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Lindemann Properties, Ltd. v. Campbell

Court of Appeals of Texas, Second District, Fort Worth

June 22, 2017

LINDEMANN PROPERTIES, LTD. APPELLANT
v.
WARD A. CAMPBELL APPELLEE

         FROM THE 97TH DISTRICT COURT OF ARCHER COUNTY TRIAL COURT NO. 2013-0050A-CV

          PANEL: WALKER, MEIER, and SUDDERTH, JJ.

          OPINION ON REHEARING

          BILL MEIER, JUSTICE

         Appellant Lindemann Properties, Ltd. filed a motion for rehearing and a motion for en banc reconsideration of our opinion that issued on December 8, 2016. We deny both motions, withdraw our opinion and judgment dated December 8, 2016, and substitute the following.

         I. Introduction

         Lindemann sued Appellee Ward A. Campbell for a declaration that Campbell's radio-transmission-tower easement terminated when he removed the original tower and replaced it with a new one. The trial court ultimately signed a take-nothing judgment in favor Campbell, concluding that the easement had not terminated, and awarded him attorney's fees. In what we construe as three issues, Lindemann challenges the trial court's findings and conclusions regarding the easement, the denial of its related request for injunctive relief, and the award of attorney's fees. We will affirm in part and reverse and remand in part.

         II. Background

         On March 7, 1977, Howell E. Smith d/b/a Muleshoe Cattle Company granted, sold, and conveyed to Campbell's father, A.O. Campbell, Jr., "an easement or right for the installation of a radio-transmission tower, consisting of the tower itself and guy wires as necessary to support the same." The easement expressly granted the following rights:

Together with the right of ingress and egress over my adjacent lands to or from said easement for the purpose of inspecting, maintaining, constructing and removing said radio transmission tower and appurtenances.
TO HAVE AND TO HOLD the above described easement and rights unto the said A.O. Campbell, Jr., his successors and assigns, perpetually, until said radio transmission tower shall be abandoned and/or removed.

         The easement did not specify the tower's height or size, but it stated the following regarding its location:

Said radio transmission tower will be located on a tract 500 feet by 500 feet, the center of which to be determined by the actual location when installed on the following tract of land located in the County of Archer, State of Texas, to-wit:
Situated on Lot No. One (1), Block No. Seventy-five (75) ATNC Subdivision, Archer County, Texas.
Grantor recognizes that the general location as above described is based on a preliminary survey only and hereby agrees the easement hereby granted shall apply to the actual location of said radio transmission tower when located.

         The original tower was built in 1977 on the Archer County property referenced in the easement (the "Property"). It measured 400 feet tall and 18 inches wide, it used 1.5 gauge tubing and multiple guy wires, and it was serviced by a small building located directly adjacent to its base. A pipe fence was constructed around the original tower and the small building.

         When the original tower was completed, Campbell's father's company, Haigood and Campbell, used it to facilitate two-way radio transmissions between a fleet of vehicles. Over the ensuing years, Haigood and Campbell allowed a number of tenants to mount "a dish or an antenna or something" on the tower for their own broadcast purposes, including the Archer County Sheriff's Department, the Archer County Volunteer Fire Department, Jenson Well Service, Bridwell Oil Company, Burns Operating, Motorola Communications, and SkyBeam Texas. Some paid rent; some did not.

         Campbell, a successor-in-interest under the easement contract, became responsible for the original tower in 1990. Although he had it painted, its lightbulbs changed, and its guy wires inspected and tightened, he never had a structural analysis of the tower performed, including before several of the tenants began using it.

         Lindemann, a family limited partnership formed in 2009, owns the Property on which the easement is located. The Property was burdened by the easement when the Lindemann family acquired it in 1983.

         In early November 2011, Campbell was contacted by Chris Mayo at Site Property Company (SPC), a broker who was working on behalf of LKCM Radio Group, L.P. to find a location for LKCM's broadcasting equipment. After some initial communications about the tower and LKCM's requirements, SPC hired an engineer to perform a structural analysis of the tower to determine whether it could support the additional proposed loading. The results indicated that it would not; the tower was overloaded and in "terrible" condition. SPC then requested a structural report for the existing loads on the tower, hoping to use it to negotiate favorable terms for a potential "drop & swap, " a procedure in which an existing tower is removed and replaced with "an equivalent tower as far as configuration and height but meeting current standards." The report indicated that the tower was not in compliance with the International Building Code; noted that "during the field mapping, the tower mast was observed to be visually 'snaking' with significant frame bending around each guy pull-off level above elev. 200ft"; and recommended that the tower be replaced "since the strengthening modifications required [were] too extensive and not feasible."

         Campbell did not remedy any of the tower's structural issues after obtaining the engineering report, and it continued in operation. However, soon thereafter, in early 2012, Campbell began soliciting bids for the construction of a new tower and negotiating a lease with LKCM to install its broadcasting equipment on the new tower. In April 2012, Campbell and LKCM entered into a lease agreement involving a new tower, and in June 2012, Campbell accepted a quote for the construction of a new tower.[1]

         Construction on the new tower began in October 2012 and concluded on or about November 8, 2012. The new tower stands 420 feet tall, measures 36 inches wide at its widest point, uses 2.5 gauge tubing, and is located within the same pipe fence that was originally constructed to enclose the original tower and small building. Whereas the original tower used six guy-wire anchors, the new tower uses only three, and the wires are located closer to the tower's base. As was the original tower, the new tower is serviced by a small building located directly adjacent to its base.

         The original tower remained in place and in operation while the new tower was being constructed. Thus, although the new tower is located within the same pipe fence as the original tower, it is not located in the exact same location as the original tower. The following image shows the location of the new tower (on the right) in relation to where the original tower stood (on the left):

         (IMAGE OMITTED)

         Campbell hired Gordon Parkey to construct the new tower and to remove the original tower. According to Parkey, the new tower "went live" on November 14, 2012. Around the same time, Parkey also told Tim Lindemann, Lindemann's representative, that a single antenna continued to operate on the original tower and that he would not transfer it to the new tower until he returned from performing another job and taking a trip to Colorado. Parkey's absence consequently "drug the time frame out of how long" both towers stood-and apparently operated-simultaneously. Parkey deconstructed and removed the original tower sometime in December 2012.

         Lindemann sued Campbell in April 2013 and sought a declaration that the easement had terminated, a permanent mandatory injunction ordering Campbell to remove the new tower and all appurtenances thereto, and attorney's fees. During the bench trial that ensued, Tim Lindemann testified that the easement had terminated because Campbell had built a new tower, abandoned the original tower, removed the original tower, and simultaneously used both the original and new towers. Campbell agreed that the easement provides for the installation of a single radio-transmission tower, but he opined that his right to maintain the tower allowed him to remove the original tower and to construct the new one. The trial court sided with Campbell. It signed a final judgment that Lindemann take nothing on its claims and awarded Campbell attorney's fees through trial in the amount of $56, 106.19 and conditional appellate attorney's fees. The trial court entered the following findings of fact, among others:

13. The Original Tower remained standing until it was replaced and removed in 2012 due to evidence of structural instability.
. . . .
16. Replacement of the Original Tower was necessary to maintain a functional tower in the Tract.
17. The Original Tower was removed after it was replaced by the New Tower.
18. The Original Tower was removed as soon as was practicable after all transmission equipment was relocated to the New Tower.
19. The Original Tower was removed only after it was no longer transmitting.
20. The New Tower does not increase the burden on the surface estate.
21. The New Tower does not exceed the scope of the Easement.
22. The building of the New Tower does not effect a termination of the Easement.
23. No actions of [Campbell] in connection with the maintenance of the Easement effected a termination of the Easement.
24. The Easement has not terminated and is still in existence.

         The trial court entered the following conclusions of law, among others:

7. The New Tower does not increase the burden on the surface estate.
8. The New Tower does not exceed the scope of the Easement.
9. The building of the New Tower does not effect a termination of the Easement.
. . . .
11. [Campbell's] right to maintain included his right to replace the Original Tower with the New Tower.
12. The removal of the Original Tower after replacement with the New Tower does not effect a termination of the Easement.
13. The Original Tower was not abandoned; it was replaced.
14. No actions of Campbell in connection with the maintenance of the Easement effected a termination of the Easement.
15. The Easement has not terminated and is still in existence.

         III. Easement Termination

         Lindemann argues in its first issue that the easement automatically terminated when Campbell either removed or abandoned the original tower. It contends that the plain terms of the easement authorized the placement of only a single radio-transmission tower on the Property, that the parties to the easement objectively intended that it would terminate upon the original tower's removal or abandonment, and that the evidence conclusively demonstrates that Campbell removed or abandoned the original tower. Lindemann also disputes the trial court's decision to construe the term "maintaining, " as it is used in the easement, to include the right to remove the original tower and to replace it with a new one. Alternatively, Lindemann contends that the easement terminated because Campbell improperly exceeded its scope.

         Campbell responds that the right to maintain the original tower includes the right to replace it when necessary and that the new tower did not exceed the easement's scope.

         A. Standards of Review

         A trial court's findings of fact have the same force and dignity as a jury's answers to jury questions and are reviewable for legal and factual sufficiency of the evidence to support them by the same standards. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); see also MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 663 n.3 (Tex. 2009). We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). We defer to unchallenged findings of fact that are supported by some evidence. Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437 S.W.3d 518, 523 (Tex. 2014).

         We may review conclusions of law to determine their correctness based upon the facts, but we will not reverse because of an erroneous conclusion if the trial court rendered the proper judgment. City of Austin v. Whittington, 384 S.W.3d 766, 779 n.10 (Tex. 2012) (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)); H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496, 513 (Tex. App.-Fort Worth 2012, no pet.).

         B. Express Easements and Construction

         An easement is a nonpossessory interest that authorizes a holder's use of property for only a particular purpose. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002). The easement holder's rights are limited to those that are expressed in the grant. DeWitt Cty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 103 (Tex. 1999). It follows that we apply basic principles of contract construction and interpretation when considering an express easement's terms. Marcus Cable, 90 S.W.3d at 700. We give the terms their plain and ordinary meaning when they are not expressly defined, and we read the terms of an easement as a whole to determine the parties' intentions and to carry out the purpose for which the easement was created. Id. at 701; DeWitt Cty. Elec. Coop., 1 S.W.3d at 101. We assume that the parties intended for every clause to have some effect. Koelsch v. Indus. Gas Supply Corp., 132 S.W.3d 494, 498 (Tex. App.-Houston [1st Dist.] 2004, pet. denied).

         C. We Cannot Construe Only Some Terms

         Referring to the easement's use of the terms "a" and "said, " Lindemann argues that "[b]y its plain terms, the Easement only authorized the placement of a single tower on the Property"-the original tower. We certainly agree that the words "a" and "said" are singular, but the problem with Lindemann's construction is that it focuses exclusively on the meaning and effect of only those terms while completely disregarding the meaning and effect of other, potentially relevant terms. Lindemann's contention that the easement "automatically terminated upon removal or abandonment of the Original Tower" is similarly premised upon a reading of only part of the easement contract (the habendum clause). This erroneous approach patently conflicts with the well-established requirements that we examine contracts as a whole and assume that the parties intended for every clause to have some effect-indispensable rules that have been a component of our contract-construction standards for decades. See, e.g., Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) ("No single provision taken alone will be given controlling effect; rather, all the provisions must be considered with reference to the whole instrument."); Citizens Nat'l Bank in Abilene v. Tex. & Pac. Ry. Co., 136 Tex. 333, 338, 150 S.W.2d 1003, 1006 ("It is not usually proper to consider a single paragraph, clause, or provision by itself, to ascertain its meaning. To the contrary, each and every part of the contract must be construed and considered with every other part . . . ."), cert. denied, 314 U.S. 656 (1941). Of course, this begs the question whether the easement contract contains any terms that must be considered in addition to the terms "a, " "said, " and "abandoned and/or removed." It does-"maintaining."

         D. "Maintaining" Includes Replacement When Necessary

         If the facts of this case were that Campbell had removed the original tower and done nothing else, then Lindemann's simple argument that the easement terminated pursuant to the habendum clause would control the outcome. But the facts are not that clear-cut, nor is the analysis. Not only did Campbell remove the original tower-something the ingress/egress clause expressly permitted-he also constructed a replacement tower within the same fenced area that enclosed the original tower. The question then is whether the easement afforded Campbell the right to replace the original tower with the new tower. See DeWitt Cty. Elec. Coop., 1 S.W.3d at 103. The easement expressly grants the holder the right to "maintain[]" the radio-transmission tower. We are not the first court to consider whether the term "maintain, " as used in an easement contract, may include the right to replace.

         In Houston Pipe Line Co. v. Dwyer, Dwyer sought a declaration that a pipeline easement across her land had terminated because Houston Pipe Line had removed an eighteen-inch low pressure pipeline and replaced it with a thirty-inch high pressure pipeline. 374 S.W.2d 662, 663 (Tex. 1964). The easement's granting clause originally gave the easement holder the right "to lay, maintain, operate, repair and remove a Pipe Line for the transportation of gas, " but the words "and remove" were struck, although a different part of the instrument authorized removal upon termination of the easement. Id. Dwyer argued that as changed, the easement "authorized the construction, maintenance, operation and repair of one pipeline only, and did not authorize its replacement or removal except upon termination of the easement as provided in the habendum clause." Id. at 664. Houston Pipe Line countered that even after deleting the term "and remove, " the remaining terms were "consistent with the right to remove and replace the original pipe when conditions make it necessary." Id. The supreme court agreed with Houston Pipe Line, reasoning in part,

If plaintiffs are correct in their contention, then defendant's rights and easement under the 1926 agreement would terminate simply by removing and replacing the original pipe, regardless of its condition, with pipe of any size. The agreement in question does not compel such an unreasonable result. We hold that the terms 'operate' and 'maintain' in the granting clause are at least broad enough to include the right to remove and replace the original pipe with pipe of the same size when necessary.

Id. (emphases added). The supreme court thus held that if the condition of a pipeline easement is such that in order to maintain it, replacement is necessary, then the term "maintain, " as expressly used in the easement, was broad enough to include removal and replacement.

         Lindemann's arguments are indistinguishable from Dwyer's. Like the supreme court, we decline to unreasonably construe the term "maintain[]" without any regard for the condition of the easement. We therefore review the evidence to determine whether the condition of the original tower rendered its removal and replacement necessary. See id.

         The original tower was approximately thirty-five years old and in very poor condition when it was removed and replaced. Further, although the structural analysis that SPC had an engineer perform in December 2011 was not for the specific purpose of assessing the original tower's condition, the tests nonetheless revealed that it had numerous structural issues, including snaking of the mast and frame bending around the guy wires. Indeed, the original tower was designated a "Class II" tower, but it could not even pass the test for a "Class I" tower without some manipulation of the data.[2] The engineer recommended that the original tower be replaced:

Q. Based on your analysis, correct me if I'm wrong, but you do not find any way in which the tower that you did the analysis on could be beefed up, fixed to where it wouldn't -- where ...

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