Court of Appeals of Texas, Second District, Fort Worth
RAYMAX MANAGEMENT, L.P. APPELLANT
SBC TOWER HOLDINGS LLC APPELLEE
THE 153RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.
MEMORANDUM OPINION ON
RayMax Management, L.P. filed a motion for rehearing of our
July 13, 2017 memorandum opinion and judgment. We deny the
motion but withdraw our prior opinion and substitute the
following in its place. Our memorandum opinion, with the
exception of some clarifying footnotes added on rehearing,
otherwise remains unchanged.
issues in this dispute over 425 square feet of
property,  RayMax appeals the trial court's
judgment for Appellee SBC Tower Holdings LLC on RayMax's
trespass, declaratory judgment, and breach-of-lease claims.
SBC brings two conditional cross-points. We affirm the trial
court's judgment for SBC without reaching its conditional
related the underlying facts in this case in RayMax
Management, L.P. v. American Tower Corp. (RayMax
I), No. 02-15-00298-CV, 2016 WL 4248041, at *1-3 (Tex.
App.-Fort Worth Aug. 11, 2016, pet. denied) (mem. op.),
cert. denied, 137 S.Ct. 2131 (2017), which is
dispositive of two of the issues in this appeal and informs
the appeal's remaining issues.
summary, in 1994, RayMax and its president and predecessor in
interest, Charles Ray Hawkins, now deceased, leased a portion
of property out of a larger tract of land to SBC's
predecessor in interest. Id. at *1 & n.3. Almost
twenty years later, RayMax sued SBC and its sublessees
American Tower, American Tower's subsidiary, and
MetroPCS. Id. at *1-2. RayMax raised claims for
trespass, unjust enrichment, and declaratory relief regarding
the boundaries of the leased premises as to all of the
parties and also sued SBC for breach of the lease.
Id. The trial court granted summary judgment for the
other parties not involved in this appeal on RayMax's
declaratory judgment, trespass, and unjust enrichment claims.
Id. at *1-2, *7. In the same order, the trial court
granted summary judgment to SBC on RayMax's trespass and
declaratory judgment claims against it but elected to send
the breach-of-lease claim to a jury. Id. at *3 &
n.7. The trial court severed out the other parties, and we
affirmed the summary judgment as to those other parties in
RayMax I. Id. at *1-2, *7.
as determined by the trial court by summary judgment as a
matter of law on the trespass issue and by the jury as a
matter of fact in the instant trial,  at some indeterminate point,
SBC or its sublessees overstepped the boundary of the leased
premises. This case's dispositive fact was whether RayMax
(via Ray or his wife Maxine) knew, actually or
constructively, that the boundary of the leased property had
shifted to include the additional 425 square feet, and the
jury was asked in Question 2 whether SBC's failure to
comply with the lease was excused by waiver, equitable
estoppel, laches, or ratification.
closing argument, RayMax acknowledged that the litigation had
taken over two and a half years and argued that the case
began in March 2013 when Ray "began selling the exterior
of what is the parent tract of the leased premises, "
discovered the encroachment, and called Seng Hi Nguyen at
American Tower. Seng confirmed the encroachment, and RayMax
hired John Grant to perform a survey to document the
encroachment. RayMax argued that Ray had not policed the
property because he had trusted his lessee to police its
sublessees and that SBC's breach should not be excused
because there were "nothing but efforts from day one to
conceal what the agreement of the parties would be and to
simply not live by the agreement from day one" and that
no one "effectively understood" what was actually
going on with the property until Grant's survey in March
2013. RayMax further argued that for two and a half years, it
had demanded compliance with the lease boundaries and SBC had
claimed that nothing excused SBC's failure to comply,
particularly when during the litigation, SBC or its lessees
had proceeded to "boldy go" into the disputed area,
and that there was nothing to support equitable estoppel,
that SBC had made false representations acting through its
agents and had concealed material facts, and that laches did
not apply because SBC had only gotten away with its behavior
for 19 of the 30 years of their ongoing relationship and that
there was no reason not to come into compliance now.
RayMax's counsel then stated, with regard to Question 3,
which asked what sum of money would compensate RayMax for its
damages, "We didn't put on any future value for the
next 20 years because we want to consider this lease in
default and the last thing we want is for this to continue
on. So we certainly don't want future rent based on the
lease itself at the contract rate" because the contract
rate was too small. RayMax instead wanted $212, 505 in
damages for what it claimed that the rent would have been on
the 425 square-foot disputed area, "the present value
today as if that lease had gone out for the next 19 years
that they are to go."
replied that it had always been in the right spot on the
property, since 1994 when Ray signed off on the building
permit, and that the best evidence that SBC was right was
RayMax's "19 years of silence" from 1994 to
2013, particularly after an easy-to-see fence extension was
built in 2006. SBC further argued that if it had breached the
lease, then RayMax had excused the breach through waiver
because Ray had signed off on the site plan in 1994, and
rather than objecting to the fence's location, RayMax was
actually listed as a contractor in MetroPCS's 2005 permit
application to extend the fence. SBC also argued
ratification, laches, and equitable estoppel.
rebuttal, RayMax responded to SBC's arguments and
asserted that SBC could have done several things to come into
compliance with the lease, such as moving the fence line back
or negotiating an amendment but instead required litigation
to stop SBC's agent "from making $600, 000 on a
disputed piece of property."
10-2 verdict, the jury answered, "Yes" to Question
2, that SBC's breach was excused. The trial court
subsequently denied RayMax's various motions, and this
appeal of the trial court's take-nothing judgment
RayMax I is dispositive of RayMax's Fourth and
fourth and fifth issues, RayMax complains about the trial
court's summary judgment on its trespass and
declaratory judgment claims. RayMax argues that the trial
court erred by determining that its trespass claim was barred
by the two-year statute of limitations. But in RayMax
I, we held that the undisputed facts showed that
RaxMax's trespass injury was permanent as a matter of law
and that, because the continuing-tort doctrine does not apply
to a permanent injury arising from a trespass, RaxMax's
trespass claims were time-barred as a matter of law. 2016 WL
4248041, at *5-6. RayMax also argues that the trial court
erred by finding that declaratory judgment relief was not
appropriate. But in RayMax I, we held that
declaratory judgment relief was not appropriate because the
relief sought was not preventative but rather constituted
redress for alleged injuries already sustained and was
duplicative of the relief sought in the trespass claim.
Id. at *4.
December 16, 2016, our supreme court denied RayMax's
petition for review in RayMax I, and mandate issued
from this court on February 9, 2017, affirming the trial
court's summary judgment for SBC's sublessees. We are
bound by the holdings in RayMax I in determining our
conclusions here. See, e.g., Thomas v.
Torrez, 362 S.W.3d 669, 679 (Tex. App.-Houston [14th
Dist.] 2011, pet. dism'd) (observing that because the
court had already addressed a particular set of facts, it was
bound despite contrary cases from other courts of appeals);
see also Hudson v. Wakefield, 711 S.W.2d 628, 630
(Tex. 1986) (emphasizing the necessity of narrowing the
issues in successive stages of litigation to "achieve
uniformity of decision as well as judicial economy");
Anheuser-Busch Cos. v. Summit Coffee Co., 934 S.W.2d
705, 709 (Tex. App.- Dallas 1996, writ dism'd by agr.)
(observing that while perhaps not strictly applicable, the
law of the case doctrine and its underlying rationale support
an intermediate appellate court's decision not to
reexamine its earlier opinion). Bound by our own precedent,
we overrule RayMax's fourth and fifth issues without
revisiting the merits.
RayMax I informs our analysis of RayMax's
of its first issue and in its second issue, RayMax complains
that the evidence is legally and factually insufficient to
support the jury's answer to question 2.
responds that RayMax's arguments are not supported by the
lease, the law, the jury's verdict, or the record and
that the evidence is legally and factually sufficient to
support the jury's finding that any failure by SBC to
comply with the lease was excused because RayMax knew or
should have known about its right to complain about the
placement of the fence to the right of the billboard pole in
1994 yet did nothing for nineteen years.
Standards of Review
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). In determining whether there is legally
sufficient evidence to support the finding under review, we
must consider evidence favorable to the finding if a
reasonable factfinder could and disregard evidence contrary
to the finding unless a reasonable factfinder could not.
Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d
649, 651 (Tex. 2007); City of Keller v. Wilson, 168
S.W.3d 802, 807, 827 (Tex. 2005).
regard to factual sufficiency, 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).
trier of fact is the sole judge of the credibility of
witnesses and the weight to be given to their testimony.
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d
757, 761 (Tex. 2003).
Sufficiency Analysis a. Evidence
out the following facts in RayMax I, which are
supported by the parties' evidence at trial:
• The lease acknowledged that SBC's predecessor
SMSA's use of the leased premises was contingent on SMSA
obtaining all certificates, permits, and other approvals
required by federal, state, or local authorities, and in
1994, SMSA filed a site plan for the leased premises with
the City of Fort Worth. 2016 WL 4248041, at *1. The
filed site plan was a scale drawing of the leased premises
and included metes and bounds descriptors of the leased
premises along its boundary lines. Id.
• When SBC subleased the premises to Southern Towers,
Dennis Walker surveyed the leased premises (the Walker
Survey), describing it by metes and bounds, "which
matched the metes and bounds descriptions included in the
site plan SMSA filed with the City of Fort Worth in
• In 2005, Southern Towers contracted with MetroPCS to
install, operate, and maintain equipment on the leased
premises. Id. at *2. MetroPCS received a building
permit on December 2, 2005, and installed equipment in 2006.
Id. MetroPCS moved the eastern boundary of the
fence, which enclosed the leased premises, to encompass the
additional 425 square feet at issue here, as shown by the
Walker survey. Id. "The locations of the
equipment and the fence undisputedly were 'not
hidden' and 'very visible.'" Id.
At the trial in this case, no one disputed that the fence
extension occurred in 2006.
• In February 2007, Southern merged into a subsidiary of
American Tower and assigned its sublease to another American
Tower subsidiary. Id.
• On December 11, 2007, SBC and Ray amended the lease to
extend the lease term and increase the rent. Id.
Under the amendment's express terms, the remaining 1994
lease provisions "remain in full force and effect and
are hereby ratified and affirmed." Id. Thus, as
referred to in the jury charge in the instant case, the
"lease" referred to the lease agreement entered in
1994 by RayMax and SBC's predecessors and the lease
amendment entered in 2007 by Ray and SBC.
• On March 22, 2012, American Tower sent Ray a letter
requesting an amended agreement to reflect RayMax's
ownership of the leased parcel; the metes and bounds
description of the leased premises attached to the proposed
amended agreement mirrored the Walker Survey description,