MQ Prosper N. LLC v. Coulter

• Decision Date: 12 December 2022
• Docket Number: 05-20-00800-CV
• Parties: MQ PROSPER NORTH, LLC AND DONALD SILVERMAN, Appellants v. LISA COULTER, Appellee
• Court: Texas Court of Appeals

MQ PROSPER NORTH, LLC AND DONALD SILVERMAN, Appellants
v.
LISA COULTER, Appellee

No. 05-20-00800-CV

Court of Appeals of Texas, Fifth District, Dallas

December 12, 2022

On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-03077-2018

Before Justices Myers, Molberg, and Garcia

MEMORANDUM OPINION

KEN MOLBERG, JUSTICE

Appellants MQ Prosper North, LLC and Donald Silverman appeal the trial court's judgment for appellee Lisa Coulter. Appellants raise seven issues: whether the trial court erred by (1) issuing a declaratory judgment for Coulter; (2) overruling MQ's objections to Coulter's motion for attorney's fees and costs and ruling for Coulter on her claim for declaratory judgment; (3) overruling MQ's objections to Coulter's motion for attorney's fees and costs for defending against MQ's claim for declaratory judgment; (4) granting judgment for Coulter on her breach of easement claim; (5) granting judgment for Coulter for her trespass claim; (6) granting

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judgment for Coulter on her intentional infliction of emotional distress claim; (7) granting judgment for Coulter on her assault claim; (8) denying MQ's request to amend the permanent injunction to allow MQ to install a gate across the easement; and (9) denying MQ's request to amend the permanent injunction to allow MQ to regrade the easement on its property. We sustain appellants' fourth issue in part but otherwise affirm the judgment below in this memorandum opinion. See Tex. R. App. P. 47.4.

I. Background

MQ alleged in its ninth amended petition that it owned about twelve acres of land on Preston Road in Prosper, Texas that used to be part of a larger tract. Coulter owned and lived on two acres adjacent to the MQ property, but her property did not have access to Preston Road. Instead, Coulter used a driveway that crossed MQ's property to enter and exit her property. The Coulter property also had an express easement across the southern part of the MQ property. The driveway, which Coulter had used with the permission of the prior owner of the MQ tract, was not on the express easement.

MQ alleged that in October of 2017, it told Coulter she would no longer be allowed to use the driveway as it was being removed as part of MQ redeveloping its property. MQ asked Coulter to use the easement instead. MQ alleged that Coulter "refused and continued to use the old driveway," so on October 27, 2017, MQ's representative, Donald Silverman, delivered Coulter a notice of trespass. MQ

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alleged it learned in June of 2018 that Coulter continued to use the driveway and had obtained a permit from the Town of Prosper to construct a paved driveway partially but not entirely in the location of the easement. MQ alleged it informed Coulter her proposed driveway was partially on MQ's property. MQ hired a surveyor who confirmed Coulter "had begun building outside the easement and [was] storing construction supplies on MQ's property." Coulter "assured MQ that she . . . would build within the easement." But after a few months, MQ's surveyor returned to the property and confirmed that Coulter's new driveway was outside the easement.

MQ also alleged Coulter's contractor, Summit Paving, LLC, interfered with fencing on the MQ property while constructing Coulter's driveway and left "earth and rock" on the MQ property. Additionally, MQ stated Coulter and Summit left a gap between the driveway and street it joined, which caused water diversion and "drainage conditions" on the MQ property.

MQ alleged that on February 28, 2019, Coulter and Summit entered MQ's property to demolish the driveway they had built and "sprayed concrete on the nearby retaining wall" and left tire marks on the property. MQ instructed Coulter and Summit to cease trespassing, but MQ alleged they refused and continued to trespass. MQ alleged Coulter and Summit removed dirt and other debris and then dumped it in a drainage ditch at the end of the easement, which damaged MQ's erosion control fence and contaminated "the site that MQ ha[d] recently graded and

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compacted . . . ." MQ alleged Coulter "altered the grade" of its property and failed to maintain the easement, allowing weeds and grass to grow.

Additionally, MQ alleged Coulter had no recorded utility easement permitting her to run water or communication utilities over MQ's property. Despite this, MQ alleged, Coulter "had water and communications utilities servicing her home that ran across MQ's property without any easement rights . . . ." MQ alleged Coulter bought her property knowing-through a special warranty deed-the property did not have utility easements. In March 2019, MQ alleged Coulter began running new communications utility lines along the access easement without any authority to do so. MQ also alleged Coulter's septic system was partly on MQ's property and drained onto MQ's property, and that Coulter ran electricity across MQ's property without authority.

Based on the above, MQ brought claims for breach of easement, trespass, and declaratory judgment regarding the easement, and sought injunctive relief "to prevent Coulter and Summit from accessing or altering the MQ Property in contravention of MQ's rights and from using the Easement in contravention of the express terms thereof." MQ alleged Coulter's and Summit's conduct caused over $1 million in damages.

Coulter generally denied the claims in MQ's petition and asserted numerous affirmative defenses. Coulter filed her third amended counterclaim and request for injunction on August 9, 2019. She alleged the prior owner of the MQ property

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allowed Coulter to utilize the existing driveway and "also instructed Ms. Coulter to make improvements to the ingress and egress easement leading" to the property. Coulter alleged MQ was aware she used the driveway and allowed her to do so until a year after MQ bought the property, when Silverman blocked Coulter from accessing her house with his car. Coulter alleged Silverman then approached her truck "and began using obscenities and demanding that she use the unimproved easement" instead of the driveway to access her house, and "then threw an envelope at Ms. Coulter that hit her in the face." Coulter called the police and explained to them she feared for her and her daughter's safety.

Coulter alleged the easement was blocked and MQ had placed piles of rocks on the easement preventing her from using it. Thus, she "began the process of making the easement passable." She had the easement staked and applied for a permit from Prosper "to pave a twelve-foot driveway within the thirty-foot easement." Prosper issued Coulter a permit on June 19, 2018, and she hired Summit to pave the driveway. Coulter alleged MQ served Summit with a trespass notice "when [Summit] was preparing to pave the easement" and then filed its lawsuit and obtained a temporary restraining order prohibiting Coulter from using the existing driveway and from paving the easement. Coulter was allowed to use the driveway temporarily under a Rule 11 agreement, which the parties agreed to extend at the July 5, 2018 temporary injunction hearing. Afterwards, Coulter alleged MQ erected metal poles on the easement, blocking her access to it.

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In response, Coulter alleged she filed a counterclaim and emergency request for a temporary restraining order to require MQ to remove the poles and to prevent MQ from impeding Coulter's access to the easement and to prevent it from interfering with Coulter's use of the existing driveway until the poles were removed. The trial court entered the temporary restraining order and later entered a temporary injunction stating Coulter was allowed to utilize and pave the easement. Coulter alleged she then began again to pave the driveway. She employed Rhodes Surveying to mark the easement, but "unbeknownst to [Coulter], Rhodes incorrectly surveyed and staked the easement." Thus, Coulter conceded, a portion of the driveway was paved outside of the easement. Coulter also alleged MQ engaged a survey company that trespassed onto Coulter's property, "at the direction of MQ," and Silverman harassed Coulter's paving company, making derogatory comments and walking on freshly poured concrete.

Coulter hired a second survey company, Sparr Surveys, which determined that the MQ survey was accurate and that a portion of the driveway was thus outside the easement. To finally resolve the issue, Coulter requested MQ's survey company to stake the easement so she could move the portion of the driveway outside the easement inside the easement. MQ refused to allow its survey company to stake the easement, even at Coulter's expense.

Coulter also alleged that MQ harassed her in other ways. She stated she provided MQ with a CoServ/Denton County Electric Cooperative easement giving

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CoServ the right to place and maintain electric transmission and distribution lines over 160 acres, including the Coulter and MQ properties. Coulter alleged MQ's surveyor confirmed to MQ that CoServ held such an easement. Despite this, Coulter alleged MQ claimed the electric lines serving the Coulter house were trespassing on MQ's property. MQ also told Coulter it planned to cut all utility lines to the Coulter residence. MQ cut Coulter's internet line on December 19, 2018, and it cut her water line on December 20, 2018.

Coulter alleged that, additionally, MQ representatives "continuously trespassed on [Coulter's] property and removed her personal property such as fence panels and t-poles." After Coulter obtained a court...