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Bruce HAZEL and Debbie Hazel, Appellants, v. LONESOME RANCH PROPERTY OWNERS ASSOCIATION a/k/a High Lonesome Ranch Property Owners Association, Appellee.
This case presents a dispute over the enforceability of an easement and certain covenants pertaining to property situated in a ranch subdivision of Crockett County, Texas. Appellants Bruce and Debbie Hazel (collectively, the Hazels) appeal a bench trial judgment granting a permanent injunction and awarding attorney's fees in favor of Appellee Lonesome Ranch Property Owners Association a/k/a High Lonesome Ranch Property Owners Association (the Association). In four issues, the Hazels not only challenge the Association's standing to bring suit but also contest the trial court's determination that a perpetual easement ran with the property, that covenants and restrictions were enforceable, and that some attorney's fees were recoverable. We affirm in part and reverse and remand in part.
A. The High Lonesome Ranch Subdivision
Texas Land & Ranches, Inc., a corporation that bought and developed property, purchased several thousand acres of property from a hospital. Texas Land & Ranches then subdivided the purchased acres and sold the lots to individual property buyers. As its goal, the corporation intended to develop the acreage such that every lot had road frontage, each would meet certain requirements, and each would be platted as a part of a subdivision.
Renee Howes was the vice-president in charge of acquisitions for Texas Land & Ranches during the time the acreage was being subdivided. In 2003, Howes filed Articles of Incorporation and Bylaws with the Texas Secretary of State creating the Lonesome Ranch Property Owners Association. Howes testified that Texas Land & Ranches created the property owners’ association for buyers of tracts to have “a reasonable expectation of what their neighborhood would look like,” and for owners to be treated equally. Howes became an original director of the Association's board of directors. Howes also filed a “Declaration of Covenants, Conditions and Restrictions,” (CCRs), which applied to properties located in the planned subdivision.
Texas Land & Ranches platted the property for recreational and residential purposes. Howes began working with a surveyor to develop the land plan and appeared before the Crockett County Commissioner's Court to gain approval for the different plats. In May 2004, Howes filed three Plats (the Plat or Plats) in Crockett County. Each was certified by Texas Land & Ranches, contained surveyor's certificates, and were approved by the County Commissioner's Court. Along with the Plats, Howes also filed an amended and restated declaration of CCRs for the subdivision. Both the original and the amended CCRs referred to a “High Lonesome Property Owners Association.” The CCRs were created to “establish a general plan for the development, sale, lease, and use” of property within “High Lonesome Ranch” and indicated all property within the subdivision “shall be held, sold and conveyed subject to” the CCRs. Upon purchase, all property owners in the High Lonesome Ranch became association members, they could not opt out of such membership, and each was bound by the terms and conditions of the CCRs. In 2018, Howes executed a correction instrument amending the name of the grantee of the easements contained in the Plats to “Lonesome Ranch Property Owners Association,” not “High Lonesome Ranch Property Owners Association,” and further stating that all other terms and provisions of the original Plats were to remain valid and enforceable. The correction instrument described a “non-material error” made in “that certain High Lonesome Ranch Phase 2 Sheet 1 of 1 of Final Plat,” dated May 10, 2004, by Texas Land and Ranches, Inc.
Howes testified at trial that three different plats were created for High Lonesome Ranch due to differences in timing of their preparation and in getting the surveys done. Because of the large size of the subdivision, the surveying was completed over time. Each of the Plats contained a physical layout of High Lonesome Ranch along with a map legend. Relevant to the issues of this case, each Plat included the following text:
Texas Land & Ranches, Inc. hereby grants and dedicates the following: A sixty feet (60’) perpetual roadway easement shown and described on this plat by centerline and being thirty feet (30’) on either side of said centerline to the “High Lonesome Ranch Property Owners Association,” a Texas Non-profit Corporation, for maintenance, repairs, ingress, egress, utility lines, and maintenance for benefit of its members.
The legend on the Plat identified the “roadway easement” as Bowline Road, which extended across subdivision tracts 28 and 29.
Howes testified that Bowline Road was designed as the entryway and main entrance to the Ranch. She described that the road had already been in existence, it had the proper permits, and it was in the “logical” location. Since 2004, the members of the Association used Bowline Road to access their properties from U.S. Highway 190. The Association erected a green gate on Bowline Road, at the entrance to High Lonesome Ranch, and it maintained the road over time.
B. The Hazels purchase property within High Lonesome Ranch
On February 16, 2005, the Hazels purchased Tracts 28, 29, and 31 of High Lonesome Ranch. The Hazels’ Warranty Deed with Vendor's Lien from grantor Texas Land & Ranches, Inc., includes the following description of the property and reservations from the conveyances and warranty:
Property (including any improvements):
Surface Estate only in and to Lots 28, 29, and 31, Phase 2, High Lonesome Ranch Subdivision, according to the map or plat of said subdivision filed of record on May 10, 2004 in Plat Cabinet A, Slide 90, Plat Records, in the office of the Clerk of Crockett County, Texas, together with all rights, interest and privileges in the roads and/or right-of-way easements set forth in the Plat as are associated with the ownership of Lots 28, 29, and 31, Phase 2, High Lonesome Ranch Subdivision.
Reservations from and Exceptions to Conveyance and Warranty:
Easements, rights-of-way, and prescriptive rights, whether of record or not; all presently recorded restrictions, reservations, covenants, conditions, oil and gas leases, mineral severances, and other instruments other than liens and conveyances, that affect the property; rights of adjoining owners in any walls and fences situated on a common boundary; and discrepancies, conflicts, or shortages in area or boundary lines ․
Grantor, for the Consideration and subject to the Reservations from Conveyance and the Exceptions to Conveyance and Warranty, grants, sells, and conveys to Grantee the Property ․
Initially, the Hazels were absentee owners; but they resided at High Lonesome Ranch beginning in 2008. Bruce Hazel testified he understood their deed referenced a Plat when he purchased the property. He also testified he understood that easements, rights-of-way, and prescriptive rights were reserved and excepted from the conveyance. He also acknowledged he had seen the Plat pertaining to his property. He confirmed the access easement language had existed since the Plat was created, that the Bowline Road description had been on the Plat when created, and that he purchased his property subject to the Plat that is referenced. Bruce Hazel also acknowledged that neighboring property owners used Bowline Road to access their properties.
In 2009, Bruce Hazel was elected president of the Association. During his tenure, he attempted to improve the Lone Star Trail, which is another road located within the subdivision. Howes testified that Lone Star Trail was not considered as a main entrance for High Lonesome Ranch because it was “very steep and had a switchback.” Additionally, the other property owners portrayed the conditions of the road as being dangerous. Bruce claimed he “fixed” the road and disagreed with the other owners’ characterization as such.
C. Issues with Bowline Road
In 2016, the Hazels proposed to the Association the relocation of Bowline Road from crossing the middle of their tracts to a place along the property line they shared with their neighbor, James Wright. Bruce Hazel also indicated that he had planned to let oil companies enter the subdivision and charge them a toll.
Responding, the then current President of the Association sent Bruce Hazel a letter. In relevant part, the letter stated:
[The Association] and its members have concerns over your plan to relocate Bowline Road, the associated gate, and the impact it will have on all property owners/association members that utilize Bowline Road to access their property. As of the date of this letter you have not formally notified any property owner nor the Association of your specific plans relating to this issue.
The location of the road and gate were a known condition and apparent when your property was purchased in February of 2005. The road and gate are shown on the Ranch records and may be considered common use facilities and subject to the Declarations and Covenants on file at the Crockett County Clerk's Office. Additionally, there are Express Easements that were granted to property owners guaranteeing their right to utilize Bowline Road to access their property.
A quorum of the Property Owners Association Board has discussed this situation and requires the following documentation be provided prior to going forward with the relocation of Bowline Road:
- Provide written approval from all affected property owners
- Provide written approval from Crocket[t] County for relocation of Bowline Road
- Provide Proof that you have coordinated with Crocket[t] County Emergency Management concerning 911 addresses and access changes
- Obtain written approval for the relocation of Bowline Road from Crocket[t] County Highway Department as the proposed road will cross the right-of-way and alter the drainage pattern of the area (Covenants para 5R)
- Submit your construction plan for approval by the Property Owners Association Board to ensure that construction of said road is of equal quality (materials, compaction, etc.) of the existing road
If the project is approved, you will be required to:
- At your personal expense, file all required legal documentation with Crockett County to transfer Express Easements for all affected property owners.
- Provide maintenance of the new road for a period of time to be negotiated with the Property Owners Association Board of Directors.
The letter requested a written response no later than fifteen calendar days after receipt of the correspondence.
Weeks later, an attorney representing Bruce Hazel sent a letter to the Association requesting all correspondence to go through the attorney and not directly to the Hazels. The attorney further indicated he was developing a “response satisfactory to all parties.” Additionally, he demanded the Association “cease any further plans and actions to install an electric gate at [the entrance to Bowline Road] until an alternate proposal” is reached. The letter claimed that past failures of electric gates denied Bruce Hazel “rightful ingress and egress from his property on several occasions.”
Without approval or further discussion with the Association, the Hazels began building the alternate road along their property line in front of the adjacent property owner's property. Additionally, the Hazels dug ditches along Bowline Road, which Bruce Hazel referred to as “speed trenches.” The Hazels also erected a “red gate” across Bowline Road at the north corner to Tract 28, without authorization from the Association. After another property owner posted about the “speed trenches” on the Association's Facebook webpage,1 the Hazels locked the green gate at the south entrance to Bowline Road. The Hazels placed a sign on the gate that stated:
LOT 28 IS DOMINANT ESTATE OVER THIS ACCESS EASEMENT ALL OTHERS ARE TO USE THE MAIN GATE AT LONE STAR TRAIL
On the same day, the Hazels then locked the red gate on the north entrance to Bowline Road and placed the same sign directing the residents to use Lone Star Trail.2 Bruce Hazel confirmed he locked the gate. When asked under what authority he acted, he stated it was his easement and he owned it because it “goes with Lot 28.”
D. The Association files suit
The Association filed suit against the Hazels alleging they breached their contract with the Association and blocked an express easement. The Association's original petition also requested a temporary restraining order and temporary injunction to maintain the status quo and restrain the Hazels from blocking access to the easement to Bowline Road, trespassing on other property owner's land, and other restraints regarding the property owners. The trial court granted an ex parte temporary restraining order on the same day. The temporary restraining order prohibited the Hazels from blocking access on the express easement on Bowline Road, both ingress and egress, or on any other road within High Lonesome Ranch, and from trespassing and vandalizing other property owner's land or dwelling, or the property owner association's common areas.
The Hazels filed an original answer containing a general denial, special exceptions, and affirmative defenses. The Hazels alleged the Association's claims were barred by a statute of limitations, and they further asserted they were bona fide purchasers for value without notice.
The Association amended their petition and requested a temporary restraining order and temporary injunction. Following a hearing, the trial court granted a temporary injunction which restrained and enjoined the Hazels from blocking access to Bowline Road and further ordered them to remove the locks from the red gate on that road. The temporary injunction also prohibited and enjoined the Hazels from trespassing and vandalizing the property of other Association members and the common areas of the Association.
The Hazels next filed an amended answer, counterclaim, and third-party petition against the Association and five individual property owners—Salim Ahmed, Terry L. Hoak, Seth R. Moore, James Seeton, and Rhonda Chapman. The Hazels alleged trespass by the Association and three individual property owners. They also alleged conversion and trespass to chattel to the same three owners. The Association and the property owners filed an answer with affirmative defenses.
E. The trial
A bench trial was held on October 7 and 8, 2019. The Association presented testimony from Howes,3 vice-president of Texas Land & Ranches, who described aspects of the creation of the subdivision. Howes testified on the creation of the Plat, the Ranch, the easement, and CCRs. Bruce and Debbie Hazel both testified. Additionally, the Association presented testimony from eight other property owners and members of the Association.
At the close of testimony and argument, the court found there was a valid perpetual roadway easement dedicated for the benefit of the members of the Association. The trial court also ordered that the previously entered temporary injunction would turn into a permanent injunction. Additionally, the trial court denied and dismissed with prejudice all remaining claims and counterclaims.
The court rendered a final judgment with permanent injunction which included an award of attorney's fees in the amount of $63,595. Additionally, the trial court awarded $20,000 in reasonable attorney's fees if appealed to this Court, and $15,000 if appealed to the Texas Supreme Court.
The trial court entered findings of fact and conclusions of law. The Hazels filed a motion for new trial, which was overruled by operation of law. This appeal followed.
II. ISSUES ON APPEAL
The Hazels present four issues contending the trial court erred by rendering judgment in favor of the Association. First, they contend the Association lacked standing to bring suit. Second, they argue the trial court erred in construing the easement. Third, they assert the trial court erred in the enforcement of the CCRs. Fourth and last, they urge the trial court erred in its award of attorney's fees.
We address each issue in turn.
III. STANDARD OF REVIEW
We review a declaratory judgment under the same standards as other judgments and look to the procedure used to resolve the issue at trial to determine the standard of review on appeal. Tex. Civ. Prac. & Rem. Code Ann. § 37.010; Sanchez v. Barragan, 624 S.W.3d 832, 838 (Tex. App.—El Paso 2021, no pet.). Here, the trial court determined the declaratory judgment issue after a bench trial. Therefore, we apply a sufficiency of the evidence review to the trial court's factual findings and review its conclusions of law de novo. See Black v. City of Killeen, 78 S.W.3d 686, 691 (Tex. App.—Austin 2002, pet. denied).
In their first issue, the Hazels assert the Association lacked standing to bring the underlying lawsuit.
A. Standard of Review and Applicable Law
“Standing is a constitutional prerequisite to suit.” Heckman v. Williamson County, 369 S.W.3d 137, 150 (Tex. 2012). Without standing, the trial court lacks subject matter jurisdiction. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993). “A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has legal authority to act regardless of whether it has a justiciable interest in the controversy.” Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). “A plaintiff must have both standing and capacity to bring a lawsuit.” Lorentz v. Dunn, 171 S.W.3d 854, 856 (Tex. 2005). A trial court's conclusions regarding its subject matter jurisdiction, like standing and capacity, are questions of law which we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928-29 (Tex. 1998); Anderson v. New Property Owners’ Ass'n of Newport, Inc., 122 S.W.3d 378, 384 (Tex. App.—Texarkana 2003, pet. denied).
Because standing is a component of subject matter jurisdiction, it cannot be waived by the parties and may be raised for the first time on appeal. Texas Ass'n of Bus., 852 S.W.2d at 445-46. Unlike standing, however, a challenge against a plaintiff's capacity to sue can be waived. Id. A party's lack of capacity does not deprive a court of subject matter jurisdiction; rather, it is an affirmative defense that must be raised by a verified pleading in the trial court. See Tex. R. Civ. P. 93(1)-(2); Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 56 (Tex. 2003).
When standing is raised for the first time on appeal, there is no opportunity to cure the defect. Texas Ass'n of Bus., 852 S.W.2d at 446. For this reason, we construe the petition in favor of the plaintiff and, if necessary, we review the entire record to determine if any evidence supports its standing. Id.
The Hazels bring four arguments contesting the Association's standing to assert the underlying claims. Proceeding out of order, we begin with their claim that the Association failed to establish the requirements of associational standing.
1. Associational standing
An association has standing to bring suit when it satisfies a three-pronged test showing: (1) the members of the association must otherwise have standing to sue in their own right, (2) the interest it seeks to protect must be germane to the organization's purpose, and (3) the participation of individual members in the lawsuit must not be required for the claim asserted or the relief requested. S. Texas Water Auth. v. Lomas, 223 S.W.3d 304, 308 (Tex. 2007); Texas Ass'n of Bus., 852 S.W.2d at 447. Ordinarily, any person entitled to benefit under a restrictive covenant may enforce it. See Anderson, 122 S.W.3d at 384. Generally, then, any interested property owner may enforce a restrictive covenant. Id.
In its petition, the Association alleges it is a non-profit corporation and it brought the suit on behalf of the members of the Association. Because each member of the Association would have standing to bring suit to enforce deed restrictions, the Association satisfies the first requirement for standing. See id. (finding the first requirement for standing met when the plaintiff was an owners’ association representing property owners, who would have standing to bring the lawsuit).
Additionally, the Association's purpose is aligned with that of its members. Relevant portions of the Association's articles of incorporation state as follows:
PURPOSE: The corporation is organized to enforce the Declaration of Covenants, Conditions and Reservations (herein referred to as the Declaration) and to maintain and improve the interior roadways, gates, fences, cattle guards and culverts involving such roadways, water wells, and any other common areas so designated by the Board of Directors, which are located within the development. The property known and to be known as the “Lonesome Ranch” is and shall be subject to the Declaration for the property, which Declaration contemplates the establishment of this corporation. Further, the corporation is organized to provide an entity for the furtherance of the best interests of the property owners in the development and to enforce the provisions set forth in the Declaration. In furtherance of its purposes, the Association shall have the following powers, which, unless indicated otherwise by the Declaration or Bylaws, may be exercised by the Board of Directors: All powers necessary or desirable to perform the obligation and duties and to exercise the rights and powers set out in these Articles, the Bylaws, or the Declaration, including the following:
A. To fix and collect assessments[.]
B. To enforce Covenants, Conditions, and Restrictions affecting any property to the extent the Association may be authorized to do so under the Declaration of Covenants, Conditions, and Restrictions.
C. To enter, make, perform, or enforce contracts of every kind and to do all other acts necessary, appropriate, or desirable in carrying out any purpose of the Association.
The Association's members have an interest in the maintenance of the property as well as having other property owners obey covenants, conditions, restrictions, and other contractual obligations. Additionally, the declaration of covenants, conditions, and restrictions reiterates the purpose laid out in the articles of incorporation. The second requirement is met.
Lastly, the Association's claims and requested relief do not require the participation of any individual members. Here, the Association seeks declaratory judgment and injunctive relief. Granting the relief sought does not require proof of any property owner members circumstances. We can reasonably presume the relief sought will “inure to the benefit of the injured members.” Id. at 385. Through its members, we conclude the Association held an interest that was allegedly violated by the Hazels.
Based on these determinations, we hold the statutory requirements of associational standing were met.
2. Additional arguments
The Hazels assert three other arguments against the Association's standing: (1) that the easement the Association seeks to enforce was granted to a different entity than the one that brought suit; (2) that the bylaws require the officers of the Association to bring suit, not the board of directors; and (3) that the Association failed to establish standing through a correction instrument.
The test for standing requires there be a real controversy between the parties which will actually be determined by the judicial declaration sought. Nootsie, 925 S.W.2d at 661. Although the Hazels disputes the validity of the Plat granting the easement, they do not dispute that the correct parties are involved. As property owners, the Hazels concede their property rights are governed, to a certain extent, by the Association. And here, there is no dispute the suit was brought by the Association. Standing is not conditioned on whether the Association's claims are ultimately valid. See Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass'n, 593 S.W.3d 324, 332-33 (Tex. 2020) (finding the property owners’ association had standing to enforce an easement even when the defendant argued against the validity of the restrictive covenant). Accordingly, the later filed correction instrument does not affect the Association's standing to bring suit.
Additionally, the Hazels’ remaining two arguments contending the Association did not have the legal authority to file suit to enforce the easement and covenants raise challenges with capacity, not standing. See Transcon. Realty Invs., Inc. v. Wicks, 442 S.W.3d 676, 679 (Tex. App.—Dallas 2014, pet. denied) (“Texas law is clear, and this Court has previously held numerous times, that a challenge to a party's privity of contract is a challenge to capacity, not standing.”); Nat'l Health Res. Corp. v. TBF Fin., LLC, 429 S.W.3d 125, 129 (Tex. App.—Dallas 2014, no pet.) (stating the correct assignee of a lease is not an issue of standing but a merits question on whether the party can recover in the capacity in which it sued). Because capacity must be brought by a verified denial, which was not done here, any issue with capacity is waived. See Tex. R. Civ. P. 93(1); see also King-Mays v. Nationwide Mut. Ins. Co., 194 S.W.3d 143, 145 (Tex. App.—Dallas 2006, pet. denied) (waiver found where verified denial challenging capacity was not filed).
Because we hold the Association has standing to bring suit to enforce the easement and covenants, we overrule the Hazels’ first issue.
V. THE ROADWAY EASEMENT
In their second issue, the Hazels contend the trial court erred in construing and enforcing the easement included with the plat grant.
A. Applicable Law
A property owner's right to exclusive enjoyment of property is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002) (quoting Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994)). But a property owner may relinquish such right by granting an easement. Id. An easement is a nonpossessory interest that authorizes a holder's use of another's property for a stated purpose. Id. It does not convey title to property. Stephen F. Austin Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007). Easements may be created by express grant, implication, necessity, estoppel, or prescription. Machala v. Weems, 56 S.W.3d 748, 755 (Tex. App.—Texarkana 2001, no pet.). “[T]he conveyance of land by reference to a map or plat, upon which lots and streets are laid out, results in the purchaser or one holding under him, acquiring by implication a private easement in the alleys or streets shown on the plat.” City of San Antonio v. Olivares, 505 S.W.2d 526, 530 (Tex. 1974). The holder's rights are limited to those that are expressed in the grant. DeWitt Cty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100-01 (Tex. 1999).
When construing easement agreements, courts must follow the rules of contract interpretation and “look to the easement's express terms to determine its scope.” Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 686 (Tex. 2020). As in other interpretation cases, we look to the entirety of the agreement and “harmonize its terms to give effect to all the provisions.” Id. If the easement's terms can be given a definite or certain meaning, then the language is not ambiguous, and we are obligated to interpret the contract as a matter of law. Parks, 1 S.W.3d at 100. Like other agreements, courts view easements with an eye toward Texas's public policy that “strongly favors freedom of contract.” Shields Ltd. P'ship v. Bradberry, 526 S.W.3d 471, 481 (Tex. 2017). “[P]arties have the right to contract as they see fit as long as their agreement does not violate the law or public policy.” In re Prudential Ins. Co. of America, 148 S.W.3d 124, 129 (Tex. 2004). Absent compelling reasons, we must respect and enforce the terms of a contract that the parties have freely and voluntarily entered. Phila. Indem. Ins. Co. v. White, 490 S.W.3d 468, 471 (Tex. 2016).
The Hazels present four arguments on appeal. The first three challenge the validity of the easement for a variety of reasons while the fourth addresses the nature and scope of the rights conveyed by the easement. We address these arguments in two parts, beginning with those challenges questioning the validity of the easement.
1. The validity of the easement grant
“[T]here is a strong presumption in favor of the correctness of a deed and ․ this presumption will prevail unless the party opposing it shows the contrary by satisfactory evidence which is clear, strong and convincing.” Henderson v. Henderson, 694 S.W.2d 31, 34 (Tex. App.—Corpus Christi 1985, writ ref'd n.r.e.) (citing Carson v. White, 456 S.W.2d 212 (Tex. App.—San Antonio 1970, writ ref'd n.r.e.)). But, if a mistake is made by scrivener or typist, and the mistake was a mutual mistake, an instrument may be reformed and modified by a court to reflect the true agreement of the parties. Id.
a. Name of grantee
The Hazels first argue the evidence presented showed the “High Lonesome Ranch Property Owners Association,” the grantee of the easement, was not in existence at the time the Plat was filed. As a result, the Hazels contend the easement grant is void and of no legal effect. We disagree.
Texas law holds that “a deed is void if the grantee is not in existence at the time the deed is executed.” Parham Family Ltd. P'ship v. Morgan, 434 S.W.3d 774, 787 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (applying rule to affirm summary judgment where the movant argued a deed of property to a nonexistent entity was done to “delay, hinder, or defraud” her as a judgment creditor); see also Fisher v. Southland Royalty Co., 270 S.W.2d 677, 680 (Tex. App.—Eastland 1954, writ ref'd n.r.e.) (“A living person can have no heirs and a conveyance of a present estate to the heirs of a living person is void for uncertainty.”). This “grantee-existence” rule is worded broadly and has been applied in cases of differing factual backgrounds. See Savering v. City of Mansfield, 505 S.W.3d 33, 46 (Tex. App.—Fort Worth 2016, pet. denied) (explaining the nonexistent entity rule referred to in Parham is “worded broadly” and is applied in specific situations).
However, the Hazels do not cite, and our research has not shown, a case where the rule has been applied to facts similar to this case. Rather, the record of this case establishes the following facts: (1) the subdivision ranch is called the High Lonesome Ranch, (2) the Articles of Incorporation named the “Lonesome Ranch Property Owners Association” as the association name, (3) the Bylaws similarly listed “Lonesome Ranch Property Owners Association,” (4) the original CCRs—filed in December 2003—and the amended CCRs—filed with the plats in 2004—both named the entity as “High Lonesome Ranch Property Owners Association,” and (5) the plats named the “High Lonesome Property Owners Association.” The articles of incorporation, bylaws, and original CCRs were all filed within four months of each other. Additionally, Howes testified she oversaw the filing of the documents, all for the benefit of High Lonesome Ranch. She stated, “it was probably just a clerical error on behalf of the secretary that prepared the bylaws and articles. She just left off the word ‘high.’ ”
As described by the Supreme Court of Texas, “[a] misnomer differs from a misidentification.” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 594 (Tex. 2017) (quoting In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (per curiam)). For example, a misidentification arises when two separate legal entities exist, and a plaintiff mistakenly sues an entity with a name similar to that of the correct entity. Rincones, 520 S.W.3d at 594. In contrast, a “misnomer occurs when a party misnames itself or another party, but the correct parties are involved.” Id. (quoting In re Greater Houston Orthopaedic Specialists, 295 S.W.3d at 325). “The courts of this state generally allow parties to correct a misnomer if it is not misleading.” Rincones, 520 S.W.3d at 594.
Here, Howes testified repeatedly that the “High Lonesome Ranch Property Owners Association” and “Lonesome Ranch Property Owners Association” were one and the same. Additionally, Howes testified to executing the correction deed, which also included a personal attestation stating, “[t]he mistake was simply an inadvertent typographical error that resulted because the informal name of the ranch subject to the easements is the ‘High Lonesome Ranch’ but was also referred to informally as the ‘Lonesome Ranch.’ ” An instrument may be reformed or modified to reflect the parties’ true agreement. See, e.g., Fernandez v. Manwani, No. 04-16-00562-CV, 2017 WL 4272352, at *4 (Tex. App.—San Antonio 2017, no pet.) (concluding the record supported the trial court's correction of an incorrect maturity date in a deed of trust); Henderson, 694 S.W.2d at 34 (Tex. App.—Corpus Christi 1985, writ ref'd n.r.e.) (recognizing an instrument may be reformed and modified by a court to reflect the true agreement of the parties). There was also testimony that no property owners ever raised an issue with the name on the Plat differing from the name on the Articles of Incorporation. The Hazels testified they questioned themselves as to why the names differed, but they acknowledged they never brought this matter to the attention of the Association.
We conclude the Hazels failed to establish the clerical error, which was later corrected, resulted in a grant to a “non-existent entity” as described in Parham. We overrule this first part of the Hazels’ second issue.
b. Recording of the Plat and the correction instrument
The Hazels next argue the Plat was not properly notarized, and thus, it was not effectively recorded. They also assert the Association's subsequently filed “correction instrument” was invalid as well. Because of these deficiencies, the Hazels assert the Plat did not provide constructive notice of the existence of the easement. Thus, they contend they qualify as bona fide purchasers of property without notice of the easement. We disagree.
A bona fide purchaser is one who acquires property in good faith, for value, and without notice, actual or constructive, of any third-party claim or interest. See Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001). “Actual notice results from personal information or knowledge; constructive notice is notice the law imputes to a person not having personal information or knowledge.” Mattox v. Grimes Cnty. Comm'rs’ Court, No. 01-14-00535-CV, 2015 WL 5076291, at *10 (Tex. App.—Houston [1st Dist.] Aug. 27, 2015, pet. denied) (mem. op.) (citing Madison, 39 S.W.3d at 606). An instrument that is properly recorded constitutes notice to all persons of the existence of the instrument. Tex. Prop. Code Ann. § 13.002(1). Actual notice means “express or positive personal information or knowledge directly communicated to the person to be affected.” Flack v. First Nat'l Bank of Dalhart, 148 Tex. 495, 226 S.W.2d 628, 631 (1950). For actual notice, “whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand, which if pursued by the proper inquiry the full truth might have been ascertained. Id. at 632. Actual notice is always a question of fact. Id.
The Hazels argue the Plat was not effectively recorded because it was not properly acknowledged by a notary. Because a recording is not necessarily dispositive, we disagree. It is not necessary that a map, plat, or plan referred to in a conveyance be recorded “[i]f it can be proven where the particular lots and the streets contiguous thereto are located” according to the map. Templeton v. Dreiss, 961 S.W.2d 645, 660 n.17 (Tex. App.—San Antonio 1998, pet. denied). Furthermore, “[i]f such an agreement is not properly recorded, notice of its existence must be communicated in some other manner.” Stark v. Morgan, 602 S.W.2d 298, 305 (Tex. App.—Dallas 1980, writ ref'd n.r.e.) (citing Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286, 289 (1951)).
The Hazels 2005 deed included a reference to the Plat which Bruce Hazel conceded to reading and understanding at the time of purchase. At trial, he agreed the access easement language describing Bowline Road had been in the Plat since it was created, and he understood he had purchased his property subject to that easement. Also, the Hazels both served on the board of the Association which dealt with issues regarding Bowline Road throughout the years. Bruce Hazel also conceded that Bowline Road was to be maintained by the Association at that entity's expense. Furthermore, Bruce Hazel acknowledged the existence of the easement at the time he purchased his lots and that the other property owners used Bowline Road to access their properties. The Hazels never previously denied the existence of the easement prior to this suit being filed. In fact, the Hazels even asked the Association for permission to relocate the easement. When that became difficult, the Hazels then changed their position. At trial, Bruce Hazel argued that because he and his wife owned the easement, he had a right to lock the gate on Bowline Road.
Based on the record evidence, no error was shown with the trial court's finding that the Hazels had notice of the easement and Plat. We overrule this second part of the Hazels’ second issue.
2. Enforcing the nature and scope of the rights
We next turn to the granting language to determine the nature and scope of the easement grant.
a. The granting language
Looking to the relevant grant language, the Hazels’ warranty deed with vendor's lien provided the following description of the property conveyed:
Surface Estate only in and to Lots 28, 29 and 31, Phase 2, High Lonesome Ranch Subdivision, according to the map or plat of said subdivision filed of record on May 10, 2004 ․ together with all rights, interests and privileges in the roads and/or right-of-way easements set forth in the Plat as are associated with the ownership of Lots 28, 29 and 31, Phase 2, High Lonesome Ranch Subdivision.
The 2004 “Final Plat,” as referenced in the deed, indicated a granting of roadway and utility easement, and further provided:
A sixty feet (60’) perpetual easement shown and described on this plat by centerline, and being thirty feet (30’) on either side of said centerline to the ‘High Lonesome Ranch Property Owners Association’, a Texas Non-Profit Corporation, for maintenance, repairs, ingress/egress, utility lines and maintenance for the benefit of its members.
A thirty feet (30’) wide perpetual easement for purpose of ingress, egress, grazing, and utility line construction and maintenance, shall be located along and immediately adjacent to all parcel lines shown hereon, entirely within the applicable parcels (except as shown and noted hereon).
Also, the Plat legend identified the Bowline Road as a “Road and Utility Easement for the benefit of the Property Owners Association and Texas Land and Ranches, Inc., with the tract division line being the centerline of said easement.” Additionally, the CCRs provide:
Declarant [Texas Land & Ranches and its assignees], its successors and designees reserve all present and future rights to utilize all private roads and easements within the Project to comparably develop lands within or adjacent to the Project and to grant the use to said roads and easements to additional entities at its’ sole discretion. Any such expansion to be included within this Declaration [the CCRS] shall be subject to the terms and conditions for this Declaration, but may include reasonable variances.
As a preliminary matter, neither party contends the granting language is ambiguous. We agree. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) (“If the written instrument is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe the contract as a matter of law.”).
The Hazels argue the deed language grants an easement in gross, not an easement in appurtenant. They argue the Plat language fails to identify a dominant and servient estate, and therefore, it does not qualify as an easement appurtenant. Rather, they contend it effectively assigned the right to revoke the easement to the Hazels as it was associated with their lands. We disagree.
“For an easement appurtenant to exist either by implication or in writing, there must be (1) a dominant estate, to which the easement is attached; and (2) a servient estate, which is subject to the use of the dominant estate to the extent of the easement granted or reserved.” Seber v. Union Pac. R.R. Co., 350 S.W.3d 640, 646 (Tex. App.—Houston [14th Dist.] 2011, no pet.). Here, the Plat contains language identifying the location of the easement: the 60’ road, identified as Bowline Road, which is located on Lot 28. Furthermore, the language designated the property owners’ association and states “for the benefit of its members.”
We conclude this language sufficiently identified (1) the servient estate, which is Lot 28, or the land where the roadway easement is located, and (2) the dominant estate, which is the remainder of the subdivision because the property owners obtained the benefit of the roadway easement. See Nickels v. Casburg, No. 03-05-00027-CV, 2009 WL 1708830, at *10 (Tex. App.—Austin June 18, 2009, pet. denied) (holding that the trial court's finding of an express easement was supported when reviewing the documents conveying the easement); see also Anderson v. McRae, 495 S.W.2d 351, 361 (Tex. App.—Texarkana 1973, no writ) (affirming the trial court's judgment when “sitting as the trier of fact [the trial court] concluded that the [property owners] acquired easements appurtenant over the disputed areas by grant because the lots were sold by reference to plats which designated and reserved such rights and appurtenances”); Minihan v. O'Neill, No. 04-18-00847-CV, 2020 WL 444381, at *4 (Tex. App.—San Antonio Jan. 29, 2020, no pet.) (mem. op.) (finding the trial court did not err in finding express easement appurtenant where the language did not use the word easement but provided the necessary elements to create an express easement including identifying a dominant estate, identifying the location of the easement, identifying the purpose of the easement, and showed the intent to attach to the land).
The Hazels also argue that the Plat contains “no negative easement language” and therefore it cannot be an easement appurtenant. The Hazels cite the general statement of law that an easement appurtenant usually takes the form of a negative easement, meaning the servient estate must not interfere with the dominant estate's use for the purpose of the easement. See Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex. 1962). The Hazels argue an absence of negative language indicates there is an easement in gross. We disagree. Here, the language designated the easement on the Hazels’ property was intended for ingress and egress for all association members, as well as for maintenance and utility uses.
The Hazels further argue the Association “could not prohibit the assignment of the easement to third parties by Texas Land & Ranches and any such assignment by Texas Land & Ranches was superior to the grant” to the Association. The Hazels argue the language describing the right to assign the easement to other parties “is indicative that this is an easement in gross.” Although the Hazels assert a general statement of law, they fail to develop an argument to show how the language in the Plat did not grant an easement appurtenant. Furthermore, “when subdivided lots are conveyed by reference to a recorded plat, the matters contained in the plat become a part of the deed by incorporation by reference” and “the conveyance of each lot with reference to the map is a conveyance of all of the appurtenances ascertainable by the map.” McRae, 495 S.W.2d at 359.
Additionally, the Hazels argue the grant included “the right to revoke any easement provided that all other parcels had alternative legal access and the right to revoke any easements contained within 2 contiguous parcels purchased by one party provided all other parcels are not denied ingress/egress and utility access.” The Plat reads:
Declarant [Texas Land & Ranches] reserves the right to unilaterally revoke any easement which does not provide physical or necessary utility access to any parcel, provided that all parcels are provided with reasonable alternative legal access through other existing or new easements that the owner or other third party may grant in the future. Furthermore, when one party purchases 2 or more contiguous parcels, declarant may revoke easement granted along common boundary lines of the contiguous parcels, provided ingress/egress and utility access are not denied other parcels.
From this language, the Hazels argue that when Texas Land & Ranches conveyed lots 28, 29, and 31 to the Hazels, “it expressly conveyed all of its rights in the Easement.” Specifically, the Hazels assert this grant included the “right to revoke any easement provided that all other parcels had an alternative legal access and the right to revoke any easements contained within 2 contiguous parcels purchased by one party provided all other parcels are not denied ingress/egress and utility access.”
The Hazels argue the easement traverses Lots 28 and 29, which are contiguous. They argue that the survey demonstrates that all other parcels have legal access for ingress and egress and can be legally accessed by travelling through Lone Star Trail. The Hazels further assert that all testimony at trial, from other property owners, agreed that all parcels would have legal access through Lone Star Trail if Bowline Road was closed. However, the Hazels misinterpret the language in the Plat. The requirement is for “reasonable alternative legal access,” not simply legal access. The testimony at trial demonstrated that Lone Star Trail was seen as dangerous by Howes and other owners. One property owner testified that he had “rolled a truck” going down the road. Although Bruce Hazel disagreed with that characterization of the road, as the trier of fact, the trial court resolved the dispute and determined otherwise.
The Hazels accuse the trial court of looking outside the four corners of the Plat in construing the easement. However, the Hazels requested the trial court, and now this Court, to consider extrinsic, unsupported evidence, to support their argument that they had the right to unilaterally revoke the easement. The Hazels assert that “they were told they could close the Easement by a Texas Land & Ranches’ agent.” But this evidence is unsupported and contradicted by their own deed. Furthermore, when the Hazels were deeded their property, they were granted all rights in their property, subject to the “reservations from and exceptions to conveyance and warranty,” which included the Bowline Road easement. Without supporting authority or further development of the Hazels’ argument, this argument fails.
For all these reasons, we overrule the remaining part of the Hazels’ second issue.
VI. THE COVENANTS, CONDITIONS, AND RESTRICTIONS
In their third issue, the Hazels assert the trial court erred in the enforcement of the CCRs. Specifically, they argue: (1) the trial court erred in entering a permanent injunction against the Hazels for violations of the CCRs without entering the same against other violators; and (2) the trial court erred in not construing the CCRs according to their plain and ordinary meaning.
A. Standard of review and applicable law
We review a trial court's interpretation of a restrictive covenant de novo. Tarr v. Timberwood Park Owners Ass'n, Inc., 556 S.W.3d 274, 279 (Tex. 2018). “A ‘restrictive covenant’ is a negative covenant that limits permissible uses of land.” Id. (quoting Restatement (Third) of Prop.: Servitudes § 1.3(3) (Am. L. Inst. 2000)). Restrictive covenants limit the use an owner or occupier of land can make of their property. Tarr, 556 S.W.3d at 279. “The law recognizes the right of parties to contract with relation to property as they see fit, provided they do not contravene public policy and their contracts are not otherwise illegal.” Curlee v. Walker, 112 Tex. 40, 244 S.W. 497, 498 (1922). While restraints on the free use of land are not favored, the Supreme Court of Texas has acknowledged that restrictive covenants can enhance the value of real property. Tarr, 556 S.W.3d at 279. When land is sold, the agreed-to covenants become a part of the consideration. Id. Therefore, courts treat unambiguous covenants as valid contracts between individuals. Id. at 280.
Restrictive covenants are subject to the general rules of contract construction. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998). “Whether a restrictive covenant is ambiguous is a question of law for the court to decide by looking at ‘the covenants as a whole in light of the circumstances present when the parties entered the agreement.’ ” Tarr, 556 S.W.3d at 280 (quoting Pilarcik, 966 S.W.2d at 478). Covenants are unambiguous if they can be given a definite or certain legal meaning. Pilarcik, 966 S.W.2d at 478. But if susceptible to more than one reasonable interpretation, covenants are ambiguous. Id. “Mere disagreement over the interpretation of a restrictive covenant does not render it ambiguous.” Tarr, 556 S.W.3d at 280 (quoting Buckner v. Lakes of Somerset Homeowners Ass'n, Inc., 133 S.W.3d 294, 297 (Tex. App.—Fort Worth 2004, pet. denied)).
“A paramount concern when construing covenants is giving effect to the objective intent of the drafters of the restrictive covenant as it is reflected in the language chose.” Id.; see also Tex. Prop. Code Ann. § 202.003(a) (“A restrictive covenant shall be liberally construed to give effect to its purposes and intent.”). We “must examine the covenants as a whole in light of the circumstances present when the parties entered the agreement.” Pilarcik, 966 S.W.2d at 478. We must give the words used the meaning they commonly held as of the date the covenant was written, not as of a subsequent date.” Wilmoth v. Wilcox, 734 S.W.2d 656, 658 (Tex. 1987). Additionally, “[t]he words used in the restriction, and the restriction as a whole, may not be enlarged, extended, stretched or changed by construction.” Id. at 657. Thus, to validly limit a property owner's use, a covenant must plainly prohibit the use. See Tarr, 556 S.W.3d at 281-82. Courts should avoid any construction that will nullify a restrictive covenant's provision. Pilarcik, 966 S.W.2d at 478-79.
1. The request for a permanent injunction
First, the Hazels argue the trial court refused to grant their request for permanent injunction “upon the parties violating the CCRs,” and only granted the Association's request for an injunction against them. They assert their “First Amended Answer, Counterclaim, and Third-Party Petition” requested the trial court enforce the CCRs upon the third-party defendants who “are in violation of the CCRs.” The Hazels assert there was evidence presented demonstrating “many lot owners were violating these CCRs.” They argue the trial court denied their request for equal enforcement and entered the permanent injunction against them only.
In briefing, the Hazels make no reference to specific evidence of “Third-party defendants” violating CCRs. They also cite no authority in support of their argument. For these reasons, the argument is waived based on inadequate briefing. See Tex. R. App. P. 38.1 (i).
2. Enlarging the CCRs
Under its second sub-issue, the Hazels list five ways the trial court “expanded” the CCRs, specifically asserting the trial court: (1) required the Hazels to install an electric gate and give the keypad code to each owner; (2) prohibited the Hazels from constructing any structures within 150 feet of the centerline of the easement road; (3) prohibited the Hazels from allowing livestock to roam across the easement road; (4) ordered the Hazels to remove the U-Haul truck and Camper from their property; and (5) allowed the Association to inspect the Hazels’ property. We address each in turn.
a. Electric gate
First, the Hazels complain the trial court enlarged the CCRs in requiring them to install an electric gate opener. The trial court's final judgment stated the following:
For the purposes of this permanent injunction, the “green gate” shall be defined as the gate blocking Bowline Road between Tract 29 and U.S. Highway 190. Additionally, the “red gate” shall be defined as the gate blocking Bowline Road at the north boundary of Tract 29. The green gate shall become an electric gate and all Members shall receive a code that allows access to the Ranch on Bowline Road. The Lonesome Ranch POA shall bear the cost and labor of installing the electronic device that opens the green gate. The Hazels shall remove the red gate within thirty (30) days of the signing of this Final Judgment and Permanent Injunction or create an electric gate with a code for the Members. If the Hazels fails to comply within 30 days, the Lonesome Ranch POA has the authority to enforce this provision and the Hazels shall bear the expense of compliance therewith.
The Hazels contend the trial court enlarged the CCRs because it “requires [the Hazels] to maintain an electric gate opener” on the red gate. However, the trial court gave two options: either remove the gate or make it accessible to anyone who uses Bowline Road. Even construing the Hazels’ argument as contesting both options, the Hazels fail to identify which CCR they contend was improperly enlarged. Based on the substance of their argument, we interpret it as one challenging the trial court's interpretation of the easement language.
“A servient estate cannot interfere with the right of the dominant estate to use an easement for the purpose for which it was granted or sought.” Ferrara v. Moore, 318 S.W.3d 487, 490 (Tex. App.—Texarkana 2010, pet. denied) (citing McDaniel v. Calvert, 875 S.W.2d 482, 485 (Tex. App.—Fort Worth 1994, no writ)). Additionally, “[a]ny use by others that interferes with the exercise of superior easement rights must yield.” McDaniel, 875 S.W.2d at 485. When an easement originates from an express grant with specific description, the rights are paramount to the extent of the grant. Williams v. Thompson, 152 Tex. 270, 256 S.W.2d 399, 403 (1953).
The basic principles of contract construction and interpretation as explained above are applied to determine the terms of an easement. “The question of whether an access easement must remain ‘free from gates and bars depends upon the terms of the grant, its purpose, the nature and situation of the property, and the manner in which it is used’ unless the easement's language provides direction otherwise.” Ferrara, 318 S.W.3d at 491 (quoting Gerstner v. Wilhelm, 584 S.W.2d 955, 958 (Tex. App.—Austin 1979, writ dism'd)).
The Hazels argue the easement language in the Plat grants a “perpetual easement ․ for maintenance, repairs, ingress/egress, utility lines and maintenance for the benefit of its members,” and does not include phrases like “unrestricted access” or “free and uninterrupted.” Therefore, the Hazels argue, the trial court could not “read such into it” and that requiring the Hazels to install an electric gate-opener was beyond the scope of the grant. We conclude the Hazels’ argument fails.
Looking at one of the Hazels’ cited cases used to support its contention, the Sixth Court of Appeals found the trial court was not in error when it ordered the removal of a gate on the easement. See Ferrara, 318 S.W.3d at 491-92. There, the court looked to the grant and purpose of the easement, whether the servient estate owner's rights of his own property would be impaired, and the nature and situation of the property. Id. Looking to these factors, the court found the trial court could enjoin the servient estate owner from “erecting or placing gates, fences, posts, barriers, wires, chains, locks, logs, or any other impediments or obstacles” on the easement. Id.
Here, Bowline Road was established as the main entrance to High Lonesome Ranch nearly thirteen years before the Hazels built and locked the red gate. Although there was evidence of the Lonestar Trail providing another entrance into the Ranch, there was extensive testimony describing the road as being dangerous or unsafe to use. Additionally, the deed language gives the association members the right of ingress and egress by use of the road. At the time the Ranch was developed, and the easement granted, Bowline Road did not contain any gates, fences, or other obstacles on or across it, besides the one gate at the entrance from U.S. Highway 190. The property owners of the Ranch had used Bowline Road for ingress and egress for over thirteen years before the Hazels built and locked the red gate. There was also no evidence that property owners’ use of the easement would impair or interfere with the Hazels’ use of their property.
The Hazels assert the trial court went beyond its scope and essentially read the term “free and uninterrupted” into the four corners of the grant. Citing to the concurring and partial dissenting opinion of Justice Moseley in the Ferrara case, the Hazels argue “it is not unreasonable to exit from an automobile and open a gate.” Ferrara, 318 S.W.3d at 500 n.11 (Moseley, J., concurring in part and dissenting in part). Additionally, the Hazels rely on a case where the First Court of Appeals reversed the trial court's order for the servient estate owner to remove a gate placed on the easement and a permanent injunction prohibiting him from placing any gates along the road. Barrow v. Pickett, No. 01-06-00664-CV, 2007 WL 3293712, at *1-2 (Tex. App.—Houston [1st Dist.] Nov. 8, 2007, no pet.) (mem. op.). There, the court found the terms of the grant were unambiguous, conveyed the rights only necessary to effect the grant, and conveyed rights that were as least burdensome as possible on the servient estate. Id. at *4. The court found the dominant estate owner's rights were only for reasonably unlimited ingress and egress. Id. The Hazels do not develop a clear argument based on this case and only assert that the grant did not include the phrase “unrestricted access” or “free and uninterrupted.”
We cannot say these exact phrases are needed for a trial court to find a dominant estate owner was otherwise entitled to unobstructed access. Additionally, the facts of this case differ from the Barrow case. There, the record included evidence of the dominant estate owner using the roadway thirty to forty times annually and the servient estate owner using it several times daily. Id. at *1. Additionally, the grant contained the phrase “non-exclusive” showing an intent to limit the use. Id.
Here, there is no such language in the deed limiting the property owners’ use. For these reasons, the Hazels have failed to show the trial court exceeded the scope of the easement in ordering the Hazels to remove the gate or install an electric gate opener upon the gate.
b. Construction within 150 feet
Next, the Hazels argue the trial court enlarged the CCRs in misinterpreting the setback requirement in the CCRs. Specifically, the trial court ordered:
The Hazels are prohibited from placing or building any structures within one hundred fifty feet (150’) of any boundary line of any lot owned by the Hazels or the center line of any Easement that crosses any lot owned by the Hazels or the center line of any Easement that crosses any lot owned by the Hazels, including but not limited to Bowline Road, unless said structure was already in place as of November 19, 2018.
The Hazels argue this enlarged the CCRs. The amended CCRs provide:
Structure Setbacks: All structures shall be built at least one-hundred[ ] fifty feet (150’) from the front parcel boundary line (adjacent to the roadway) and at least one hundred fifty feet (150’) from rear and side Parcel boundary lines, except for those setback requirements for recreational vehicles and travel trailers.
The Hazels argue the language in the CCRs is unambiguous. They further assert the phrase in parentheses—adjacent to the roadway—contained in the CCRs “simply defines which parcel boundary line is the ‘front’ boundary line,” and that the final judgment added an additional setback. The Hazels assert that “to adopt [the Association's] interpretation that the 150 foot setback applies to the front boundary, the roadway, and the side and rear boundary lines” would require adding an additional conjunction or comma. They argue “Paragraph 5.N. should not be read that the setback is from the front of the parcel AND from the roadway[.]”
The only cited authority is in the Hazels’ assertion that courts are required to resolve any doubt in favor of free and unrestricted use. See Permian Basin Ctrs. For Mental Health & Mental Retardation v. Alsobrook, 723 S.W.2d 774, 776 (Tex. App.—El Paso 1986, writ ref'd n.r.e.) (“If an ambiguity exists, if the covenant is susceptible to two reasonable interpretations, or if there is any absence of clear limiting language, doubt must be resolved in favor of free and unrestricted use.”). The Hazels assert the CCR language “does not require 150-foot setbacks from the roads as that would prohibit the building of fences around parcels” and that interpreting the setback requirement to be from the easement was in error.
In response, the Association asserts the CCRs grant the Association the authority to take appropriate actions for the maintenance and management of roadways such as Bowline Road. It asserts the trial court's injunction merely enforces violations of its temporary injunction in restricting any new structures, built after November 19, 2018. There was testimony that building within 150 feet of the centerline of an easement would be in violation.
From this, we cannot say the trial court's interpretation was unsupported. Furthermore, the trial court was reasonable in only restricting future structures from being built.
Next, the Hazels contend the trial court prohibited them from allowing their livestock from free use of their real property in its order regarding livestock. The trial court's judgment stated the Hazels were:
Prohibited from allowing livestock to roam free on the Ranch. The Hazels are specifically prohibited from allowing any livestock to roam across any Easement, including but not limited to Bowline Road. All livestock must be behind fences at all times in compliance with CC&Rs Paragraph 5.K.
Paragraph 5.K. of the CCRs reads:
A Parcel may be used for ranching; including the use of keeping of a reasonable number of horses and cattle, provided the Parcel has been fenced. Under no circumstances shall a stockyard, dairy, kennel poultry or swine farm or any other commercial activity involving animals be permitted. Feral Hogs may not be brought into the Property at any time.
The Hazels contend the CCRs “only require the Parcel be fenced” and does not contain a requirement “that the Easement be fenced to prevent the crossing of livestock.” However, the trial court's order does not require the easement to be fenced. The trial court's order requires the livestock to be fenced “in compliance with” paragraph 5.K., which permits a parcel to be used for ranching, “provided the Parcel has been fenced.”
We do not see, and the Hazels have not shown, the trial court enlarged the CCRs by disallowing the livestock to roam free and for the Hazels to fence the animals pursuant to the CCRs.
d. Removal or storage of vehicles
The Hazels also contest the trial court's order on parking and storing unlicensed vehicles. Specifically, the trial court's judgment stated:
Prohibited from parking or storing any unlicensed vehicles in a manner which is visible from the Easement or another Member's parcel in violation of CC&Rs Paragraph 5.J. Specifically, the Hazels shall remove the U-Haul truck and camper/trailer from their property or shall store said vehicle in a proper structure not to be visible from the Easement or an adjoining Member's parcel.
Paragraph 5.J. of the CCRs states:
No junkyards, auto repairs, second-hand businesses or other commercial uses that create a negative visual impact, excessive noise or congestion from traffic or parking shall be conducted on any Parcel. No storage of unlicensed trucks, cars, buses, and machinery, equipment or building materials shall be stored on any Parcel unless enclosed in a proper structure to not be visible from an adjoining Parcel or passing on the roadway.
The Hazels assert there was no evidence presented at trial showing “the U-Haul and camper belonging to the Hazels were unlicensed.” The Hazels assert the vehicles were not listed as a violation following an inspection by the Association. For this reason, the Hazels assert the trial court's findings and conclusions are against the weight of evidence and is based on insufficient evidence.
At trial, property owner Terry Hoak, testified to “junk” he viewed on the Hazels’ property. He described there was old equipment, and he was not sure if the equipment worked. Also, Hoak testified there was an “old RV” that had been on the Hazels’ property since they moved in. He testified that on the Hazels’ property there was “pipe, old hose, unfinished buildings, [corrals], [and] unfinished pens.” Additionally, Hoak stated there was a “moving van” on the Hazels’ property that has been “sitting there for 15 or 16 years.” The Association asserts the trial court did not err in its order because the CCRs permitted the Association to mandate the removal or storage of “unlicensed vehicles, inoperative vehicles, trash, or even part of a junkyard.” Here, the trial court ordered removal of vehicles that were in violation of “5.J.” Because there was testimony indicating that vehicles and other equipment had been left on the Hazels’ property for years, the trial court's finding of a CCR violation is supported by evidence.
The Hazels did not present any controverting evidence nor further develop their argument on appeal. We conclude the trial court did not err by its order.
e. Inspection by the Association
Lastly, as an improper enlargement of the CCRs, the Hazels challenge the trial court's order permitting the Association to inspect the Hazels’ land to ensure compliance with the final judgment. The trial court ordered:
The Hazels shall permit the Lonesome Ranch POA to access Lots 28, 29, and 31 in order to assess and correct the Hazels’ compliance with the Bylaws or the CC&Rs and shall not take any action to impede, harass, or otherwise interfere with any Lonesome Ranch POA board member or agent thereof who is engaged in such activity.
The Hazels assert this order is in contrast to the CCRs provision that permits inspection:
In the event the Association determines that any Parcel Owner has not complied with the provisions of this Declaration, the Association may, at its option, give written notice to the Owner of the conditions complained of[.] The Owner shall correct same or, if not readily correctable within fifteen (15) days after notice from the Association, the Owner shall submit corrective plans proposing its remedy to the condition complained of [within] fifteen (15) days after notice from the Association. The Association shall approve or disapprove any plans submitted by the Owner and set forth a reasonable time for correction of the condition complained of. In the event such condition is not corrected according to the approved plans, within the allotted time, the Association shall have the right to undertake to remedy such condition or violation complained of. The cost thereof shall be deemed to be an assessment to such Owner and enforceable by the Association ․ The Association is hereby granted the right of entry on the affected Parcel to so correct the condition or violation complained of.
The Hazels assert the Association is not given unfettered access to inspect and find violations, making the trial court's judgment add to the CCRs as written. In response, the Association asserts the Hazels mischaracterize the trial court's judgment in that it does not permit unfettered access but only echoes the CCRs right of entry to correct violations.
The Hazels failed to show any error by the trial court's judgment in permitting the Association to correct any violations that the Hazels fail to rectify. We can presume the trial court found the other requirements of the CCRs were already met and if the Hazels had not corrected the required things within the time period, the Association could remedy the situation pursuant to the CCRs. Given the trial court's injunction specified the Association's review was to be in accordance with the bylaws and CCRs, we conclude the trial court did not err.
For the preceding reasons, we overrule the Hazels’ third issue.
VII. ATTORNEY'S FEES
In their final issue, the Hazels assert the trial court erred in its award of attorney's fees to the Association. The Hazels argue the trial court erred in awarding fees for both the easement claim and for the claim enforcing the CCRs. They claim the fees arising from the Association's dispute over the easement were recoverable, but not those from the enforcement of the CCRs.
The record shows the Association's attorney testified at trial to legal fees totaling $69,994. The Hazels neither objected nor cross-examined counsel about this testimony. Instead, they argued in closing that no attorney's fees could be assessed in violation of the CCR claim based on lack of notice. The Hazels rely on section 209.006 of the Texas Property Code.4 Tex. Prop. Code Ann. § 209.006(a) (“Before a property owners’ association may ․ file a suit against an owner other than a suit to collect a regular or special assessment or foreclose under an association's lien ․ the association or its agent must give written notice to the owner by certified mail.”). In response, the Association argued the bylaws and CCRs provided for the award of attorney's fees. Also, it argued attorney's fees were supported by the Declaratory Judgment statute. The trial court awarded attorney's fees to the Association subject to recalculation of the total fee to exclude legal assistant charges.
After the recalculation, the total fee amounted to $58,128. The Association then filed a sworn motion to reopen the evidence solely as to the issue of attorney's fees and for entry of judgment. The Association asserted that, after invoices were finalized, the prior, estimated attorney's fees “did not account for a portion of the fees leading up to trial.” The motion further stated counsel had underestimated total fees by “failing to include a couple of days of preparation time prior to attendance at trial.” Lastly, the motion also asserted that counsel had not included the estimated fees in the event of an appeal. The affidavit by counsel attached to the motion included a redacted attorney's fees statement totaling $63,595, and an estimated amount of fees to be incurred of $20,000, if appealed to this Court, and $15,000, if appealed to the Texas Supreme Court. Responding, the Hazels filed an affidavit of their attorney asserting the fees and costs claimed by the Association were not reasonable. For the first time, the Hazels also objected to the Association failing to segregate services related to the declaratory judgment from those related to the injunction.
The trial court held a hearing on the motion receiving argument from both parties. The Association argued its original calculation was off by about $5,000. It urged the newly requested fee amount only included charges for attorney work and not for that of a paralegal or associate attorney. Countering, the Hazels asserted the fees requested were “grossly over what should be charged” for the type of suit. They also identified their “biggest issue” was the lack of segregation of fees. The Association responded that it was unable to separate the issues because the trial court could award fees on both issues as it had to interpret both the easement and the CCRs. It asserted the issues were “all wrapped up in one” and could not be distinguished. The Association acknowledged that attorney's fees were not awardable on a suit seeking an injunction but “because the injunction ․ involved the interpretation of these contractual relationships between the parties,” such fees fell under the interpretation issue.
The trial court granted the Association's motion to reopen and awarded the total amount of fees it had requested. The trial court signed the final judgment the same day awarding attorney's fees in favor of the Association in the amount of $63,595.
A. Standard of review and applicable law
Under the UDJA, “the court may award costs and reasonable and necessary attorney's fees as are equitable and just.” Tex. Civ. Prac. & Rem. Code Ann. § 37.009. In addition to being “reasonable and necessary” and “equitable and just,” the fee awards are also permissive. Id.; see also Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). “These statutory limitations are complimented by other limiting principles, such as segregation of fees.” Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 919 (Tex. 2015). We review a trial court's fee award for an abuse of discretion. See Bocquet, 972 S.W.2d at 21. Determining reasonable and necessary limits pursuant to the UDJA is a question of fact determined by the fact finder. Ridge Oil Co., Inc. v. Guinn Investments, Inc., 148 S.W.3d 143, 162-63 (Tex. 2004). A trial court abuses its discretion when there is insufficient evidence that the fees are reasonable and necessary. Bocquet, 972 S.W.2d at 21.
The party seeking recovery of attorney's fees carries the burden of proof to support the award. Kinsel v. Lindsey, 526 S.W.3d 411, 427 (Tex. 2017). At a minimum, the proof must include “evidence of (1) particular services performed, (2) who performed those services, (3) approximately when the services were performed, (4) the reasonable amount of time required to perform the services, and (5) the reasonable hourly rate for each person performing such services.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex. 2019). The evidence presented must be sufficient to permit the court “to perform a meaningful review of their fee application.” El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 764 (Tex. 2012).
Additionally, a party seeking attorney's fees is required to segregate fees between claims for which they are recoverable and claims for which they are not. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006). Courts should not require “precise allocation of fees to one claim or another” and “some services (such as standard discovery, depositions of primary actors, discovery motions and hearings) might be necessary irrespective of the number of claims asserted.” Eggemeyer v. Hughes, 621 S.W.3d 883, 896 (Tex. App.—El Paso 2021, no pet.) (citing Chapa, 212 S.W.3d at 313). Even still, “if any attorney's fees relate solely to a claim for which such fees are unrecoverable, a claimant must segregate recoverable from unrecoverable fees. Intertwined facts do not make tort fees recoverable; it is only when discrete legal services advance both a recoverable and unrecoverable claim that they are so intertwined that they need not be segregated.” Chapa, 212 S.W.3d at 313-14.
The Association first contends the Hazels did not oppose their attorney's testimony on fees, did not object to the invoices entered into evidence, entered no cross-examination of their witness, and presented no countervailing testimony. We construe these arguments as contending the Hazels waived below their objection to lack of claim segregation.
At trial, the Association's attorney testified to the amount of attorney's fees requested. The attorney testified to his hourly rate, the hourly rate of an associate, and the hourly rate of a legal assistant. He also testified to the work done in preparation for trial. The attorney testified the fees were reasonable and necessary. The Hazels did not object or cross-examine the Association's attorney. During closing arguments, the Hazels asserted no attorney's fees could be assessed because the Association did not follow the notice requirements of section 209.006 of the Texas Property Code. In response, the Association had argued attorney's fees were permissible under the declaratory judgment statute and contractually.
The record clearly shows the Hazels did not object on the basis that the Association failed to segregate fees. The Hazels assert they did oppose the fee award during closing argument and the trial court understood the objection as it asked the Association to address the issue of attorney's fees. However, the issue of segregation was never brought to the trial court's attention either before or during trial. “Where no objection is made to the failure to segregate attorneys’ fees, either at the time evidence of attorneys’ fees is presented or to the charge, the error is waived.” Lesikar v. Rappeport, 33 S.W.3d 282, 317 (Tex. App.—Texarkana 2000, pet. denied) (citing Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997)).
But, in this instance, the record otherwise shows the issue of attorney's fees was reopened and reheard by the trial court. In their response to the Association's motion to reopen, the Hazels contested attorney's fees, this time including an objection to the failure to segregate the fees. The trial court held a hearing on the Association's motion whereby it granted the motion to reopen and granted the new attorney's fees figure presented by the Association. In its ruling, the trial court stated “the motions” filed pursuant to the request were considered and taken into evidence. For this reason, we conclude the Hazels presented their segregation objection to the trial court and the trial court was able to rule on the objection, properly preserving the issue for our review. See Tex. R. App. P. 33.1(a)(1)(A).
2. Segregation required
The Hazels argue against the Association's assertion that the facts of each claim were so intertwined to avoid segregation. They argue the Association's pleadings asserted two claims: the declaratory action regarding the easement and a separate request for a permanent injunction to enforce the CCRs. They claim there is no overlap between these two claims. In response, the Association asserts it argued at trial that the interpretation of the CCRs and enforcement of the easement were so intertwined it made the claims indistinguishable.
The Association's blanket statement that the two claims could not be segregated is not enough to show that segregation could be avoided. Here, there was a great deal of evidence dedicated to showing behavior by Bruce Hazel that other property owners deemed intimidating, harassing, and frightening. For example, owners testified to Bruce Hazel “spying” and watching other owners such that some said they felt threatened and intimidated. Time was also spent on defending against the Hazels’ counterclaims. This type of testimony, and other such portions of trial, did nothing to support the UDJA claim or to support the interpretation of the deed and plat. These instances of distinguishable testimony and evidence show the Association was required to segregate its fees. See Kinsel, 526 S.W.3d at 428 (holding failure to segregate because the causes of action were distinct and the facts necessary to prove each cause of action did not overlap); Eggemeyer, 621 S.W.3d at 897 (holding failure to segregate the fees when the record showed some evidence supported the adverse possession claim which attorney's fees would not be recoverable based on the arguments asserted and those facts did nothing to bolster the UDJA claim or interpretation of the agreement).
We sustain the Hazels’ fourth issue. Because we conclude that segregation of distinguishable claims was required on this record, and the trial court failed to do so in awarding attorney's fees, we reverse the trial court's award of attorney's fees and remand to the trial court for further proceedings.
We affirm in part the trial court's judgment as it pertains to the disposition of the claims regarding the roadway easement and certain covenants and restrictions; and we reverse in part the trial court's judgment to the extent it awards attorney's fees, and remand the case for further proceedings consistent with this opinion.
1. On October 22, 2018, a property owner in the Ranch posted the following on the Association's Facebook page:To all the High Lonesome Ranch property owners: Debbie and Bruce Hazel have made 6 trenches after the main gate on Bowline Road. The [Association] was not notified prior to the trenches being dug. The trenches were not voted on, nor approved by the association members.Any damage to personal property or bodily harm should be addressed to the Hazels.I am not making this post on behalf of the [Association], but feel the obligation as a neighbor and friend to let you know to be careful. Any vehicles that may be low to the ground could suffer damage or alignment problems.The post also contained a picture of Bowline Road showing the dug trenches.
2. The green gate was erected by the Association when the subdivision was being divided. It is located across the entrance to Bowline Road from U.S. Highway 190. The red gate was erected by the Hazels during the easement dispute. It is located across Bowline Road Lot 28. The property owners would need to pass through both gates to exit and enter High Lonesome Ranch.
3. Howes did not testify in person. A video deposition taken the week before trial was played for the trial court.
4. Although the Hazels mention this argument in passing, they fail to develop its substance on appeal. Even so, the notice requirements do not apply if the association files a suit seeking a temporary restraining order or temporary injunctive relief. Tex. Prop. Code Ann. § 209.007(d) (“The notice and hearing provisions of Section 209.006 and this section do not apply if the association files a suit seeking a temporary restraining order or temporary injunctive relief or files a suit that includes foreclosure as a cause of action.”).
GINA M. PALAFOX, Justice
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Docket No: No. 08-20-00075-CV
Decided: October 27, 2022
Court: Court of Appeals of Texas, El Paso.
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