ETAN INDUSTRIES, INC. v. Lehmann
| Decision Date | 26 March 2010 |
| Docket Number | No. 03-07-00539-CV.,03-07-00539-CV. |
| Parties | ETAN INDUSTRIES, INC. and Etan Industries, Inc. d/b/a CMA Cablevision and/or CMA Communications, Appellant, v. Ronald LEHMANN and Dana Lehmann, Appellees. |
| Court | Texas Court of Appeals |
Mark W. Bayer, Gardere Wynne Sewell LLP, Dallas, for appellant.
Ronald Lehmann, Dana Lehmann, Giddings, pro se.
Before Justices PATTERSON, WALDROP and HENSON.
This appeal from a judgment following a jury trial arises from a dispute between appellant Etan Industries, Inc. and Etan Industries, Inc., d/b/a CMA Cablevision and/or CMA Communications ("Etan") over its authority to install, own, and operate fiber optic and coaxial cable lines on land owned by appellees Ronald and Dana Lehmann without the Lehmanns' permission. The jury found that (i) Etan trespassed and made a negligent misrepresentation concerning one of two properties, (ii) $15,000 would reasonably compensate the Lehmanns for their damages that resulted from Etan's actions, and (iii) the Lehmanns' reasonable attorney's fees through trial were $65,000. The district court entered judgment in accordance with the jury's findings. In seven issues, Etan challenges the district court's award of injunctive and declaratory relief, damages, and attorney's fees, and contends that the Lehmanns' tort claims of trespass and negligent misrepresentation are barred as a matter of law based upon limitations. For the reasons that follow, we affirm the district court's judgment.
In 1986, the Lehmanns acquired property in Lee County, Texas, which is located on Highway 77 south of Giddings (the "Hwy 77 Property"). At that time and continuing through the time of trial, Bluebonnet Electric Cooperative, Inc. ("Bluebonnet") owned and operated an electric transmission line on the Hwy 77 Property. Bluebonnet had obtained an easement from one of the Lehmanns' predecessors in interest to install and maintain an "electric transmission line or distribution line or system" on the property. Ronald Lehmann's brother, Steven Lehmann, also owned property located on Highway 77 south of Giddings, and Bluebonnet had a similar easement on his property.1
Etan operates cable television and internet systems. Etan and its predecessors in interest2 either bought preexisting lines or built them to operate its systems. Etan and its predecessors entered into pole attachment agreements with electric cooperatives, including Bluebonnet, that authorized them to attach their lines to the cooperatives' poles. In 2000, Etan and Bluebonnet entered into an amendment to their operative pole attachment agreement, that provided for a "joint project to design, construct, and maintain a fiber optic cable facility" utilizing Bluebonnet's poles along Highway 77. The amendment contemplated a fiber optic line that would attach to 125 Bluebonnet poles.3 Etan thereafter attached the fiber optic line to Bluebonnet's poles along Highway 77 and began operating the line.
Steven observed the line attached to Bluebonnet's poles on the day that Etan installed it across his property. He observed that the line crossed both his property and the Hwy 77 Property and that his property had been damaged. Ronald and Steven discussed the installation of the line that day, and they agreed that Steven would contact Bluebonnet about it. Steven did so the following day. Bluebonnet referred him to Etan. Steven then contacted Etan and spoke with its employee, Jerry Smith. At that time, Smith told Steven that Etan had an easement for the line. Steven requested a copy of the easement, and Smith said that he would send a copy to him. After some time passed without receiving a copy, Steven contacted Smith again, and Smith told him that "they'd just been having trouble finding it" but that he would send one to him. Steven contacted Smith a third time in the summer of 2001. This time Smith told Steven that he was "mistaken" that Etan had an easement. Smith told him that Bluebonnet and Etan were "in partnership" concerning the line and that Etan had Bluebonnet's permission to use Bluebonnet's easement. Steven kept his brother informed of his communications with Etan and Bluebonnet, and, upon being advised that Etan had Bluebonnet's permission to use Bluebonnet's easement, Steven and Ronald decided not to pursue the matter further.
In December 2002, Ronald heard about a Texas Supreme Court decision that cable companies could not use cooperative electrical easements for their cable lines.4 The brothers again discussed Etan's line on their properties, deciding that Steven would contact Bluebonnet again. Steven did so, and a Bluebonnet employee, Jim Wolf, told Steven that Bluebonnet had agreed to allow Etan to attach its lines to Bluebonnet's poles but that Etan had to obtain its own easements and rights-of-way. Wolf told Steven that Wolf would contact Etan and that Etan would probably be in contact. During the time that they were waiting to hear back, Ronald searched the official records of Lee County for easements that Bluebonnet or Etan had obtained on their properties and found nothing.
In the middle of 2003, the Lehmanns and Steven had not heard anything further from Bluebonnet or Etan, and they hired an attorney. Their attorney contacted Bluebonnet and requested copies of easements and other documents concerning the properties. Around July 2004, Bluebonnet provided copies of its easements that authorized it to place, construct, and operate electric transmission or distribution lines on the properties. Bluebonnet also provided the Lehmanns with copies of pole attachment agreements between Bluebonnet and Etan and Etan's predecessors. The pole attachment agreements authorized Etan to attach its lines to Bluebonnet's poles for a fee, authorized Bluebonnet to remove any unauthorized attachments from its poles at Etan's expense and charge a penalty for unauthorized attachments, and provided that each party was responsible for obtaining its own easements and rights-of-way.
In 2003, the Lehmanns acquired additional property on Highway 290 west of Giddings (the "Hwy 290 Property"). At that time, Etan owned and operated a coaxial cable line attached to Bluebonnet's poles that crossed this property.5 Ronald contacted Jerry Smith in April 2005 concerning this line, and Smith told him that he "did not have a copy of any easement that was granted that far back." Ronald then contacted Bluebonnet, and Bluebonnet subsequently provided documents concerning the Hwy 290 Property. Etan did not have an easement on the Hwy 290 Property, and Etan's pole attachment agreement with Bluebonnet provided that each party was to obtain its own easements and rights-of-way.
Steven brought suit against Etan for trespass in December 2004 concerning Etan's fiber optic line that crossed his property and sought injunctive relief for the removal of the line on his property. Etan thereafter constructed and activated an alternative line and deactivated the line that crossed Steven's property and the Hwy 77 Property in February 2005. Etan also removed the portion of the line that was on Steven's property at that time, but it did not remove the portion of the line that was on the Hwy 77 Property. Steven ultimately settled his suit with Etan in September 2005.
In October 2005, the Lehmanns brought suit against Etan for claims concerning Etan's coaxial cable line crossing the Hwy 290 Property and, in February 2006, Etan removed its line from that property after installing an alternative line. In April 2006, the Lehmanns amended their petition to include claims concerning Etan's fiber optic line crossing the Hwy 77 Property. The Lehmanns' causes of action included trespass, negligence, gross negligence, and negligent misrepresentation, and they sought damages, attorney's fees, and declaratory and injunctive relief.6 The Lehmanns' trespass claim included Etan's operation of its lines—the transmission of signals—across the Lehmanns' properties. Etan's affirmative defenses included that the Lehmanns' tort claims were barred because they were not filed within the applicable statute of limitations periods. The Lehmanns pleaded in response, among their defenses to limitations, that the discovery rule, the continuing tort doctrine, and Etan's fraudulent concealment of its wrongful conduct tolled the applicable limitations periods.
The jury trial occurred in June 2007. It was undisputed that Etan had removed the lines from the Hwy 77 Property and the Hwy 290 Property prior to trial.7 The disputed facts included (i) whether Etan had trespassed on the Lehmanns' properties or made negligent misrepresentations concerning the properties, (ii) whether Etan's alleged actions damaged the Lehmanns, (iii) the date that the Lehmanns discovered or should have discovered their injury from Etan's alleged actions, and (iv) Etan's authority to install, own, and operate its lines on Bluebonnet's poles on the Lehmanns' respective properties. The Lehmanns contended that Etan's conduct was wrongful and caused them injury and that they discovered or should have discovered their injury in July 2004 when Bluebonnet provided copies of its easements and pole attachment agreements between Bluebonnet and Etan and its predecessors. Etan countered, among its defenses, that it had a prescriptive easement on the Hwy 290 Property because the line had been on the property for over 10 years and limitations barred the Lehmanns' tort claims as to the Hwy 77 Property because the Lehmanns were aware that Etan owned the line in December 2000.
The Lehmanns' witnesses included Ronald and Steven Lehmann and Jerry Smith. As to the Hwy 77 Property, Ronald and Steven testified to the discovery of Etan's line crossing their respective properties in December 2000; communications with each other, Bluebonnet, and Etan; their efforts to determine Etan's authority to...
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