Date: 11-06-2017

Case Style:

Case Number: 01-15-01036-CV

Judge: Terry Jennings

Court: Texas Court of Appeals, First District on appeal from 240th District Court of Fort Bend County

Plaintiff's Attorney: Lauren Allen, James Dale Knez and Clifford A. Lawrence Jr.

Defendant's Attorney: Nate Milliron

Description: Appellants, Saefaldin Rahmati and Abdul Saeed Assadi Rahmati (collectively, “the Rahmatis”), challenge the trial court’s judgment, rendered after a trial to the court, in favor of appellee, AJBJK, L.L.P., in its suit against them for a
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declaratory judgment, a permanent injunction, and damages. In three issues, the Rahmatis contend that the evidence supporting the trial court’s declaratory judgment is legally and factually insufficient and the trial court erred in granting AJBJK a permanent injunction and awarding it damages not supported by the pleadings.
We affirm in part and reverse and render in part.
Background
In its First Amended Petition, AJBJK alleged that it owns in Fort Bend County a 3.6779-acre commercial tract of real estate, on which it operates a retail shopping center. On the outer perimeter of AJBJK’s tract, the Rahmatis own a 0.50-acre tract (“outparcel”), on which their tenant operates a restaurant that serves customers with dine-in service and by way of a drive-through window. According to AJBJK, shortly after the Rahmatis purchased their outparcel, they expanded the size of the restaurant, decreasing the size of their parking lot and changing the configuration of the drive-through window. The changes also diverted traffic to and from the restaurant across AJBJK’s property, causing restaurant customers to park on AJBJK’s parking lot. Although AJBJK demanded that the Rahmatis stop using its parking lot, they failed or refused to take corrective measures to “redirect or prevent [their] customers from parking upon or navigating over” AJBJK’s property. Further, after AJBJK, at a cost of $1,437.02, constructed a chain-link fence upon its property
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to stop the flow of traffic, the Rahmatis entered upon its property and destroyed the fence.
AJBJK sought a declaration regarding the rights of the Rahmatis and their tenant to drive over and park on AJBJK’s property and its rights to construct fences and control access to its property. It sought a permanent injunction, asking the trial court to enter an order enjoining the Rahmatis and their tenant from entering upon, using, and parking on AJBJK property, and allowing it to reconstruct a fence on its property. AJBJK also sought damages in the amount of $20,000 for the Rahmatis’ trespass and use of its property. And it sought $20,000 in damages for the Rahmatis’ “unauthorized entry upon” AJBJK property and “for the destruction of [its] chain link fence.” The Rahmatis answered, generally denying AJBJK’s allegations.
At trial, Mitchell Yeh, the president of AJBJK, testified that in 1979, K-Mart Inc. and Clark Development Company purchased adjoining commercial tracts on which they constructed a retail shopping center anchored by a K-Mart retail store. K-Mart owned “Parcel A” on which it constructed a store and parking lot. Clark owned “Parcel B” on which it constructed an adjoining retail strip and parking lot. K-Mart and Clark then executed a Reciprocal Easement Agreement (“REA”), granting, for the benefit of current and future owners of Parcels A and B, and “any and all parts thereof,” and their successors, assignees, mortgagees, lessees, sublessees, employees, agents, customers, licensees and invitees, a permanent,
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nonexclusive easement for ingress and egress over, and parking upon, the “common areas” of the shopping center. The common areas included “all entrances, exits, driveways, parking areas, walks, service drives, utilities and drainage facilities, including any and all catch basins, directional signs, lighting facilities and other facilities and areas intended for common use.”
In 1981, Clark sold to Long John Silver’s Inc. (“LJS”) a parcel located at the outer perimeter of its parking lot for a restaurant site. Yeh explained that although, based on the REA, LJS also had a right to use K-Mart’s driveways and parking lot, the location of the LJS restaurant on the side of Clark’s property opposite from K-Mart’s store made the use of K-Mart’s driveways and parking lot impractical for LJS customers. Consequently, Clark executed with LJS a “Second Reciprocal Easement Agreement,” allowing LJS customers to use Clark’s driveways and parking lot.
In 1982, Clark sold to Taco Bell, Inc. (“Taco Bell”) the 0.50-acre outparcel at issue in this case for a restaurant site. The Taco Bell outparcel was also located at the outer perimeter of its parking lot, but on the side bordering the K-Mart parking lot. Yeh explained that, unlike the LJS parcel, the Taco Bell outparcel had full access to FM 1092, the main road into the retail center; had its own on-site parking; and bordered K-Mart’s parking lot. Because the Taco Bell outparcel also benefited from the REA, Taco Bell customers had access to parking on the entire K-Mart parking
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lot immediately adjacent to the restaurant. Thus, because none was necessary, Clark did not execute a reciprocal easement agreement with Taco Bell.
Yeh further testified that in 2001, AJBJK purchased Parcel B, formerly owned by Clark, and converted the retail strip into a warehouse for its own use. At that time, the Taco Bell restaurant was vacant. In 2005, the Rahmatis purchased from JK Joseph, Inc. (“JK Joseph”) the outparcel previously owned by Taco Bell. The Rahmatis then leased their outparcel and restaurant space to a tenant, who opened a Mexican food restaurant. In 2006, the Rahmatis began converting the restaurant space into a two-story building. The renovation diverted restaurant traffic flow and limited the Rahmatis’ on-site parking, causing the customers of its tenant to traverse and park on AJBJK’s property. AJBJK, having by then leased its retail space to a church, immediately contacted the Rahmatis and demanded that they stop construction on their restaurant because it was interfering with AJBJK’s tenant. The Rahmatis changed the scope of the project, but continued with construction.
Although Yeh agreed that the Rahmatis’ tract was and “still is part of the shopping center for purposes of [the REA],” he asserted that they had never produced any documentation showing that they had a right to use AJBJK’s property for ingress, egress, and parking. After AJBJK’s numerous failed attempts to motivate the Rahmatis to resolve the situation, it, at a cost of $1,400, constructed a fence across its property to prevent the Rahmatis’ customers from using it. “Within
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30 minutes of . . . putting up the fence,” however, the Rahmatis “tore it down.” Yeh noted that AJBJK’s damages for the Rahmatis’ unauthorized use of its parking lot totaled $26,000. And he requested an injunction to enjoin the Rahmatis from continuing to use AJBJK’s property and allow it to re-construct is fence.
Saefaldin Rahmati testified that his tenant’s customers have direct access to his restaurant property from FM 1092, his property has 29 on-site parking spaces, and his tenant’s customers have unhindered access to the K-Mart parking lot. He admitted that some of his tenant’s customers do park on AJBJK’s property. However, he argued that his tenant has a “right” to have its customers traverse and park on AJBJK’s property because the right is granted in the REA; he has worked in the vicinity of the shopping center since 1990 and “used to go there all the time”; and he believes that “you can park anywhere you want.” Saefaldin admitted that he “tore down the fence” on AJBJK’s property.
Richard Melamed, AJBJK’s expert witness, testified that he examined the REA, AJBJK’s and the Rahmatis’ deeds, a title commitment, and “some surveys.” Based on his review, he opined that the REA grants the owners of Parcel A, the K-Mart tract, the right to enter upon and use Parcel B, the Clark, now AJBJK, tract. And it grants to the owners of Parcel B the right to enter upon and use Parcel A. Further, the REA runs with the land, and the “rights and obligations thereunder would flow through to any tracts that may be subdivided from that larger AJBJK
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tract,” i.e., the Rahmatis’ tract. Under the REA, the Rahmatis’ have “the absolute right to park on the K-Mart tract [and] to enter in and ingress and egress across the K-Mart tract.” However, the Rahmatis do “not have a right of ingress and egress onto and through AJBJK’s property.” Melamed explained that the REA grants “reciprocal rights.” A property owner “can’t grant an easement on its own property to itself.” Thus, “[a]ny grant in [the REA] has to be coming from one party to the designated party.” For instance, the “only grant that can be made to K-Mart, can only be made by the other owner,” i.e., Clark. And there is no document granting the Rahmatis an easement to traverse over and park on AJBJK’s property.
The trial court admitted into evidence copies of the REA; the deeds between Clark and AJBJK, JK Joseph and Rahmati, and the intervening deeds; the Rahmatis’ title report and “Commitment of Title Insurance”; AJBJK’s receipt for the construction of the fence at issue; correspondence between AJBJK and the Rahmatis; and maps, plats, and photographs.
At the conclusion of the trial, the trial court signed a judgment declaring that the Rahmatis “ha[ve] and possess no reciprocal easement rights regarding ingress and egress or parking over, across, or upon [AJBJK’s] real property” and AJBJK “is allowed to erect fences and/or barriers upon [its] real property to control access to and from [its] property from [Rahmati’s] real property.” It also granted AJBJK a permanent injunction, enjoining the Rahmatis, and their “tenants, their respective
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guests, vendors, customers, and employees,” from the “use of, entrance upon, parking upon, or traverse over the real property” of AJBJK. And the trial court awarded AJBJK damages in the amount of $1,400.00 for its chain-link fence.
Declaratory Judgment
In their first issue, the Rahmatis argue that the evidence is legally and factually insufficient to support the trial court’s declaration that they have no reciprocal easement rights regarding ingress and egress over, and parking on, the portions of Parcel B owned by AJBJK.
In a nonjury trial, when no findings of fact or conclusions of law are filed, as here, we imply that the trial court made all necessary findings to support its judgment. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). When a reporter’s record is filed, the implied findings are not conclusive, and a party may challenge both the legal and factual sufficiency of the evidence supporting those findings. Id. The applicable standards of review are the same as those applied to review jury findings. Briggs Equip. Tr. v. Harris Cty. Appraisal Dist., 294 S.W.3d 667, 670 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The trial court’s judgment must be affirmed if it can be upheld on any legal theory finding support in the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).
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When a party challenges legal sufficiency relative to an adverse finding on which it did not bear the burden of proof, it must show that no evidence supports the finding. See Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). We will sustain a legal-sufficiency or “no-evidence” challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact; (2) rules of law or evidence bar the court 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 scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In conducting a legal-sufficiency review, a “court must consider evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it.” Id. at 822. The term “inference” means,
[i]n the law of evidence, a truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved. . . .
Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—Houston [1st Dist.] 1993, writ dism’d w.o.j.) (quoting Inference, BLACK’S LAW DICTIONARY (5th ed. 1979)). For a factfinder to infer a fact, “it must be able to deduce that fact as a logical consequence from other proven facts.” Id.
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If there is more than a scintilla of evidence to support the challenged finding, we must uphold it. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). “[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). However, if the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then factfinders must be allowed to do so. City of Keller, 168 S.W.3d at 822; see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement.” City of Keller, 168 S.W.3d at 822.
When an appellant challenges the factual sufficiency of the evidence, we view all of the evidence in a neutral light and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The factfinder is the sole judge of the witnesses’ credibility, and it may choose to believe one witness over another; a reviewing court may not impose its own opinion to the contrary. See Zenner v. Lone Star Striping & Paving L.L.C., 371 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
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An easement is a non-possessory interest in the property of another that authorizes its holder to use the property for a particular purpose. Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002); Koelsch v. Indus. Gas Supply Corp., 132 S.W.3d 494, 497 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). “The tract of land on which the easement is imposed is the servient estate, and the tract of land benefitted by the easement is the dominant estate.” LaTaste Enters. v. City of Addison, 115 S.W.3d 730, 735 (Tex. App.—Dallas 2003, pet. denied). The holder of the servient estate may not interfere with the rights of the holder of the dominant estate to use an easement for the purpose for which it was granted or sought. Taylor Foundry Co. v. Wichita Falls Grain Co., 51 S.W.3d 766, 770 (Tex. App.—Fort Worth 2001, no pet.). Likewise, the easement holder “must make reasonable use of the right and not unreasonably interfere with property rights of the owner of the servient estate.” San Jacinto Sand Co. v. Sw. Bell Tel. Co., 426 S.W.2d 338, 345 (Tex. Civ. App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.); see also Severance v. Patterson, 370 S.W.3d 705, 721 (Tex. 2012).
An “easement appurtenant” is an easement interest that attaches to the “land of the owner of the right” and “runs with the land,” meaning that the benefit of the easement transfers with the title to the dominant estate and the burden of the easement passes with the transfer of title to the servient estate. See Severance, 370 S.W.3d at 721; Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 203 & 207 (Tex.
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1962); McDaniel v. Calvert, 875 S.W.2d 482, 484 (Tex. App.—Fort Worth 1994, no writ). And the transfer automatically passes all easements attached to the property, even if not expressly referenced in the instrument of transfer. Shelton v. Kalbow, 489 S.W.3d 32, 46 & n.11 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (easement appurtenant “automatically” follows dominant estate, regardless whether referenced in deed).
When considering the terms of an express easement, we apply basic principles of contract construction and interpretation. Krohn, 90 S.W.3d at 700. The contracting parties’ intent, as expressed in the conveyance, determine the scope of the interest granted. Koelsch, 132 S.W.3d at 497–98. We read the terms of an easement as a whole to determine the parties’ intent and “carry out the purpose for which the easement was created.” Id. at 498; see DeWitt Cty. Elec. Coop. v. Parks, 1 S.W.3d 96, 101 (Tex. 1999). We assume that the parties intended for every clause to have effect. Koelsch, 132 S.W.3d at 498. If a term in a conveyance is not specifically defined, that term should be given its plain, ordinary, and generally accepted meaning. Parks, 1 S.W.3d at 101. If we conclude that contract language can be given a certain or definite meaning, then the language is not ambiguous, and we interpret the contract as a matter of law. Id. at 100.
Here, the Rahmatis argue that they are “entitled to utilize the protections afforded by the [REA] that allow for the common use, parking, ingress and egress
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upon and over the common area of the AJBJK Parcel” because their outparcel was originally part of a tract of land developed by Clark to be used as a shopping center and it is “undisputed that the [REA] [was] to run with the land.” They further argue that “[t]o determine otherwise would deprive [them] of the intended purpose of the AJBJK Parcel, the Rahmati Parcel, and neighboring properties because the tracts of land could not be used effectively as a shopping center, as originally designed.”
The REA, executed in 1980, provides that K-Mart, the owner of “Parcel A,” and Clark, the owner of “Parcel B,” established Parcels A and B, together, as a “Shopping Center,” intending to:
grant, impose and establish easements of common use, parking, and ingress and egress upon and over the Common Areas (as hereinafter defined) of the Shopping Center for the benefit of Parcels A and B[.]
And they granted such easements “upon the Shopping Center,” as follows:
1. The term “Common Areas” shall mean all entrances, exits, driveways, parking areas, walks, service drives, . . . and other facilities and areas intended for common use, as may now or hereafter be established and constructed.
2. There is hereby granted in favor of K-Mart and the future owners of Parcel A for the benefit of said Parcel and any all parts thereof and for the benefit of K-Mart and future owners the Parcel, their respective successors, assigns . . . employees, agents, customers, licensees, and invitees, a permanent, non-exclusive easement and right to use the Common Areas of the Shopping Center.
3. There is hereby granted in favor of Clark and the future owners of Parcel B for the benefit of said Parcel B and any and all parts thereof, and for the benefit of Clark and future owners of the Parcel, their respective successors, assigns . . . employees, agents, customers, licensees, and invitees, a permanent,
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non-exclusive easement and right to use the Common Areas of the Shopping Center.
. . . .
10. At no time shall any party herein erect or construct or cause or permit to be erected or constructed any fence, wall or other barrier between the Parcels forming the Shopping Center, or in any manner interfere with or restrict the full and complete use and enjoyment by any party of the easements granted hereunder.
. . . .
13. All easements and covenants in this [REA] shall run with and against the land so described and shall, except to the extent otherwise specifically provided in this REA, be a benefit thereto and a burden thereon.
14. This [REA] shall be binding upon and inure to the benefit of the parties hereto, their . . . successors and assigns.
(Emphasis added.) Thus, the REA reflects that K-Mart and Clark intended to establish a general plan or common scheme of development and to grant all current and future owners of the Shopping Center, and “any and all parts thereof,” “a permanent, non-exclusive easement and right to use the Common Areas of the Shopping Center,” including “all entrances, exits, driveways, [and] parking areas.” K-Mart and Clark created the easement for the “benefit” of the current and future owners and their “respective successors, assigns . . . employees, agents, customers, licensees, and invitees.” Further, the REA expressly states that it “run[s] with the land” and is “binding upon and inure[s] to the benefit of” the parties and their successors and assigns. And it reflects that it is recorded in the Fort Bend County real property records at volume 935, page 526.
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In 2001, AJBJK purchased the tract formerly owned by Clark, “Parcel B.” The deed states that First Capital Bank:
GRANTED, SOLD AND CONVEYED . . . unto [AJBJK] all of the following described real property and improvements situated in Fort Bend County, Texas[,] together with all strips, gores, easements, and appurtenances thereto, to-wit:
See Exhibit “A” attached hereto and incorporated herein (the “Property”)[.]
(Emphasis added.) Exhibit A describes “the Property” as including “[a]ll rights of access arising under the Reciprocal Easement Agreement contained in instrument recorded in Volume 935, Page 526, of the Deed Records of Fort Bend County, Texas.”
AJBJK’s deed further states, “This conveyance is made and accepted subject to all matters of record to the extent same are valid and subsisting and affect the Property, including the matters set forth on Exhibit ‘B’ attached hereto (the ‘Permitted Exceptions’).” Exhibit B states, “The terms, conditions, restrictions and stipulations in Reciprocal Easement Agreement contained in instrument recorded in Volume 935, Page 526, of the Deed Records of Fort Bend County, Texas.”
Thus, AJBJK’s deed to Parcel B is expressly subject to the easement created in the REA, and the burden of the easement passed with the transfer of the servient estate to AJBJK. See Severance, 370 S.W.3d at 721; Krohn, 90 S.W.3d at 700.
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In regard to the Rahmatis’ portion of Parcel B, the 1982 deed from Clark to Taco Bell conveyed “[a]pproximately 0.5005 acres of land as more particularly described on Exhibit ‘A’ attached.” The deed further provides that:
[t]his conveyance is made and accepted subject to the following matters, to the extent same are in effect at this time: Any and all restrictions, covenants, conditions and easements, if any, relating to the hereinabove described property, but only to the extent they are still in effect, shown of record in [Fort Bend County, Texas] . . . .
The record shows that in 1996, the Family Eats Limited Partnership (“FELP”), the Taco Bell franchisee, executed a deed of trust with Franchise Mortgage Acceptance Company, LLC (“FMAC”), secured by the 0.50-acre outparcel. Subsequently, FMAC assigned the note and security agreement to the FMAC Loan Receivables Trust 1997-B, which in turn assigned it to U.S. Bank National Association, as trustee. In February 2003, after FELP defaulted, the loan was re-structured. And in July 2003, FELP sold the 0.50-acre outparcel, “together with all and singular the rights and appurtenances thereto in any way belonging,” to JK Joseph.
In 2005, JK Joseph sold its 0.50-acre portion of Parcel B to the Rahmatis. The deed states that grantor, JK Joseph, “grants, sells, and conveys to [the Rahmatis] the Property, together with all and singular the rights and appurtenances thereto in any way belonging.” (Emphasis added.) And the August 4, 2005 “Commitment for Title Insurance,” prepared by Stewart Title Company, notes that the Rahmatis’ tract was
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subject to the “[t]erms and provisions of the [REA] dated December 12, 1980, executed by and between [Clark and K-Mart] . . . recorded in Volume 935, Page 526 of the Real Property Records of Fort Bend County, Texas.”
Thus, the easement appurtenant created by the REA transferred to the Rahmatis when JK Joseph assigned its interest in the outparcel to them. See Shelton, 489 S.W.3d at 46 & n.11 (easement appurtenant “automatically” follows dominant estate, regardless whether referenced in deed); McDaniel, 875 S.W.2d at 484 (easement appurtenant automatically transferred to current owners of property when previous owner assigned interest to them). The Rahmatis’ deed was expressly made subject to “all and singular the rights an appurtenances thereto in any way belonging.” Cf. Cooke v. Morrison, 404 S.W.3d 100, 111 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“[S]tandard habendum clause conveying [lot] ‘together with all and singular the rights and appurtenances thereto in anywise belonging’. . . conveys an[] easement appurtenant.”). And the REA, which expressly states that it “runs with the land,” was recorded in the Fort Bend County real property records prior to the Rahmatis’ purchase of their outparcel.
Although the Rahmatis’ deed does not itself expressly reference the REA, “an easement appurtenant is conveyed with the land regardless of whether it is described in any conveyance of that land.” Walchshauser v. Hyde, 890 S.W.2d 171, 174 (Tex. App.—Fort Worth 1994, writ denied); see also Shelton, 489 S.W.3d at 46 & n.11
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(easement appurtenant “automatically” follows dominant estate, regardless whether referenced in deed); Fallis v. River Mountain Ranch Prop. Owners Ass’n, No. 04-09-00256-CV, 2010 WL 2679997, at *10 (Tex. App.—San Antonio July 7, 2010, no pet.) (mem. op.) (easement created “covenant running with the land” that may be enforced by successors-in-interest); Magee v. Hambleton, No. 2-08-441-CV, 2009 WL 2619425, at *5 (Tex. App.—Fort Worth Aug. 25, 2009, pet. denied) (mem. op.) (“[T]he easement, which was established for the benefit of the Western Tract and which, therefore, is classified as an easement appurtenant, passed to the subsequent owners of the Western Tract regardless of whether the conveyance to them specifically included language conveying the easement interest.”); Holmstrom v. Lee, 26 S.W.3d 526, 531 (Tex. App.—Austin 2000, no pet.) (easement passed to subsequent owner regardless whether conveyance specifically included language conveying easement). Thus, the easements granted in the REA, which run with and are appurtenant to the land, are enforced as property rights, and not as contract rights. See Frey v. CST Props., LLC, No. 04-13-00450-CV, 2014 WL 783324, at *6 (Tex. App.—San Antonio Feb. 26, 2014, no pet.) (mem. op.) (easements granted in REA “run with and are appurtenant to the land” and are “enforced as property rights, not contract rights”).
Viewing the evidence in the light most favorable to the trial court’s judgment and indulging every reasonable inference that would support it, we conclude that the
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evidence establishes that the Rahmatis, in accordance with the REA, have an easement that includes ingress and egress over, and parking upon, AJBJK’s real property. Accordingly, we hold that the evidence is legally insufficient to support the trial court’s declaratory judgment that the Rahmatis “have and possess no reciprocal easement rights regarding ingress, egress or parking over, across, or upon [AJBJK’s] real property.” We further hold that the evidence is legally insufficient to support the trial court’s declaratory judgment that AJBJK is “allowed to erect fences and/or barriers upon [its] real property to control access to and from [its] property from [the Rahmatis’] real property.”
We sustain the Rahmatis’ first issue.
Permanent Injunction
In their second issue, the Rahmatis argue that the trial court erred in granting AJBJK a permanent injunction enjoining them from the “use of, entrance upon, parking upon, or traverse over the AJBJK Parcel.”
A decision to grant or deny a permanent injunction is ordinarily within the sound discretion of a trial court, and appellate review of the trial court’s action is limited to the question of whether such action constituted a clear abuse of discretion. Crain v. Unauthorized Practice of Law Comm., 11 S.W.3d 328, 332 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). An abuse of discretion occurs if the trial court (1) acts arbitrarily and unreasonably, without reference to guiding rules or
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principles, or (2) misapplies the law to the established facts of the case. Baywood Country Club v. Estep, 929 S.W.2d 532, 535 (Tex. App.—Houston [1st Dist.] 1996, writ denied).
Permanent injunctive relief is appropriate upon a showing of (1) the existence of a wrongful act, (2) the existence of imminent harm, (3) the existence of irreparable injury, and (4) the absence of an adequate remedy at law. Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 849 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). In addition, a court determining the appropriateness of a permanent injunction should balance the competing equities, including the public interest. Triantaphyllis v. Gamble, 93 S.W.3d 398, 401–02 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).
Having held that the Rahmatis have an easement for ingress and egress over, and parking upon, AJBJK’s real property, we further hold that the trial court erred in granting AJBJK an injunction enjoining the Rahmatis, “their successors and assigns, [their] tenant, their respective guests, vendors, customers, and employees from the use of, entrance upon, parking upon, or traverse over” AJBJK’s property. Cf. Jim Rutherford Invs., Inc., 25 S.W.3d at 849 (injunctive relief appropriate upon showing of existence of wrongful act).
We sustain the Rahmatis’ second issue.
Damages
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In their third issue, the Rahmatis argue that the trial court erred in awarding AJBJK damages in the amount of $1,400.00 for the destruction of its fence because the judgment is “not supported by the pleadings.” The Rahmatis assert that AJBJK, in its First Amended Petition, “did not seek recovery of $1,400.00 for damage [they] caused to AJBJK’s fence.”
A trial court’s judgment must “conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which [it] may be entitled either in law or equity.” TEX. R. CIV. P. 301. A trial court may not grant relief on a theory of recovery not sufficiently stated in the party’s pleadings or tried by consent. Stoner v. Thompson, 578 S.W.2d 679, 682–83 (Tex. 1979); Eun Bok Lee v. Ho Chang Lee, 411 S.W.3d 95, 106 (Tex. App.—Houston [1st Dist.] 2013, no pet.). A pleading is sufficient if it gives the opposing party adequate information to enable him to prepare a defense. Roark v. Allen, 633 S.W.2d 804, 809–10 (Tex. 1982).
AJBJK, in its First Amended Petition, alleged that it had constructed a chain-link fence on its property at a cost of $1,437.02 and the Rahmatis entered upon its property and destroyed or removed its fence. Moreover, AJBJK sought $20,000 in damages for the Rahmatis’ “unauthorized entry upon” its property and “for the destruction of [its] chain link fence.”
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AJBJK’s petition sufficiently gave the Rahmatis fair notice that they would have to defend against a claim involving trespass and the destruction of the fence on AJBJK’s property. Accordingly, we hold that the trial court did not err in awarding AJBJK’s damages.
We overrule the Rahmatis’ third issue.

Outcome: We reverse the portions of the trial court’s judgment granting AJBJK declaratory and injunctive relief and render judgment that the Rahmatis, in accordance with the REA, have an easement over the Common Areas of the Shopping Center. We affirm the remainder of the judgment of the trial court.

Plaintiff's Experts:

Defendant's Experts:

Comments: