Universal Printing Co., Inc. v. Premier

• Decision Date: 22 February 2001
• Docket Number: No. 01-99-00429-CV.,01-99-00429-CV.
• Citation: Universal Printing Co., Inc. v. Premier, 73 S.W.3d 283, 2001 WL 170964 (Tex. App. 2001)
• Parties: UNIVERSAL PRINTING CO., INC.; David W. Claxton; Matthew Kalisek; Alda Escobedo, Independent Executrix of the Estate of Ruben C. Martinez, Deceased; Rabih S. Assaf; J. Linne Girouard; and Donald J. Pinckard, Appellants, v. PREMIER VICTORIAN HOMES, INC. and City of Houston, Appellees. Premier Victorian Homes, Inc., Appellant, v. Universal Printing Co., Inc.; David W. Claxton; Matthew Kalisek; Alda Escobedo, Independent Executrix of the Estate of Ruben C. Martinez, Deceased; Rabih S. Assaf; J. Linne Girouard; and Donald J. Pinckard, Appellees.
• Court: Texas Court of Appeals

73 S.W.3d 283

UNIVERSAL PRINTING CO., INC.; David W. Claxton; Matthew Kalisek; Alda Escobedo, Independent Executrix of the Estate of Ruben C. Martinez, Deceased; Rabih S. Assaf; J. Linne Girouard; and Donald J. Pinckard, Appellants, v. PREMIER VICTORIAN HOMES, INC. and City of Houston, Appellees.

Premier Victorian Homes, Inc., Appellant, v. Universal Printing Co., Inc.; David W. Claxton; Matthew Kalisek; Alda Escobedo, Independent Executrix of the Estate of Ruben C. Martinez, Deceased; Rabih S. Assaf; J. Linne Girouard; and Donald J. Pinckard, Appellees.

No. 01-99-00429-CV.

Court of Appeals of Texas, Houston (1st Dist.).

February 22, 2001.

Rehearing Overruled March 8, 2002.

David W. Holman, Helen A. Cassidy, Karl C. Hoppess, Daniel P. Meanor, Sheila Haddock, Houston, for appellant.

David A. Furlow, Tracey D. Conwell, Houston, for appellee.

Panel consists of Justices MIRABAL, TAFT, and PRICE.^*

OPINION

MARGARET GARNER MIRABAL, Justice.

In this dispute over land access in the Houston Heights, a homebuilder sued neighboring landowners to prevent them from blocking an alley. The homebuilder prevailed in a bench trial. The homeowners appeal the trial court's judgment, awarding $10,000 in actual damages and $100,000 in attorney's fees. We affirm.

I. Case Background

The homebuilder, Premier Victorian Homes, Inc. ("Premier"), sued several individuals and a printing company (collectively, "the homeowners") to obtain and maintain access to land owned by Premier. Premier alleged the homeowners were intentionally cutting off access to three homes it was building. In an amended petition, Premier added the City of Houston as a defendant.

In its live pleading at the time of trial, Premier alleged civil conspiracy and common law nuisance claims and sought a declaratory judgment, permanent injunction, damages, and attorney's fees. The homeowners pursued a counterclaim against Premier and a cross-claim against Paul Gomberg, president of Premier, alleging trespass and seeking injunctive relief.

Following a five-day bench trial, the trial court entered the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. Since January 30, 1998, Plaintiff has been the owner in fee simple of a parcel of real property and of all improvements on that property located in Harris County, Texas, more particularly described as follows:

The North 25' of Lot 18 and Lot 19 of Block 303 (001*TR 25) Houston Heights Addition, Harris County, Texas (hereinafter the "Property").

2. Plaintiff purchased the Property for the purpose of constructing three (3) Victorian homes for resale to the public.

3. Plaintiff received building permits from the City of Houston to construct all three houses, allowing for alley access to rear-loading garages for each house.

4. All of the Defendants, other than the City, own property either on Cortlandt or Arlington that abuts the common 15' alley that runs behind the Property.

5. Plaintiff was prevented from gaining access to the alley by Defendants Universal Printing Company, Inc., Davis W. Claxton, Amy M. Ell, Matthew Kalisek, Alda Escobedo, as Independent Administratrix of the Estate of Reuben [sic] C. Martinez, Rabih S. Assaf, J. Linne Girouard, and Donald J. Pinckard (hereinafter collectively referred to as "Defendants") who had constructed fences in and/or maintained other obstructions such as automobiles and/or filed affidavits of adverse possession claiming ownership in a portion of the alley.

6. Because of the actions of Defendants, Plaintiff was unable to complete construction of one of the homes and thereby suffered permanent damages.

7. Because of the actions of Defendants, Plaintiff incurred attorney's fees in prosecuting its claim.

8. Plaintiff filed the above referenced cause seeking declaration of its rights in and to the alley as well as a permanent injunction, money damages, and attorney's fees.

9. The City of Houston was brought into the lawsuit as a necessary party to determine the respective rights of the parties vis a vis the alley.

Should any of these findings of fact be deemed conclusions of law, then they shall be treated as such.

CONCLUSIONS OF LAW

1. Plaintiff's declaratory judgment action is maintainable.

2. It is declared that the alleys were publicly dedicated in 1892 pursuant to the map or plat thereof, and the alleys are public.

3. Defendants' properties are subject to the public dedication as stated in the original map or plat of the Houston Heights.

4. That ownership interest in the alley is subject to an individual's superior rights of ingress and egress in the alleys.

5. The Plaintiff has the private right of ingress and egress through the alley, including vehicular ingress and egress.

6. Defendants had a right to use the alley up until Plaintiff requested to exercise its superior rights to use the alley.

7. Defendants had no right to keep obstructions in the alleys after Plaintiff requested use of the alley.

8. Defendants' obstructions constituted a nuisance, particularly to Plaintiff.

9. There was a conspiracy among the Defendants to support each other to wrongfully maintain their fences in the alley.

10. Defendants entered into a conspiracy to keep Plaintiff from exercising its legal right to ingress and egress in the alleys.

11. Defendants' affidavits of adverse possession were perjured because when they filed the affidavits they did not know whether the affidavits were accurate or not; the affidavits were perjured because the Defendants did not have personal knowledge of the information contained therein; and the affidavits were erroneous and wrongful.

12. Defendants are jointly and severally liable to Plaintiff for damages in the amount of Ten Thousand and No/100 Dollars ($10,000.00).

13. The indebtedness of Defendants to Plaintiff for damages bears prejudgment interest at the rate of ten per cent (10%) per annum from March 19, 1998 until paid, and post-judgment interest at the rate of ten per cent (10%) per annum from November 13, 1998 until paid.

14. Defendants are jointly and severally liable to Plaintiff for costs of court.

15. The indebtedness of Defendants to Plaintiff for costs of court bears post-judgment interest on this sum at the rate of ten percent (10%) per annum from November 13, 1998 until paid.

16. At trial Plaintiff proved up reasonable attorney's fees.

17. Defendants are jointly and severally liable to Plaintiff for attorney's fees incurred by Plaintiff in the amount of One Hundred Thousand and No/100 Dollars ($100,000).

18. The indebtedness of Defendants to Plaintiff for attorney's fees bears post-judgment interest on this sum at the rate of ten percent (10%) per annum from November 13, 1998 until paid.

19. Plaintiff may put gravel or whatever material it chooses in the alley without following any particular City of Houston code or ordinance. No City of Houston code or ordinance requires any other material.

20. Should any of these conclusions of law be deemed findings of fact, then they shall be treated as such.

The homeowners bring five issues with multiple sub-parts, asserting the trial court erred by (1) denying them a jury trial; (2) denying a trial continuance; (3) awarding attorney's fees; (4) determining Premier has a choice in surface material for the alley; and (5) awarding damages.¹

II. Jury Demand

In issue one, the homeowners assert the trial court committed reversible error by denying them a jury trial. To make a proper jury request, a party must timely (1) make a written request for a jury trial, and (2) pay the jury fee. Tex.R. Civ. P. 216; Huddle v. Huddle, 696 S.W.2d 895 (Tex.1985). Here, the issue is whether the homeowners timely paid their jury fee.

On April 16, 1998, the homeowners demanded a jury trial in their first amended answer. Also on April 16, the homeowners tendered $105 to the court clerk (a $101 check and $4 cash). The court clerk did not credit any of the $105 sum to the jury fee.

The case was set for trial on October 19, 1998. Counsel for the homeowners determined that, according to the district clerk's records, the jury fee had not been paid. Immediately after discovering that the clerk's records showed the jury fee was unpaid, the homeowners tendered a $30 jury fee. The next day, on October 20, 1998, the homeowners filed an emergency motion to place the case on the jury docket, which the trial court addressed at a hearing on October 23, 1998.

The reporter's record from the emergency hearing consists of extensive discussion by counsel and testimony by a deputy clerk. Counsel for the homeowners attributed all error, if any, for untimely payment to the court clerk's office. According to an attorney for the homeowners, he believed and intended that the $105 sum paid on April 16, 1998, included payment of a $30 jury fee. Although the face of the check did not contain a breakdown of the fees paid, counsel showed an annotation, made by the law firm, on the check stub (file-stamped by the clerk's office) that indicated payment of a $30 jury fee, as well as a $45 constable fee and $26 filing fee. Counsel asserted the check stub put the clerk on notice about the jury request and that the clerk's office was in error by failing to take affirmative action to correct any payment shortages with regard to the jury fee. Counsel also complained that the clerk's office had not mailed an itemized receipt to the law office, showing how the $105 had been assessed.

Before the deputy clerk entered the courtroom to testify, the trial court indicated it would not consider the non-payment of the jury fee to be clerk error if the homeowners did not pay enough money for a jury fee, as follows:

THE COURT: I'm not talking about the check stub. I'm talking about when you file a case, there's some fees that have to be paid and a jury fee is not one of them. So if you give them a check, they're going to allocate it to the fees that have to be paid.

....

THE COURT: Okay. I—I would not be impressed...