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Hazzani, LLC v. Richardson Bus. Center, Ltd.

Court of Appeals of Texas, Fifth District, Dallas

July 19, 2019

HAZZANI, LLC, Appellant

          On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-05236

          Before Justices Myers, Molberg, and Carlyle



         Hazzani, LLC (Hazzani) appeals the trial court's final judgment, after a bench trial, granting Richardson Business Center, Ltd. (RBC) an easement for vehicle access through a concrete driveway between the parties' respective commercial properties and across Hazzani's property. In a cross-appeal, RBC challenges the trial court's denial of its request for attorney's fees. In two issues, Hazzani contends: (1) the trial court erred in granting RBC a prescriptive easement, and (2) the evidence at trial did not support any conclusion RBC established an easement by estoppel.[1] In two issues on cross-appeal, RBC contends: (1) the trial court abused its discretion by denying RBC's request for attorney's fees, and (2) in the event this court reverses the trial court's judgment granting RBC an easement, the trial court erred by not allowing testimonial evidence regarding RBC's damages.

         We affirm the trial court's judgment.


         In 1992, RBC-which exists through a series of complex business arrangements, including a corporation, a general partnership, and a limited partnership-purchased an approximately six-acre tract of land on North Plano Road (Plano Road) in Richardson, Texas (RBC property).[2] The RBC property has two vehicle driveways opening to Plano Road, both of which allow vehicles exiting the RBC property only to turn right onto southbound Plano Road. To enter the northbound lanes of Plano Road, vehicles utilizing RBC's vehicle driveways must travel approximately twenty to fifty feet on southbound Plano Road and make a u-turn at a break in a traffic island. Correspondingly, only vehicles traveling south on Plano Road may utilize RBC's vehicle driveways to enter the RBC property directly from Plano Road; vehicles traveling north on Plano Road must make a u-turn at a break in a traffic island north of the RBC property to enter the RBC property utilizing RBC's driveways.

         In 2012, Hazzani-which is owned by Dr. Jianlin Li and Dr. Tsai[3]-purchased the approximately six-acre, adjacent tract of land to the north of the RBC property (Hazzani property).[4]The Hazzani property also has two vehicle driveways opening to Plano Road. A break in a traffic island on Plano Road allows both northbound and southbound traffic to enter and exit the Hazzani property utilizing Hazzani's vehicle driveways.

         A twenty-five to thirty-foot wide, curbed, two-lane, concrete vehicle driveway connects the RBC property to the Hazzani property in the approximate center of the parties' shared property line (common access drive).[5] The majority of the common access drive is on the Hazzani property. The common boundary on the remainder of the property line is an elevated landscape with concrete curbs.

         To avoid making a u-turn on Plano Road, vehicles en route to the RBC property from northbound Plano Road, and vehicles departing the RBC property to northbound Plano Road, ingress and egress to and from Plano Road using the Hazzani vehicle driveways, drive through the Hazzani property, and use the common access drive to enter and exit the RBC property. According to Brad Mindlin, the common access drive has been utilized in this manner since 1992, when RBC purchased the property.[6]

         Mindlin testified that when real estate occupancies rose in the late 1990's-before Doctors Li and Tsai purchased the property-tenants and employees of the property currently owned by Hazzani used the common access drive to park on the RBC property. Likewise, RBC tenants and employees used the common access drive to park on the property currently owned by Hazzani. This cross-property parking activity caused "parking issues," "a lot of disarray in the parking lots," and damage to the common access drive. As a result, Mindlin and his "property managers and engineers of a company that [he] owned and managed" discussed "a general repair of the access easement and the parking drive and who's going to park on where" with the prior owners of the Hazzani property. According to Mindlin, RBC and the prior owners of the Hazzani property "reach[ed] agreements on repairs," and did not "shut down the cross-parking."

         James Ray Jackson, chief engineer for the RBC property from 1993 to 2014, testified that that "all the way back to '97, '98, [up] through 2000," RBC was "involved in repairs that were made at the access point between the two properties." Jackson "talk[ed] to the folks on the Hazzani side, the predecessors in title, about repairing their side of the property," and repairs were made on "both sides" of the property line. According to Jackson, most of the repairs were "minor" curb repairs.[7] Jackson testified that the "main" repair was replacement of the common access drive in 2012.

         In its response brief on appeal, RBC claims it made repairs on the Hazzani property "at its sole cost for approximately 20 years before Hazzani purchased the property," but RBC does not cite to the record, and we did not locate evidence in the trial record that RBC paid for any repairs "at its sole cost." Jackson testified he knew the Hazzani property owners "shared in the cost" of the 2012 repair, and he did not know if the prior owners shared in the cost of the prior repairs. Jackson did not discuss specific repairs or the cost of repairs with Mindlin until the 2012 repair. During trial, the trial court stated, without objection, "There is undisputed testimony that the parties shared in significant repairs over time."

         Monta Lee Lebkowsky has managed a number of real estate properties for Mindlin, and she has been RBC's property manager since May 2008. The week after Dr. Li and Dr. Tsai purchased the Hazzani property, Lebkowsky called Dr. Li and asked him to repair "broken concrete" in the common access drive at his cost. Lebkowsky testified a "chughole [was] developing [and] getting pretty large," and she "was concerned that it was going to ultimately break loose and be even a larger liability for everyone." Dr. Li declined to pay for the entire cost of the repair. E-mails introduced into evidence at trial between Dr. Li and Lebkowsky confirm that Lebkowsky talked to Dr. Li about repairing the driveway; Dr. Li obtained the initial bids for the repair work; and Dr. Li asked Lebkowsky if RBC would pay for half of the cost of the repair work. In a reply e-mail, Lebkowsky stated, "I will be happy to participate in the cost, but that being said, I would like to review the bids if I am going to be paying for some of it." The parties ultimately used a contractor who submitted a bid at RBC's request, with each party paying $1, 240, half the cost of the repair. The 2012 repair, in which concrete was re-poured to replace the "entire drive," is the most recent repair to the common access drive. After the 2012 repair, RBC and Dr. Li did not discuss the common access drive until April 2017, when Dr. Li installed "No Thru Traffic" signs at the common access drive connection point.

         After purchasing the Hazzani property, Dr. Li initially permitted vehicles en route to or exiting the RBC property to cross the Hazzani property to access Plano Road, as they had been doing for many years prior. He testified that in 2012, "[i]t was not my intention to close [off]" the common access drive. According to Dr. Li, he was not concerned when he first noticed vehicles using the common access drive, because "it was just occasional use and then [he] did not receive any employees complaining at all them [sic] driving too fast." However, over time, increased cross-through traffic caused problems. Beginning in approximately 2015, Dr. Li began receiving complaints from his tenants, visitors, and employees that vehicles entering and exiting the RBC property through the common access drive were speeding on the Hazzani property and causing traffic jams throughout the day by waiting long periods of time to cross over southbound Plano Road and turn left onto northbound Plano Road. According to Dr. Li, the problems were exacerbated in 2016 and 2017 by "a significant increase [in] traffic on Plano Road . . . related to State Farm putting about 12, 000 employees [just] a few miles north of [the Hazzani property]." Dr. Li testified that not only did the number of vehicles entering his property en route to RBC via the common access drive increase in 2015 and 2016, the number of vehicles speeding through his property also increased, causing two accidents and ...

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