Lindemann Props., Ltd. v. Campbell
| Decision Date | 22 June 2017 |
| Docket Number | NO. 02.15-00392-CV.,02.15-00392-CV. |
| Citation | 524 S.W.3d 873 |
| Parties | LINDEMANN PROPERTIES, LTD., Appellant v. Ward A. CAMPBELL, Appellee |
| Court | Texas Court of Appeals |
ATTORNEYS FOR APPELLANT: RUSSELL R. BARTON, ROLAND K. JOHNSON, SHELBY J. WHITE ; HARRIS, FINLEY & BOGLE, P.C., FORT WORTH, TEXAS.
ATTORNEY FOR APPELLEE: JEFF MCKNIGHT, WICHITA FALLS, TEXAS.
PANEL: WALKER, MEIER, and SUDDERTH, JJ.
Appellant Lindemann Properties, Ltd. filed a motion for rehearing and a motion for en banc reconsideration of our opinion that issued on December 8, 2016. We deny both motions, withdraw our opinion and judgment dated December 8, 2016, and substitute the following.
Lindemann sued Appellee Ward A. Campbell for a declaration that Campbell's radio-transmission-tower easement terminated when he removed the original tower and replaced it with a new one. The trial court ultimately signed a take-nothing judgment in favor Campbell, concluding that the easement had not terminated, and awarded him attorney's fees. In what we construe as three issues, Lindemann challenges the trial court's findings and conclusions regarding the easement, the denial of its related request for injunctive relief, and the award of attorney's fees. We will affirm in part and reverse and remand in part.
On March 7, 1977, Howell E. Smith d/b/a Muleshoe Cattle Company granted, sold, and conveyed to Campbell's father, A.O. Campbell, Jr., "an easement or right for the installation of a radio-transmission tower, consisting of the tower itself and guy wires as necessary to support the same." The easement expressly granted the following rights:
The easement did not specify the tower's height or size, but it stated the following regarding its location:
The original tower was built in 1977 on the Archer County property referenced in the easement (the "Property"). It measured 400 feet tall and 18 inches wide, it used 1.5 gauge tubing and multiple guy wires, and it was serviced by a small building located directly adjacent to its base. A pipe fence was constructed around the original tower and the small building.
When the original tower was completed, Campbell's father's company, Haigood and Campbell, used it to facilitate two-way radio transmissions between a fleet of vehicles. Over the ensuing years, Haigood and Campbell allowed a number of tenants to mount "a dish or an antenna or something" on the tower for their own broadcast purposes, including the Archer County Sheriff's Department, the Archer County Volunteer Fire Department, Jenson Well Service, Bridwell Oil Company, Burns Operating, Motorola Communications, and SkyBeam Texas. Some paid rent; some did not.
Campbell, a successor-in-interest under the easement contract, became responsible for the original tower in 1990. Although he had it painted, its lightbulbs changed, and its guy wires inspected and tightened, he never had a structural analysis of the tower performed, including before several of the tenants began using it.
Lindemann, a family limited partnership formed in 2009, owns the Property on which the easement is located. The Property was burdened by the easement when the Lindemann family acquired it in 1983.
In early November 2011, Campbell was contacted by Chris Mayo at Site Property Company (SPC), a broker who was working on behalf of LKCM Radio Group, L.P. to find a location for LKCM's broadcasting equipment. After some initial communications about the tower and LKCM's requirements, SPC hired an engineer to perform a structural analysis of the tower to determine whether it could support the additional proposed loading. The results indicated that it would not; the tower was overloaded and in "terrible" condition. SPC then requested a structural report for the existing loads on the tower, hoping to use it to negotiate favorable terms for a potential "drop & swap," a procedure in which an existing tower is removed and replaced with "an equivalent tower as far as configuration and height but meeting current standards." The report indicated that the tower was not in compliance with the International Building Code; noted that "during the field mapping, the tower mast was observed to be visually 'snaking' with significant frame bending around each guy pull-off level above elev. 200ft"; and recommended that the tower be replaced "since the strengthening modifications required [were] too extensive and not feasible."
Campbell did not remedy any of the tower's structural issues after obtaining the engineering report, and it continued in operation. However, soon thereafter, in early 2012, Campbell began soliciting bids for the construction of a new tower and negotiating a lease with LKCM to install its broadcasting equipment on the new tower. In April 2012, Campbell and LKCM entered into a lease agreement involving a new tower, and in June 2012, Campbell accepted a quote for the construction of a new tower.1
Construction on the new tower began in October 2012 and concluded on or about November 8, 2012. The new tower stands 420 feet tall, measures 36 inches wide at its widest point, uses 2.5 gauge tubing, and is located within the same pipe fence that was originally constructed to enclose the original tower and small building. Whereas the original tower used six guy-wire anchors, the new tower uses only three, and the wires are located closer to the tower's base. As was the original tower, the new tower is serviced by a small building located directly adjacent to its base.
The original tower remained in place and in operation while the new tower was being constructed. Thus, although the new tower is located within the same pipe fence as the original tower, it is not located in the exact same location as the original tower. The following image shows the location of the new tower (on the right) in relation to where the original tower stood (on the left):
Campbell hired Gordon Parkey to construct the new tower and to remove the original tower. According to Parkey, the new tower "went live" on November 14, 2012. Around the same time, Parkey also told Tim Lindemann, Lindemann's representative, that a single antenna continued to operate on the original tower and that he would not transfer it to the new tower until he returned from performing another job and taking a trip to Colorado. Parkey's absence consequently "drug the time frame out of how long" both towers stood—and apparently operated—simultaneously. Parkey deconstructed and removed the original tower sometime in December 2012.
Lindemann sued Campbell in April 2013 and sought a declaration that the easement had terminated, a permanent mandatory injunction ordering Campbell to remove the new tower and all appurtenances thereto, and attorney's fees. During the bench trial that ensued, Tim Lindemann testified that the easement had terminated because Campbell had built a new tower, abandoned the original tower, removed the original tower, and simultaneously used both the original and new towers. Campbell agreed that the easement provides for the installation of a single radio-transmission tower, but he opined that his right to maintain the tower allowed him to remove the original tower and to construct the new one. The trial court sided with Campbell. It signed a final judgment that Lindemann take nothing on its claims and awarded Campbell attorney's fees through trial in the amount of $56,106.19 and conditional appellate attorney's fees. The trial court entered the following findings of fact, among others:
The trial court entered the following conclusions of law, among others:
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