Legal and Factual Sufficiency Analysis of the Exemplary Damages

Exemplary damages are authorized when the claimant proves by clear and convincing evidence that
the harm results from fraud, malice, or gross negligence. Tex. Civ. Prac. & Rem. Code Ann. §
41.003(a) (Vernon 2008); Dillard Dep't Stores, Inc. v. Silva, 148 S.W.3d 370, 372-73 (Tex. 2004). At
trial, Edom Wash 'N Dry submitted malice as the predicate for exemplary damages. To establish that
the unreasonable blocking of the easement was committed with malice, Edom Wash 'N Dry had to
prove a specific intent by The Shed and Malone to cause substantial injury or harm to Edom Wash 'N
Dry. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(7) (Vernon 2008). Malice may be proven by direct
or circumstantial evidence. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994).

In a legal sufficiency review where the burden of proof is clear and convincing evidence, the
reviewing court must consider all of the evidence in the light most favorable to the finding to
determine whether a reasonable trier of fact could have formed a firm belief or conviction that its
finding was true. See Tex. Civ. Prac. & Rem. Code Ann. § 41.001(2) (Vernon 2008); In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002). In addressing a factual sufficiency of the evidence challenge, we must
consider all the evidence in the record, both that in support of and contrary to the trial court's
findings. In re C.H., 89 S.W.3d 17, 27-29 (Tex. 2002). This court must give due consideration to
evidence that the fact finder could reasonably have found to be clear and convincing. Id. at 25. We
must determine whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction in support of its finding. Id.

In considering the amount of exemplary damages, the fact finder considers the nature of the wrong,
the character of the conduct involved, the degree of culpability of the wrongdoer, the situation and
sensibilities of the parties concerned, the extent to which such conduct offends a public sense of
justice and propriety, and the net worth of the defendant. Tex. Civ. Prac. & Rem. Code Ann. § 41.011
(Vernon 2008). When reviewing the evidence with respect to a finding by the fact finder concerning
liability for exemplary damages or the amount of exemplary damages, we shall address the evidence
with specificity and state the reasons for upholding or disturbing a finding or award. Tex. Civ. Prac. &
Rem. Code Ann. § 41.013(a) (Vernon 2008).
Here, Edom Wash 'N Dry presented evidence that The Shed and Malone purposely restricted its
access across The Shed property by the construction of a fence. Malone wanted the fence built.
Further, the owners of The Shed met and determined that the fence should be built. While The Shed
and Malone presented evidence that they wanted the fence built to improve the look of the restaurant
and not to harm Edom Wash 'N Dry, the jury was free to either partially or completely discount this
testimony. See Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004). Also, Malone, through
her previous position as a part owner in Edom Wash 'N Dry, knew the importance that Edom Wash 'N
Dry placed on the access easement across The Shed property. The jury was free to infer that The
Shed and Malone knew that the renter of a portion of the Edom Wash 'N Dry building, who also was
an employee of The Shed, utilized the walking path that was blocked by the fence. And the jury knew
that Edom Wash 'N Dry's property was used as storage by a related business. Finally, the jury could
infer that an opening of seven and one-half feet indicates an intent to unreasonably restrict Edom
Wash 'N Dry's access easement.
County;12th district (
12-07-00431-CV, ___ SW3d ___, 03-18-09, pet. denied July 2009) 2 petitions
easement dispute, injunction, exemplary damages reversed, attorneys fees must be segregated)