Ray Gene Bilby v. David L. Eaton--Appeal from 91st District Court of Eastland County

Opinion filed April 17, 2008

In The

Eleventh Court of Appeals

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 No. 11-07-00032-CV

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RAY GENE BILBY, Appellant

V.

DAVID L. EATON, Appellee

On Appeal from the 91st District Court

Eastland County, Texas

Trial Court Cause No. CV-06-40441

M E M O R A N D U M O P I N I O N

David L. Eaton filed suit against Ray Gene Bilby and Cynthia Sue Bilby for declaratory judgment and trespass after Gene severed and capped the water line running to Eaton=s residence. The trial court granted Eaton temporary injunctive relief and, following a bench trial, rendered judgment against Gene awarding Eaton damages and permanent injunctive relief. We affirm in part and reverse and remand in part.

I. Background Facts

Cynthia and Gene divided a 435-acre tract of property when they divorced. Cynthia received twenty-five acres and a limited fifteen-foot roadway easement that arose in the event of flooding. Gene received the remaining acreage subject to the limited roadway easement. Special Warranty Deeds dated January 31, 2006, were executed to effectuate this division.

Cynthia=s tract contained a house. On April 26, 2006, Cynthia sold her tract and house to Eaton. The house had city water service that was provided by a buried two-inch water line and a water meter that were installed in 1990. The meter is near a state highway. The water line runs from the meter to the house and crosses Gene=s acreage. In February 2006, Gene paid for a new three-fourths-inch meter and placed it near the original two-inch meter.

Eaton tried to change the utilities to his name. He learned that the water meter was in Tex-Am Drilling=s name. This is a corporation of which Gene is the president and sole shareholder. The city refused to transfer the account without Gene=s consent. Eaton contacted Gene and was told that he could either purchase an easement or find water elsewhere. On May 10, Gene severed and capped the two-inch line running to the house. Eaton had no prior warning and, subsequently, had no water. On May 18, Gene=s son installed a one-inch water line. He connected the line to the three-fourths-inch meter and left it on the surface. Gene told Eaton that this was A[his] line@ and that Ahe was through with [him].@

Eaton filed suit and received a temporary restraining order and then a temporary injunction. These restrained Gene from interfering with Eaton=s repairs to or maintenance of the two-inch water line. Eaton also asserted causes of action for declaratory relief, trespass, and breach of contract. Originally Eaton sued both Cynthia and Gene, but he nonsuited her prior to trial. The trial court conducted a bench trial. The parties stipulated that an implied easement appurtenant for a water line existed across Gene=s property but could not agree on the ownership of the water line and meter. Following trial, the court rendered judgment for Eaton. It found that a fifteen-foot easement by implication existed and awarded Eaton actual damages of $5,387.02, attorney=s fees of $8,689.97, and injunctive relief. The trial court ordered the water meter transferred into Eaton=s name and prohibited Gene from using the existing two-inch water line.

II. Issues on Appeal

Gene challenges the trial court=s judgment with six issues. He contends that the damage award lacks factually sufficient evidence and that the trial court erred by awarding attorney=s fees, by ordering the transfer of the water meter into Eaton=s name, and by ordering him to make separate arrangements with the city for water. Gene also argues that the permanent injunction is improper because it does not describe the location of the easement and is overly broad and insufficiently specific.

III. Analysis

A. Actual Damages.

Gene=s first issue is phrased as a factual sufficiency challenge. Gene states that the trial court erred by awarding $5,387.02 in damages because this award is against the great weight and preponderance of the evidence. The trial court awarded Eaton damages for rental expense, repairs, and materials. Eaton testified that, when Gene severed the water line, the house had no water and he was forced to live in a rent house for four months. He also testified that he spent $550 per month in rent, that the lack of water led to algae problems in the swimming pool, and that he spent $3,150 having the pool cleaned. Finally, he reconnected the severed water line himself and produced two receipts totaling $37.02 for supplies.

Gene does not controvert any of these figures but argues that they all occurred after he ran the one-inch surface line. Presumably, Gene=s argument is that Eaton failed to mitigate his damages. The mitigation-of-damages doctrine is an affirmative defense. Great Am. Ins. Co. v. N. Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415, 426 (Tex. 1995). Gene did not plead it. On this basis alone, the trial court did not err.

Moreover, the reasonableness of Eaton=s actions is inherently a fact question. Gene did not request findings of fact. We presume, therefore, that the trial court found all fact questions in support of its judgment, and we must affirm the judgment on any legal theory finding support in the pleadings and evidence. Allegheny Cas. Co. v. State, 163 S.W.3d 220, 224 (Tex. App.CEl Paso 2005, no pet.). The trial court heard both parties testify about their efforts to resolve the conflict; knew Gene had unilaterally severed the house=s water access once; knew that Gene=s Asolution@ was a one-inch surface line; and knew that, during at least a portion of the time Eaton stayed in a rent house, there were pending requests for injunctive relief. The trial court did not err by impliedly finding that Eaton acted reasonably.

Gene also argues that the actual damage award is inappropriate for a trespass cause of action. This issue was not raised before the trial court and is, therefore, waived. Tex. R. App. P. 33.1. Furthermore, Eaton=s recovery is appropriate for a temporary injury. Trespass damages can include costs of restoration or repair, Moore v. Rotello, 719 S.W.2d 372, 378-79 (Tex. App.CHouston [14th Dist.] 1986, writ ref=d n.r.e.); and loss of use, Brazos Elec. Power Coop., Inc. v. Taylor, 576 S.W.2d 117, 120 (Tex. Civ. App.CWaco 1978, writ ref=d n.r.e.). Eaton=s expenses for repairing the line and cleaning the pool are recoverable as restoration damages. The rental expense is recoverable as loss of use damages. Issue one is overruled.

B. Attorney=s Fees.

Gene argues that the trial court erred when it awarded attorney=s fees because Eaton=s declaratory judgment action was resolved by the stipulation of counsel announced to the court at the start of trial and because Eaton did not segregate his fees between the two defendants. Eaton responds that Gene=s segregation argument has been waived and that the trial court did not abuse its discretion. We agree.

In a declaratory judgment action, the trial court may award costs and reasonable and necessary attorney=s fees as are equitable and just. Tex. Civ. Prac. & Rem. Code Ann. ' 37.009 (Vernon 1997). Whether the fees are reasonable and necessary are questions of fact; whether awarding the fees and costs is equitable and just is a question of law. GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 311-12 (Tex. 2006). We review the trial court=s decision of whether costs and attorney=s fees are equitable for an abuse of discretion. Doncaster v. Hernaiz, 161 S.W.3d 594, 606 (Tex. App.CSan Antonio 2005, no pet.). To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

Eaton received three invoices for attorney=s fees and expenses. These were admitted without objection. Eaton=s counsel also testified without objection that these fees and expenses were reasonable and necessary. Gene cross-examined Eaton=s counsel and established that the invoices included a $50 service fee for Cynthia and some time in connection with her nonsuit. The charges for this time were not identified.

When a plaintiff sues multiple defendants and settles with some prior to trial or when a plaintiff sues on multiple causes of action some of which allow attorney=s fees and others do not, the general rule is that he must segregate the fees owed by the settling defendants from the nonsettling defendants and segregate fees incurred prosecuting causes of action that allow attorney=s fees from those that do not. Hartman v. Solbrig, 12 S.W.3d 587, 594 (Tex. App.CSan Antonio 2000, pet. denied). An exception to this rule arises when the fees rendered are in connection with claims arising out of the same transaction and are so interrelated that their prosecution entails proof of essentially the same facts. Id.

Because Gene did not object to Eaton=s attorney=s fee evidence, he has waived any argument that the fees were not recoverable or that Eaton failed to segregate his fees. Rule 33.1. Even if the claim had been preserved, Gene has failed to show an abuse of discretion. Because the stipulation was not reached until just before the start of trial, because that stipulation excepted the ownership of the line and meter and, thus, did not resolve all of the declaratory judgment claim, and because all of the evidence related to water service for the house, the trial court could have reasonably concluded that the claims were so interrelated that all of Eaton=s fees were recoverable. Issue two is overruled.

C. Injunctive Relief.

Gene contends in his third issue:

The Court erred in Ordering the Defendant, Ray Gene Bilby[,] to remove all water line access and usage from his property and make separate arrangements with the City of Eastland using a [different] water meter than the one servicing Plaintiff=s Real Property.

We read this as a complaint about Eaton=s exclusive access to the two-inch water line and the water meter servicing that line. Because the parties= stipulation and the evidence support a finding that Gene and Cynthia created an easement for the water line that was in place when they executed their cross-deeds, we disagree with Gene=s contention.

Gene directs our attention to Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex. App.CEl Paso 1993, no writ), for the proposition that the servient estate has the right to select the location of the easement. We agree. The court, however, also said:

Once established, the location of the easement cannot be changed by either the easement owner or the servient owner without the consent of both parties, even though the use of the easement where located becomes detrimental to the use of the servient estate.

Id. The water line easement was created when Gene and Cynthia exchanged their deeds. See Ulbricht v. Friedsam, 325 S.W.2d 669, 676 (Tex. 1959) (AWhere the owner of an entire tract of land or of two or more adjoining parcels employs a part thereof so that one derives from the other a benefit or advantage of a continuous, permanent, and apparent nature, and sells the one in favor of which such quasi easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication.@). That easement was not altered prior to Eaton=s purchase. Gene agreed that the house was always supplied with water by the two-inch line and meter and that he did not make any changes to either between the time of the divorce and Cynthia=s sale to Eaton. Gene=s right to select the easement=s location was exercised when the easement was created. Gene had no right to subsequently alter that easement without the agreement of the dominant estate. Because the easement, and thus the water line within it, belongs to Eaton, the trial court did not err by enjoining Gene from accessing it. Gene=s third issue is overruled.

Gene also contends that the trial court erred by granting an easement by implication for the water line without providing a description of the easement=s location and that the injunction is overly broad. We agree that the trial court erred by not describing the easement=s location. Tex. R. Civ. P. 683 requires that every order granting injunctive relief be specific in its terms and describe in reasonable detail the act or acts sought to be restrained. When a trial court grants injunctive relief in connection with an easement, a sufficient description of the easement is essential. See Eastex Wildlife Conservation Ass=n v. Jasper, 450 S.W.2d 904, 917-18 (Tex. Civ. App.CBeaumont 1970, writ ref=d n.r.e.) (judgment enjoining party from obstructing road was too vague because it did not describe the location and width of the road). The trial court=s judgment does not describe the easement=s location.

We sustain Gene=s fourth and sixth issues in part. This case is remanded with instructions to describe the easement=s location. This description should provide sufficient information that subsequent purchasers will have notice of the location and extent of the easement. We note that the water line easement is not synonymous with the limited roadway easement and that, absent agreement of the parties, the location and extent of the easement is as it existed when created by the January 31, 2006 Special Warranty Deeds.

D. Directive to a Nonparty.

Gene complains in his fifth issue that the trial court erred by ordering the City of Eastland to transfer the water meter into Eaton=s name because the city is not a party. Eaton concedes that the judgment was perhaps inartfully worded and commendably accepts responsibility for this oversight. Eaton contends that the purpose of the disputed language was to satisfy the city=s requirement that Gene consent to any transfer of ownership. Because we are remanding a portion of this case for further reconsideration, we sustain Gene=s fifth issue and remand to the trial court so that its intention can be rewritten in a manner that does not mandate action by a nonparty.

IV. Holding.

We affirm in part and reverse and remand in part the judgment of the trial court. The case is remanded so that the trial court can provide a written description of the easement appurtenant by implication created when Cynthia Sue Bilby and Ray Gene Bilby exchanged their cross-deeds and so that the trial court can reword that portion of the judgment directing the City of Eastland to take action. The remainder of the trial court=s judgment is affirmed.

RICK STRANGE

JUSTICE

April 17, 2008

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.