Opinion
07-23-00171-CV
11-22-2024
FIRMUS CENTRO, LLC, APPELLANT v. ATX SELF-STORAGE, LLC, APPELLEE
On Appeal from the 419th District Court Travis County, Texas Trial Court No. D-1-GN-19-008477, Honorable Catherine A. Mauzy, Presiding
Before PARKER and DOSS and YARBROUGH, JJ.
MEMORANDUM OPINION
Alex Yarbrough Justice
Appellant, Firmus Centro, LLC ("Firmus"), files this appeal from an easement dispute with Appellees, ATX Self-Storage, LLC ("ATX") and Wuest Group, Ltd. ("Wuest"). Firmus challenges the trial court's judgment in favor of ATX and Wuest with the following eleven issues: (1) the trial court erred by refusing to grant an injunction to Firmus; (2) the jury's finding ATX did not breach the parking easement was against the great weight of the evidence; (3) insufficient evidence supported the jury's award to ATX; (4) the trial court erred in denying Firmus's request for a spoliation instruction; (5) the trial court erred in allowing testimony from a witness who was previously struck as an expert; (6) the trial court erred in striking Firmus's damages expert; (7) the jury charge did not follow the pattern jury instructions; (8) the trial court erred by dismissing Firmus's flooding damage claims; (9) the trial court erred in dismissing Firmus's tortious interference claim; (10) the trial court erred in dismissing Firmus's breach of contract claim based on ATX's reduction of parking spaces; and (11) the trial court erred in permitting ATX to violate the order in limine and use hyperbolic language on the issue of attorney's fees. We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. Tex. Gov't Code Ann. § 73.001. Should a conflict exist between precedent of the Third Court of Appeals and this Court, this appeal will be decided in accordance with the precedent of the Third Court of Appeals. Tex.R.App.P. 41.3; Mitschke v. Borromeo, 645 S.W.3d 251 (Tex. 2022).
Background
Firmus and ATX own adjoining commercial properties on the I-35 frontage road in North Austin. Firmus operates an apartment complex on its property, while ATX runs a self-storage facility. The two properties share a common driveway and parking under an easement agreement entered into by the parties' predecessors-in-interest (the "Easement Agreement"). ATX purchased its property first and built a multi-story facility for storage. Around the time ATX completed construction, Firmus purchased the neighboring property and renovated the existing motel into studio apartments. Firmus placed a single gated entry and exit for vehicles at the end of the shared driveway, and the only way for tenants to enter or exit the apartment complex was by using the shared driveway easement.
Shortly after taking possession of its property, Firmus had numerous complaints about activities conducted by ATX, including:
• ATX allowed several of its customers to block or impede the flow of traffic in the shared easement with large trucks and vans;
• ATX eliminated several of the parking spots in the shared parking easement, repainting lines to designate loading and unloading zones;
• ATX claimed all of the parking easement spaces for itself on the site plan it submitted to the City of Austin, thereby preventing Firmus from using the spaces on its own construction permit applications; and
• several of the downspouts on ATX's building were pointed at Firmus's property, causing rainwater to flood Firmus's unshared parking areas from time-to-time.
When the parties were unable to resolve their dispute, Firmus filed suit for:
• breach of the Easement Agreement;
• tortious interference by Wuest;
• negligence and negligence per se related to flooding;
• nuisance based on flooding; and
• application for a temporary and permanent injunction.
At the conclusion of the trial on the merits, the jury found ATX breached the Easement Agreement, did not award damages to Firmus but awarded it attorney's fees, and also awarded attorney's fees to ATX. The trial court, on competing motions for entry of judgment, denied Firmus's motion for a permanent injunction based on the jury findings, and granted ATX's motion to enter a take-nothing judgment against Firmus and grant ATX's attorney's fees. This appeal followed.
ATX argued in its brief Firmus's appeal cannot be reviewed because it failed to present a complete appellate record. ATX complained a deposition video which was presented at trial was not part of the record. However, the court reporter subsequently supplemented the record with an informal transcript of the video deposition. Given we have received a transcript of the video deposition and ATX is not challenging its admissibility, a complete record was submitted to this Court for review. Accordingly, we address the merits of Firmus's appeal.
Issue One-The Trial Court's Denial of Injunctive relief
Standard of Review
We review the trial court's refusal of a permanent injunction for an abuse of discretion. Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 792 (Tex. 2020) (citations omitted). The trial court has no discretion in determining the law or applying the law to the facts. In re Sherwin-Williams Co., 668 S.W.3d 368, 370 (Tex. 2023) (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)). When a trial court fails "to analyze or apply the law correctly," it has clearly abused its discretion. Id. (quotations original).
To be entitled to a permanent injunction, a party must prove (1) a wrongful act, (2) imminent harm, (3) an irreparable injury, and (4) the absence of an adequate remedy at law. Pike, 610 S.W.3d at 792. However, "[w]here a valid contract prescribes particular remedies or imposes particular obligations, equity generally must yield unless the contract violates positive law or offends public policy." Richards v. State Farm Lloyds, 597 S.W.3d 492, 497 (Tex. 2020) (quoting Fortis Benefits v. Cantu, 234 S.W.3d 642, 648-49 (Tex. 2007)). The interpretation of an unambiguous contract is a question of law which we review de novo. See Farmers Grp., Inc. v. Geter, 620 S.W.3d 702, 709 (Tex. 2021); Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015).
Analysis
Firmus's first issue complains the trial court abused its discretion in failing to grant it injunctive relief at the conclusion of the trial. We agree. The jury found ATX failed to comply with the Easement Agreement by "[u]nreasonably interfering with or interrupting the use or enjoyment of Firmus' [sic] right to free and uninterrupted pedestrian and vehicular ingress or egress through the easement property." Firmus argues it was therefore entitled to injunctive relief based upon the Easement Agreement's enforcement language, which provides:
[The Easement Agreement] may be enforced by restraining orders and injunctions (temporary or permanent) prohibiting interference and commanding compliance. Restraining orders and injunctions will be obtainable on proof of the existence of interference or threatened interference, without the necessity of proof of inadequacy of legal remedies or irreparable harm . . . .
This language displaces the common law requirements for injunctive relief, and the agreement controls the parties' entitlement to relief. Richards, 597 S.W.3d at 497. Notwithstanding the plain language, ATX argues the trial court did not err in denying Firmus's injunction request because it did not match the injunction requested in Firmus's live petition.
Persons seeking a permanent injunction must be specific in pleading the relief sought, and courts are without authority to grant relief beyond that so specified. Shields v. State, 27 S.W.3d 267, 271 (Tex. App.-Austin 2000, no pet.) (citing Hitt v. Mabry, 687 S.W.2d 791, 795 (Tex. App.-San Antonio 1985, no writ)). Yet, an injunction should be broad enough to prevent a repetition of the evil sought to be corrected. Shields, 27 S.W.3d at 271 (citing San Antonio Bar Ass'n v. Guardian Abstract & Title Co., 291 S.W.2d 697, 702 (Tex. 1956); Hitt, 687 S.W.2d at 795)). The court can either enjoin acts that are identical to those engaged in before the injunction or, as will more likely be needed, acts that are in somewhat different form calculated to circumvent the injunction as written. Shields, 27 S.W.3d at 271 (citing San Antonio Bar Ass'n, 291 S.W.2d at 702); accord Huynh v. Blanchard, 694 S.W.3d 648, 698 (Tex. 2024).
See also Holubec v. Brandenberger, 111 S.W.3d 32, 39 (Tex. 2003) (In general, a permanent injunction "must not grant relief which is not prayed for nor be more comprehensive or restrictive than justified by the pleadings, the evidence, and the usages of equity.").
Firmus's requested injunction enjoined ATX from:
A. Allowing employees, vendors, customers, clients or other visitors to park or otherwise allow vehicles to load or unload in a manner that encroaches on the driveway easement . . . [; and]
B. Using the driveway easement, referenced in A above, for any purpose other than for free and uninterrupted pedestrian and vehicular ingress and egress through the easement property.
ATX argues the above language does not comport with the request for injunction in Firmus's live petition, which specifically sought to enjoin ATX from "constructing any improvements on [ATX's property] that . . . unreasonably or intentionally interferes with or invades [Firmus's] interest in or use and enjoyment of its property." It urges, this language restricted the availability of an injunction only to prohibiting "constructing any improvements," not to bar ATX from blocking the driveways. However, Firmus's petition also claimed ATX breached the Easement Agreement by the following acts:
[ATX] also repeatedly has allowed its customers to block ingress egress, including by parking in and blocking fire lanes in the area of the [easement]. [ATX] has effectively required this to happen by constructing loading areas that are shorter in length than required and by not prohibiting vehicles that would be required to load at least in part in the easement. This activity not only breaches the Easement Agreement, but creates a safety hazard for [Firmus], its tenants, and its customers.
ATX had sufficient notice of Firmus's claims, and the blocking of ingress/egress is a specific violation of the Easement Agreement which formed the basis of Firmus's lawsuit. ATX also had sufficient notice Firmus sought an injunction to prevent such further violations. Id. Although deviating from the injunction requested in its petition, Firmus's post-trial injunction request was "broad enough to prevent a repetition of the evil sought to be corrected." The gravamen of the breach was ATX's repeated failure to prevent its employees and customers from blocking the driveway, a condition aggravated by its failure to create adequate loading zones for its customers. The jury found in favor of Firmus when it answered "[y]es" as to whether ATX breached the Easement Agreement by interfering with Firmus's right to ingress and egress in the easement area. Contrary to ATX's assertion, the injunction proposed by Firmus was sufficiently supported by the pleadings.
In addition, although it complains now of the technical defect of the pleadings, ATX never filed any special exceptions nor did it object to the submission of the question to the jury based on the relief requested. Without lodging any formal complaints until post-trial, ATX arguably waived all of the defects with Firmus's pleadings. Tex.R.Civ.P. 279.
ATX also argues the requested injunctive relief is not specific enough and too broadly enjoins lawful conduct. ATX does not specify the "lawful conduct" it contemplates will be inhibited by the injunction, and instead merely references the Easement Agreement, which broadly permits each party to use the surface of its respective property for "all purposes that do not unreasonably interfere with or interrupt the use or enjoyment of the [e]asements." According to ATX, the only acts an injunction may enjoin are "unreasonably encroach[ing] on the driveway easement" and "unreasonably [interrupting] pedestrian and vehicular" traffic. In this case, however, the jury already found the blocking of the driveway was "unreasonable," and the only question is whether the requested injunction prohibits more than the blocking of the driveway. The term "unreasonable" is not necessary, so long as the acts prohibited are of the kind which were complained of and for which evidence was presented at trial.
The word "unreasonable" is an undefined term in the agreement and commonly means different things to different people. Ironically, while arguing the proposed injunction is not specific enough, ATX's proposed language would make the injunction more indefinite.
The conduct which Firmus sought to specifically enjoin was the blocking of the driveway by ATX's personnel and customers. The proposed injunction narrowly prohibits conduct which "encroaches on the driveway easement" and using the easement "for any purpose other than for free and uninterrupted pedestrian and vehicular ingress and egress." The proposed injunction's language also tracks with the stated purpose of the easements in the agreement:
"[F]or (A) free and uninterrupted pedestrian and vehicular driveway ingress and egress . . . across the [d]riveway [e]asement [a]reas; and (B) nonexclusive joint use parking in the [j]oint [p]arking area."
The evidence presented to the jury at trial also consisted of numerous photographs and video depicting ATX's customers and personnel encroaching on and blocking part or all of the driveway. We find Firmus's requested injunction is narrowly tailored and specific enough to address the particular conduct complained of, namely, the blocking of the driveway.
The Easement Agreement also grants Firmus the right to enforce the agreement by an injunction "prohibiting interference and commanding compliance." The jury having determined ATX caused or permitted unreasonable interference with ingress and egress over the easement, Firmus was entitled to injunctive relief by contract. Regardless of whether the trial court agreed with the specific language suggested by Firmus, it was required to grant an injunction upon request to prohibit future offending behavior by ATX. The failure to do so was an abuse of discretion. We sustain Firmus's first issue.
Issue Two-Factual Sufficiency of the Evidence Supporting the Jury's Finding of No Breach of the Parking Easement
Standard of Review
When a party attacks the factual sufficiency of an adverse finding on an issue on which it has the burden of proof, it must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (citations omitted). The court of appeals must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.
Analysis
Firmus's second issue attacks the jury's finding of no breach of the Easement Agreement based on ATX's "restriping" the parking lot. Specifically, it argues there was overwhelming evidence ATX's "restriping" reduced the number of parking spaces from forty-four to thirty-nine, which it claims constituted a breach of the agreement. It urges the jury's finding to the contrary is "against the great weight of the evidence[.]"
At trial, there was no dispute the number of parking spaces were reduced by ATX when it repainted the shared parking lot. However, whether the reduction of spaces itself constituted a breach of contract is a question of law for the court, not a question of fact for the jury. Grohman v. Kahlig, 318 S.W.3d 882, 887 (Tex. 2010) (citing Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex. 1971)). Firmus's argument relies on the Easement Agreement's reference to "[t]hose certain forty four [sic] (44) lined spaces" comprising the shared parking area, and interprets the language as requiring there be forty-four spaces at all times. However, under the terms and conditions of the agreement, the parking lot "must be maintained at a level of appearance and utility consistent with industry standards then prevailing for similarly used properties in the market in which the [parking lot is] located." The use of "must be" does not make the maintenance discretionary, and it must be carried out in such a way that the "appearance and utility"-meaning look and function-of the parking spaces meets the industry standard. The plain language of the Easement Agreement required ATX to modify the parking spaces in keeping with industry standards at the time. Thus, in order to prove a breach of contract, Firmus had the burden to prove the reduction in parking spaces by ATX was not in keeping with "a level of appearance and utility consistent with industry standards then prevailing for similarly used properties in the market." Whether ATX's modification of spaces was in keeping with "industry standards then prevailing" was a fact issue for the jury to determine. Id.
The only testimony on standards for parking spaces came from ATX's expert civil engineer, Scott Wuest. He testified that half of the forty-four spaces did not comply with the then-current City of Austin ordinances because they were too small. He also testified the construction permit sought by ATX would not have been granted unless the parking spaces were repainted in compliance with the then-current construction codes. Firmus did not offer, and does not point out on appeal, any evidence contradicting Wuest's testimony. It also failed to introduce any other evidence regarding whether the spaces were in keeping with "industry standards then prevailing for similarly used properties in the market."
Firmus elicited testimony from Wuest that some of the parking spaces could have been smaller and designated for "compact cars," but Firmus did not elicit testimony how many such spaces would have been feasible or whether a total of forty-four spaces was feasible under the City's construction codes. Although some testimony suggested some other parking space configuration may have been plausible, this testimony did not directly refute or contradict Wuest's prior testimony regarding the parking requirements for ATX's construction permit.
Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (citations omitted). The jury answering "no" to whether ATX breached the parking easement indicates jurors credited Wuest's testimony regarding the feasibility of permitting ATX's project and inferred this met the then-prevailing industry standard. With no other testimony or evidence to contradict Wuest, Firmus did not meet its burden to prove by a preponderance the reduction in parking breached the agreement.
Under these circumstances, the finding by the jury was not "so against the great weight and preponderance of the evidence that it is clearly wrong and unjust." The evidence was factually sufficient to support the jury's verdict. Firmus's second issue is overruled.
Issue Three-The Trial Court's Award of Attorney's Fees and Costs to ATX
Standard of Review
The right to recover attorney's fees is a question of law reviewed de novo, but the calculation of any award is reviewed only for abuse of discretion. Saltworks Ventures, Inc. v. Residences at The Spoke, LLC, No. 03-16-00711-CV, 2018 Tex.App. LEXIS 3463, at *35 (Tex. App.-Austin May 17, 2018, no pet.) (mem. op.) (citing Gereb v. Smith-Jaye, 70 S.W.3d 272, 273 (Tex. App.-San Antonio 2002, no pet.)). When a contract governs the rights of the parties to recover attorney's fees in the case of a breach of contract, the court is tasked with construing the language in the contract. Intercontinental Grp. P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653-56 (Tex. 2009). If a term of the contract is not defined, we presume the parties intended the term's ordinary meaning. Id. at 653.
Analysis
Firmus contends the award of attorney's fees to ATX as the "prevailing party" in the litigation is erroneous. We agree. On the subject of recovery of attorney's fees, the Easement Agreement states:
If either [p]arty retains an attorney to enforce this agreement, the [p]arty prevailing in litigation is entitled to recover reasonable attorney's fees and court and other costs.
The term "prevailing" is not defined in the contract. Under Texas Law, a "prevailing party" is the party "who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of its original contention." Morales v. Carlin, No. 03-18-00376-CV, 2019 Tex.App. LEXIS 2398, at *19-20 (Tex. App.-Austin Mar. 28, 2019, no pet.) (mem. op.) (quoting City of Amarillo v. Glick, 991 S.W.2d 14, 17 (Tex. App.-Amarillo 1997, no pet.)). "[A] plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." KB Home Lone Star L.P., 295 S.W.3d at 654 (quoting Farrar v. Hobby, 506 U.S. 103 (1992)). A plaintiff who receives no judgment for damages or other relief has not prevailed. Id.
As discussed supra, we have found Firmus was entitled to injunctive relief, and the injunctive relief alters the legal relationship between the parties. Further, ATX raised its own breach of contract counterclaims based on Firmus's "unreasonable and excessive use of the parking rights granted to it under the easement agreement" and its "application of painted signage to the pavement on ATX's property." Those claims were never nonsuited before trial. And yet, ATX wholly failed to submit any question on its counterclaims to the jury. Any claims not submitted to the jury are waived unless they are conclusively proven. Tex.R.Civ.P. 279. However, in addition to not submitting the claim to the jury, ATX did not present any evidence of its counterclaim either. Id. By abandoning its claims at trial, ATX is estopped from raising its claims against Firmus in the future. See Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007) ("Generally, res judicata prevents a plaintiff from abandoning claims and subsequently asserting them when the claims could have been litigated in the prior suit."); Epps v. Fowler, 351 S.W.3d 862, 864 (Tex. 2011) (a dismissal or nonsuit with prejudice is tantamount to a judgment on the merits.).
The legal relationship between ATX and Firmus was materially altered by the jury's verdict, and ATX could not be the "prevailing party" for purposes of awarding attorney's fees. See also Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 485- 86 (Tex. 2019) (plaintiff securing a take-nothing judgment against a counterclaim is a prevailing party). Therefore, Firmus was a prevailing party, not ATX. The trial court erred by awarding ATX attorney's fees and denying Firmus's request for attorney's fees.
We sustain Firmus's third issue. We reverse the trial court's judgment as to the attorney's fees awarded to ATX.
Issue Four-Trial Court's Refusal to Give Spoliation Instruction and Exclude ATX's Video Evidence
Standard of Review
We review the denial of a spoliation instruction for an abuse of discretion and reverse only if the trial court's denial of the instruction was arbitrary or unreasonable. Mangham v. YMCA of Austin, 408 S.W.3d 923, 931 (Tex. App.-Austin 2013, no pet.) (citing Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex. 1998)).
Analysis
Firmus's fourth issue complains the trial court should have granted its motion for a spoliation instruction on ATX's video evidence. ATX has six security cameras on its property, and the security camera system is able to store sixty days' worth of video before overwriting the prior footage. Firmus was not made aware of the existence of the security cameras until ATX produced video footage it intended to introduce at trial. ATX produced the video evidence two years after the litigation began. Firmus argues ATX was under an obligation to preserve and produce video footage from its security cameras, but ATX permitted the security video to overwrite itself, effectively destroying relevant evidence and requiring a spoliation instruction to the jury-to infer the destroyed evidence was favorable to Firmus's case.
Before a party is entitled to a spoliation instruction, there must be a duty on the part of the offending party to preserve the evidence. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722-23 (Tex. 2003). The party with possession of the evidence must have notice there is a substantial chance the evidence will be relevant to a pursued claim. Id. at 722 (citations omitted). The pre-litigation demand letter sent by Firmus to ATX did not complain of blocking of the ingress/egress of the easement. Without notice of a potential claim regarding the ingress/egress of the parking spaces before litigation, ATX was not under any obligation to take steps to preserve the video evidence. Id.
Firmus nonetheless urges, once litigation commenced, ATX was placed on notice to preserve and produce any video evidence when it received the following discovery request:
Request for Production No. 2: Produce all documents and communications relating to Firmus concerning or relating in any way to the Easement Agreement, construction by ATX, any drainage issue, or any other subject related to the claims or defenses of this case.(bold orig.)
Firmus argues the term "documents" encompasses video media, and its ingress/egress claims were included in the phrase "or any other subject related to the claims or defenses of this case." ATX, however, objected to the request as "overly broad" and "unduly burdensome." Firmus did not file a motion to compel discovery or seek a ruling from the trial court on ATX's objection, and the objection remained in place through the end of trial. Even if Firmus's contention regarding preservation of the videos is correct, so long as the objections remained in place, ATX was not required to produce the videos. Tex.R.Civ.P. 193.2(b). See also Tex. R. Civ. P. 193.4(b) ("A party need not request a ruling on that party's own objection or assertion of privilege to preserve the objection or privilege."). Under these circumstances, any issue with ATX's failure to preserve any evidence was moot, because Firmus did not have a right to receive or use the evidence at trial.
Without a duty on the part of ATX to preserve or produce any video evidence, we cannot say the trial court's refusal to give a spoliation instruction was arbitrary or unreasonable. The trial court did not abuse its discretion. Firmus's fourth issue is overruled.
Issue Five-Trial Court's Admission of ATX Witness Previously Struck as an Expert
Standard of Review
We review a trial court's rulings on the admissibility of evidence for an abuse of discretion, including rulings on the admission of expert testimony. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015) (citations omitted). Admission of expert testimony that does not meet the reliability requirement is an abuse of discretion. Id. (internal quotations omitted).
Analysis
By its fifth issue, Firmus complains a video expert who was struck as an expert pretrial was nonetheless permitted to testify as a fact witness during trial. The witness was asked by ATX to review a two-week sample of security camera footage from ATX's property and identify all instances in which there was some improper blocking of the ingress/egress of the driveway or parking spaces. The video footage was presented to the jury to demonstrate there was no unreasonable blocking of the easement by ATX's customers. Firmus complains the witness should not have been permitted to testify because he had no personal knowledge of the facts. We agree.
A basic requirement of all witnesses at trial who are not experts is that they must have personal knowledge regarding the evidence they present. Tex. R. Evid. 602, 901. Otherwise, the evidence is inadmissible, and their statements are hearsay. Id. at 802, 901. ATX's witness did not demonstrate any personal knowledge about the videos and could not authenticate them, therefore the trial court erred in permitting him to testify and admitting the video into evidence. Nonetheless, we find no reversible error here.
The expert stated he was hired specifically to examine the two-week video footage to identify any vehicles which were impeding the "lane of travel" of the driveway or were parked irregularly such that they were "protruding into other parking spaces-or into the lane of [travel.]" In other words, his analysis was strictly limited to whether ATX's activities violated the shared easement by blocking the driveway or access to parking. Despite the erroneous admission of the expert's testimony, the jury still found in favor of Firmus on the issue of violation of the easement by blocking of the driveway. The finding in favor of Firmus means the error was harmless. Tex.R.App.P. 44.1. Firmus's fifth issue is overruled.
The jury answered "[y]es" to the question of whether ATX "interfere[ed] with or interrupt[ed] the use or enjoyment of Firmus'[s] right to free and uninterrupted pedestrian and vehicular ingress or egress[.]"
Issue Six-Striking of Firmus Expert Witness
Standard of Review
A trial court's exclusion of evidence is reviewed for abuse of discretion. JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 836 (Tex. 2018). Exclusion is likely harmless if the evidence was cumulative or if the rest of the evidence was so one-sided that the error likely made no difference in the judgment. Gunn v. McCoy, 554 S.W.3d 645, 668 (Tex. 2018) (citation omitted). By contrast, exclusion of the evidence is likely harmful if it was "crucial to a key issue." Id.
Analysis
Firmus's sixth issue complains the trial court struck its expert witness on damages. The expert was to testify as to the damages caused by ATX's reduction of parking spaces from forty-four to thirty-nine. Assuming, arguendo, the trial court erred in excluding the expert witness, under an abuse of discretion standard we will only reverse the trial court's decision if there is a demonstration the error was harmful. Tex.R.App.P. 44.1. The jury answered "[n]o" to whether ATX's use of the parking area or restriping of the parking spaces "unreasonably interfere[ed] with or interrupt[ed] the use or enjoyment of Firmus'[s] right to park in the joint parking area." The fact the jury did not find a breach of the parking easement made the testimony of the damages expert moot. Therefore, the exclusion of the expert witness was harmless. We overrule Firmus's sixth issue.
Issue Seven-Trial Court's Jury Charge Instructions on Breach of Contract and Attorney's Fees
Standard of Review
"We review a trial court's decision to submit or refuse a particular instruction under an abuse of discretion standard of review." Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012) (citations omitted) (quotations orig.). The trial court has considerable discretion to determine proper jury instructions, and "[i]f an instruction might aid the jury in answering the issues presented to them, or if there is any support in the evidence for an instruction, the instruction is proper." Id. "An instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence." Id. An appellate court will not reverse a judgment for a charge error unless that error was harmful because it "probably caused the rendition of an improper judgment" or "probably prevented the petitioner from properly presenting the case to the appellate courts." Id. "Charge error is generally considered harmful if it relates to a contested, critical issue." Id.
Analysis
As its seventh issue, Firmus complains the trial court's jury charge did not follow the pattern jury instructions for breach of contract and attorney's fees. Firmus submitted a proposed jury charge to the court based upon the Texas Pattern Jury Charge. It proposed a broad form single question on breach of the Easement Agreement, and then a single pattern jury question on its own attorney's fees. Assuming, arguendo, the trial court erred in the jury charge, we must assess whether the charge submitted to the jury was harmful.
Generally, a trial court's error is harmful if it either (1) probably caused the rendition of an improper judgment or (2) probably prevented the appealing party from properly presenting the case to the court of appeals. Horton v. Kan. City S. Ry. Co., 692 S.W.3d 112, 138-39 (Tex. 2024). To determine whether an error was harmful under either of the two prongs, the appellate court must consider the entire record of the case as a whole. Id. The court need not conclude that the error "necessarily" caused harm or reach its conclusion with certainty. Id. Instead, the question is whether the error "probably" caused harm under either of the two prongs. Id. Under the first prong, an erroneous jury charge probably results in an improper judgment when it confuses or misleads the jury in answering a question that is material to the judgment. Id. But an erroneous question or instruction is not harmful if the record as a whole does not establish that the error probably resulted in an improper judgment. Id. Under the second prong, the "proper inquiry" is whether the error probably prevents the appellant from making the showing required under the first prong. Id. When the error involves the jury charge, and the appellate court-after reviewing the entire record-is "'reasonably certain that the jury was not significantly influenced by' the error," the second prong is not met and the error was not harmful. Id.
Firmus makes two complaints regarding the charge on its breach of contract claim:
(1) the question was split into three questions instead of one broad-form question; and
(2) the charge used the terms "unreasonably interfered with or interrupted" with respect to breach of the Easement Agreement, instead of "existence of interference or threatened interference" as required by the enforcement clause of the agreement.
Because we have found the evidence legally sufficient to support the jury's finding ATX did not breach the Easement Agreement by reducing the number of parking spaces, we necessarily find the lack of single broad form question did not "caus[e] the rendition of an improper judgment."
Further, although broad form submission is required, the rule is not "absolute" and a single question is only required "when feasible." Tex.R.Civ.P. 272; Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000).
Regarding the use of the terms "unreasonably interfered with or interrupted," the Easement Agreement reserves the right to each party:
"the right to continue to use and enjoy the surface of the [easements] for all purposes that do not unreasonably interfere with or interrupt the use or enjoyment of the [e]asements."(emphasis added).
Firmus reads "existence of interference or threatened interference" from the enforcement language in isolation, without regard to what constitutes "interference" in the prior reservation of rights.
See enforcement language ante at p. 5.
When interpreting contracts, we are required to "consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless." Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 888-89 (Tex. 2019) (quoting Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)). Thus, the term "interference" in the enforcement clause must mean "unreasonably interfere" before a party is entitled to enforcement under the contract's provisions. To hold otherwise would mean the parties' rights to "use and enjoy the [easement] for all purposes that do not unreasonably interfere" would be rendered meaningless, abrogated by a party's seeking injunctions for mere technical interference. We do not find the inclusion of the words "unreasonably interfered or interrupted" caused the rendition of an improper judgment, and the trial court did not commit reversible error. Tex.R.App.P. 44.1.
Firmus also complains the trial court improperly charged the jury with regard to ATX's attorney's fees. However, because we have found supra Firmus is the prevailing party in this dispute and entitled to attorney's fees, this complaint is moot. Tex.R.App.P. 47.1. We overrule Firmus's seventh issue.
Issue Eight-Dismissal of Firmus's Flood Damage Claims for Lack of Standing by Summary Judgment
Standard of Review
Whether a court has subject matter jurisdiction is a question of law we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (citing Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002)). If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. Id. at 227 (citation omitted). Only when the relevant evidence of lack of jurisdiction is undisputed or fails to raise a jurisdictional factual question may the plea be granted. Id. at 228.
Standing is a "prerequisite to subject-matter jurisdiction, and subject-matter jurisdiction is essential to a court's power to decide a case." Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass'n, 593 S.W.3d 324, 331 (Tex. 2020) (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000)). Because constitutional standing implicates subject-matter jurisdiction, it cannot be waived and can be raised at any time. Id. (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-45 (Tex. 1993)).
We review grants of summary judgment de novo. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017) (citing Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015)). In our review we take as true all evidence favorable to the non-movant, indulge every reasonable inference in favor of the non-movant, and resolve any doubts in the non-movant's favor. Id. (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). Under a no-evidence motion for summary judgment, the movant is required to identify the specific element of each of the nonmovant's causes of action for which there is no evidence. Tex.R.Civ.P. 166a(i). Once the movant identifies the elements lacking evidence, the burden shifts to the nonmovant to produce more than a scintilla of evidence in support of each such cause of action to survive summary judgment. Id.; JLB Builders, L.L.C v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021) (citations omitted). Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." King Ranch, 118 S.W.3d at 751 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
Analysis
The eighth issue raised by Firmus is the trial court erred in dismissing its claims related to flood damage. Firmus asserted claims for negligence, negligence per se, and nuisance claims related to flooding on Firmus's property it alleged was caused by discharge from ATX's rainwater drainage system. ATX moved to dismiss Firmus's flood damage claims through a plea to the jurisdiction and, in the alternative, by a mixed traditional and no-evidence summary judgment. The plea to the jurisdiction claimed Firmus lacked standing to bring the flooding claims. The trial court both sustained the plea and granted the mixed motion for summary judgment, and it dismissed Firmus's claims related to flood damage. Because standing is a prerequisite to subject-matter jurisdiction, we examine ATX's plea to the jurisdiction first.
ATX's Plea to the Jurisdiction
At the time ATX completed its construction and its drainage system began working, Firmus's predecessor-in-interest owned the property. Therefore, ATX argued, the flooding claim belonged to Firmus's predecessor, and Firmus lacked standing to sue because the flooding claims had not been expressly assigned to Firmus. See La Tierra de Simmons Familia, Ltd. v. Main Event Entm't, LP, No. 03-10-00503-CV, 2012 Tex.App. LEXIS 1928, at *35-37 (Tex. App.-Austin Mar. 9, 2012, pet. denied) (mem. op.). Firmus, in response, presented its purchase agreement to buy the neighboring property, which contains the following language:
More precisely, ATX's argument is the injury complained of by Firmus was a permanent injury to the land which accrued on the date ATX completed its construction of the drainage system before Firmus became the owner of the neighboring property. Thus, it argues, Firmus was required to receive an assignment of any claims or causes of action existing at the time of purchase of the property. We do not opine whether the injury complained of was in fact a "permanent injury to land" altering the accrual date because, as discussed infra, we find Firmus was assigned all of the claims and causes of action of its predecessor-in-interest.
Although ATX filed a motion to strike portions of Firmus's evidence in response to its motion, it did not seek to strike the contract, which remained properly before the trial court for consideration.
"Seller agrees to sell and convey . . . all other rights, privileges, interests, and appurtenances owned or claimed by Seller on the Closing Date which relate to any component of the Property . . . ."
Firmus argued this language broadly assigned all claims belonging to the prior owner of the property, citing Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, 520 S.W.3d 145, 153-56 (Tex. App.-Austin 2017, pet. denied). ATX attempted to distinguish RLJ by pointing out the case dealt with capacity to sue based on contract as opposed to standing to sue based on property damage. We find the distinction without substance.
Both RLJ and the current case involve parties who are challenging a successor-in-interest's right to sue by alleging the successor was not assigned a cause of action by its predecessor. Id. at 153. RLJ examined the language of the contract, and contract language is construed as a matter of law. Id. at 154-55. The RLJ court found the assignment of "intangible assets" encompassed existing claims and causes of action, and therefore the plaintiff had standing to sue. Id. The RLJ analysis applies to the present case, and the above recited language from Firmus's contract plainly encompasses "all other rights, privileges, [and] interests" of the prior owner related to any "component of the property." This included any claims and causes of action for property damage. Accordingly, Firmus had standing to sue for the damages caused to the property from flooding, and the trial court erred in dismissing these claims for lack of standing.
However, a trial court's dismissal may be affirmed on appeal if any theory advanced in the motion supports dismissal. See Hammer v. Hammer, No. 03-18-00028-CV, 2018 Tex.App. LEXIS 7574, at *10-11 (Tex. App.-Austin Sept. 18, 2018, pet. denied) (mem. op.) (citing Brager v. James, No. 02-13-00130-CV, 2014 Tex.App. LEXIS 1689, at *5 (Tex. App.-Fort Worth Feb. 13, 2014, no pet.) (mem. op.)). Because the trial court simultaneously granted ATX's mixed motion for summary judgment, we must next examine whether the motion had any merit. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
ATX's No-Evidence Motion for Summary Judgment
ATX moved for both a traditional and no-evidence summary judgment. When a party moves for both traditional and no-evidence summary judgments, we first consider the no-evidence motion. First United Pentecostal Church of Beaumont, 514 S.W.3d at 219-20 (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the non-movant fails to meet its burden under the no-evidence motion, there is no need to address the challenge to the traditional motion as it necessarily fails. Id. (citing Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)). Any claims that survive the no-evidence review will then be reviewed under the traditional standard. Id.
ATX's no-evidence summary judgement identified the following elements of Firmus's claims having no evidence:
• standing to bring the drainage claim;
• breach of a duty or a standard of care
• causation;
• damages; and
• nuisance.
Firmus's "First Amended Petition and Application for Injunctive Relief," it's live pleading at the time ATX filed its motion, contained the following claims related to the flooding of its property:
• negligence; and
• nuisance.
Although Firmus also pleaded "negligence per se" as a cause of action, negligence per se is not a cause of action, but rather a method of proving breach of a duty, a requisite element in a negligence claim. Weirich v. IESI Corp., No. 03-14-00819-CV, 2016 Tex.App. LEXIS 9906, at *6 (Tex. App.-Austin Aug. 31, 2016, no pet.) (mem. op.).
The element of proximate causation is common to both of these claims. See Bustamante ex rel. D.B. v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017) (citing IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004)); Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 604-09 (Tex. 2016). Proximate cause consists of (1) cause in fact, and (2) foreseeability. Windrum v. Kareh, 581 S.W.3d 761, 777 (Tex. 2019) (citing Bustamante, 529 S.W.3d at 456). Cause in fact "is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred." Id.
Firmus attached to its response to the motion the affidavit of its owner, Cary Krier, who attested he witnessed the diversion of water from the roof of the ATX storage building to the parking lot belonging to Firmus. He also attested portions of Firmus's property would flood with heavier rainfalls, and the flooding did not allow tenants to reach their vehicles without wading through ponds of standing water. He testified the flooding got "worse and worse" as time continued. Included in the evidence were several photographs demonstrating the running of water from ATX's property onto and pooling on Firmus's property.
However, Krier also averred the following:
While the natural flow of water is always being directed from ATX's property to specific locations on Firmus's property, it does not pose issues during light to moderate rainfalls. But for heavier rainsfall, it floods portions of Firmus's property . . . I also observed that there appeared to be a storm drain in the parking lot where water normally would flow to the storm sewer, but that was clogged with cement. Attached to this declaration [are] true and correct copies of photographs I took in 2020 showing this clogged drain and the standing water that results when there is a significant rain event.
No other evidence was introduced by Firmus regarding the clogged drain-who clogged the drain and whether unclogging the drain improved the flooding problem. The fact Krier admits flooding does not occur during "light to moderate rainfalls" indicates the drain is in fact the cause of the flooding, not the diversion of water from ATX's property onto Firmus's property, and it is a superseding cause. See Stanfield v. Neubaum, 494 S.W.3d 90, 97-99 (Tex. 2016) (discussing superseding cause and break in chain of causation). This evidence, when taken together, does no more than create a mere surmise or suspicion of causation of flooding attributable to ATX's drainage system.
Firmus failed to present more than a scintilla of evidence of the element of causation for its flooding related claims. The trial court did not err in granting ATX's no-evidence summary judgment and we need not address its traditional motion for summary judgment. Tex.R.App.P. 47.1; First United Pentecostal Church of Beaumont, 514 S.W.3d at 219-20. Firmus's eighth issue is overruled.
Issue Nine-Dismissal of Firmus's Tortious Interference Claim for Lack of Certificate of Merit
Firmus identifies as its ninth issue the dismissal of its tortious interference claim against Wuest. Firmus claims Wuest drafted ATX's site plan for a construction permit application filed with the City of Austin. It alleges Wuest tortiously interfered with the Easement Agreement by including all forty-four parking spaces of the easement in the site plan, thereby causing ATX to breach the agreement. Wuest filed a motion to dismiss Firmus's claim based on the lack of a certificate of merit accompanying Firmus's petition. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002.
However, as discussed below, because ATX did not breach the Easement Agreement by including the parking spaces in its site plan, the trial court's granting of Wuest's motion was harmless. Tex.R.App.P. 44.1(a). We overrule Firmus's ninth issue.
Issue Ten-Dismissal of Firmus's Claim ATX Violated the Parking Easement Agreement by Claiming Parking Spaces
Standard of Review
The interpretation of an unambiguous contract is a question of law which we review de novo. See Farmers Grp., Inc. v. Geter, 620 S.W.3d 702, 709 (Tex. 2021); Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015). We construe contracts as a matter of law according to their plain and ordinary meaning, unless the contract indicates otherwise. Pathfinder Oil & Gas, Inc., 574 S.W.3d at 888.
Analysis
The tenth issue raised by Firmus is the granting of a partial summary judgment in favor of ATX on its theory of breach of contract based on ATX claiming the shared parking spaces in its construction permit application. The trial court dismissed Firmus's "'Site Plan Parking Claim' as defined in the [motion for partial summary judgment, including] any claim that ATX breached an easement/shared-parking agreement in connection with obtaining a site plan development permit for ATX's development from the City of Austin."
Firmus asserted multiple theories of breach of the easement agreement under its breach of contract claim. The summary judgment only dismissed one of them.
In its live petition, Firmus complained ATX identified all of the easement parking spaces as exclusively belonging to ATX when it applied for a construction permit- referred to as a "site permit" in the pleadings. By doing so, Firmus alleges, ATX breached the Easement Agreement which provides for the sharing of the parking spaces. ATX argued in its motion for partial summary judgment that while the easement agreement required it to share the parking spaces with Firmus, it did not dictate the actions of the parties with regard to governmental matters outside the agreement. ATX also argued the easement agreement created a nonexclusive right to the parking spaces, and therefore it was free to use them for the purposes of its construction permit as a matter of law. We agree with ATX.
The Easement Agreement states the purposes of the agreement are:
"[F]or (A) free and uninterrupted pedestrian and vehicular driveway ingress and egress . . . across the [d]riveway [e]asement [a]reas; and (B) non-exclusive joint use parking in the [j]oint [p]arking area."
The agreement also states each party has a non-exclusive "right to use all or part of the [e]asements in conjunction with [other parties] . . . ." Under the plain terms of the agreement, ATX was free to use "all or part" of the parking towards its construction permit, and it chose to use all of it. Firmus's complaint is, because ATX identified the parking spaces in a permit application first, it was not able to use the parking spaces for its own subsequently filed permit application two years later. As ATX points out, however, construction permitting is an issue with the City of Austin and not ATX. Firmus does not describe how its right to use the parking spaces was destroyed or interfered with by ATX's construction permit application. Accordingly, without articulating an interference with its right to use the parking spaces, Firmus's breach of contract claim could not succeed under the theory ATX breached the agreement by claiming them on its permit application. We overrule Firmus's tenth issue.
Issue eleven-The Trial Court Permitted ATX to Introduce Evidence in Violation of Limine Order and Use of Hyperbolic Language
Firmus's eleventh issue complains the trial court permitted ATX to introduce evidence in violation of its order in limine regarding attorney's fees. It also complains the trial court permitted ATX to use hyperbolic terms, including "ridiculous," "hostility," and "aggressive" in describing the claims and fees presented by Firmus. However, because we determined supra ATX was improperly awarded attorney's fees and this matter must be remanded, this issue is moot. Firmus's eleventh issue is overruled.
Conclusion
The trial court's judgment is reversed and vacated. We remand this matter to the trial court for consideration of Firmus's request for permanent injunction and a determination of Firmus's attorney's fees in accordance with this opinion. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 764 (Tex. 2012); accord Rohrmoos Venture, 578 S.W.3d at 560.
DISSENTING OPINION
Lawrence M. Doss Justice
If I were the trial judge in this case, I would have no clue how to address the Court's judgment on remand. Is our Court announcing that the trial court should have adopted the injunctive relief proposed by Firmus? The majority suggests that denying injunctive relief would be error, but it never articulates the relief it believes the law requires. The trial court saw through the overreach proposed in Firmus's draft injunction and aptly denied the request for relief. I respectfully dissent from the majority's decision to reverse course.
Firmus's proposed injunction would prohibit ATX and its customers from parking beyond "a single bay or a single parking space" and "encroach[ing]" into the driveway for any period of time, no matter the impact on access.
I. The Trial Court Rightly Rejected the Requested Injunction
For over a century, the Supreme Court of Texas has held that courts cannot rewrite unambiguous contractual terms to shield parties from the words they bargained for. See James Constr. Grp., LLC v. Westlake Chem. Corp., 650 S.W.3d 392, 403 (Tex. 2022); Dorroh-Kelly Mercantile Co. v. Orient Ins. Co., 104 Tex. 199, 202, 135 S.W. 1165, 1167 (1911). The easement agreement, the result of arms-length negotiations, permitted broad property use for any purpose so long as it does not "unreasonably interfere with or restrict direct access to and between the Properties . . . ." Firmus, however, seeks to transform this language into something far more restrictive, by requiring the property be used solely for parking, and by preventing ATX and several non-parties from encroaching parking stripes.
Similarly, the easement agreement grants each property owner continued use of the surface for "all purposes that do not unreasonably interfere with or interrupt the use or enjoyment of the Easements."
If the majority is instructing the trial court to adopt Firmus's position, the resulting injunction would be "so broad as to enjoin a defendant from activities which are a lawful and proper exercise of his rights," prohibited under Texas law. Houston Laureate Assocs., Ltd. v. Russell, 504 S.W.3d 550, 569-70 (Tex. App.-Houston [14th Dist.] 2016, no pet.). The trial court was right to reject Firmus's requested injunction. The majority provides no justification for why it departs from the parties' agreed terms.
Firmus's pleadings indicate it knows the limits of what an injunction could obtain. Initially, its pleadings only complained of diverted water and the loss of 18 parking spaces. Later, the injunctive relief it prayed for was to prohibit construction that "unreasonably or intentionally interferes with or invades" Firmus's use and enjoyment of the property. Post-trial, Firmus should not be able to expand its requested relief to micromanage parking operations beyond what it asked for. Courts, in fact, lack the power to grant injunctive relief beyond what is specifically pleaded. Shields v. State, 27 S.W.3d 267, 271 (Tex. App.-Austin 2000, no pet.); San Augustine ISD v. Woods, 521 S.W.2d 130, 133 (Tex. App.-Tyler 1975, no writ); Fletcher v. King, 75 SW.2d 980, 982 (Tex. Civ. App.- Amarillo, 1934, writ ref'd.).
When the Supreme Court denies review with the notation "writ refused," that carries the same precedential weight as an opinion of the Supreme Court of Texas. Ferreira v. Butler, 575 S.W.3d 331, 335 n.29 (Tex. 2019).
Although Firmus and the majority suggest that ATX could have filed special exceptions, the issue is not unclear pleadings. Firmus was specific in the relief it sought; the only matter that has become unclear is whether the trial court should order relief beyond the specific relief pleaded for.
II. ATX is the Prevailing Party Entitled to Attorney's Fees
Because of my disagreement with the majority's disposition of the first issue, I also dissent from the majority's reversal of the attorney's fee award to ATX. In Texas, the "prevailing party" is one who prevails "on the main issue, even though not to the extent of its original contention." Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 351 (Tex. 2006); see also Intercontinental Grp. P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 652 (Tex. 2009). Though the jury found a technical breach on access at some point in time, ATX successfully defended against the main thrust of Firmus's lawsuit.
Conclusion
I would affirm the judgment of the trial court, including the denial of injunctive relief and find that ATX is the prevailing party. Because I believe the majority errs in its resolution of Firmus's first and third issues, I respectfully dissent.