### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-07-00539- CV

Etan In dus trie s, Inc. and Etan In dus trie s, Inc., d/b /a CMA Cablevision and /or

CMA C om m uni cations, Appellan ts

v. Ronald L ehm ann an d Dana L ehm ann, Ap pellees

F ROM TH E DISTRI CT COURT O F LEE CO UNTY, 21ST JUDICI AL DISTRICT NO. 13,0 10, H ONO RAB LE TERRY L. F LENNIK EN, JUDGE P RESIDING

D I S S E N T I N G O P I N I O N

I respe ctfully d is s e nt. By Dec ember 2002, the L ehmanns knew or should have known that Etan did not have a contra ctual or leg al rig ht to use Blu eb o nnet’s ease ment, and had rea son
to believe that Etan did not have its own ease ment over their proper ty

. They waited to file suit until October 2005, more than two y ear s later. Consequently , their tort claims are barr ed by limit ations

as a matter of law. Be cause the L ehmanns’ tort claims are barr ed, an d b ec au s e I conclude the
L ehmanns are not e ntitled to either injunctive or decla ratory relief

, I would dissolve the injunction and reve rse the portions of the d i s t ri ct court judgme nt awa rding damag es, decla

ratory relief

, and attorney s’ fe es.Lim itation s The majority applies the doctrine of fra u d u l ent conce alment and holds that the

L ehmanns did not actua lly know until J uly 2004 that Etan was not authorized to use the Blue bonnet

ease ment and that the place ment of the cable s was, there fore , actionable

. Howeve r, even construing the fac ts and evidenc e in a light most favor able to the L ehmanns with respe ct to their alleg ations of fra udulent conce alment, the L ehmanns’ cause s of action, in fac t, acc rued in Dec ember 2002, when 1 they acquir ed knowledg e of fac ts that, in th e ex er ci s e o f rea sonable diligenc e, would lead to the discovery of the wr ong ful ac t.
I t is undispute d th a

t th e L e hmanns lear

ned that Etan had run cable along Blue bonnet’s poles on the Hig hway 77 Property in D ece mber 2000. The L ehmanns contend that they wer e told, and believed, that Etan either had its own ease ment or had an ag ree ment with Blue bonnet wher eby it was authorized to use Bluebonnet’s easeme nt fo r i t s cable lines. Howeve r, by Dec ember 2002, (1) Blue bonnet had told the L ehmanns that Etan, while permitted to attach its cable to Blue bonnet’s poles, was contra ctually obliga ted to acquir e its own ease ments from the proper ty owner , (2) t h e L ehmanns knew that Etan had failed to provide them with any proof of its having acquir ed its own

ease ment, and (3) the L ehmanns had sear ched the L ee County rec ords and found no rec ord that
Etan or any other entity had acquir ed an ease ment for cable lines over their proper ty

. The L ehmanns

For the purposes of the analy sis in this case , I express no opinio n as to whether the 1 dis co v er y rul e is applicable under the circ umstances prese nted here or whether Etan’s conduct constituted fra

udulent conce alment. Under the fac ts of this cas e, l imitations has run even assuming, without deci d i n g, t h at the L ehmanns have the benef it of the discovery rule and the doctrine o f fra

udulent conce alment. See Bordelon v. Pec k , 661 S.W .2d 907, 908 (Tex. 1983) (fr audulent conce alment); Steel v. Rhone Poulenc, Inc. , 962 S.W .2d 613, 618 (Tex. App.—Houston [1st Dist.] 1997), aff’d , 997 S.W .2d 217 (Tex. 1999) (discove ry rule). 2we re also awa re in Dec ember 2002 of the Krohn case , which held that cable comp an i es we re 2 not permitted to “pig g y -bac k” on elec tric cooper ative ease ments. See Marcus Cable Assocs., L.P.

v. Krohn , 90 S.W .3d 697, 699 (Tex. 2002) (ea sement that permits holder to use private proper ty for
purpose of construct i n g and maintaining “an elec tric transmission or distribution line or sy stem” does not allow ea sement to be used f or ca ble-tele vision li nes). By Dec em b er 2 0 0 2 , then, t he L ehmanns knew or shoul d have known of facts that,
in the exercise of rea sonable diligenc e, would have led them to the discovery that Etan did not have

a contra ctual or leg al rig ht to use Blue bonnet’s ease ment. The L ehmanns also had rea son to believe that Etan did not have its own ease ment over their proper ty

. Consequently , reg ardle ss of the 3 application of either the doctrine of fra udulent conceal m en t o r the discovery rule, limit ations beg an to run at the latest in Dec ember 2002. See Bell v. Showa Denk o, K.K. , 899 S.W .2d 749, 754 (Tex. App.—Amar illo 1995, writ denied) (limitations period trig g e r e d when plaintiff has knowledg e of fac t s that would cause a rea sonable person to diligently make inquiry to deter mine his leg al rig hts). The L ehmanns did not bring their tort claims within two y ear s of when they acc rued.
See Tex

. C i v . P rac. & Rem. Code Ann. § 16.003(a) (West 2008) (two-y ear statute of limit ations applies to a ction for trespass or injury to pr operty ). There fore , their tort claims are barr ed, and the

Given that the L eh m an n s were awa re of the holding of the Krohn case , I do not find 2 signific ant that they

“did not have a

copy of the de cision or eve n know its name.” A point confirmed by

the L ehmanns’ se eking the advice of an a ttorney in mid-2003. 3 3district court’s judg ment should be reve rsed. Schneide r Nat’l Car riers, Inc. v . Bates , 147 S.W .3d

264, 274-75 (Te x . 2004) (“ Acc rual of limitations is a question of law for the cour t.”). 4

Dec laratory Relief

I n addition, the majority er rs b y h o lding that the district court’s g rant of the
L ehmanns’ reque sted decla ratory relief was proper
. The district court made the following decla rations:

1. Blue bonnet’s elec trical ease ment acr oss the Hig hway 77 Property and the Hig hway 290 Property did not and does not provide Etan with a telecommunica tions ease ment or any rig ht-of-w ay on, over or acr oss those proper ties for the construction, installation, prese nce, opera tion or maintenanc e of fiber optic cable (s) or television cable (s) for

television or any

other c ommunication service s; and

The L ehmanns’ tort claims are barr ed even if, as the L ehmanns alterna tively contend, 4 the injury to their proper ty g iving rise to their tort claims is n o t the prese nce of the cable on their proper

ty , but rathe r the signa l running throug h the cable

. The L ehmanns ar gu e t h at a new and dif fe re n t ca u s e of action acc rued eac h time a “pulsing , sporadic and intermittent” signa l was tra nsmitt ed down the line a

nd that cause s of ac tion for any alleg ed trespasse s occur

ring in the two-y ear period prior

to their filing suit we re not time-ba rre d.
I n Schneide r N

a t i o nal Carriers, Inc. v. Bates , the supreme court held that a nuisance is “per manent” if it is sufficie ntly constant or reg ular, no matter how long betwee n occur renc es, that the future impact on the proper ty can be rea sonably evalua ted. 147 S.W .3d 264, 281 (Tex. 2004). A ca use of a ction for a

perma nent injury

acc rues whe n the injury

first occ urs or is discover ed. B y contra st, when the fut u re i m p ac t o f the nuisance is specula tive beca use it is so irreg ular or intermittent that future injury cannot be estimated with rea sonable cer tainty , th e nuisance is considere d “tempora

ry ,” the continuing tort doctrine applies, and the plaintiff is permitted to asser t a new claim eac h time the nuisance occur s. Id. at 281. Apply ing this analy tical fra mework, I would conclude that even if the t respa ss at i ssue i s the s igna l going throug h the ca ble line ra ther than the prese nce of the cable line itself, the injury is perma nent. The purpose of the cable line is to transport signa ls. Although eac h signa l is itself discrete , the transmission of signa ls throu gh t h e cable is sufficie ntly constant or reg ular that the i mpact on the property may b e rea sonably evalua ted. The alleg ed injury

here , there fore , is a perma nent one, a

nd the continuing tort doctrine doe s not apply

. 42. No ag ree ment b et ween Blue bonnet and Etan provides Etan with a

telecommunica ti o n s ease ment or rig ht-of-w ay on, over or acr oss the Hig hway 77 Property and the Hig hway

290 Property

.

I would hold tha t de clar atory relief was improper beca use the decla

rations in this case add nothing
to what would be implicit or express in a final j u d gm ent for the other reme dies soug ht in the same act i o n
. See MBM Fin. v. W oodlands Operating Co. , 251 S.W .3d 174, 182 (Tex. App.—B eaumont 2008, no pet.); Hageman/ F ritz, Byrne, Head & Harrison, L.L.P. v. Luth , 150 S.W .3d 617, 627 (Tex. App.—Austin 2004, no pet.); Kenneth Leventhal & C o
. v. R ee ves , 978 S.W .2d 253, 258-59 (Te x . App.—Houston [14th Dis t.] 1998, no pet.).

Reg arding the Hig hway 77 Property , the final judgme nt rende red by the district court includes a finding that Etan trespasse d on the proper ty

. Trespa ss to rea l proper ty require s a showing of an unauthorized phy sical entry onto the plaintiff’s proper ty

. Cain v. Rust Indus. Cleaning Servs.
Inc. , 969 S.W .2d 464, 470 (Tex. App.—Texarkana 1998, writ denied)

. I mplicit in the jury ’s finding that Etan t respa ssed i s a determination that Etan wa s not authorized—by virtue of the Blue bonnet

ease ment, its ag ree ments with Blue bonnet, or otherwise—to place its cable o v er the Hig hway 77 Property

. A decla

ration that Etan had no rig ht to use the Blue bonnet ease ment adds nothing to what is impl icit in the finding tha t Etan trespa ssed on the L ehmanns’ pr operty

. 5

The majority relies on Universal Printing Co. v. Premier Victorian Homes , 7 3 S

. W

. 3d 5 283 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) , to hold that, beca use Etan took the position at t rial t hat i t h ad t h e rig ht to use Bluebonnet’s easeme nt, a declara tion that Etan di d not have the rig ht to use the ease ment was proper and require d. I n Universal Printing , a homebuilder sued neig hboring homeowner s to preve nt them from blocking an alley

. 73 S.W .3d at 283. At issue was whet h er t h e h o mebuilder had a rig ht to ingr ess and eg ress throug h an alley superior to the homeowner s’ rig hts to use the alley . The homeow ners took the position that they owned the a lley and filed aff

idavits of adver se possession in public rec ords. The home owner s testified at trial that 5Re g a r d in g th e H ig

h w a y 2 9 0 Pr o perty , the final judgme nt rende red by the district court includes a finding that Etan had a presc rip t i v e ea s em ent over the proper ty

. A presc riptive

ease ment require s open and notorious, ex clusive, uninterrupted and continuous use of another ’s land adverse to the owner’s claim of right for ten y ear s. I mplicit in the finding that Etan’s use was “a d v er se” is the deter

mination that Etan was not authorized to use the ease ment by virtue o f the Blue bonnet ease ment or otherwise. A decla ration that Et an d i d not obtain such a rig ht from Blue bonnet is duplicative of and adds nothing to wh at i s i m p licit or expli cit in the presc riptive

ease ment finding

. See Hageman/Fritz, Byrne, Head & Harrison, L.L.P. , 150 S.W .3d at 627; MBM
Fin. , 251 S.W .3d at 182.

Moreove r, the district court’s finding rende re d t h e question of whether Etan had a rig ht to use t he Bluebonnet easement on the H ighw ay 290 Property moot. Dec lara tory judgme nts

are only appropr iate when a real controversy exis ts betwee n the parties and the entire controver sy
may be deter

mined by the decla

ration. OAIC Commercial Assets, L.L.C

. v. Stonegate Village, L.P. , 234 S.W .3d 726, 745 (Tex. App.—Dallas 2007, pe t. denied). I n the pre sent ca se, Etan c laimed to have a n ease ment by

presc ription over the Hig hway 290 proper

ty . A dec lara tion that Etan did not obtain an ease ment by ag ree ment or o t h erw ise from Blue bonnet would not resolve the dispute

they owned the alley and did not revoke their adver se pos s es s i o n aff idavits, which rema ined in the deed rec ords. The court of appea ls held that “we are persua ded by a signific ant matter here —the exis tence of the adver se possession aff idavits (w h i ch were rec orded in the public rec ords)—that a declara tory action was proper .” Id. at 297. The just i fi ca t i o n fo r permitting declar atory relief in Universal Printing does not exis t here

. I n the prese nt case , Etan mere ly prese nted testimony at trial in defe nse of a claim of trespass—that Etan believed i t had an oral ag ree ment with Blue bonnet allowing it to use Blue bonnet’s ease ment. I f a defe ndant’s prese ntation of ev i d en ce to ref ute a plaintiff’s claims wer e sufficie nt to war rant decla ratory relief

, decla ratory relief would be proper in ever y contested c ase. 6betwee n Etan and the L ehmanns as to whether Etan had obtained a presc riptive ea sement over the Hig hway 290 Property by its own use of the proper ty

. See Brooks v. Northglen Ass’n , 141 S.W .3d 158, 164 (Tex. 2004) (dec lara tory judgme nt require s justiciable controve rsy , and decla ration soug ht
must actua lly resolve controve rsy ). Fur thermore , once the district court rende red judgme nt that Etan had ease ment rig hts over the Hig hway 290 Property by virtue of the presc riptive ease ment, there was no further controve rsy

reg arding Etan’s rig ht to maintain the cable line on the proper ty

. Having conclude d that decla ratory relief was not authorized, I would also reve rse the district court’s awa

rd of attorney s’ fee s made pursuant to the Uniform Dec lara tory J udg ments Act.
See Tex. Ci v. Prac. & Rem. Code Ann. § 37.009 (West 2008).
Inju nctive Relief

I also disag ree with the majority ’s aff irming of the district court’s awa rd of injunctive relief . I n its final judgment, the district c ourt enjoined Etan f rom:

1. Constructing, installing, hang ing, placing , attachi n g, all owing , commingling , opera ting or maintaining any additional or other fibers, sets of fibers or fiber optic cable s, on any

of the electric utili ty poles that run across t he Hig hway 77 Property , or on any other pa rt or portion of the H ighw ay 77 Property ; 2. Entering on, trave ling acr oss or trave rsing any part or portion of the Hig hway 77 Property ; and
3. I nterfe ring with, interrupting , disrupting, preve nting, delay ing or prohibiting the full, sole and exclusive use , enjoy ment and possession of the H ighw ay 77 Property by Ronald L ehmann a

nd Dana L ehmann.

I believe the trial court abused its discretion by g ranting this injunctive relief

. M y re v i ew o f the

rec ord indicate s that the evidenc e wa s not sufficient to ra ise a fa ct issue on imminent harm.

7To obtain the injunctive relief soug ht, the L ehmanns had the burden o f prese nting

evidenc e of an imminent threa t that Etan would attempt to ente r t h ei r Hi ghway 77 Property , hang cable on poles located on the proper ty , or otherwise interfe re with o r d i s ru p t t h eir use and enjoy ment of the proper

ty

. See Christ ensen v. Integrity Ins. Co. , 719 S.W .2d 161, 163 (Tex. 1986) (par ty seeking injunction ha s burden of showing that clea r equity demands it); Frey v. DeCordova Bend Estates Owners Ass’n , 632 S.W .2d 877 (Tex. App.—For t Worth 1982), aff’d , 647 S.W .2d 246 (Tex. 1983) (par

ty seeking injunction has burden of

proof)

. Evidence that Etan believe d, and continues to believe, that it ha d a rig ht to hang its cable s on poles on th e Hig hway 77 Property is not sufficie nt to sustain the L ehmanns’ burden of establishi ng imminent harm. See D emoc racy Coalition v. City of Austi n , 141 S.W .3d 282, 296 (Tex. App.—Austin 2004 , n o p et

. ) (purpose of injunctive relief is to “halt wrong ful acts that are threa tened or in the cou rs e o f accomplishment, rathe r than to g rant relief ag ainst past actionable
wrong s or t o preve nt the commi ssion of wrongs not imminently threa tened” ). That Etan eng ag ed in such conduc t in the past is also not enoug h to show immi nent harm. Frey , 647 S.W .2d at 248.
T h e ev i d en ce at trial established that Etan remove d the cable line from the Hig hway 77 Property befor e trial. Etan spent a considera ble amount of money setting new poles to reloc ate the cable line off the Hig hway 77 Property and onto the state highw ay rig ht-of-w ay o n t h e other side of the highw ay
. There was no evidenc e indicating that Etan has any intention of enter ing the Hig hway 77 Property

. Thus, there is no evidenc e in this context of imminent harm. See Marke l v. W orld Flight,
Inc. , 938 S.W .2d 74, 80 (Tex. App.—San Antonio 1996, no writ) (“A n inj u n ct i o n d o es not lie to

8preve nt an alleg ed threa tened act, the commission of which is specula tive and the injury from which

is merely conjec tural.”)

.

Conclu sion Having conclude d that the L ehmanns’ tort claims arising out of Etan’s unauthorized place ment of cable o n i t s Hi gh way 77 Property are barr ed by limit ations, I would reve rse the portion of the district court’s judgme nt awa rding $15,000 in damag es and $1,627.35 in pre- judg ment interest, and rende r judgme nt t h at t he L ehmanns take nothing by way of those claims. Having also conclude d that the L ehmanns are not entitled to decla ratory relief under the circ umstances of this case , I would reve rse the portion of the district court judgme nt awa rding t h e L eh manns decla ratory relief an d at t o rn ey s’ fee s. Finally , since the L ehmanns failed to meet their burden of establishing imminent har m, I would dissolve the injunction.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ G. Alan Waldrop, Just ice
Be fore J ustices Patterson, Waldrop and H enson Filed: Mar ch 26, 2010

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