BONNIE SUDDERTH, Justice.
In five issues in this dispute over 425 square feet of property,
We related the underlying facts in this case in RayMax Managemet, 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, 2017 WL 1001368 (U.S. May 15, 2017) (No. 16-1112), which is dispositive of two of the issues in this appeal and informs the appeal's remaining issues.
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.
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,
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,
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.
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 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.
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
We set out the following facts in RayMax I, which are supported by the parties' evidence at trial:
The March 1994 lease was admitted into evidence. Because the parties do not dispute on appeal that a breach occurred, we do not revisit the terms of the lease or lease amendment except as pertinent to the jury's excuse finding. The 1994 lease states, in pertinent part,
Exhibit "A" of the lease contained the following, which shows the hand-drawn boundaries of the leased premises.
Another exhibit showed that on March 23, 1994, SBC's real estate department had completed a form to order a site survey, which Baumgardner testified meant that SBC had ordered a survey in 1994. Baumgardner said that he did not know if that survey was given to Ray but that the site plan, "which was contained on the zoning document that was supplied that [Ray] signed, as well as the zoning 1 construction drawing page that was contained in [Ray's] safe," reflected the information contained in the 1994 survey.
The trial court admitted an exhibit consisting of documents found in Ray's safe after the lawsuit was filed.
Although the site map is dated April 4, 1993, the collection of documents also included Ray's March 1, 1994 warranty deed with vendor's lien; because Ray did not own the property until March 1, 1994, this means that the date on the site plan, which states that Ray is the lessor and SBC is the lessee, bears a typo and should have been correctly dated April 4, 1994.
The collection of documents also included a copy of the March 1994 lease and a survey plat indicating that the City required 10-foot setbacks on both bordering streets, which Baumgardner testified had required SBC to relocate the cell tower to a different portion of the leased premises. The collection contained Ray's title insurance policy on the entire tract, his HUD settlement statement showing that he had closed on the property in March 1994, the property's recording receipt from Tarrant County, Ray's deed of trust note on the property and his March 1, 1994 promissory note, and the 1995 release of lien, among other papers. And the collection included an application for special exception, variance, or interpretation of provisions of the zoning ordinance to the City of Fort Worth signed by Ray on April 4, 1994. The application requested a special exception to erect a cellular tower antenna on the site.
Two more exhibits contained a two-page fax. The first page was the May 3, 1994 fax transmittal memo and architectural rendering of the leased premises site plan from the architectural firm to SBC's site acquisition agent Gary Vest with the notation, "Site plan submitted to Ft. Worth. Hearing is 5-4-94 @ approx. 3:00 p.m. Will let you know of any required changes after we hear from Peter Kavanagh." The second page was the site map as rendered by the architectural firm, expanded as a separate exhibit below.
As set out above, Paragraph 5 of the March 1994 lease required RayMax to cooperate with the building permit process. On August 4, 1994, SBC notified Ray that the City had issued the building permit on July 1, 1994, making that the lease's commencement date. As testified by Baumgardner, building permit hearings are open to the public, and building permits are available to the public for review.
On the lease's illustration of the leased premises, Baumgardner acknowledged that the boundary line of the leased premises was to the left "and also above" the billboard. But he opined that based on his review of the documents, Ray was informed in 1994 of the fence's proposed location "to the right and below" the billboard pole when Ray himself attached the site map to the building permit application.
When asked whether from 1994 until 2013, when the lawsuit was filed, RayMax ever complained to SBC about its use of the property, Baumgardner replied, "No, sir."
The final acceptance by the city inspector of the fence extension by MetroPCS was January 31, 2006. The building permit lists RayMax as a contractor, which Baumgardner testified indicated that RayMax was performing "some kind of contracting service related to this installation." The MetroPCS site plan is set out below:
The 2007 amendment provided for an extension of the 1994 lease for four additional five-year terms and an increase in rent commencing July 1, 2014, but otherwise provided for the terms of the 1994 lease to "remain in full force and effect," as ratified and affirmed. RayMax could have given notice 90 days before July 1, 2014, the new term of the lease, that it elected not to renew the lease, but it did not do so.
Ray was eighty-one at the time that he testified via video deposition.
Ray acknowledged that the lease provided for the tenant to survey the land at a later date but said that he did not ask anyone whether a survey had been prepared "until we got into this situation."
The remainder of the parties' evidence focused on damages.
b. Applicable Law
Waiver is the intentional relinquishment of a right actually known, or intentional conduct inconsistent with claiming that right. Ulico Cas. Co. v. Allied Pilots Ass'n, 262 S.W.3d 773, 778 (Tex. 2008). The elements of waiver include (1) an existing right, benefit, or advantage held by a party; (2) the party's actual knowledge of its existence; and (3) the party's actual intent to relinquish the right, or intentional conduct inconsistent with the right. Id. (citing Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996)). While a party's express renunciation of a known right can establish waiver, "[s]ilence or inaction, for so long a period as to show an intention to yield the known right, is also enough to prove waiver." Tenneco Inc., 925 S.W.2d at 643.
When a party relies on inferred or implied waiver by conduct, it is that party's burden "to produce conclusive evidence that the opposite party manifested its intent to no longer assert its claim." Nat'l Oilwell Varco, L.P. v. Flowserve Corp., No. 01-13-00388-CV, 2015 WL 1967490, at *7 (Tex. App.-Houston [1st Dist.] Apr. 30, 2015, no pet.) (mem. op.); see Loch `N' Green Vill. Section Two Homeowners Ass'n v. Murtaugh, No. 02-12-00094-CV, 2013 WL 2339902, at *7 (Tex. App.-Fort Worth May 30, 2013, no pet.) (mem. op.) (stating that, coupled with judicial admissions, the evidence "establishe[d] appellant's long-term acquiescence in violations" of the relevant restrictions in the parties' agreement, supporting summary judgment for appellees based on waiver).
Paragraph 3 of the March 1994 lease provides that the twenty-year lease term would not begin until the City of Fort Worth issued a building permit. Paragraph 5 of the March 1994 lease provides that the lease was contingent until all certificates, permits, and approvals from federal, state, and local authorities were obtained, i.e., the City's approval of SBC's site plan, and further provides that RayMax had to cooperate with SBC to obtain the approvals. RayMax did so on April 4, 1994, when Ray signed the application for a special exception for the leased premises for placement of a cell tower, which Baumgardner testified was a building permit application of which the site plan was a component. The first page of the documents found in Ray's safe is a site map. The face of the site map includes the statement, "Proposed 6'0" chainlink fence," illustrated by a line of Xs to the right side of the demarcated billboard pole. Baumgardner opined that, based on his review of the documents, Ray was informed in 1994 of the fence's proposed location to the right of the billboard pole when he attached the site map to the building permit application. The record reflects that Ray signed off on the site map in 1994, even though he did not learn of the Walker survey until it was produced in the March 2013 email. Ray admitted that he "could have seen" the site plan, which was found in his safe, and the fence was actually built to the right of the billboard pole, consistent with the site plan.
In 2002, RayMax received a letter containing the metes and bounds description determined by SBC to govern the premises but said nothing, even though it differed from the illustration attached to the lease.
Further, although MetroPCS extended the fence in 2006, Ray nonetheless signed an amendment to the lease in 2007 that extended the lease's terms, modified the amount of rent, and issued to him a one-time $10,000 payment. Ray did not ask anyone to move the fence or return it to its pre-2006 location even though it was "very visible" and "not hidden." Instead, RayMax was listed as a contractor on MetroPCS's building permit application.
RayMax acquiesced in the actions of SBC and its sublessees for over nineteen years, until 2013: Baumgardner testified that from 1994 until 2001, the fence was on the right side of the billboard pole, and from 1994 until a few months before Ray filed the lawsuit in 2013, Baumgardner was unaware of any complaints related to the location of the fence or equipment on the leased premises. Ray took no action after the 2006 extension until 2013.
Under both our legal and factual sufficiency standards, the jury could have reasonably found that the above evidence showed that RayMax had actual or constructive knowledge of its right to claim that the fence should have been placed to the left of the billboard pole but took no action to enforce its right for over a decade. Therefore, we overrule this portion of RayMax's first issue and its second issue. In light of our disposition here, we do not reach the remainder of RayMax's first issue. See Tex. R. App. P. 47.1.
C. Future Compliance with Lease Term
In its third issue, RayMax argues that the trial court erred by "declining to order SBC to comply with the lease agreement for the remainder of the lease term." RayMax contends that if this court finds the evidence legally sufficient to support Question 2, as we have done above, then because this finding "does not pertain to actions after suit was filed . . . SBC should be ordered to comply with the lease agreement through 2034." RayMax refers us to its motion for JNOV and motion for omitted findings to support of this argument's preservation. However, both motions focused primarily on cancelling the lease, not continuing it,
Having overruled RayMax's dispositive issues, we affirm the trial court's judgment.
Ray said that he did not pull the building permit records for any of the improvements related to the leased property. He did not know when the encroaching equipment was erected on his property because he did not go to each of his properties and look at them very often. When asked whether he thought the equipment had been put in around 2000, 2001, or some year after that, Ray replied, "I'd say it was back in that . . . time frame." When asked for the basis of his statement, Ray said, "Well, I don't think it was in recent years that it was put on. I — I don't know the exact date it was put on there," but he thought it was around 2001 because the billboard people had been having a problem "for a while" with accessing the billboard sign to maintain it. Ray said that a RayMax employee had mowed the grass on the site every two or three weeks since he had owned the property but that "they're not down there looking at telephone equipment and stuff like that."
Grant testified that the Walker survey contained "a lot more land" than Exhibit A of the lease, extending "clearly beyond the billboard." He stated that he thought the Walker survey contained around 300 square feet more than the leased premises. Grant clarified that the Walker survey was a five-sided figure while the leased premises was a four-sided figure. He further testified that the fence that was moved was not in compliance with the 2001 Walker survey but rather was slightly outside of it. Grant said that Walker made a mistake when he surveyed the leased premises.