggressive tendencies and the owner has knowledge of that propensity, the owner can be subject to liability under the law of strict liability. Marshall v. Ranne, 511 S.W.2d 255, 258 (Tex.1974); Belger v. Sweeney, 836 S.W.2d 752, 754 (Tex.App.Houston [1st Dist.] 1992, writ denied). However, if an animal is non-vicious, the owner may still be subject to liability for negligent handling of the animal. Marshall, 511 S.W.2d at 258. Therefore, generally, “[t]he gist of an action to recover for injury caused by a domestic animal, resulting from something other than known propensities, is usually negligence of the owner or keeper in the keeping or handling of the animal.” Koepke v. Martinez, 84 S.W.3d 393, 396 (Tex.App.-Corpus Christi 2002, pet. denied) (citing Dunnings v. Castro, 881 S.W.2d 559, 562 (Tex.App.Houston [1st Dist.] 1994, pet. denied)).

The Restatement (Second) of Torts addresses the liability for harm caused by domestic animals that are not abnormally dangerous and provides that “one who possesses ... a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm caused by the animal if, but only if, (a) he intentionally causes the animal to do harm, or (b) he is negligent in failing to prevent harm.” Restatement (Second) of Torts § 518 (1977). Comment (h) to section 518 states:

One who keeps a domestic animal that possesses only those dangerous propensities that are normal to its class is required to know its normal habits and tendencies. He is therefore required to realize that even ordinary gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm.... So, too, the keeper of an ordinary bitch or cat is required to know that while caring for her puppies or kittens she is likely to attack other animals and human beings.

Id. § 518 cmt. (h).

Thus, an owner of a dog may be liable for injuries caused by the dog even if the animal is not vicious, if the plaintiff can prove the owner’s negligent handling or keeping of the animal caused the injury. Dunnings, 881 S.W.2d at 562-63. To recover on such a claim, a plaintiff must prove: (1) the defendant was the owner or possessor of the animal; (2) the defendant owed a duty to exercise reasonable care to prevent the animal from injuring others; (3) the defendant breached that duty; and (4) the defendant’s breach proximately caused the plaintiffs injury. Thompson v. Curtis, 127 S.W.3d 446, 451 (Tex.App.-Dallas 2004, no pet.) (citing Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 660 (Tex.App.-Waco 2002, no pet.)).

Whether a duty exists is a threshold question of law that we decide from the facts surrounding the case. Allen, 97 S.W.3d at 665 (citing Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex.1999)). In cases where a person is injured on the premises of another, including dog bite cases, the duty owed by the landowner depends on the status of the person injured on the premises. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975). See Dunnings, 881 S.W.2d at 563; Gill v. Rosas, 821 S.W.2d 689, 691 (Tex.App.-El Paso 1991, no pet.); Searcy v. Brown, 607 S.W.2d 937, 941 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ); Arrington Funeral Home v. Taylor, 474 S.W.2d 299, 302 (Tex.Civ.App.-Eastland 1971, writ ref'd n.r.e.). “If the plaintiff [is] on the premises as an invitee, it [is] the defendant’s duty to exercise ordinary care to keep his premises in a reasonably safe condition, so that the plaintiff would not be injured; on the other hand, if the plaintiff [is] on the premises merely as a licensee, the only duty that the defendant owe[s] him [is] not to injure him willfully, wantonly or through gross negligence.” Searcy, 607 S.W.2d at 941. Here, TCAG does not contest the jury’s determination that Van-Houten was an invitee. Accordingly, TCAG owed a duty to VanHouten to exercise reasonable care to keep its premises in a reasonably safe condition so as not to injure her. See Dunnings, 881 S.W.2d at 563; Gill, 821 S.W.2d at 689; Rosas, 518 S.W.2d at 536.

Whether a duty exists, in dog bite cases, also depends to some degree on proof of whether the risk of injury from a dog bite is foreseeable, i.e., the dog owner’s actual or constructive knowledge of the danger presented by his dog. Gill, 821 S.W.2d at 691; see Dunnings, 881 S.W.2d at 564. A party should not be held responsible for the consequences of an act that cannot be reasonably foreseen; Dawkins v. Van Winkle, 375 S.W.2d 341, 344 (Tex.Civ.App.-Waco), writ dism’d w.o.j., 377 S.W.2d 830 (Tex.1964), and there is no duty to warn of danger when no danger is anticipated. Watkins v. Beicker, 579 S.W.2d 519, 522 (Tex.Civ.App.-Tyler 1979, no writ).

Where the owner or keeper of a dog owes someone a duty of reasonable care to prevent the animal from harming them, the law is clear that liability may attach even though the injured person does not establish the dog had dangerous propensities abnormal to its class. Bushnell v. Mott, 254 S.W.3d 451, 452 (Tex.2008); Marshall, 511 S.W.2d at 259. See Allen, 97 S.W.3d at 660; Dunnings, 881 S.W.2d at 562-63. Thus, a plaintiff satisfies his burden of proof by establishing that the owner had actual or constructive notice of facts that would put an ordinary person on notice that the animal could cause harm and the owner was negligent in preventing such harm. Hill v. Palms, 237 S.W.2d 455, 456 (Tex.App.-Amarillo 1950, no writ.). See Dunnings, 881 S.W.2d at 563-64; Dawkins, 375 S.W.2d at 344. Whether the owner had actual or constructive notice is a question of fact for the jury. See Pate v. Yeager, 552 S.W.2d 513, 516 (Tex.Civ.App.-Corpus Christi 1977, writ ref'd n.r.e.).

Steven Quiroz, TCAG’s manager, testified at trial that the dog had been on the lot for several weeks before the incident. The dog was on the lot as a guard dog and was intended to deter anyone from vandalizing or stealing parts from cars parked on its lot. Quiroz testified the dog was chained to a fence nine to twelve hours a day and let loose in the lot at night. He described the dog as an aggressive security guard who he “just didn’t want to have an encounter with ... period.” He also described the dog as a pit bull, a “more aggressive breed than [an] average dog.” “It was a big dog, he would not have gone up to the dog specifically to pet it.” “His main thought was during the day that thing-the dog better be, you know, put up because, obviously, we have clientele and we have workers there, so that was my main concern.”

Quiroz went on to testify he had no knowledge of the dog’s history but the dog had “no known biting [or] dangerous propensities” prior to the incident. That said, when asked if he forgot something at the lot whether he would return at night, Qui-roz answered he “would not go into the office if the pit bull were free,” but would “wait until the next morning.” He also testified that, approximately a week and a half before the incident, the pit bull had puppies and “generally a dog that has just had puppies is going to be in the frame of mind to protect those puppies.” He also admitted he “didn’t take any precautions” to protect employees or customers from the dog, and that “anybody could have come through the gate” into the area where the dog was kept chained during the day. There were no signs warning of the presence of a guard dog on the lot. Gina Salguero, Jose’s wife, testified that, prior to the incident, the dog had escaped from TCAG’s lot and was hit by a car. The dog suffered a cracked hip in two places and a bladder injury but was recuperating on its own.

Under these circumstances, we cannot say that the evidence is “so weak as to do no more than create a mere surmise or suspicion” that Quiroz had actual or constructive notice of facts that would lead a reasonable person to the conclusion that the dog could cause harm, or react with aggression, if an employee or customer unwittingly came upon the dog at the lot. Quiroz characterized the dog as “big” and “aggressive.” He also described the dog’s breed as “more aggressive” than the average dog. Although he was concerned for his own safety around the dog as well as the safety of his clientele and employees, he testified he took no precautions to protect them. Furthermore, the dog was injured and caring for its pups.

Quiroz’s testimony establishes that, without adequate precautions, it was foreseeable that the dog might harm the public and/or TCAG’s employees. Accordingly, we find TCAG owed a duty to see that invitees were adequately warned of the dog’s presence and the dog was in no position to attack such persons. See Arrington Funeral Home, 474 S.W.2d at 302. See also Dunnings, 881 S.W.2d at 563-64. Having reviewed the entire record, we also find there is more than a scintilla of evidence to support the jury’s determination that TCAG breached its duty and proximately caused VanHouten’s injuries. Accordingly, we hold VanHouten’s evidence of TCAG’s negligence was legally sufficient.

“Where it was supposed to be”

TCAG also contends that because VanHouten did not prove the dog had dangerous propensities that were abnormal for that class of animal, it cannot be held liable for the incident because the dog “was where it was supposed to be.”

The “where it is supposed to be” rule is simply a restatement of the test for strict liability. This rule was first stated in Lewis v. Great Southwest Corporation, 473 S.W.2d 228, 231 (Tex.Civ.App.-Fort Worth 1971, writ ref'd n.r.e.) in that portion of the opinion analyzing the plaintiffs strict liability claim as follows:

With regard to an animal not naturally vicious, the general rule, in the absence of a statute, is that the owner of the animal is not answerable for injuries done by it when in a place where it had a right to be, unless, it was, in fact and to the owner’s knowledge, vicious or dangerous. If being therefore of a peaceable disposition, it suddenly and unexpectedly, while in the charge of its owner or his servants, inflicts injury on another, neither, if at that time due care was exercised, is answerable. 4 Am. Jur.2d, Animals, § 86, p. 332.

Id. at 231.

Further, the cases cited by TCAG are inapposite. In these cases, a pet dog either bit someone on the homeowner’s premises; Searcy, 607 S.W.2d at 939, 941 (licensee on the owner’s property); Rodriguez v. Haddock, No. 02-01-0386-CV, 2003 WL 1784923, at *1, 2003 Tex.App. LEXIS 2940, at *2 (Tex.App.-Fort Worth April 3, 2003, no pet.) (not designated for publication) (guest bitten in owner’s home); Retry v. Gasca, No. [ AXX-XX-XXXXX ]-CV, 1994 WL 132772, at *1, 1994 Tex.App. LEXIS 821, at *1-2 (Tex.App.-Houston [14th Dist.] April 14, 1994, no writ.) (not designated for publication) (guest bitten in owner’s home), or in a closed store without invitation and contrary to instructions to wait in the car. Jones v. Gill, No. 02-03-0298-CV, 2005 WL 503182, at *1, 2005 Tex.App. LEXIS 1726, at *2-3 (Tex.App.-Fort Worth March 3, 2005, no pet.).

In Searcy, the court discussed the injured person’s status while on the owner’s property and determined the injured person was a licensee; Searcy, 607 S.W.2d at 941-42, while, in Jones, the court noted the person was in the store while it was closed and uninvited. Jones, 2005 WL 503182, at *5, 2005 Tex.App. LEXIS 1726, at *17. Because the persons bitten in Searcy and Jones were licensees, the defendant had no common law duty to either warn the licensee or make the conditions safe and the plaintiffs standard of proof was much higher — willful, wanton, or gross negligent conduct; Searcy, 607 S.W.2d at 941, than simple negligence. Marshall, 511 S.W.2d at 259.

Here, the dog in question was not being subjected to treatment normally accorded a domestic dog or family pet in his owner’s home or on his property. On the contrary, the dog was an aggressive, guard dog whose purpose was to protect TCAG’s commercial property from vandalism and theft. The dog was chained for hours a day, exposed to the elements, seeking shelter under vehicles, injured and taking care of her young. Animals subjected to this type of treatment may well become frightened, overly protective and dangerous. As the dog’s owner or keeper, TCAG is charged with knowledge of these facts. See Restatement (Second) of Torts § 518 cmt. (h) (1977). Further, unlike the cases cited by TCAG, VanHouten was an invitee to whom TCAG owed a duty to warn and to keep the premises in a reasonably, safe condition. Accordingly, TCAG’s third issue is overruled.

Conclusion

The trial court’s judgment is affirmed.

      . Her vehicle was on the lot for the purpose of being repaired. VanHouten was responsible for any repair costs.

      . The "make ready” area of the car lot was where TCAG serviced and cleaned used cars in anticipation of offering them for sale.

      . TCAG argues no exception to the general rule that a denial of summary judgment is interlocutory and unappealable. See, e.g., Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 5 (Tex.1999); Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980).

      . The jury charge defined an “invitee” as follows:
      [A] person who is on the premises at the express or implied invitation of the possessor of the premises and who has entered thereon either as a member of the public for a purpose for which the premises are held open to the public or for a purpose connected with the business of the possessor that does or may result in their mutual economic benefit.

      .TCAG does not dispute the ownership of the dog or that it was a "keeper” of that dog. With TCAG’s permission, the actual owner of the dog, Jose Salguero, a mechanic at TCAG, kept the dog on the lot as a guard dog. Jose chained the dog up in the morning when he arrived and let the dog loose at night when he left work.

      . A veterinarian recommended surgery and placing pins in the dog's hip, however, the treatment was not performed.

      . Foreseeability is satisfied by showing the actor as a person of ordinary intelligence should have anticipated the danger to others by his negligent act. Searcy, 607 S.W.2d at 942. It is not required that the actor anticipate just how the injury will grow out of the particular situation. Id. (citing Missouri Pacific Railroad Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977)).

      . Suits for damages caused by known vicious animals are governed by principles of strict liability, predicated upon a showing of the vicious or aggressive tendencies of the animal and the owner's knowledge of that propensity. Marshall, 511 S.W.2d at 258; Dunnings, 881 S.W.2d at 562.


author: Justice MOSELEY.

text:
    Lloyd LAMBRIGHT and Elaine Lambright, D.G. Foote, Minor Longnion and Nita Longnion, Chris N. Murphy and Maria A. Murphy, Judy Kay Burris (Power of Attorney for Ardly J. Choate), Appellants, v. Allen Paul TRAHAN and Charlene C. Trahan, Charles M. Chambers and Lois J. Chambers, Appellees.
    No. 06-10-00026-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Aug. 2, 2010.
    Decided Sept. 2, 2010.
    Rehearing Overruled Sept. 21, 2010.

      Thomas D. Rorie, Nacogdoches, for Appellants.
    John H. Seale, Seale, Stover & Bisbey, Jasper, for Appellees.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Justice MOSELEY.

I. BACKGROUND AND PROCEDURAL HISTORY

J.D. Stanley and wife, Inez D. Stanley, were the owners of a certain tract of land in San Augustine County, Texas, located on the shores of Sam Rayburn Reservoir.

By two deeds (each dated March 1, 1976), the Stanleys made conveyances from their tract.

In the first of these deeds, the Stanleys conveyed Marvin C. Goates and wife, Etta Lou Talbert Goates, and “the General Public” four contiguous easements for the purpose of “the free and uninterrupted use, liberty, privilege and easement of passing in and along certain roads and ways.” These easements were described in this deed by metes and bounds in separate descriptions as Road No. 1, Road No. 2, Road No. 3, and Road No. 4. The deed went further to recite that there was conveyed “free ingress, egress, regress to and for the said MARVIN C. GOATES and wife, ETTA LOU TALBERT GOATES, their heirs and assigns and the GENERAL PUBLIC, as may be necessary or convenient at all times and seasons ... in common with us.” Except for Road No. 3, each of the descriptions called for road easements which were forty feet in width; Road No. 3 was described as being only twenty feet wide. The western terminus of Road No. 1 was a public roadway; it crossed the tract owned by the Stanleys in an easterly/westerly direction and terminated at the Sam Rayburn Reservoir. The other described Roads connected to Road No. 1 (Road No. 1 providing the sole access to the public roadway system), Road No. 2 projecting north from it, and Road No. 3 and No. 4 projecting south from it. Reference to this deed hereafter is sometimes called the “express grant.”

The second deed was from the Stanleys to the Goateses of two parcels of land, the conveyance being made “specifically subject to the right-of-way and road easements” described in the express grant. The tracts conveyed to the Goateses did not abut any public roadway and the access to the tracts conveyed to them from the public road system was dependent on the easements conveyed by the express grant.

According to the plat shown as Plaintiffs Exhibit No. 11, at the time the controversy arose, all of the parties to the lawsuit were the sole owners of parcels carved from the tract originally owned by the Stanleys at the time of the two conveyances mentioned above. Allen Paul Tra-han and wife, Charlene C. Trahan, and Charles M. Chambers and wife, Lois J. Chambers, became the owners of most of the property which was crossed by Road No. 1 and Road No. 4; Road No. 2 branched off northerly from Road No. 1 and was surrounded on both sides by and terminated on property belonging to the Chamberses. Ardly J. Choate became the successor in title to the Goateses as to the tracts described in the second deed above and to another smaller tract contiguous to it. Lloyd Lambright and wife, Elaine Lambright, D.G. Foote, Minor Longnion and wife, Nita Longnion, and Chris N. Murphy and wife, Maria A. Murphy, became the owners of the remaining parcels of land which had been carved from the residue of the original Stanley tract; each of these parcels abutted (or were crossed by) Road No. 3.

In 1995, the Trahans, the Chamberses, the Stanleys, and Bennie Joe Whitten and wife, Frances Whitten, executed an instrument entitled “Disclaimer of Easement Rights” in which all rights of way or easements over and across a portion of a 7.90-acre tract owned by the Trahans (this tract being a portion of the property subjected to the Road No. 1 and Road No. 4 easements created in the instrument mentioned above) were disavowed and quit-claimed. However, this disclaimer specifically excluded any impact on the four roadways described in the express grant. There is nothing in the evidence to reflect what interest each of these parties had in claims to the property as of the date of the signing of this instrument.

Hereafter, the Trahans and the Cham-berses are referred to jointly simply as “the Trahans” and the other owners of tracts carved from the original Stanley tract are referred to collectively as “the Lambrights.”

The Trahans became convinced that the public held no valid claim to any of the roads mentioned in the express grant except for the portions thereof which had actually been used as roadbeds. Apparently based upon this conviction, they fenced all of Road No. 4 and all portions of Road No. 1 which were not actually consumed by roadbeds (this being determined by them to be a twenty-foot-wide thoroughfare).

After the Trahans erected fences along, and on parts of, Road No. 1 which restricted the width of the roadway to no more than the actual roadbed (about twenty feet) and erected gates that allegedly blocked access to one or more of the other roads, the Lambrights filed a suit for declaratory judgment in which they sought a judicial declaration that Road' Nos. 1, 2, 3, and 4 were valid easements for the benefit of themselves and the general public which, among other things, could not be gated or blocked. This petition also specifically requested a determination that the “Disclaimer of Easement Rights” executed in 1995 did not have the effect of depriving them or the public of easement rights.

The Trahans filed a general denial and a counterclaim for declaratory judgment. In their counterclaim, the Trahans sought a judicial declaration determining: (1) that none of the four roads are public roads; (2) that because the Lambrights and their predecessors in title had used only a twenty-foot-wide portion of Road No. 1, the portion not actually used for roadway purposes had been abandoned; and (3) that Road No. 2 and a part of Road No. 1 had been abandoned.

No request for a jury having been made, the matter was submitted to the trial court as to both the facts and the law. Although no surveyor was ever called to testify, at the hearing, both parties relied heavily on a plat prepared by William Mark Birdwell, a registered professional land surveyor. This plat (Plaintiffs Exhibit No. 11) showed the boundaries of lands belonging to each of the parties to the lawsuit and the boundaries of each of the four roads as called for in the express grant, together with the location of actual roadbeds as they were then in use. The Lambrights conceded that Road No. 2 (lying solely within the boundaries of property owned by the Chamberses) was not a public roadway and should be considered neither a public nor a private easement.

After a hearing on the merits, the trial court issued findings of fact and conclusions of law. Applying a strict reading, some of these findings of fact could appear to contradict themselves or be incongruous. Finding number 6 recites that there is no evidence that the parties or the public used the roads referred to in the express grant. However, finding number 7 finds that a dirt road shown on the plat in green (indicating the roadbed in use) existed at the time the express grant was made and has been in continuous use by the parties to the lawsuit and their predecessors in title. Although the roadbeds in use generally follow those described in the express grant, they diverge from them in places. One could easily presume from finding number 6 that the trial court intended to find that there has been no use of any part of the roadways described in the express grant, a fact that is contradicted by the evidence and by finding number 7 (regarding use by the parties and their predecessors in title, but not by the public as a public road).

A court of appeals is under a duty to harmonize findings whenever possible so as to avoid contradictory conclusions. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Luna v. S. Pac. Tramp. Co., 724 S.W.2d 383, 384 (Tex.1987). Therefore, we construe that finding number 6 of the findings of fact was intended to mean that neither the public nor the parties or their successors in title used the easements described in the express grant solely and entirely as they were described by metes and bounds; rather, there was a continuous use of roadways which generally followed the path as described by metes and bounds in the express grant, but also diverged somewhat from those described roads.

The final judgment of the trial court (which, in the absence of any metes and bounds descriptions, in essence, incorporated Plaintiffs Exhibit No. 11 by reference) makes a number of determinations:

(a) That none of the roadways at issue were dedicated to public use.
(b) That Road No. 1 and Road No. 3 are easements for the use and benefit of all parties to the suit, and not for the exclusive use of any party. The Tra-hans were ordered to remove all fences and gates erected by them from any part of those easements.
(c) That there is no easement for the benefit of any person existing as to Road No. 2.
(d) That Road No. 4 (which provides access from the north line of the tract owned by Choate to Road No. 1) is a private easement for the use and benefit of the owner of the Choate property. The Trahans were ordered to remove the gate which blocked Road No. 4, but were permitted to construct another gate at the terminus of Road No. 4 with the north line of the Choate property so long as Choate was given the right to travel through the gate.
(e) The descriptions of the easements shown as Road No. 1 and Road No. 4 were amended to more closely conform to the use on the ground.

On appeal, the Lambrights contend that the trial court erred in refusing to find the three of the roadways at issue to be public roads (acquiescing in the finding that Road No. 2 was not a public roadway). The Trahans filed a cross-appeal, alleging nine points of error, which are grouped as follows: (1) the trial court erred in finding, both in the final judgment and in conclusion of law number 8 (i.e., that Road No. 1 was declared to be forty feet wide); (2) the trial court erred in finding that the portion of Road No. 1, which is situated east of the intersection of Road No. 1 and Road No. 3 has been used by the parties; (3)there is no evidence to support the trial court’s finding that Choate and his family have, “over the years,” used Road No. 4 for access to their property from Road No. 1, and such finding is against the great weight and preponderance of the evidence; (4) there is no evidence to support the court’s finding that the roadway used by Choate and his family has a width of forty feet, and such finding is against the great weight and preponderance of the evidence; (5) there is no evidence to support the trial court’s conclusion of law purporting to recognize a forty-foot easement to the Choate property along Road No. 4; and (6) the trial court erred in ordering Trahan to move gates and fences which deny access to the Choate property via Road No. 4. Significantly, neither of the parties challenged the authority of the trial court to relocate the roads described in the express grant to more closely conform with the location of the roadbeds on the ground.

For all practical purposes, the trial court determined that all of the easements set out in the express grant (except for Road No. 2) were (and remained) private easements for the use and benefit of all of the litigants, their heirs and assigns, but, because there had been no acceptance of a dedication by the public, these were not public roads. The trial court further concluded that with the exception of Road No. 4, the easements as determined could not be blocked by any gate and enjoined their blockage.

II. ANALYSIS

A. Are the Roadways in Question Public Roads?

The trial court concluded that “[t]he roadways described in the conveyance are not road easements dedicated to use by the public.” In their sole point of error, the Lambrights contend that the trial court erred in so concluding. The relevant issue is whether a dedication of the roads to public use was fully accomplished; the resolution of this issue rests on the existence of the facts underlying this conclusion. In arriving at this conclusion, the trial court found that “[t]here is no evidence that the parties or the public accepted the roads referred to in the conveyance.” See Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex.1978) (whether public right of way has been acquired by dedication is generally question of fact).

Findings of fact entered in a case tried to the bench “are of the same force and dignity as a jury’s answers to jury questions.” .39 Acres v. State, 247 S.W.3d 384, 387 (Tex.App.-Texarkana 2008, pet. denied) (citing Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991)). We review the findings of fact by the same standards that are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury’s answer to a jury question. Id. (citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994)).

The test for legal sufficiency is “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 will credit evidence favorable to the finding of the court if a reasonable judge acting as a fact-finder could, and will disregard contrary evidence unless a reasonable judge could not when making this determination. Id.; Ramsay v. Tex. Trading Co., 254 S.W.3d 620, 625 (Tex.App.-Texarkana 2008, pet. denied). As long as the evidence falls within the zone of reasonable disagreement, we will not substitute our judgment for the judgment of the trial court. Ramsay, 254 S.W.3d at 625 (citing Wilson, 168 S.W.3d at 822). In this case, the court is the sole judge of the credibility of the witnesses and weight given to their testimony. Id. (citing Wilson, 168 S.W.3d at 819). Although we consider the evidence in a light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id.

When considering a factual sufficiency challenge to a jury’s verdict, we must consider and weigh all of the evidence, not just that evidence which supports the trial court’s judgment. Id. We will set aside the judgment only if it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998). Because we are not a fact-finder, we will not pass on the witnesses’ credibility or substitute our judgment for the judge’s, even if the evidence would clearly support a different result. Id. at 407.

We find it helpful to clarify the description of the four roads at issue. The plat depicting these roads (Plaintiffs Exhibit No. 11) shows a “green road” and a “red road” (these being called by those names because the drafter of the plat used green ink to portray the road location of the roadbeds in existence and red ink to portray the location of the four roads described by metes and bounds in the express grant). For the most part, the green road falls within the boundaries of the red road on the plat.

The road leading into the property from Old Farm to Market Road 705 is depicted on the plat as “Road No. 1.” As shown in red, this road (as described in the express grant) has a width of forty feet. Much of the area contained in the easements shown in red are overgrown and have not been cleared of trees and underbrush. As shown drawn in green (i.e., as it currently exists on the ground), Road No. 1 appears to be a narrow road. The Trahans fenced portions of Road No. 1 and, as a result, this road was, in some places, narrowed even more than the previously-established roadbeds.

The Lambrights stipulated at trial that Road No. 2 is not a public road and made no claim to easement rights upon it.

Road No. 3, as depicted in both red and green, is twenty feet in width. This dirt road provides access to the property owners whose tracts abut the Sam Rayburn Reservoir. The location of this road as called for in the express grant differs from the use of the road as reflected on the plat; the actual use parallels the called location, but is situated east of and abutting the location described in the express grant.

Road No. 4 is depicted only as a “red road” in the plat. However, this short road segment leading from Road No. 1 to the Choate property was found by the court to have been used for the past thirty years. As depicted on the plat, Road No. 4 as described in the express grant is forty feet wide. The Trahans installed a gate across this road, thus denying the Choates access to their property along Road No. 4. The Trahans also placed a fence approximately one foot in front of the Choates’ chicken house. At the time of trial, although the east line of the Choate property abuts Road No. 3 (thereby providing access to the Choate property from that direction), there was no access to the north line of the Choate property by using Road No. 4 because that had been blocked by the Trahans’ fence.

Finally, the eastern end of Road No. 1, lying east of its intersection with Road No. 3 (depicted only as a “red road” on the plat), provides access to the Sam Rayburn Reservoir. The Trahans installed a gate across this section of the road.

The Lambrights contend that because the evidence established that the roadways in question were subject to an express dedication to the “general public” in the express grant and because the roadways were accepted and used by the public, the trial court erred in concluding that Road No. 1, Road No. 3, and Road No. 4 were only private road easements rather than public roads.

Dedication of a roadway may occur as a result of either an express grant or dedication or by implication. Pinebrook Props., Ltd. v. Brookhaven Lake Prop. Owners Ass’n, 77 S.W.3d 487, 503 (Tex.App.-Texarkana 2002, pet. denied); Gutierrez v. County of Zapata, 951 S.W.2d 831, 837-38 (Tex.App.-San Antonio 1997, no writ). Generally, an express dedication is accomplished by deed or written instrument. Broussard v. Jablecki, 792 S.W.2d 535, 537 (Tex.App.-Houston [1st Dist.] 1990, no writ). The case at bar involves just such an express dedication, as evidenced by the conveyance of the right of passage on and across four roadways; under the terms of the express grant, this right was not given solely to the grantees in the instrument, but also to the general public.

The question before us is not, therefore, whether a dedication of the roadways in question was tendered by the express grant but, rather, whether there was an acceptance by the public of that tender. In order to complete the creation of a public easement by an express dedication of property, as here, there must be acceptance of the dedication by or on behalf of the public. See Maddox v. Maxwell, 369 S.W.2d 343, 347 (Tex.1963); Gutierrez, 951 S.W.2d at 838. In the seminal case of Viscardi, the Texas Supreme Court noted that the courts of this State do not require a formal or express acceptance of a dedication by the public; rather, “[a]n implied acceptance by the public is sufficient.” Viscardi, 576 S.W.2d at 19. That is, by general and customary use, the public can accept a dedication. Id.

It is undisputed that San Augustine County has never provided any maintenance for any part of any of the roadways at issue. Rather, the property owners who use the roads have maintained those roads. Trahan testified that San Augustine County never recognized or accepted these roads as public easements and there was no proffer of any evidence of a formal acceptance of the dedication by the San Augustine County Commissioners’ Court. Judy Kay Burris (daughter of and attorney in fact for Choate) testified that the “general public” used the road that comes off of Old Farm to Market Road 705 and that the use of Road No. 1 is not limited solely to people who own the property serviced by the road. Foote testified that there has been “a lot of traffic” coming in on Road No. 1. Lambright testified that the “general public” uses Road No. 3 as well. Road No. 3 has been used by census takers, ambulance drivers, and police. (One observes from the plat that in order for such persons to use Road No. 3, they must first travel Road No. 1 to get to it.) Further, Lambright has “seen people” using the road that goes to the Choates’ property.

The courts of this State have held for a very long time that the acceptance by the public need not be express; rather, an implied acceptance by the public is sufficient. Gilder v. City of Brenham, 67 Tex. 345, 3 S.W. 309 (1887). Public roadways can be created by both express and implied dedication of the land to public use. Jezek v. City of Midland, 605 S.W.2d 544, 548-49 (Tex.1980). The evidence here in support of the proposition that these roadways have been accepted by the public is generally limited to rather vague testimony that they are used by the “general public,” including census takers, ambulance drivers, and police. In fact, Road No. 1 is marked with a “private road” sign at its western terminus (i.e., its entrance from the public roadway system). The formal acceptance of the dedication of a roadway by a governmental entity is relatively easy to determine because it is done by action of that governmental entity and monumented by such things as minutes of meetings. Acceptance by public use has no such bright line determinative act. The required use of a roadway by the public need not be for any specific length of time and a short period of use generally is sufficient, so long as the use continues for such a period that it may be inferred that the public desires to accept in perpetuity the offer of use. See Stein v. Killough, 53 S.W.3d 36, 42 n. 2 (Tex.App.-San Antonio 2001, no pet.); Schwertner v. Jones, 456 S.W.2d 956, 959 (Tex.Civ.App.-Austin 1970, no writ); City of Dallas v. Schawe, 12 S.W.2d 1074, 1076 (Tex.Civ.App.-San Antonio 1928, writ dism’d).

One notes that the use of a roadway by law enforcement officers, ambulance drivers, and census takers is not conclusive as to the intent of those members of the public to accept a dedication of a roadway as a public roadway. In similar fashion, such officials might use a hallway in an apartment building for access to an apartment within it without any thought that the hallways have been dedicated to public use. The trier of fact must infer the intent of the members of the public from its actions. Apparently, the trial court here did not infer that the public’s use of these roads in these circumstances as described by the evidence sufficiently showed the intention of the public to accept them as public roads. Given the paucity of evidence on the issue of public acceptance and the fact that the burden to prove their acceptance lay with the proponents, we believe a “reasonable and fair-minded” fact-finder could conclude that the proof of acceptance of the roadways by public use failed to meet the required burden. See Wilson, 168 S.W.3d at 827. We further conclude that the judgment is not so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. Ramsay, 254 S.W.3d at 625.

We overrule this point of error.

B. The Trial Court Did Not Err in Finding the Width of Road No. 1 and Road No. 4 to Each be Forty Feet or in No Finding of Abandonment.

On cross-appeal, a great portion of the complaints raised by the Trahans center upon the actual usage of the roadways contained in the express conveyance. They dispute the finding of the trial court that the width of Road No. 1 and Road No. 4 to be forty feet, contend that there has been no use of the portion of Road No. 1 which extends easterly from the intersection of Road No. 1 and Road No. 3 to Sam Rayburn Reservoir, and maintain that the court’s finding that the Choate family has used Road No. 4 “over the years” is not supported by the evidence. Apparently, these arguments are intended to buttress their contention that by using only a part of the easements and not their full length and width, the proponents of the easements have effectively abandoned the portions not used. However, it has long been a

universally recognized rule that, while abandonment may be established, like any other fact, by circumstances, yet those circumstances must disclose some definite act showing an intention to abandon and terminate the right possessed by the easement owner. The material question is the intention to abandon, and that intention must be established by clear and satisfactory evidence. Mere nonuser of an easement will not extinguish it.

Dallas County v. Miller, 140 Tex. 242, 245, 166 S.W.2d 922, 924-25 (1942). The intent to abandon an easement “must be established by clear and satisfactory evidence.” Milligan v. Niebuhr, 990 S.W.2d 823, 826 (Tex.App.-Austin 1999, no pet.). As with any other affirmative plea, the burden of showing abandonment of the rights in the easement rested on the Trahans. Other than showing that the actual roadbed on Road No. 1 was only some twenty feet in width and that a portion of Road No. 1 had not been cleared at all, they provided no evidence of an intent to abandon any part of any of the roads described in the express grant. As a practical matter, there is ample evidence of use of at least parts of each of Road Nos. 1, 3, and 4 to sustain the judgment of the trial court.

Further, “[i]t is well settled that the rules which control the courts in the construction of easements are, in general, the same as those applied to the construction of deeds and other written instruments.” Stephenson v. Vastar Res., Inc., 89 S.W.3d 790, 792 (Tex.App.-Corpus Christi 2002, pet. denied); Knox v. Pioneer Natural Gas Co., 321 S.W.2d 596, 602 (Tex.Civ.App.-El Paso 1959, writ ref'd n.r.e.). The express grant described the width and breadth of the easements upon which the Lambrights relied and the Lam-brights used at least a portion of each of Road Nos. 1, 3, and 4 as access to their respective tracts without interruption (until the Trahans fenced off Road No. 4 in its entirety). Accordingly, they were in possession of the easement rights conveyed under the express grant. A person in possession of a portion of lands conveyed to him is considered in law to have had constructive possession of all the land embraced within the description of his property as described in the registered deed under which he claims, although he was in actual possession of only a part of the lot described. Hunt Oil Co. v. Moore, 656 S.W.2d 634, 641 (Tex.App.-Tyler 1983, writ ref'd n.r.e.); Love v. McGee, 378 S.W.2d 96, 98 (Tex.Civ.App.-Texarkana 1964, writ ref'd n.r.e.). Under the constructive possession doctrine, therefore, the Lam-brights remained in possession of every part of all of the four roads described in the express grant.

On appeal, a trial court’s conclusions of law are reviewed de novo and will be reversed only if they are erroneous as a matter of law. Villagomez v. Rockwood Specialties, Inc., 210 S.W.3d 720, 727-28 (Tex.App.-Corpus Christi 2006, pet. denied). We will uphold the trial court’s conclusions upon any legal theory supported by the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). Those conclusions cannot be challenged for factual insufficiency; however, we may review the trial court’s legal conclusions drawn from the facts to determine their correctness. See id.

The Trahans claim that all of the evidence showed the roads used since 1976 have never been wider than twenty feet. Even if that is true, it is not determinative of the issue here. The portion of the granted easement which was actually put to use does not dictate the width of the easement; the granted easement does.

We overrule this cross-point of error.

C. The Trial Court Appropriately Ordered the Removal of Gates.

The Trahans complain that there is no evidence to support a finding or ruling that they are required to remove gates and fences from any of the easements which were found to exist on any of the roadways.

In so doing, the Trahans continue to ignore the express grant which was the genesis of the rights upon which the Lam-brights rely. That conveyance specifically conveys the grantees “the free and uninterrupted use, liberty, privilege and easement of passing along” the roads described therein as Road Nos. 1, 2, 3, and 4. (Note that the Lambrights did not contest the Trahans’ contention that there was no easement over Road No. 2 and the trial court found none.) When traveling on the roads, a gate is an interruption which hinders the free passage along those roads. There is no merit in the claim that this prohibition against gates finds no basis in the evidence.

We overrule this point of error.

D. Another Means of Access for Choate Does Not Negate Express Grant.

The Trahans further argue that since there is access to the Choate property via Road No. 3, the court should not have determined that they should also have access via Road No. 4, contending further that Road No. 4 was now seldom, if ever, used.

In order to establish an implied easement by necessity, a party must establish (1) unity of ownership of the dominant and servient estates prior to severance, (2) the necessity of a roadway, and (3) that the necessity existed at the time the estates were severed. Daniel v. Fox, 917 S.W.2d 106, 111 (Tex.App.-San Antonio 1996, writ denied). The way of necessity must be more than one of convenience; in other words, if the owner of the land can use another way, he cannot claim by implication to pass over land of another to get to his own. Duff v. Matthews, 158 Tex. 333, 311 S.W.2d 637, 640 (1958).

This doctrine of implied easement by necessity must have been the guiding star for the pleading that Road No. 4 should be dissolved because the Choate property abuts another roadway. However, it is not a valid argument because the easement rights belonging to Choate do not arise by way of necessity but, rather, by the express grant. The two means of access to the Choate property existed when the Choate property was carved from the same tract now owned by the Trahans. The existence of another means of access to the Choate property and the frequency of the use of Road No. 4 as access to the Choate property are just simply not relevant to the findings and orders made by the trial court pertaining to Road No. 4. We do not reiterate the previous discussion of abandonment of the easement.

We overrule these points of error.

III. CONCLUSION

We affirm the judgment of the trial court.

      . Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov't Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this CourL on any relevant issue. See Tex. R.App. P. 41.3.

      . After this appeal was perfected, a suggestion of the death of Ardly J. Choate was received by this Court with a request that the case proceed with Judy K. Burris, Independent Executrix of the Estate of Ardly Joseph Choate, deceased, substituted in his stead. Pursuant to Rule 7.1(a)(1), Texas Rules of Appellate Procedure, this case will continue to proceed in the name of Ardly J. Choate. Tex.R.App. P. 7.1(a)(1).

      . As noted previously, the judgment contains no descriptions of any of the road easements other than by reference to Plaintiff's Exhibit No. 11.

      . Conclusion of law number 8 states that “[t]he dirt road purporting to be Road No. 1 on Plaintiff's Exhibit 8 is declared to be 40’ in width with the northern boundary of said road to coincide with the northern boundary of the 'green road’ and to extend southerly for a uniform width of twenty feet (40’) [sic].”

      . Conclusion of law number 10 states that “[t]he roadway easement to the Ardley [sic] J. Choate property, purporting to be Road No. 4 on the conveyance, is recognized as a roadway easement and shall be forty feet (40') in width centered on the center line of the most northerly chicken house on the Choate property as shown on Plaintiff's Exhibit No. 11.”

      .Conclusion of law number 13 states that "Defendants should be ordered to remove, at their sole expense, the gate and fence which restricts the access of Ardly J. Choate and his family to their properly by passage on what has been identified in the conveyance as Road No. 4.”

      .The record does not clearly state the width of this road. The plat indicates that Road No. 1 (green version) is not forty feet wide. However, Trahan indicated that he intended to narrow the easement to twenty feet. In some areas, the fences were placed four to five feet into the existing road.

      . The Lambrights stipulated at trial that there was no evidence of use by the public of Road No. 2. Therefore, the Lambrights contend on appeal that only Road No. 1, Road No. 3, and Road No. 4 were public roads.

      . No party contends that Road No. 2 is a public road.

      . Described as "Road No. 1” on the plat of the subject property.

      . Described as "Road No. 3” on the plat of the subject property.

      .Described as "Road No. 4" on the plat of the subject property.