Opinion
09-21-00300-CV
10-03-2024
ENDEAVOR GROUP, LLC, Appellant v. KONGSBERG POWER PRODUCTS SYSTEMS I, LLC, Appellee
Submitted on February 27, 2023
On Appeal from the 457th District Court Montgomery County, Texas Trial Cause No. 18-08-11142-CV.
Before Golemon, C.J., Johnson and Wright, JJ.
MEMORANDUM OPINION
JAY WRIGHT Justice
Appellant Endeavor Group, LLC ("Endeavor") sued Kongsberg Power Products Systems I, LLC ("Kongsberg") seeking a declaratory judgment that Kongsberg had no right to use a storm water detention pond on Endeavor's land. Endeavor also alleged causes of action for trespass and nuisance. Kongsberg argued it was not trespassing and contended that it had an implied easement either by necessity, or by prior use, and that there was an implied public dedication of the detention pond.
The parties tried the case to a jury, which returned a verdict in favor of Kongsberg on all questions submitted to it, including Kongsberg's attorney's fees, and the trial court entered judgment on that verdict in favor of Kongsberg.
Endeavor appeals the final judgment, claiming that there was legally and factually insufficient evidence to support the jury's verdict. Endeavor further argues that the trial court's evidentiary rulings constituted cumulative error, and that the trial court erred in awarding Kongsberg attorney's fees because Kongsberg's pleadings did not support an award for attorney's fees.
For the reasons explained below, we affirm the trial court's judgment.
I. Background and Trial Evidence
Kongsberg manufactures motor vehicle components in its facility in Willis, Texas. From 1979 to 2001, Kongsberg's predecessor, Capro, purchased a total of seven parcels of land on both sides of Cochran Street in Willis. Kongsberg purchased the parcels on the west side of the street in 1979 and 2001; its manufacturing facility occupies those parcels. Kongsberg's three parcels on the east side of the street originally consisted of unimproved land. In the late 1990s, Kongsberg sought to expand its facility, but the City of Willis ("the City") would not approve the proposed expansion unless Kongsberg built a detention pond on the property across the street from its manufacturing facility. Kongsberg therefore excavated a portion of the land on the east side of Cochran Street to construct a storm water detention pond. Kongsberg built the detention pond on property it bought in increments from 1987 through 2001. The construction of this detention pond not only satisfied the City of Willis' requirements with respect to Kongsberg's proposed expansion of its facility on the west side of the street, but it also helped settle a lawsuit brought by residents of the Will wood subdivision, whose properties flooded before Kongsberg built the pond.
For the limited purposes of this opinion, Capro and Kongsberg may be considered the same entity.
The properties are located on South Cochran Street, rather than Cochran Street, but for ease of reference we will use the parties' terminology.
In December 2001, Capro leased the land on the east side of Cochran Street to Georgia Warehouse Systems IV, Ltd. ("Georgia Warehouse"), a company formed by Capro's then current or former attorneys. This lease contemplated that Georgia Warehouse would build a warehouse that it would then lease back to Capro, with each party having a purchase option at the end of the lease period. When Capro decided against purchasing the property on the east side of Cochran Street, Georgia Warehouse bought it, and in 2018, sold both the warehouse and the detention pond to Endeavor.
When Kongsberg and Endeavor could not agree on Kongsberg's continued right to use the pond for drainage, Endeavor sued Kongsberg. Endeavor later subdivided and replatted its property on the east side of Cochran Street and sold the warehouse, granting the warehouse buyer an express easement to use the pond for its stormwater runoff.
We summarize the evidence below.
A. Robert Pigg's Testimony
Robert Pigg ("Pigg") testified as Kongsberg's designated corporate representative with knowledge of Kongsberg's easement claims and the contracts relevant to those claims. Pigg testified he was designated because he had been with Kongsberg the longest, had the most knowledge of the factual bases for Kongsberg's easement and implied public dedication claims, and was responsible for the Kongsberg business division that Endeavor sued.
At the time of trial, Pigg had worked for Kongsberg in Willis for fifteen years and was the president of Kongsberg's interior business segment and senior vice president of Kongsberg's off-highway business unit. Pigg described his education and work experience, noting that he has a mechanical engineering degree, and before working for Kongsberg, he spent several years designing tools and equipment for various employers. His responsibilities at Kongsberg have ranged from engineering manager for light-duty cables to his current positions.
Pigg viewed several photographs and documents, including photographs of the properties in question, documents regarding the purchase and the sale of the east side property to Georgia Warehouse and Endeavor, and the leases between Kongsberg and Georgia Warehouse. The photographs show surface and aerial views of the land and buildings on the east and west sides of Cochran Street, the street itself, and the pipes leading from Kongsberg's property to Endeavor's property. Pigg confirmed that these photographs showed that Cochran Street ran between the Kongsberg property and the Endeavor property.
Pigg acknowledged that Kongsberg leased the entire 2.8445-acre tract on the east side of Cochran Street from Georgia Warehouse, but also testified that Kongsberg leased only the warehouse, not the detention pond. According to Pigg, under the terms of the most recent lease, executed in November 2012, Kongsberg paid rent to Georgia Warehouse, and was responsible for covering the costs of repairs, maintenance, and property taxes on the leased premises. The property taxes Kongsberg paid covered the entire property. Pigg also confirmed that Kongsberg does not own Cochran Street and assumed that Endeavor likewise did not own the street. Although Pigg testified to pipes running under Cochran Street to drain the water from the west side property into the pond on the east side of Cochran Street, he was unable to state whether those pipes "joined" the tracts on the east and west sides of the street.
The property on the east side of Cochran Street that Georgia Warehouse sold to Endeavor is usually described as a total of 2.8445 acres, but different total acreage is reflected in different documents. The parties do not claim that these varying figures affect this suit.
In Pigg's opinion, the detention pond had no value to Kongsberg. Instead, the pond benefitted the downstream property owners because the pond's existence prevented their homes from flooding. He also noted that Kongsberg is not the pond's sole user; storm water from multiple properties, totaling about fifteen acres, drains into the pond. He did not know whether Kongsberg had explored possible alternate locations for storm water detention before building the pond.
After Endeavor bought the property on the east side of Cochran Street, Russell Miller approached Kongsberg and Pigg regarding rental payments for Kongsberg's use of the detention pond. Kongsberg offered to pay for half of the pond maintenance, but declined any further payment to Endeavor, a decision that caused Miller to "threaten" to fill in the detention pond; Kongsberg consequently involved the City of Willis in the disagreement. The City Manager, Hector Forestier, then sent Russell Miller a letter indicating that the detention pond constituted a "drainage easement[,]" and that even if no recorded easement could be found, there was an "implied easement that runs with the land as the detention pond has served that property and other properties for well over 10 years." In this letter, Forestier also advised Miller that the city would "seek injunctive relief in the event you or your company attempt to fill in the detention pond." (Emphasis original.) As of the date of trial, the pond remained.
B. Derek Wind's Testimony
Derek Wind ("Wind") is the Chief Operating Officer for Bleyl Engineering, which contracts with the City of Willis to provide engineering services. His responsibilities include "reviewing] and approving] all subdivision plats in the city[,]" to ensure that the plats comply with city ordinances, such as drainage plans and studies. Wind has a master's degree in civil engineering with a specialty in water resources and is both a licensed professional engineer and hydrologist. Wind described hydrologic and hydraulic studies as pertaining to drainage and rainfall and how rain is collected and how it affects property, and explained how detention ponds are used to prevent downstream flooding. His job involves controlling "the rate at which water leaves the land because of impervious surfaces added to the land." He described "impervious surfaces" as including roofs, sidewalks, and the like, and noted that in Montgomery County, where the subject property is located, a detention pond is required "once you exceed 15,000 square feet of impervious surface." He estimated the impervious surface of Kongsberg's facility at 225,000 square feet but did not know the square footage of the warehouse on the east side of Cochran Street.
Wind confirmed that the detention pond in question is a hundred-year design drainage facility, a reference to "the annual exceedance probability, which is a percentage likelihood that that amount of rainfall would be exceeded in any given year. So a 100-year storm would have a 1 percent chance of being exceeded in any given year." Therefore, according to Wind, when the pond was completed, it should be maintained by the City, according to the City's drainage manual. Despite the manual's language, Wind testified that the City was not maintaining the pond, but he acknowledged that the City did not formally adopt the manual until 2019.
Wind was involved in "general discussions about the history of the [detention pond] project[,]" and at one point, he was asked to consult Bleyl Engineering's records to find information about it. According to Wind's research, Capro previously owned both the approximately 6-acre facility on the west side of Cochran Street and the 2.8-acre property on the east side of the street and developed this land so the pond would detain all the water leaving the six acres on Cochran Street's west side. He confirmed that the City required a drainage study before approving Kongsberg's request to enlarge its manufacturing facility but believed that Kongsberg could have built an underground or other storm water detention facility.
Wind recalled the city manager requesting him to investigate the effect of a proposed filling in of the detention pond and determined that this action would "[potentially" cause flooding of houses in the Willwood subdivision. He agreed it would be a "bad idea" to fill in the pond, although he acknowledged that the pond could be made "significantly" smaller by reducing it to about one-third of its then-current size. As the city engineer, Wind would have assisted Endeavor if it had proposed plans to reclaim part of the pond, but he did not know whether Endeavor had done so.
Wind also confirmed Pigg's testimony about replatting Endeavor's land and restricting the warehouse portion of the land to commercial use while restricting the pond portion of the land to use as a detention pond.
C. Larry Foerster's Testimony
Larry Foerster ("Foerster") testified that he is a partner with the Conroe law firm of Darden, Fowler, and Creighton; and he functions as the Willis city attorney on a contract basis. He described his educational and professional qualifications, noting that he has been an attorney since 1974.
Foerster was unable to state who paid property taxes on the pond or who maintained it but testified the City did not maintain it. Cochran Street, conversely, is a public street that the City maintains. He confirmed that the City requires drainage for commercial properties and residential developments.
Foerster became involved with the detention pond issues in September of 2017, when Patrick Kelly, the seller's real estate agent, asked Foerster what he knew about the detention pond's history. Foerster responded that he lacked sufficient information to render a "definitive opinion," but expressed his understanding that the pond had been used for water detention continuously since 1998. Foerster opined that the "detention pond constitutes a drainage easement or surface water detention easement that encumbers the property." Foerster further opined that "the detention pond was constructed in compliance with Willis drainage standards, which adopted the County drainage standards. Obviously, this was required by the City for development of the Capro (now Kongsberg) property." He testified that "there's obviously a detention pond[]" and that such ponds are common in Montgomery County to prevent flooding of downstream property. As Miller was a reputable contractor in the area, Foerster believed that Miller would have been familiar with detention ponds.
When asked about implied easements, Foerster agreed that a necessity easement is used to prevent land from becoming inaccessible when a portion of a tract is sold. According to Foerster, however, a necessity easement is not limited to landlocked property, and may apply to utility and drainage easements. Foerster also mentioned prior use easements and public dedications; although he did not discuss these concepts in depth, he believed that "[p]ublic use" would include flood prevention. He could not locate an express easement of record for the detention pond (testimony by Mr. Foerster: "I was hopeful that maybe there was an express easement that had been recorded. Q. [by Mr. Drucker] Okay. And we do know that there is no express easement of any type. Correct? A. [Mr. Foerster] That's my understanding."). Foerster also did not disagree with Wind's opinion that Kongsberg could have constructed an alternate facility for storm water detention and was not compelled to create a pond across the street from its main plant.
While Foerster could not state when the State of Texas granted a patent for the F.K. Henderson Survey, he believed that it was during the 1800s. He did not know whether the Cochran Street area of Willis was platted, and he was unfamiliar with Kongsberg's expansion, as these events predated his service as city attorney. Yet, Foerster recalled drafting the July 23, 2018 letter that the City Manager signed and sent to Russell Miller. Foerster believed they sent the letter because the City Manager had heard of plans to fill in the detention pond and they were concerned about potential flooding and property damage that could ensue. When he drafted the letter, Foerster did not know that residents of the Willwood subdivision had previously sued because of the flooding, but he later learned of the suit and learned that Kongsberg had installed the detention pond to address the Willwood suit.
D. Enrique Morales's Testimony
Enrique Morales ("Morales"), a civil engineer, testified as a retained expert witness for Endeavor. He described his credentials and his work developing commercial tracts and residential subdivisions, including over fifty detention facilities, approximately five of which were underground.
As Endeavor requested, Morales calculated the volume of the detention pond with respect to the warehouse and Kongsberg and determined that the drainage from the warehouse used eleven percent of the volume of the pond; most of the pond's drainage was attributable to Kongsberg. Morales based this opinion on his review of available documents, including the survey, a drainage study, and aerial photographs showing the properties before and after the warehouse and the Kongsberg expansion were built. He also considered the amount of "impervious cover" at the Kongsberg facility as opposed to the single-family homes in the pond's fifteen-acre watershed area. He did not, however, investigate the amount of impervious cover in the watershed due to roads or impervious cover on other land.
Morales defined impervious cover as "[a]ny sort of surface that would prevent . . . penetration [of rainwater] into the ground[,]" including buildings and concrete.
When Kongsberg built the detention pond, it could have instead constructed an underground detention facility, but this approach would have cost more than the pond. Consequently, this alternate approach to storm water detention was less common than above-ground options.
E. Amy Miller's Testimony
Amy Miller ("Amy") testified that she and her husband, Russell Miller, are equal partners in Endeavor. When Endeavor considered buying the property on the east side of Cochran Street, including the detention pond, it hired attorney Britt Hall to investigate whether the property might be encumbered by either express (recorded) or implied easements. After being advised there were no easements, Endeavor bought the property. Since the purchase, Endeavor has paid property taxes and the costs of property maintenance and repair.
For ease of reference, we use the Millers' first names.
Amy Miller testified about the changed condition of the Kongsberg facility and the Will wood subdivision, noting that in the mid-1990s, much of Kongsberg's surface was gravel, rather than paving, and that after Kongsberg expanded, many Willwood homeowners experienced flooding problems with almost every rainfall.
F. Russell Miller's Testimony
Russell Miller ("Russell"), Amy's husband and a managing member of Endeavor, outlined his work history and self-employment in the construction field since 1983. One of his businesses, the Fairweather Group, is a commercial general contractor incorporated in 1996; as examples of the Fairweather Group's work, Russell mentioned that it built the Montgomery Library, the county morgue, and several commissioners' offices.
The Endeavor Group, one of the Millers' businesses, has been in operation since about 2008. Russell described his role in Endeavor as seeking properties that Endeavor can buy, beautify, and lease or sell at a profit. He confirmed Amy's testimony about researching any encumbrances on the property and expressed his surprise that Kongsberg would sell its detention pond. Believing that Kongsberg would pay to use the detention pond, Russell approached Kongsberg about negotiating a rental agreement, but Kongsberg declined; Russell denied raising his voice or threatening to fill in the entire pond during that conversation. He considered filling in part of the pond to make space for an additional building but has not done so.
Russell testified that when attempting to negotiate a fair rental for Kongsberg to continue using the detention pond, he requested $7,500 per month, knowing that Kongsberg paid that amount to rent the entire property from Georgia Warehouse. Russell conceded that his figure was too high but considered it wise to begin with a high number so he could reduce it later in the negotiation process.
When asked about different documents pertinent to the replatting of the property and the sale of the warehouse, Russell acknowledged he represented to the title insurance company that there were no pending lawsuits. He explained that he believed that representation to be accurate because Endeavor's pending lawsuit involved the detention pond, not the warehouse. Russell also conceded that he did not follow attorney Hall's advice to obtain a statement from Georgia Warehouse negating any other usage rights to the detention pond; Russell further acknowledged that: (1) the appraisal contained a reference to Kongsberg's "easement for use of the subject detention pond[;]" and (2) the title company excluded coverage for any such easement. Russell believed, however, that the title company based its exclusion on an abundance of caution, rather than on affirmative evidence of an easement.
G. Thomas Belinoski's Testimony
Thomas Belinoski, a former member of the Willis City Council, testified about the council's scope of responsibility, including drainage issues. He noted the City maintains Cochran Street, the ditches along Cochran Street, and the drainage pipes under Cochran Street. According to Belinoski, Kongsberg does not own Cochran Street or the land under Cochran Street.
Belinoski referred to several documents regarding Kongsberg's facility expansion and the installation of the detention pond, confirming that the detention pond was designed to (and did) significantly improve the drainage problems in the Willwood neighborhood.
To the best of Belinoski's recollection, the City bought and maintained the land containing public parks and insures but does not charge taxes on those lands. He could not recall any time that land was publicly dedicated to the City but stated that any time that such an offer was made, the City Council would vote on accepting the offer, and there would be documentation reflecting the offer and acceptance. Belinoski could not recall locating any documents showing that the City had accepted a dedication of the detention pond; he also was unsure whether the City insured the pond and did not believe the City maintained it.
While Belinoski could not recall many events relevant to the pipe installation under Cochran Street, he testified that there is a document asking Capro to donate a twenty-foot drainage easement under the street.
H. Stephen Green's Testimony
Stephen Green ("Green") described his educational background, which includes a master's degree in architecture and a law degree. Green's brother, the late Pat Green, once served as Capro's attorney, as did Pat Green's former law partner, Howard Mashburn. Pat Green and the late Bob Gross formed Georgia Warehouse, a limited partnership, with general partner Chips & Gears, Inc. While assisting in settling Pat Green's estate, Green became authorized to conduct business on behalf of Chips & Gears; he therefore was familiar with some of Georgia Warehouse's business dealings and could identify and describe the transactions involving Georgia Warehouse even though he was not personally involved in those contracts. According to the terms of one of the leases, Georgia Warehouse would pay $10 per year to occupy the leased premises, yet Capro would remain responsible for paying the property taxes. Pursuant to another lease, Georgia Warehouse leased the same tract back to Capro; Green interpreted this lease as covering only the warehouse, and not the detention pond, even though the lease specified that it covered 2.8445 acres.
Kongsberg's Exhibit 109.
Kongsberg's Exhibit 126.
On October 19, 2012, Kongsberg conveyed the same 2.8445 acres to Georgia Warehouse, and Georgia Warehouse sold that same property to Endeavor in 2018. The title insurance policy pertinent to this latest transaction excepted coverage regarding the detention pond.
I. Teresa Adams's, Marylois Scott's, and Adrian Thomas Jr.'s Testimony
Teresa Adams, Marylois Scott, and Adrian Thomas ("Adams," "Scott," and "Thomas," respectively) are current or former residents of the Willwood subdivision. Adams testified that her house in that subdivision flooded multiple times before Kongsberg installed the detention pond, but only once since the pond was installed, although there has been water in her garage several times since the pond was installed. She stated that the pond had "definitely helped[]" and that she relied on the pond to protect her home from constant flooding. Adams was one of the residents who, along with five or six other homeowners, initiated the lawsuit against Kongsberg and the City of Willis; she stated that putting in the detention pond was part of the suit's resolution.
Scott and Thomas testified that they bought their homes shortly after the pond was installed. Scott indicated that although she had water "real deep in the yard," her house had not flooded thanks to the detention pond. Thomas testified that although he had water in his house once in the twelve years he lived there, it was an inconvenience rather than a bad flood and everything dried out. Like Scott, Thomas stated that he often has water very close to his house, and the house would have flooded but for the detention pond.
J. Hector Forestier's Testimony
Forestier is the retired city manager for the City of Willis. In that role, he was responsible for the City's daily operations, including water, sewer, streets, and drainage. He testified that Exhibit 116, his July 23, 2018 letter to Russell Miller, drafted by Foerster, came about because the City learned of a "threat" to fill in the detention pond. Forestier therefore advised Russell that according to the city attorney, Larry Foerster, the City considered the
detention pond ... a drainage easement or surface water detention easement that encumbers the property. [Foerster] went on to explain that if no recorded easement could be found, there is nevertheless an implied easement that runs with the land as the detention pond has served that property and other properties for well over 10 years.
It was the City's position that the pond was "part of the City's drainage system that is relied upon to protect the citizens of Willis[.]" Forestier's letter also advises Russell that the City was "open to exploring] the possibility of reducing the size of the detention pond so that [Endeavor could] use more of [its] propertyf,]" but Endeavor did not approach the City about this option.
Forestier confirmed that the City installed the pipes under Cochran Street but did not maintain the pond, stating that "[detention ponds are maintained by the owner of the property."
K. William "Britt" Hall's Testimony
Endeavor retained Hall ("Hall"), an attorney, to investigate potential problems involving the land on the east side of Cochran Street that Endeavor was then considering buying. Hall provided his opinion in a January 19, 2018 Memorandum to Russell and concluded that Kongsberg had no express or implied easement to use the detention pond. The memorandum itself is not in evidence, as the trial court sustained Kongsberg's objection to it, but Hall discussed the opinions he expressed in it.
Hall testified regarding the law of easements, noting that an easement may be either express or implied. He also discussed some elements of a necessity easement, including unity of ownership "at some point in the past," as well as access being necessary and not a mere convenience. In Hall's opinion, unity of ownership existed, but he believed that Kongsberg had space for a detention facility on the west side of Cochran Street. Kongsberg's use of the pond on the east side of Cochran Street therefore was not a necessity. Consequently, Hall did not believe that Kongsberg had a necessity easement to the detention pond. He did, however, advise the Millers to obtain a statement from Georgia Warehouse that nobody had any rights to use the detention pond because he was concerned there might be some implied rights. In essence, he advised them to investigate the possibility of an implied easement. After researching the available records, Hall believed that once Endeavor purchased the land east of Cochran Street, Endeavor could stop Kongsberg from using the detention pond and could require Kongsberg to pay to use the detention pond and advised the Millers accordingly.
Hall also noted that an easement may arise by prior use, and there may be an implied public dedication of property. Although Hall considered the possibility of a prior use easement when he analyzed the situation for the Millers, he did not look into the possibility of an implied public dedication. Additionally, Hall described adverse possession and easements by prescription, agreeing that they require adverse possession of non-owned land for a certain time period. He noted that use by permission, including permission granted by contract, would not be adverse to an owner's or lessor's interests, and therefore would not apply toward a prescriptive easement.
Although Hall was generally familiar with leases, he had not seen the leases involving Capro, Georgia Warehouse, and Kongsberg. Hall did, however, examine the October 19, 2012 Deed Without Warranty whereby Kongsberg sold Georgia Warehouse the property east of Cochran Street.
L. The Attorneys' Testimony Regarding Fees
The attorneys for both parties testified about their legal education and experience, as well as reasonable and customary hourly rates spent in the prosecution or defense of the case. They authenticated their billing records, segregated their fees, and testified to the additional fees that would be incurred if the case were appealed.
Kongsberg's attorney, James Randal Bays, testified that his hourly rate of $275 is reasonable in Montgomery County for an easement dispute. He also testified that between $175 and $250 is a reasonable hourly rate for his associates, with a blended hourly rate of $247.50. Bays stated that as of the date of his testimony, his firm has billed Kongsberg $89,474.25 in fees, but that he could recover only $63,310.80 for the declaratory judgment action; this figure represented his blended hourly rate of $247.50 multiplied by the 255.8 hours spent in defending the declaratory judgment claim. According to Bays, this figure was reasonable for all work, including post-trial work, performed in the trial court. The firm's billing records were admitted into evidence as Kongsberg's Exhibits 137 and 138.
Bays further testified that $25,000 is a reasonable fee for an appeal to this court, plus $3,500 to $5,000 for oral argument in this court. Bays also testified to additional fees that would apply in the event of an appeal to the Texas Supreme Court: $5,000 for filing or responding to a petition for review; $15,000 for complete briefing; and $5,000 for oral argument.
We did not hold oral argument in this case.
Although Endeavor objected to evidence of Kongsberg's fees on the ground that Kongsberg had no pleadings to support a fee award, the trial court overruled this objection. Endeavor did not object to the jury question addressing Kongsberg's attorney's fees.
M. Documentary Evidence
The trial court admitted the leases covering the property on the east side of Cochran Street, as well as documents relevant to the sales of that property, including the sales contracts, the deeds, the appraisal, the plats, and the title insurance policy. Multiple surface and aerial photographs are also in evidence, as are the attorneys' billing records. Pigg testified to the content of the photographs, as shown above.
Green testified to the leases' content, which are in evidence as Endeavor's Exhibit 11 and Kongsberg's Exhibits 109 and 126. The leases show that in December 2001, Capro leased its property east of Cochran Street to Georgia Warehouse so that Georgia Warehouse could build a 16,800 square foot warehouse that it would then lease back to Capro. The property was leased for ten years, at the rate of $100 per year, but included a purchase option after five years. Per the lease terms, after five years, Capro could buy the warehouse for $320,000. If Capro did not choose to extend the lease or buy the building, Georgia Warehouse could buy the property for $15,000. During this initial lease period, Georgia Warehouse charged Capro $3,192 per month to rent the warehouse and anticipated that it would charge Capro $5,712 per month if the lease were extended. The lease required Capro to pay all expenses of the leased property, including utilities, taxes, and insurance.
Georgia Warehouse leased the property on the east side of Cochran Street to Kongsberg from November 1, 2012 to November 1, 2017, at the rate of $6,216. As before, this lease provided that Kongsberg, the tenant, would pay for all utilities, taxes, insurance, and maintenance. This lease also gave Kongsberg the option to renew the lease for an additional five years at the monthly rate of $7,056.
Green also described the deeds. Although Georgia Warehouse used a Warranty Deed when selling the property to Endeavor, the deed transferring the property from Kongsberg to Georgia Warehouse was without warranty. Both deeds reflected exceptions to the conveyance. The 2018 deed from Georgia Warehouse to Endeavor reflected the following exclusions:
subject to any and all valid covenants, conditions, restrictions, easements and outstanding mineral and/or royalty interests in the oil, gas, and other minerals and leases thereon, now outstanding or affecting the premises herein conveyed, now of record in the County Clerk's office of Montgomery County, Texas, but only to the extent they are still in force and effect.Stephen Green signed the deed on behalf of Chips & Gears Company, the general partner in Georgia Warehouse. Kongsberg's 2012 deed to Georgia Warehouse excepted "[e]asements, rights-of-way, prescriptive rights and all other encumbrances, other than liens and conveyances, that affect the property and are of record in Montgomery County, Texas. . . ."
The record also contains Montgomery County's Drainage Criteria Manual, but witnesses testified that Willis did not adopt the manual until 2019, after Kongsberg built the detention pond and after Endeavor bought the property on the east side of Cochran Street.
N. Excluded Documentary Evidence
Of the ninety-four total exhibits offered into evidence, Endeavor offered sixty-three, including forty-five photographs of the site, and many were admitted over Kongsberg's objection. The court excluded some photographs that duplicated other exhibits. Kongsberg offered thirty-one exhibits, four of which were photographs of the site. The trial court excluded Endeavor's Exhibits 7, 13, 20, 20A, and 21, and Kongsberg's Exhibits 120, 121, and 130, while other exhibits were excluded or withdrawn as duplicates of admitted exhibits.
The excluded Endeavor exhibits included a tax bill for Endeavor's property, Morales's engineering report, Plaintiffs' Third Amended Original Petition in the suit against Willis and Capro, a 1996 engineering report, and Hall's report to Russell, explaining his opinion. Endeavor offered its Exhibit 7 to show it had paid taxes on the detention pond. In Endeavor's Exhibit 13, Morales explains his calculations showing that the warehouse used only eleven percent of the volume of the detention pond. Exhibit 20A is the petition in the 1998 suit by the Will wood homeowners against Capro and the city, alleging that "the last expansion program of Defendant, CAPRO, INC., resulted in stormwater overtaxing the existing drainage system currently in existence in the Willwood subdivision resulting in the catastrophic flooding and water damage that periodically occurs to the property of Plaintiffs." The Petition further alleges that Capro "was negligent in allowing such runoff from its property to flood Plaintiffs' properties without making any effort whatsoever to divert or retain the water flow[]" in violation of Texas law. Exhibit 20A, the November 1996 report of the consulting engineer, Edward Campbell, where he calls the Willwood flooding an "unfortunate and catastrophic situation" and attributes it to "local inadequate drainage systems along WILLWOOD Street, and a large concentration of development (roofs and paved parking areas). . . consisting mostly of the Capro Plant Buildings and paved parking, drives and service areas (all impervious surfaces)[.]" Campbell opined that the problem could be remedied by Capro (now Kongsberg) excavating a detention pond and installing a safety fence around it, and by the City improving its ditch and culvert system in the Willwood area. Endeavor's Exhibit 21 is Hall's memorandum to Russell about the property and contains his opinions that there was unity of ownership in the land in question, but that he did not believe that there were implied easements, because there was no necessity and because Kongsberg's use of the pond was not adverse until Endeavor bought the property.
The excluded Kongsberg exhibits included the title policy commitment, the title policy, and a construction drawing showing the dimensions of the detention pond, with construction notes.
O. The Jury Charge
The trial court's jury charge placed the burden of proof on Kongsberg on the implied easement and implied public dedication issues. Kongsberg objected to this burden, arguing that Endeavor, as the plaintiff, should have been required to prove that no implied easement or dedication existed. Kongsberg further objected that there was no evidence or insufficient evidence to support Endeavor's burden and that the definition of "necessity" was incorrect. Endeavor did not object to the burden of proof or the definitions in the charge but requested instructions about the potential influence of its payments of taxes, insurance, and repairs on the implied public dedication question. The trial court overruled Kongsberg's objections, denied Endeavor's requested instruction, and submitted the following questions about the alleged implied easements and the alleged implied public dedication:
Jury Question No. 1
Does Kongsberg have an implied easement to use the detention pond for storm water drainage as a result of its prior use?
You are instructed that an implied easement to use the detention pond for storm water drainage as a result of prior use here if:
(1)there was a unity of ownership of the two tracts of land in question - the larger (Kongsberg) tract and the smaller (Endeavor) tract - before the smaller (Endeavor) tract was severed from the larger (Kongsberg) tract and sold,
(2) the use of the detention pond by the larger (Kongsberg) tract for storm water drainage was open and apparent,
(3) the use of the detention pond for storm water drainage was continuous, so that the parties must have intended that its use pass by grant, and
(4)the use of the detention pond for storm water drainage is necessary to the use of the larger (Kongsberg) tract.
You are further instructed that "unity of ownership" means that the tract where the detention pond is located was part of the Kongsberg tract at the time of severance, such that the tracts would be contiguous after severance.
An easement by prior use is necessary if it is the only manner that a landowner may accomplish the purposes served by it, that is, utilizing any other means for detention would pose a grave concern to the operations of Kongsberg.
Answer "Yes" or "No."
Answer: Yes
Jury Question No. 2
Does Kongsberg have an implied storm water drainage easement by necessity?
You are instructed that an implied storm water drainage easement by necessity exists here if:
(1) there was a unity of ownership of the two tracts of land in question - the larger (Kongsberg) tract and the smaller (Endeavor) tract - before the smaller (Endeavor) tract was severed from the larger (Kongsberg) tract and sold,
(2) use of the detention pond is a necessity and not a mere convenience, and
(3) the necessity existed at the time the smaller (Endeavor) tract was severed from the larger (Kongsberg) tract.
You are further instructed that "unity of ownership" means that the tract where the detention pond is located was part of the Kongsberg tract at the time of severance, such that the tracts would be contiguous after severance.
An easement is a "necessity" if it is the only manner that a landowner may accomplish the purposes served by it. A necessity easement must involve both a historical necessity (that the detention pond in question was necessary at the time of severance) and a continuing, present necessity for the detention pond in question.
Answer "Yes" or "No."
Answer: Yes
Jury Question 3
Was there an implied public dedication of the detention pond by the owner?
You are instructed that in order for there to be an implied public dedication you must find that:
(1) The acts of the owner induced the belief that it intended to dedicate the detention pond to public use,
(2) The owner owned the detention pond at the time it is alleged to have dedicated the detention pond to public use,
(3) The public relied on the owner's acts and will be served by the alleged dedication, and
(4) There was an offer and acceptance of the alleged dedication.
You are instructed that "public use" means that the facility or property was free and open to all persons who have occasion to use it.
Answer "Yes" or "No."
Answer: Yes
The trial court instructed the jury to "[a]nswer 'yes' or 'no' to all questions unless you are told otherwise." It further instructed the jury that "[a] 'yes' answer must be based on a preponderance of the evidence[,]" and defined "preponderance of the evidence" thus:
The term "preponderance of the evidence" means the greater weight and degree of credible evidence presented in this case. If you do not find a preponderance of the evidence supports a "yes" answer, then answer "no." A preponderance of the evidence is not measured by the number of witnesses or by the number of documents admitted in evidence. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true.
II. Issue Three: Implied Easement by Necessity
In its appeal, Endeavor claims that there was legally and factually insufficient evidence to support the jury's finding that Kongsberg had an implied easement by necessity, arguing (1) there was conclusive evidence the tracts were not contiguous since they were separated by Cochran Street, and (2) there were other means for Kongsberg to detain water besides the detention pond. Since this issue, if decided in Kongsberg's favor, is dispositive of Endeavor's requested relief for a declaration that no easement exists and that Kongsberg is responsible for the costs of removing the detention pond, we address it first.
A. Standard of Review
As noted above, Endeavor did not object to question two, which asked about an implied necessity easement and placed the burden of proof on Kongsberg to prove that such an easement existed. Before measuring the sufficiency of the evidence, we first identify the standard against which the evidence is to be measured. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2002). "[I]t is the court's charge, not some other unidentified law, that measures the sufficiency of the evidence when the opposing party fails to object to the charge." Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (citations omitted); see also Tex. R. Civ. P. 274 (regarding waiver for failure to object); Tex.R.Civ.P. 278 (precluding a reversal on the basis of charge error unless the complaining party submitted a "substantially correct" definition or instruction in writing). The charge given placed the burden of proof on Kongsberg regarding the easement findings.
When a party on appeal attacks the legal sufficiency of the evidence supporting an adverse finding on an issue for which it did not have the burden of proof, the complaining party must show that no evidence supports the jury's adverse finding. See Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011); see also Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014). We must consider all the evidence '"in the light most favorable to the party in whose favor the verdict has been rendered,'" and '"every reasonable inference deducible from the evidence is to be indulged in that party's favor[.]'" Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
Evidence is legally insufficient to support a jury finding when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact.Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 613 (Tex. 2016) (citations omitted). As the sole judges of the witnesses' credibility and the weight to give their testimony, the jurors may choose to believe one witness and disbelieve another. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). In a legal sufficiency review, we "credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Id. at 827. "The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." Id. "We will uphold the jury's finding if more than a scintilla of competent evidence supports it." Herrera v. Wendell Legacy Homes, LLC, 631 S.W.3d 441, 451 (Tex. App.-Beaumont 2021, no pet.) (citing Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009)). We presume jurors made all inferences for the verdict, but only if reasonable minds could do so. Serv. Corp. Int 7 v. Guerra, 348 S.W.3d 221,228 (Tex. 2011). "Jurors may not simply speculate that a particular inference arises from the evidence." Id. (citing City of Keller, 168 S.W.3d at 821).
When reviewing a factual sufficiency challenge, we consider and weigh all the evidence in support of and contrary to the jury's finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d402,406-07 (Tex. 1998); Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 120 (Tex. App.-Beaumont 2005, pet. denied). We set aside a finding only if it "is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985) (citation omitted); see also Ellis, 971 S.W.2d at 406-07; Hinson, 172 S.W.3d at 120.
B. Applicable Law
An implied easement by necessity consists of the following elements: "(1) unity of ownership of the alleged dominant and servient estates prior to severance; (2) the claimed access is a necessity and not a mere convenience; and (3) the necessity existed at the time the two estates were severed." Hamrick v. Ward, 446 S.W.3d 377, 382 (Tex. 2014); Davis v. Garrett, No. 09-16-00141-CV, 2017 WL 3298085, at *4 (Tex. App.-Beaumont Aug. 3, 2017, no pet.) (mem. op.) (citation omitted). To establish unity of ownership, the proponent of the claimed easement must show that "prior to severance, his grantor owned the dominant and servient estate as a unit or single tract." Koonce v. J.E. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984) (citations omitted).
Ownership "as a unit or single tract" and "severance" are not uniformly defined. Compare Staley Family P'ship, Ltd. v. Stiles, 483 S.W.3d 545, 547-48 (Tex. 2016) (referencing date of severance), and Koonce, 663 S.W.2d at 452 (holding that there was no evidence that the parcels severed from a 284 acre tract were owned as a unit), with Ulbricht v. Friedsam, 325 S.W.2d 669, 676 (Tex. 1959) (citation omitted) ("Where 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."), and Eric Eriksson, Inc. v. Crooks, 508 S.W.2d 115,118 (Tex. App.- Waco 1974, no pet.) (citations omitted) (same). Even so, we need not define them because Endeavor did not object to question two and accordingly waived its right to do so. See Tex. R. Civ. P. 274 (regarding waiver for failure to object); Tex.R.Civ.P. 278 (precluding a reversal on the basis of charge error unless the complaining party submitted a "substantially correct" definition or instruction in writing); see also Sam Rayburn Mun. Power Agency v. Gillis, No. 09-16-00339-CV, 2018 WL 3580159, at ** 12-13 (Tex. App.-Beaumont July 26,2018, pet. denied) (mem. op.). Under the centerline presumption:
a conveyance of land bounded on a public highway carries with it the fee to the center of the road as part and parcel of the grant. Such is the legal construction of the grant unless the inference that it was so intended is rebutted by the express terms of the grant. The owners of the land on each side go to the center of the road, and they have the exclusive right to the soil, subject to the right of passage in the public.Mitchell v. Bass, 26 Tex. 372, 380 (Tex. 1862); see also Red Boot Prod. Co. v. Samson Expl, LLC, No. 09-14-00191-CV, 2015 WL 5730789, at *7 (Tex. App.- Beaumont Oct. 1, 2015, no pet.) (mem. op.) (applying the centerline presumption).
C. Analysis
1. Legal Sufficiency of the Evidence
Where, as here, the appellant complains of both legally and factually insufficient evidence, we first address the legal sufficiency question. See Leafguard of Tex. v. Guidry, No. 09-21-00034-CV, 2023 WL 3369176, at *5 (Tex. App.- Beaumont May 11, 2023, no pet.) (mem. op.). Accordingly, we consider the evidence in the light most favorable to the verdict. See Bustamante, 529 S.W.3d at 456.
The record contains evidence which "would enable reasonable and fair-minded people to reach the verdict under review." City of Keller, 168 S.W.3d at 827. First and foremost, Hall, an experienced attorney, testified that he researched the relevant legal questions and advised Miller that there was unity of ownership at the time of severance. This evidence is more than a scintilla of evidence to support the jury's finding as to the first element of an implied necessity easement: unity of ownership. Although Endeavor argued that the presence of Cochran Street prevented the Kongsberg and Endeavor properties from being contiguous after severance, thereby negating a requirement of unity of ownership, the record contained evidence from which the jury reasonably could have inferred that the pipes under Cochran Street connected the Kongsberg and Endeavor properties. Kongsberg argued, and the jury could have accepted, that the pipes under Cochran Street rendered the Kongsberg and Endeavor properties contiguous after severance. Moreover, while neither party argued the centerline presumption, this presumption is sufficient to support the jury's finding that the two properties were contiguous prior to and after severance. See Mitchell, 26 Tex. at 380; see also Red Boot Prod. Co., 2015 WL 5730789, at *7. Even when the legal description of the property shows the boundary line as the edge of a public road, this presumption applies unless it is rebutted by the "express terms of the grant." Red Boot Prod. Co., 2015 WL 5730789, at *7. Since none of the deeds in evidence, including the deeds conveying the seven parcels to Capro, expressly rebuts the centerline presumption, we presume that the properties on the east and west sides of Cochran Street meet in the center of the street, and therefore remained contiguous after the sale to Endeavor. See id. Accordingly, the testimony from Pigg and Belinoski that Capro did not own Cochran Street is inadequate to rebut the centerline presumption. See id.
The record also reflects evidence that the pond played a part in settling the Willwood homeowners' lawsuit. The jury therefore could have inferred that the pond was necessary to Kongsberg, both as of the time of severance and continuing, because it would forestall a second suit against Kongsberg by those property owners.
The jury also could have evaluated the exhibits showing the Kongsberg and Endeavor properties at the time of the creation of the pond and determined that, contrary to the testimony of Morales, Wind, and others, Kongsberg did not have the space needed to construct a storm water detention facility on its remaining property on the west side of Cochran Street.
Endeavor has failed to show that "no evidence" supports the jury's finding. See Pena, 442 S.W.3d at 263; Exxon Corp., 348 S.W.3d at 215. The evidence admitted at trial, and inferences reasonably drawn from it, "would enable reasonable and fair-minded people to reach the verdict under review." City of Keller, 168 S.W.3d at 827. Accordingly, we conclude that the evidence in the record is legally sufficient to support the jury verdict of an implied necessity easement. See id.
2. Factual Sufficiency of the Evidence
In weighing the factual sufficiency of the evidence to support the jury's verdict, we consider all the evidence, and will set aside the verdict only if it "is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Dyson, 692 S.W.2d at 457; see also Ellis, 971 S.W.2d at 407; Hinson, 172 S.W.3d at 120.
The trial court defined "unity of ownership" as meaning that "the tract where the detention pond [was] located was part of the Kongsberg tract at the time of severance, such that the tracts would be contiguous after severance." Hall testified to his belief that unity of ownership existed, and the only contrary evidence consisted of the evidence that Cochran Street separated the parcels in question thereby allegedly negating contiguity after severance. As noted above, however, the centerline presumption requires us to presume that the properties on the east and west sides of Cochran Street meet at the center of the street and are therefore contiguous following the sale of the east side property to Endeavor. See Red Boot Prod. Co., 2015 WL 5730789, at *7. Accordingly, the evidence is factually sufficient to support the jury's decision that there was unity of ownership.
The trial court did not expressly instruct the jury that the land must have been owned "as a unit or single tract" and Endeavor did not object to this question as submitted to the jury, so we do not consider whether it was error. See Koonce, 663 S.W.2d at 452; see also Tex. R. Civ. P. 274, 278.
The trial court defined "necessity" to mean "the only manner that a landowner may accomplish the purposes served by it. A necessity easement must involve both a historical necessity (that the detention pond in question was necessary at the time of severance) and a continuing, present necessity for the detention pond in question."
Although there is testimony in the record that the detention pond was a mere convenience because Kongsberg had other ways to handle the runoff from its facility on the west side of Cochran Street, the jury was not obligated to believe that testimony. See City of Keller, 168 S.W.3d at 819 (allowing the jury to weigh the evidence and assess the credibility of the witnesses). Instead, the jury could have relied on its review of the other evidence including among other things the exhibits showing aerial views of the Kongsberg property following its expansion. Defendant's Exhibit 110 shows that after Kongsberg expanded, the space between the building and Cochran Street was occupied by what appears to be a parking lot and much of the other land surrounding Kongsberg's property was developed by the time the photograph was taken. The jury could have found the Kongsberg property was not large enough to accommodate a storm water detention facility, and Kongsberg consequently needed to rely on the detention pond both at the time of severance and into the future. The jury may also have relied onPigg's testimony that the city required it "to build a detention pond - on the property across the street[]" as a prerequisite to expanding its manufacturing facility.
While two experts testified that they did not believe the pond was a necessity, the jury could have disbelieved that testimony or found the other evidence outweighed that testimony, and could have concluded based on the evidence the pond was necessary to drain water and prevent flooding of the Willwood subdivision, and based on Pigg's testimony and photographs, that the City had mandated the pond be built for drainage. See Diamond Offshore Servs. v. Williams, 542 S.W.3d 539, 542 (Tex. 2018) (recognizing that "a picture is worth a thousand words[]"). Accordingly, we hold that the jury's finding of necessity is not "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Dyson, 692 S.W.2d at 457; see also Ellis, 971 S.W.2d at 407; Hinson, 172 S.W.3d at 120. We conclude that the evidence is factually sufficient to support the jury's finding.
We overrule Endeavor's third point of error and therefore need not address its first or second points. See Tex. R. App. P. 47.1
III. Issue Four: Cumulative Error
In its fourth issue, Endeavor claims that the cumulative effect of the trial court's rulings favored Kongsberg, resulting in "unfair prejudice in that it encourages the jury to make a decision on an improper basis."
A. Standard of Review
We review atrial court's rulings admitting or excluding evidence for an abuse of discretion. Heniff Transp. Sys., LLC v. Mack Individually and as Next Friend of D.T.M., No. 09-19-00049-CV, 2019 WL 5440602, at *4 (Tex. App.-Beaumont Oct. 24, 2019, pet. denied) (mem. op.); see also State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001) (citation omitted) ("Whether to admit or exclude evidence is a matter committed to the trial court's sound discretion."). A trial court abuses its discretion when it acts arbitrarily or unreasonably or without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We will not reverse for the trial court's erroneous admission of evidence unless it "probably caused the rendition of an improper judgment[.]" Tex.R.App.P. 44.1(a)(1).
B. Applicable Law
Although Texas courts recognize the principle of cumulative error, it is not favored. See Wyatt v. Turbo Rests., LLC, No. 05-20-00456-CV, 2022 WL 3908548, at *6 (Tex. App.-Dallas Aug. 31,2022, no pet.) (mem. op.) (discussing the standard for cumulative error). To prevail on a claim of cumulative error, Endeavor must show that based on the record as a whole, but for the alleged errors, the jury probably would have rendered a verdict favorable to it. See id. (citation omitted). If the appellant cannot demonstrate error, then it necessarily follows that he likewise cannot show cumulative error. See Gonzalez v. Abigail, No. 05-21-00474-CV, 2023 WL 2422486, at *5 (Tex. App.-Dallas Mar. 9, 2023, no pet.) (mem. op.) (citation omitted) (rejecting a cumulative error claim where no error was shown).
C. Analysis
In its brief, Endeavor provides several examples of purportedly disparate treatment by the trial court. Endeavor does not argue that the rulings favoring Kongsberg or that the rulings adverse to Endeavor were erroneous, only that they were different. Endeavor also does not argue or show that "based on the record as a whole, but for the alleged errors, the jury [probably] would have rendered a [different] verdict" in Endeavor's favor. See Wyatt, 2022 WL 3908548, at *6.
To illustrate its point, Endeavor complains that the trial court admitted Kongsberg's Exhibit 114 over Endeavor's hearsay, authenticity, and relevance objections, but excluded Endeavor's Exhibit 13 in response to Kongsberg's hearsay objection, even though Endeavor had proved up its Exhibit 13 as a business record. What Endeavor does not do is explain how the trial court erred in ruling on these two exhibits. See Tex. R. App. P. 38. l(i) (requiring "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record[]"). Endeavor provides several other examples in its brief, but as above, did not explain how the trial court erred. Id.
Many of the excluded exhibits duplicated other evidence. Endeavor's Exhibit 7, for example, shows that Endeavor paid taxes on tracts 11, 45, and 88, duplicating Amy Miller's testimony that Endeavor paid the property taxes on the property on the east side of Cochran Street, including the detention pond. Morales's report, Endeavor's Exhibit 13, likewise echoes his testimony, as Endeavor's Exhibit 21 repeats Hall's testimony about the lack of an easement despite unity of ownership. Endeavor's Exhibits 20 and 20A confirm the allegations that Capro's expansion and the city's inadequate drainage system caused or contributed to flooding the houses in the Willwood subdivision, as shown by the residents' testimony.
In short, the trial court reasonably could have concluded that Endeavor's excluded exhibits appear cumulative of other evidence in the record, and we cannot say the trial court erred in excluding them. See Mclnnes v. Yamaha Motor Corp., 673 S.W.2d 185, 190 (Tex. 1984) (noting that the exclusion of cumulative evidence is not reversible error); see also MeadWestvaco Corp. v. Way Serv., Ltd., No. 09-15-00014-CV, 2016 WL 421303, at *4 (Tex. App.-Beaumont Feb. 4, 2016, no pet.) (mem. op.) (same).
Kongsberg Exhibit 114, an aerial photograph of the Kongsberg and Endeavor properties, is similar to its Exhibit 110, to which Endeavor did not object. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (citations omitted) (explaining that general rule is that error in the admission of evidence is deemed harmless and waived if the objecting party subsequently permits the same or similar evidence to be introduced without objection); see also Miranda-Lara v. Rebert, No. 09-18-00325-CV, 2020 WL 5099968, at *2 (Tex. App.-Beaumont Aug. 31,2020, no pet.) (mem. op.) (same). Endeavor's Exhibit 116, Forestier's letter threatening Miller with legal action if Miller impaired the "implied easement that runs with the land" largely mirrors Kongsberg's Exhibit 115, which the trial court admitted without objection. Kongsberg's Exhibit 115, like its Exhibit 116, reflects Foerster's opinion that there was a "surface water detention easement that encumbers the property." Foerster similarly testified without objection to his opinion that there was an easement in Kongsberg's favor. The testimony about Miller's reputation was excluded from former City Manager Forestier's testimony but was allowed during City Attorney Foerster's testimony. Accordingly, evidence of Miller's favorable reputation was in the record, and any error in excluding it as character evidence was harmless. See MeadWestvaco Corp., 2016 WL 421303, at *4 (as cumulative evidence, its exclusion was harmless).
Endeavor also has not explained why Kongsberg's closing argument characterizing Endeavor's conduct as a "corporate shakedown[]" and "demanding] a ransom[]" helps its claim of cumulative error. Endeavor did not object to this argument, and therefore has failed to preserve error. See Tex. R. App. P. 33.1(a)(1)(A); see also Cravens v. Alisam Enters., LLC, No. 09-19-00020-CV, 2021 WL 278316, at *7 (Tex. App.-Beaumont Jan. 28, 2021, pet. denied) (mem op.) (referencing the failure to preserve error by objecting during opponent's closing argument).
Endeavor has not shown that excluding its evidence or admitting Kongsberg's evidence was error. We overrule Endeavor's fourth issue. See Gonzalez, 2023 WL 2422486, at *5 (requiring a showing of error as a prerequisite for showing cumulative error).
IV. Issue Five: Attorney's Fees
In its fifth issue, Endeavor claims that the trial court erred in awarding Kongsberg attorney's fees because Kongsberg's pleadings did not seek attorney's fees and because it was "unjust" to make this award. Kongsberg responded that the Declaratory Judgments Act Endeavor invoked when it filed suit permitted the trial court to award Kongsberg its attorney's fees, stating that "the Court acted within its discretion in awarding those fees to Kongsberg under the [Act][]" because Endeavor knew that Kongsberg was seeking attorney's fees; and Kongsberg referenced such fees (as sanctions) in its Original Answer and Special Exceptions. Kongsberg further notes, Endeavor did not object to the jury question about Kongsberg's attorney's fees and this omission resulted in trying its fees by consent.
A. Standard of Review
Under the Declaratory Judgments Act, attorney's fee awards are "entrusted] ... to the trial court's sound discretion, subject to the requirements that any fees awarded be reasonable and necessary[.]" Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998) (citations omitted) (discussing attorney's fee award in an easement dispute tried as a declaratory judgment). We therefore review a fee award under an abuse-of-discretion standard and consider whether the award was "equitable and jusf'M; see also Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (allowing a trial court to "award costs and reasonable and necessary attorney's fees as are equitable and just").
B. Applicable Law
Section 37.009 of the Texas Civil Practice and Remedies Code permits a court to "award costs and reasonable and necessary attorney's fees as are equitable and just." Tex. Civ. Prac. & Rem. Code Ann. § 37.009.
The standard for an abuse of discretion is set forth above, and states that a trial court abuses its discretion if it acts arbitrarily or without regard to guiding rules or principles. Bocquet, 972 S.W.2d at 21. The reasonableness and necessity of the fees are fact questions, and the requirement that the fees be "equitable and just" are "addressed to the trial court's discretion." Id. We will not reverse a trial court's award of attorney's fees under the Declaratory Judgments Act unless "the lower court abused its discretion by either (1) awarding fees when there was insufficient evidence that the fees were reasonable and necessary or (2) acting arbitrarily, unreasonably, or without regard to guiding legal principles in its determination that the fees awarded were equitable and just." Merzi v. Brumfield, No. 09-21-00340-CV, 2023 WL 4113242, at *8 (Tex. App.-Beaumont June 22,2023, no pet.) (mem. op.).
Generally, a judgment awarding relief, including attorney's fees, must be supported by pleadings. See Moran v. Williamson, 498 S.W.3d 85, 93 (Tex. App.- Houston [lstDist] 2016, pet. denied); see also Tex. R. Civ. P. 301 ("The judgment of the court shall conform to the pleadings[.]"). When, however, a party fails to object to the jury charge claiming that there is a "fault in pleading," the party waives that objection See Tex. R. Civ. P. 274.
C. Analysis
The trial court's question about Kongsberg's attorney's fees, and the jury's answers, are as follows:
QUESTION 8.
What is a reasonable fee for the necessary services of Kongsberg's attorneys, stated in dollars and cents?
For representation in the trial court: $75,000
For representation through an appeal to the Court of Appeals: $15,000
For oral argument and completion of proceedings in the Court of Appeals: $10,000
For representation at the petition for review stage in the Supreme Court of Texas: $5,000
For representation at the merits briefing stage in the Supreme Court of Texas: $10,000
For representation through oral argument and the completion of the proceedings in the Supreme Court of Texas: $5,000
The trial court entered judgment on the jury's verdict.
Endeavor's appeal of the attorney's fee award principally relies on Kongsberg's failure to seek attorney's fees in its pleadings. Kongsberg's contrary position is based on its request for attorney's fees as a sanction against Endeavor, as set out in its Original Answer and Special Exceptions, which allege a violation of Texas Rule of Civil Procedure 13 for filing frivolous pleadings. See Tex. R. Civ. P. 13. Seeking attorney's fees as a sanction is not equivalent to seeking attorney's fees for representing one's client in a declaratory judgment action. See Tex. R. Civ. P. 215.1(d) (attorney's fees as discovery sanctions); Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (attorney's fees in a declaratory judgment action); see also Allstate Fire & Cas. Ins. Co. v. Inclan, No. 13-19-00026-CV, 2020 WL 373061, at **3-4 (Tex. App.-Corpus Christi-Edinburg Jan. 23,2020, pet. denied) (mem. op.j, disapproved on other grounds by Allstate Ins. Co. v. Irwin, 627 S.W.3d 263, 270 (Tex. 2021) (considering attorney's fees in the declaratory judgment claim separately from the attorney's fees in the discovery sanction claim). Kongsberg's pleadings do not seek attorney's fees other than as a sanction, and therefore will not support the fee award unless Endeavor waived its objection to the fee issue. See Tex. R. Civ. P. 274.
We conclude that Endeavor waived its failure of pleading objection because Endeavor did not timely make that objection at trial. See Tex. R. Civ. P. 274. Rule 274 states that "[a]ny complaint as to a question, definition or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections." Id. Endeavor did not object to the jury question, and therefore has waived its right to complain of a lack of pleading supporting the fee award. See id. Although Endeavor objected to Kongsberg's evidence of its attorney's fees, that objection alone, without an objection to the jury question, did not prevent Endeavor from waiving its objection to the submission of the attorney's fees question. Endeavor therefore waived its opportunity to object to Kongsberg's lack of a pleading to support an award of attorney's fees. See id.
Additionally, Endeavor argues that the attorney's fee award was "unjust[.]" An "equitable and just" award of attorney's fees is directed to the trial court's discretion. See Bocquet, 972 S.W.2d at 21. Other than to claim that it was "unjust" to award such fees, Endeavor has not shown that the trial court's fee award was arbitrary, unreasonable, or otherwise entered without regard to guiding rules or principles, which is the standard Endeavor must meet to set aside the award. See Merzi, 2023 WL 4113242, at *8. The trial court's fee award adopted the jury's verdict, and with the exception of the award for work in the trial court, the jury awarded less than what the defense attorney sought. We do not see how the trial court's action in adopting the jury's responses was "unjust[]" or an abuse of the trial court's discretion. See Farmers Tex. Cnty. Mut. Ins. Co. v. Barr, No. 09-22-00321-CV, 2024 WL 2340792, at *7 (Tex. App.-Beaumont May 23, 2024, no pet.) (addressing the standard for overturning an attorney's fee award under the Declaratory Judgments Act and the trial court's "broad discretion" in awarding a fee).
Here, as in Farmers Texas County Mutual Insurance Company v. Barr, Endeavor has cited no case authority to support its claim that it was "unjust" to award Kongsberg its attorney's fees. See id. We therefore conclude that Endeavor has not "met its burden to demonstrate that the trial court violated a guiding rule or principle by" awarding attorney's fees contemplated by statute. See id.; see Tex. Civ. Prac. & Rem. Code § 37.009.
We overrule Endeavor's fifth issue.
V. Conclusion
Having overruled Endeavor's dispositive appellate issues, we need not address the remaining issues. See Tex. R. App. P. 47.1. We affirm the trial court's judgment.
AFFIRMED.