Marin Real Estate Partners, L.P. v. Vogt

• Decision Date: 23 November 2011
• Docket Number: No. 04–10–00602–CV.,04–10–00602–CV.
• Citation: 373 S.W.3d 57
• Parties: MARIN REAL ESTATE PARTNERS, L.P., Derra Edwards, Hugh L. Lam, James P. Shee, Cheng–Lein C. Shee, Ricardo Velasquez, Gary M. Maganaris, Robin K. Pang–Maganaris, Dennis E. Gauthier, Cecilia G. Gauthier, Leal Urgin, Dresden & Goldberg Invesco, LLC, Maganaris Family Trust, and Boerne Trust's, G2 Assets, LLC, Appellants v. John E. VOGT and Nelda L. Vogt, Appellees.
• Court: Texas Court of Appeals

373 S.W.3d 57

MARIN REAL ESTATE PARTNERS, L.P., Derra Edwards, Hugh L. Lam, James P. Shee, Cheng–Lein C. Shee, Ricardo Velasquez, Gary M. Maganaris, Robin K. Pang–Maganaris, Dennis E. Gauthier, Cecilia G. Gauthier, Leal Urgin, Dresden & Goldberg Invesco, LLC, Maganaris Family Trust, and Boerne Trust's, G2 Assets, LLC, Appellants
v.
John E. VOGT and Nelda L. Vogt, Appellees.

No. 04–10–00602–CV.

Court of Appeals of Texas,
San Antonio.

Nov. 23, 2011.

[373 S.W.3d 65]

Todd A. Prins, Prins Law Firm, San Antonio, TX, for Appellants.

Stephen B. Schulte, Stephen B. Schulte, P.C., Kerrville, TX, Timothy Patton, Timothy Patton, P.C., San Antonio, TX, for Appellees.

Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.

OPINION
MARIALYN BARNARD, Justice.

This is an appeal from a judgment in favor of appellees John E. Vogt and Nelda T. Vogt on their claims for injunctive relief and damages for easement encroachment, diversion of surface water, and malicious prosecution. On appeal, appellants Marin Real Estate Partners, L.P., Derra Edwards, High L. Lam, James P. Shee, Cheng–Lein C. Shee, Ricardo Velasquez, Gary M. Maganaris, Robin K. Pan–Maganaris, Dennis E. Gauthier, Cecilia G. Gauthier, Leal Urgin, Dresden & Goldberg Invesco, LLC, Maganaris Family Trust, and Boerne Trust's, G2 Assets, LLC (collectively “Marin”) raise nine issues challenging the judgment. The issues include challenges to: the sufficiency of the evidence, the award of injunctive relief, the admission of expert testimony, and the viability of judgment following a default judgment against one of the original defendants. We affirm the trial court's judgment.

Background

In the early 1950s, the Vogts purchased a nineteen-acre tract of land in Kendall County, Texas. The couple has lived on this property since it was purchased. In 1975, the Vogts purchased an adjacent 0.911–acre tract (“the one-acre tract”). The Vogts' deed to the one-acre tract expressly granted the Vogts a twenty-foot easement for ingress and egress from the highway to the one-acre tract. This easement was the only way for the Vogts to access the one-acre tract without trespassing or driving through a field and across a drainage ditch on the nineteen-acre tract.

In 2005, a real estate developer, Trada Partners VI, LP, purchased the property adjoining the Vogts' one-acre tract. The property purchased by Trada Partners adjoined the Vogts' twenty-foot easement. The City of Boerne notified the Vogts about a public meeting scheduled to discuss Trada Partners's rezoning request with regard to the property. Trada Partners wanted to build a development on the property, which was to be called The Village at Stone Creek. The development would consist of thirty-two four-plex apartment buildings. At the time of the purchase, the adjoining property contained a few buildings and a baseball field.

According to the Vogts, at the public meeting they met John Sieckert who was either the president or vice president of Trada Partners. Mr. Vogt testified he welcomed Sieckert to the neighborhood and advised him about the twenty-foot easement. According to Marin, Mr. Vogt

[373 S.W.3d 66]

agreed to swap his easement for another easement to be provided as part of the new development. The new easement would be paved and gated. Marin contends Trada Partners's development moved forward in reliance upon Mr. Vogt's representation that he would “swap easement for easement,” and it was only after Trada Partners had expended millions of dollars on the development that the Vogts filed suit.¹ Mr. Vogt denied he ever agreed to swap his current easement for a new easement, admitting only that on a single occasion he “casually mentioned to someone with the City of Boerne that he might be willing to exchange easements” if it would enable to him to access his one-acre tract. Mr. Vogt denied ever speaking to anyone with Trada Partners or Marin about this, and claimed no one from Trada Partners or Marin ever even offered to exchange easements with him or provide the Vogts with a new easement. It is undisputed there was no written agreement concerning an exchange of easements.

In any event, Mr. Vogt ultimately became concerned when he saw dirt and debris being piled onto his easement and tried to contact someone at Trada Partners. Mr. Vogt testified that in January 2006, he met with Sieckert and showed him how construction crews were piling dirt on the easement. According to Mr. Vogt, Sieckert stated, “If you think ... we're going to change our plans because you say that's your easement ... you're greatly mistaken.” Despite Sieckert's alleged statement, the subdivision plat for the development expressly recognized the Vogts' “20' ingress and egress easement.”

There was testimony that during construction, Trada Partners built pads, hauled in dirt, and raised the level of the property, including the easement, by as much as two-and-a-half feet. After Marin acquired part of the development, it continued the construction, encroaching on the easement and raising the level of the property. In February of 2006, Mr. Vogt sent a letter to Trada Partners that provided the developer with deed record references for the easement. Mr. Vogt testified he sent the letter because Trada Partners and Marin had erected a fence that blocked ingress and egress by way of the easement, built a rock and dirt wall on the easement, and dug a large ditch that prohibited passage. In response, Mr. Vogt received a letter from counsel for Trada Partners advising Mr. Vogt that Trada Partners had provided him with a “private gate” for access, but the easement had been terminated by eminent domain, had been unusable for years, and had been abandoned by non-use. According to Mr. Vogt, none of these statements was true, and we have found nothing in the record to support any of Trada Partners's assertions. Trada Partners's attorney concluded the letter by directing Mr. Vogt to “cease and desist” from attempts to use the easement—despite the fact the Vogts owned the easement by recorded deed.

After receiving the letter, Mr. Vogt hired an attorney, who wrote a letter to Trada Partners's attorney advising him the Vogts had a valid, recorded easement memorialized in the plats Trada Partners filed with the City of Boerne. He further advised Trada Partners's attorney the easement never terminated and had been in use by the Vogts until that use was barred by Trada Partners's actions. The letter demanded the easement be returned to its original condition. Evidence in the record shows Trada Partners did not restore

[373 S.W.3d 67]

the easement, but continued encroaching on and blocking the easement. At this point, the Vogts filed suit against Trada Partners. Marin and the other buyers were later added as defendants in the suit after they acquired portions of the development.

In the suit, the Vogts alleged the development encroached upon their easement, rendering it unusable. They further asserted the alterations, specifically increases in elevation, caused the diversion of the natural flow of surface water onto the easement and the Vogts' property, both nineteen and one-acre tracts, resulting in flooding. The Vogts sought temporary and permanent injunctive relief, requiring the removal of any structures interfering with the easement, or damages for the loss of use of the easement and for damages due to surface water diversion.

Before trial, the trial court granted a temporary injunction in favor of the Vogts. Trada Partners VI, LP v. Vogt, No. 04–06–00723–CV, 2007 WL 163181, at *1 (Tex.App.-San Antonio Jan. 24, 2007, no pet.). The temporary injunction enjoined Trada Partners and Marin from interfering with the Vogts' use of the easement. Id. Trada Partners and Marin appealed the granting of the temporary injunction, and this court reversed, holding the Vogts had failed to “establish a sufficient probability of irreparable injury in the absence of a temporary injunction” because Mr. Vogt admitted the obstruction of the easement did not completely deprive the Vogts of access to the one-acre parcel; they could access the one-acre parcel through their other tract of land, which was contiguous to the one-acre tract. Id. at *1–*2. Because the Vogts would only suffer inconvenience if the injunction was lifted, they did not establish a sufficient probability of irreparable injury, an element that must be established to obtain a temporary injunction. Id. at *2.

Trada Partners and Marin answered the suit. Marin asserted a general denial and the affirmative defenses of estoppel, consent, fraud, and failure to mitigate. Marin later asserted a counterclaim seeking declaratory relief, specific performance, a finding of promissory estoppel, injunctive relief and damages based on the Vogts' alleged negligent misrepresentations, fraud, breach of contract, and trespass.

After suit was filed, the Vogts and Trada Partners entered into a Rule 11 agreement that provided: (1) the Vogts owned the easement, which was recorded in the deed records; (2) Trada Partners would not challenge the existence of continuing validity of the easement nor assert it has been extinguished in any manner; and (3) the Vogts were entitled to “repair and maintain the Easement at their discretion” as long as they did not “unduly interfere with the servient estate,” i.e., the development. When the easement became impassable, the Vogts' counsel advised counsel for Trada Partners by letter that if the easement were not restored to allow ingress and egress, the Vogts would exercise their rights under the Rule 11 agreement to maintain the easement themselves. When no action was taken, the Vogts hired a contractor to return the easement to its original condition, and the Vogts' counsel notified Trada Partners's attorney, who now represented Marin as well, of their intentions. In response, Trada Partners's attorney asked for the name of the contractor, claiming it was to coordinate activities....