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Raymax Management, L.P. v. SBC Tower Holdings LLC

Court of Appeals of Texas, Second District, Fort Worth

August 31, 2017

RAYMAX MANAGEMENT, L.P. APPELLANT
v.
SBC TOWER HOLDINGS LLC APPELLEE

         FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 153-267049-13

          PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

          MEMORANDUM OPINION ON REHEARING[1]

          BONNIE SUDDERTH JUSTICE.

         I. Introduction

         Appellant 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.

         In five issues[2] in this dispute over 425 square feet of property, [3] 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 cross-points.

         II. Discussion

         We 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.[4]

         In 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.[5] 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.[6] 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.

         Thus, 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, [7] 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.[8]

         In its 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 refused.

         RayMax 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, [9] 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."

         SBC 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.

         In 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."

         In a 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 followed.[10]

         A. RayMax I is dispositive of RayMax's Fourth and Fifth Issues.

         In its fourth and fifth issues, RayMax complains about the trial court's summary judgment on its trespass[11] 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.

         On 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.

         B. RayMax I informs our analysis of RayMax's sufficiency issues.

         In part 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.[12]

         SBC 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.

         1. Standards of Review

         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). 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).

         With 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).

         The 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).

         2. Sufficiency Analysis a. Evidence

         We set 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[13] 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.[14] 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 1994."[15] Id.
• 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.'"[16] 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, which ...

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