On Petition for Review from the Court of Appeals for the Third District of Texas
The petitioner cable television and internet provider, had cable lines running on two properties owned by the respondents. The properties were located on Highways 77 and 290. The petitioner cable lines were placed on poles belonging to an electricity provider. The electricity provider had easements on the respondents properties allowing it to place and operate “an electric transmission or distribution line or system” on the properties. Both the parties had written agreements known as joint use or pole attachment agreements. The agreements allowed the petitioner to make use of the electricity provider's poles, but only “to the extent the electricity provider might lawfully do so,” and stated that the petitioner was responsible for obtaining its own easements and rights-of-way from property owners. At the time, electricity provider had lines running within an easement on the property, the petitioner hung a cable on the electricity provider's poles which got noticed by the first respondent's brother. After conversation with one of the employee of the petitioner, he came to know that the petitioner did not have an easement on the Highway 77 property. However, the petitioner had an oral agreement with the electricity provider allowing the petitioner to use the electricity provider's easements. The first respondent read a newspaper article about Marcus Cable Associates, L.P. v. Krohn, 90 S.W.3d 697 (Tex. 2002), on which the supreme court held that an easement permitting an electric cooperative to construct and maintain “an electric transmission or distribution line or system” did not allow a cable television provider under a joint use agreement to place cable television lines in the easement. The electricity provider informed the brother that without a separate easement the petitioner was trespassing. The brother filed suit against the petitioner for trespass which was settled. Thereafter, the respondents filed suit pertaining to the Highway 290 property. The jury found that the petitioner had obtained a prescriptive easement on that property and so rejected trespass and the other tort claims. The trial court rendered judgment on the verdict for actual damages of $15,000 and attorney’s fees of $65,000, and also awarded a declaratory judgment and a permanent injunction. The appellate court affirmed the trial court's decision. The Texas Supreme Court noted that as a matter of law that the estoppel effect of the alleged fraudulent concealment ended at a time at the latest. By that date, the respondents were apprised of facts, conditions, and circumstances sufficient to cause a reasonable person to make inquiry that would lead to the discovery of the concealed cause of action. Because the respondents did not file suit until more than two years after that date, their claims were time-barred. Further, the court determined that by those standards the declaratory judgment and attorney’s fees awarded thereunder were not warranted. The declaratory judgment simply duplicated the issues litigated under the trespass claim by declaring, consistent with the respondents’ theory of trespass, that neither the electricity provider’s easements nor the pole attachment agreements between the electricity provider and the petitioner gave the petitioner the right to place its lines on the respondents’ properties. Accordingly, the judgment was reversed and remanded.