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Green v. Richard D. Davis, L.L.P.

Court of Appeals of Texas, Fourteenth District

December 17, 2019

BILL GREEN, HANS VAN DER VOORT, PHIL BIRKELBACH, AND PAUL KATES, Appellants
v.
RICHARD D. DAVIS, L.L.P., A NEVADA LIMITED LIABILITY PARTNERSHIP, RICHARD D. DAVIS, L.L.P., A TEXAS GENERAL PARTNERSHIP, AND PATRICIA K. SUAREZ, Appellees

          On Appeal from the 506th Judicial District Court Waller County, Texas Trial Court Cause No. 08-12-19600

          Panel consists of Justices Wise, Hassan, and Poissant.

          SUBSTITUTE OPINION

          MARGARET "MEG" POISSANT JUSTICE

         Appellees Richard D. Davis, L.L.P., a Nevada Limited Liability Partnership, Richard D. Davis, L.L.P., a Texas General Partnership, and Patricia K. Suarez filed a motion for rehearing and a motion for en banc reconsideration of our opinion issued on April 23, 2019. Appellants responded. We deny rehearing, withdraw our opinion of April 23, 2019, issue this substitute opinion, and vacate our judgment of April 23, 2019. Accordingly, we deny the motion for en banc reconsideration as moot.[1]

         This appeal arises from a judgment entered January 10, 2017, upon a jury verdict in the trial court, and is one of three appeals before this court involving the same parties.[2] For the reasons stated below, we affirm in part and reverse and remand in part.

         Background

         In 1993, Richard D. Davis, L.L.P., a Texas General Partnership, ("Davis Texas") purchased a 55-acre tract from Sky Lakes, Inc., that was secured by a deed of trust. Skydiving was allowed at the airport. It was either conducted directly by a Davis entity or by leasing the airport to other operators.

         In 2006, the promissory note was assigned to the Sky Lakes Flyers Foundation ("SLFF"). Shortly thereafter, SLFF sent notices of default based on various allegations, including failure to provide proof of insurance and payment of taxes, and the condition of the property. In August 2007, Davis Texas brought suit (the "2007 suit") against SLFF and Carbett J. Duhon, III, seeking a temporary restraining order, temporary injunction and permanent injunction and asserting a claim for breach of contract.

         In September 2007, SLFF refused Davis Texas' check for the August 2007 payment on the grounds the note had been accelerated. Davis Texas obtained injunctive relief to prevent foreclosure and in September 2007 refinanced at an interest rate of fourteen and a half percent (14.5%) rather than the original rate of five percent (5%) and transferred its' interest in the property to Richard D. Davis, L.L.P., a Nevada Limited Liability Partnership, ("Davis Nevada").

         On September 19, 2007 SLFF counterclaimed and named Richard D. Davis and Patricia K. Suarez as third-party defendants. SLFF asserted breach of contract and sought a non-judicial foreclosure on the property. In March 2008, the skydiving assets were sold to Todd Bell and Jump-Out Express. A lease was entered into permitting Jump-Out Express to conduct skydiving operations. Subsequently, suit was brought in 2008 (the "2008 suit") by Andy Knott, Bill Green, Dempsey Gearen, Jim Phillips, Phil Birkelbach, Paul Kates, Danny Langhorne, Hans van der Voort, Gene Morton and Stanley Hoffpauir (collectively "the Green Parties"), against Davis Nevada, Davis Texas and Patricia K. Suarez (collectively "the Davis Parties"), and Jump Out Express, L.L.C. Among other claims, the Green Parties alleged skydiving operations had increased and unreasonably interfered with the ability of others to use the airstrip. The Davis Parties filed a counterclaim and third-party action on March 3, 2009 seeking damages for the alleged orchestration of the "wrongful" acceleration of the note and the ensuing "illegal" efforts to foreclose.

         By order signed February 4, 2010 the Davis Parties' counterclaims in the 2008 suit were severed ("the 2010 suit"). The Green Parties settled with Jump Out Express prior to trial. The claims that remained in the 2008 suit were tried to a jury and judgment was entered on January 10, 2017. From that judgment, certain members of the collective "Green Parties" bring this appeal, namely Bill Green, Hans van der Voort, Phil Birkelbach, and Paul Kates (for ease of reference we refer to appellants in this opinion as "the Green Parties"). The Davis Parties filed a notice of cross-appeal.

         The Green Parties

         The Green Parties raise three issues. We address each in turn. I. Did the trial court disregard the jury's answer to Question 2? Relevant to the Green Parties' first issue are the following portions of the court's charge:

QUESTION NO. 1
As to the airstrip in question, did the skydiving operations prior to March 21, 2008 unreasonably interfere with, or impair its use by others?
Answer "Yes" or "No."
ANSWER: no
QUESTION NO. 2
As to the airstrip in question, did the skydiving operations beginning March 21, 2008 unreasonably interfere with, or impair its use by others?
Answer "Yes" or "No."
ANSWER: yes
After question No. 2, there was a follow-up to question No. 1:
If you have answered Question No. 1 "Yes," then and only in that event, answer Question No. 3.
Question No. 3
By what date did the [Green Parties] know, or should have known, that the sky dive operations unreasonably interfered with or impaired their right to use the airstrip for aviation purposes?
Answer giving month, day, and year, if any.
ANSWER:
Month, Day, and Year

         In the judgment, the trial court granted the following declaratory relief requested by the Davis Parties:

[11.]B. The Davis Partnerships, and their partners' use of the Sky Dive Houston Airport and its airstrip for sky diving is in conformity with Federal Aviation Administration ("FAA") Regulations and does not unreasonably interfere with the rights of any lot owners in Sky Lakes Addition Section I or Sky Lakes Addition Section II to use the airstrip as allowed by any restrictions or dedications in force or effect which are currently binding on the property.
[11.]C. The use of the airstrip and airport property for skydiving purposes is a lawful aviation use of the airspace over the airstrip and airport owned by Davis Nevada Limited Liability Partnership and is a use for aviation purposes of the premises which does not unreasonably interfere with any other aviation use of the airstrip. Plaintiffs and Counter-Defendants, as individuals, have no power to regulate or dictate the manner in which a lawful aviation use is conducted on the airstrip or airport. The restrictions as written do not prohibit the aviation use of skydiving. Plaintiffs and Counter-Defendants have no superior aviation rights to the airstrip, but must share the airstrip in common with all other users including the public users who are business invitees of the Davis Defendants.
[11.]D. The use by the Davis Partnerships, and their partners, of the Sky Dive Houston Airport and airstrip for sky diving activities in conformity with FAA Regulations in the manner proven before the jury in this case by testimony and evidence does not constitute a substantial annoyance to any lot owners or home owners in Sky Lakes Addition Sections I and II.
[11.]E. The Davis Partnerships, and their partners' use of the Sky Dive Houston Airport and its airstrip does not impermissibly "dominate" the Sky Dive Houston Airport or airstrip in any manner nor violate any restrictions or dedications which are in force and effect that define and/or restrict the use of said airport and/or said airstrip.

         In their first issue, the Green Parties assert these four declarations ignore the jury's finding that skydiving activities at the airport after March 21, 2008 unreasonably interfered with their rights. The Green Parties acknowledge, as they did in the trial court, that the skydiving activities at the airport substantially increased beginning March 2008 when Jump Out Express began operating its skydiving business. The Green Parties claim declaration 11.B should state:

The Davis Partnerships, and their partners' use of the Sky Dive Houston Airport and its airstrip for sky diving beginning March 8, 2008 unreasonably interfered with the rights of lot owners in Sky Lakes Addition Section I or Sky Lakes Addition Section II to use the airstrip.

         As to declarations 11.C, 11.D, and 11.E, the Green Parties assert they should be reversed and stricken from the judgment.

         The Davis Parties argue the trial court correctly disregarded the jury's answer to Question No. 2 because it was irrelevant since the Green Parties settled with Jump Out Express before trial. The trial court declared, and the Green Parties do not challenge, the trial court's finding in 11.G. as to the operations conducted by Jump Out Express LLC:

[11.]G. Defendants, Suarez and the Davis Partnerships, are not liable for any claims concerning the former operations of Jump Out Express, L.L.C., the Davis Partnership's prior tenant, as a matter of law based on lease of airport property.

         The jury found skydiving operations unreasonably interfered with use of the airstrip by others beginning in March 2008, during the tenancy of Jump Out Express, LLC. The trial court's declarations to the effect that the Davis Parties' use of the airstrip did not unreasonably interfere with use of the airstrip by others is supported by the jury's answer to Question No. 1. The trial court's declarations are not inconsistent with the jury's answers, because the answers reflect the skydiving operations that unreasonably interfered with or impaired the landowners' right to use the airstrip, were conducted during the tenancy of Jump Out Express. Accordingly, issue one is overruled.

         II. Did the trial court err by declaring the Green Parties were barred by prescription and limitations from complaining that the skydiving ...


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