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B&P Development LLC v. Knighthawk LLC

Court of Appeals of Texas, Fourth District, San Antonio

March 29, 2017

B&P DEVELOPMENT, LLC and Chad H. Foster, Jr., Appellants

         From the 83rd Judicial District Court, Val Verde County, Texas Trial Court No. 29842 Honorable Stephen B. Ables, Judge Presiding.


          Sitting: Karen Angelini, Justice, Marialyn Barnard, Justice, Rebeca C. Martinez, Justice.


          Rebeca C. Martinez, Justice.

         Appellants B&P Development, LLC and Chad H. Foster, Jr. appeal the trial court's judgment rendered in favor of Knighthawk, LLC, Series G. We affirm the judgment of the trial court.


         This boundary dispute concerns two adjoining tracts of land located in Del Rio, Texas. One tract is owned by B&P and the other is owned by Knighthawk; both tracts were part of a larger unified tract until 1966. In 1966, a surveyor named David Trent completed a survey marking a boundary line between the two tracts. Trent's boundary line is memorialized in a 1966 legal description of the B&P property and in a 1973 legal description of the Knighthawk property. The B&P property sits north of the boundary line and is located at the corner of Avenue I and Gibbs Street, which is also known as U.S. Highway 90. The Knighthawk property is located south of the boundary line at the corner of Avenue I and Converse Street. It is undisputed that the boundary line Trent drew stretches in a shallow "V" shape from Avenue I on the eastern side of both properties to a city alley on the western side of the Knighthawk property.

         When Trent surveyed the land in 1966, no fence existed between the two tracts. B&P's predecessor in interest, H. Doak Neal, built a wood fence between the tracts in 1976. The fence did not stretch all the way across the southern end of the B&P property; instead, it went from east to west, with a slight dip to the south, before it met up with the southern wall of Neal's building. There was a second wood fence on the far western side of Neal's building, but there was no fencing directly behind the building. Neal's fence was approximately eight to ten inches wide.

         In 1990, after Neal erected his building and fence, Trent returned to the B&P property to survey the land for Neal. Trent created a survey showing that Neal's fence sat 1.1 feet north of the boundary line and Neal's building sat 0.6 feet north of the boundary line. The field notes accompanying the 1990 survey refer to the existence of the fence and its location "in relation to the south line of said tract."

         In 2007, Knighthawk purchased the southern portion of the property, which was then home to a six-family apartment complex and two separate mobile homes. Neal still owned the B&P property at that time, and the fence and building he had erected in 1976 were still in place just north of the boundary line. Knighthawk's predecessors in interest told Knighthawk that Neal's 1976 fence and building marked the northern boundary line of the tract. Knighthawk's director, A. Rodell Severson, therefore began personally maintaining the fence after Knighthawk purchased the property. Nevertheless, Knighthawk decided to obtain its own survey of the property, and hired Abner Martinez to perform that work.

         Martinez was unable to reconcile the legal descriptions on the 1966 parent deed for the B&P property and the 1973 parent deed for the Knighthawk property with each other to find the boundary line. Martinez found some overlap between the two legal descriptions and "couldn't make any of this fit." Martinez was unable to find any pins of record in the ground for either the Knighthawk property or the B&P property. Specifically, Martinez was unable to locate "a stake" in the northeastern corner of the Knighthawk property to mark the boundary with the B&P property as described in Trent's notes from the 1966 survey. However, using Trent's 1990 survey of the B&P property, Martinez knew that Neal's fence was roughly a foot from the boundary line, and that Neal's building was a mere 0.6 feet from the boundary line. After conducting an on-the-ground survey, Martinez observed that the fence was "eight to ten inches wide." Thus, Martinez placed a 5/8-inch pin a little behind the fence to mark the beginning point for his survey of the Knighthawk property.

         In 2011, B&P was formed to build a Wing Stop and a Little Caesar's in Del Rio. B&P hired an architect to ensure the proposed building would fit on the site. B&P entered into a sales contract with Neal to purchase the lot north of the Knighthawk property. B&P closed on the property on June 28, 2011. In September 2011, B&P hired surveyor Charles Rothe. Rothe used a different origination pin than Trent and Martinez and placed the 1976 Neal fence 3.46 feet north of the boundary line. Rothe thus concluded that Knighthawk's existing buildings encroached on B&P's land. The survey was delivered to B&P on January 12, 2012.

         In October 2011, B&P hired a contractor to remove the 1976 Neal fence and trees from Knighthawk's property. B&P, in need of more space to accommodate its building, constructed its building and the replacement fence on Knighthawk's property. It built its new fence on top of an existing concrete patio on Knighthawk's property, depriving Knighthawk's tenants of use of the patio, and removed shade trees from Knighthawk's property. The utilities in one mobile home stopped working after B&P used heavy machinery on the site, and Knighthawk was unable to repair the broken utility lines without digging up B&P's fence and the concrete pad on which its building sits. As a result, the mobile home closest to the fence no longer has working water, gas, or sewer lines, and is unsuitable for tenants.

         Knighthawk sued B&P for trespass. The case was tried to a jury. After seven days of evidence, the jury found that Martinez's survey depicted the boundary line more accurately than Rothe's survey did and that B&P trespassed on Knighthawk's property. The trial court awarded Knighthawk $120, 000 in past damages, $130, 000 in future damages, and reasonable and necessary attorneys' fees. Although the jury's verdict confirmed Knighthawk's ownership of the disputed property, the trial court's judgment allows B&P to continue using the land.[1] B&P filed several post-trial motions before filing its notice of appeal.

         On appeal, B&P argues the trial court erred in admitting Martinez's testimony into evidence and in asking the jury to determine which of the two surveys was more accurate.[2] In addition, B&P contends the trial court adopted an improper measure of damages.

         Reliability of Martinez's ...

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