Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Estate of MacDonald v. Reeder Road Saf-T-Loc, LLC

Court of Appeals of Texas, Fifth District, Dallas

April 19, 2017


         On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-13-11296

          Before Justices Lang, Fillmore, and Schenck



         The underlying lawsuit was brought by Reeder Road Saf-T-Loc, LLC against appellants[1]for declaratory relief and damages respecting an alleged breach of a lease agreement ("Ground Lease"). Appellants initiated this proceeding before us by filing their lengthy "Notice of Appeal or, Alternatively Request to Permit Petition for Mandamus" on August 9, 2016 in which they complained that the trial court erred by rendering its "Second Order to Abate." This Second Order to Abate abated the case and ordered the parties to engage in a dispute resolution process that was different from that provided for in their Ground Lease. Appellants contend this Court has jurisdiction to dissolve the Second Order to Abate, by deeming their petition to be either an interlocutory appeal of a temporary injunction or a petition for writ of mandamus.

         We conclude we have jurisdiction in this case to consider mandamus relief. Further, we conditionally grant mandamus relief and direct the trial court to vacate the Second Order to Abate. This case is remanded for further proceedings consistent with this opinion. Because the law to be applied in this case is well settled, we issue this memorandum opinion. See Tex. R. App. P. 47.2, 47.4.

         I. Factual and Procedural Context

         Appellants own real property in Dallas County which they lease to appellee pursuant to the Ground Lease. On July 11, 2007, the State of Texas filed an eminent domain action to condemn a portion of the land which is the subject of the Ground Lease. This action resulted in a settlement between appellants and the State of Texas as set out in an Agreed Judgment awarding appellants $1, 325, 000.00 ("condemnation award"). This suit arose after the Agreed Judgment was rendered, when the parties to this appeal could not agree how to apportion the condemnation award under the terms of the Ground Lease.

         The parties do agree Paragraph 12(a) of the Ground Lease governs the potential apportionment of the award between appellants and appellee. The paragraph provides:

12. Condemnation. (a) In the event the Leased Premises and the Improvements, or any portion thereof, shall be taken in or by or shall be sold to any person having the power of condemnation or other eminent domain in anticipation that the same shall be taken in or by, condemnation or other eminent domain proceedings pursuant to any law general or special, and in the event Lessor and Lessee cannot agree upon how the award shall be divided between them within ninety (90) days after such an award is made, then, so long as Lessee is not in default under this Lease, any award payable in connection with such taking less any expenses incurred in connection with collecting such award, shall be held in trust by a mutually agreed upon third party for the benefit of Lessor and Lessee and subsequently divided between and disbursed to Lessor and Lessee as their interest may be determined in the manner hereafter provided without considering any termination of this Lease that may occur as provided for in sub-paragraph (b) of this Paragraph 12. hereof next below. The determination of the respective interests of Lessor and Lessee in any such trust fund shall be made by an independent appraiser selected by the then parties to this Lease. If such parties cannot agree on such a person to act as an independent appraiser, then each of the parties hereto shall select one person to act as an appraiser, which person shall be a member of the American Institute of Real Estate Appraisers or its successor organization or if such organization or its successor organization is not then in existence, then a person recognized as a professional real estate appraiser, and the third appraiser shall be selected by the two (2) appraisers so selected by the parties hereto. If the two (2) appraisers so selected by the parties hereto are unable to agree on a third appraiser, or if either party hereto fails to so select an appraiser within thirty (30) days of a notice from the other party hereto, an appraiser or appraisers shall be appointed by the Senior Judge of the United States District Court for the Southern District of Texas, Houston Division, acting as an individual and not in his judicial capacity. The finding of such independent appraiser or such panel of appraisers (which shall act by vote of the majority), as the case may be, shall be a final and conclusive determination of the respective interests of Lessor and Lessee in any such trust fund. The cost of any such determination of the parties' interest in such trust fund shall be borne equally by the parties hereto.

         Appellee filed its suit in the court below on September 19, 2013 seeking, among other things, a "declaration of rights and construction of Paragraph 12, " that appellants "be compelled to follow the procedure implemented by Paragraph 12, " and damages for breach of Paragraph 12(a). Appellants answered by filing a general denial and asserted several affirmative defenses[2]and counterclaims.[3] At least after appellee filed its suit, the parties were not able to agree on an independent appraiser to apportion the condemnation award. By August 7, 2015, the trial court had granted partial summary judgments for both sides.

         On November 24, 2015, the trial court, sua sponte, issued an order referred to by appellants as the "first abatement order." That order abated the proceedings, ordered the parties to request "the Senior Judge of the United States District Court for the Southern District of Texas, Houston Division" to appoint an appraiser or appraisers, and further ordered the parties to file that request with the trial court.[4] The parties complied by sending the letter.

         Then, on December 29, 2015, the parties filed with the trial court a letter in which the clerk of the federal court advised that there is "no corresponding title of any judge in the Houston Division of the Southern District of Texas." The clerk further stated in the letter that "no federal judge in [the] district could agree to act in the capacity requested by the parties" in this case.

         The trial court set aside the first abatement order and reinstated the case by rendering its "Order Reinstating Case" on May 26, 2016. At that time, several motions for summary judgment remained pending before the trial court. However, on July 20, 2016, the trial court rendered an order, sua sponte, entitled the "Second Order to Abate."[5] This Second Order to Abate again abated the case and ordered the Appraisal Institute[6] to "appoint an appraiser or a panel of appraisers, not to exceed three (3) in number, to finally and conclusively determine the respective interests" of the parties. The parties acknowledge the second abatement order was not sought by motion or other pleading filed by either party.

         II. The Effect of the "Second Order to Abate" on the Parties' Agreement

         In a single issue, appellants contend that the trial court's "decision to re-write the parties' Ground Lease and order them to engage in an extra-judicial binding administrative and unprecedented procedure to resolve this action in accordance with the process newly-concocted by the court, is a clear abuse of discretion justifying mandamus relief." Further, they argue the trial court's Second Order to Abate "effectively granted summary judgment to Appellee on its disputed breach of contract claim and awarded a remedy of specific performance in the form of . . . requiring the parties to undertake a binding dispute resolution procedure . . . to which they have never agreed, and to which the [appellants] object as inappropriate given the eight years of litigation between these parties and the factual circumstances now presented."

         Appellee responds arguing that "the trial court's order is amply supported and correctly buttressed or substantiated by its reasoned, well-grounded findings." Further, appellee asserts that "equitable relief of specific performance is both just and right given Appellants' protracted, willful, and egregious disregard of the Ground Lease provision."

         A. Standard for ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.