Opinion issued=20
December 20, 2007
In The
Court of Appeals
For The
First District of =
Texas
NO. 01-05-00827-CV
__________
CYPRESS NORTHWEST=20
ASSOCIATES, LTD., Appellant
V.
WAYNE =
DUDDLESTEN,=20
LTD. AND BC ALLIANCE, INC., Appellees
On =
Appeal from=20
the 127th District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2004-07190
MEMORANDUM=20
OPINION
<=
/SPAN>The=20
trial court granted Wayne Duddlesten, Ltd. and BC Alliance, =
Inc.=E2=80=99s=20
(collectively =E2=80=9CDuddlesten=E2=80=9D) motion=20
for partial summary judgment on liability only and held =
that Cypress Northwest Associates, Ltd.=20
(=E2=80=9CCypress=E2=80=9D) =
breached its contract=20
with Duddlesten. A jury =
determined=20
the consequential damages for the breach to be $1,110,000. Cypress =
argues=20
that (1) the trial court erred in finding Cypress liable for =
breach of=20
contract because there is no evidence that Cypress failed to =
comply with=20
the contract, (2) the trial court improperly imposed two implied=20
obligations upon Cypress, and (3) the trial court erred in failing =
to find=20
that Duddlesten=E2=80=99s breach of contract claim was barred by =
the four-year=20
statute of limitations. We reverse and render in part and reverse =
and=20
remand in part.
Background ![3DFootnote](3D"")
<=
/SPAN>Cypress=20
and Duddlesten are real estate developers who own adjoining =
property along=20
Barker Cypress Road near Highway 290 in northwest Harris County. =
Cypress=20
is the developer of Riata Ranch, a 1,000-home residential=20
subdivision. Duddlesten =
owns=20
commercial property that lies between Riata Ranch and Barker =
Cypress Road.=20
=
=
In=20
March 1996, the parties entered into a Residential Development =
Agreement=20
(=E2=80=9CDevelopment Agreement=E2=80=9D) related to the expansion =
of Riata Ranch. In the=20
Development Agreement, for $271,772, Duddlesten conveyed a =
21.9760-acre=20
tract to Cypress. The north line of the tract was determined to be =
the=20
south line of =E2=80=9Ca certain tract owned by =
Duddlesten.=E2=80=9D Duddlesten also=20
agreed to dedicate a 100-foot easement across its property. =
The second paragraph of the Development =
Agreement=20
concerns the dedication of the easement and states the=20
following:
2. Additional Road Right of Way. Riata =
Ranch=20
subdivision is to be accessed by three roads originating at Barker =
Cypress=20
Road. The northernmost such entry road wholly traverses property =
owned by=20
Duddlesten. Duddlesten has agreed, and by this Agreement further =
confirms=20
and agrees to dedicate a one hundred foot (100') wide =
easement,=20
sixty feet (60') of which shall be at no expense to Cypress, and =
the=20
remaining portion of which shall be at a cost to Cypress of an =
amount=20
equal to $12,000 per acre for the acreage, as determined by a =
surveyor, in=20
excess of the easement property located within the sixty =
foot (60')=20
portion dedicated at no cost to Cypress. The parties agree that =
Duddlesten=20
shall have authority to make the final determination as to the =
location of=20
the right of way, subject to approval by the City of Houston =
Planning=20
Commission. This purchase shall be accomplished within a four year =
period=20
of the date hereof. All costs of this purchase and/or dedication =
shall be=20
borne by Cypress provided, however, that the exact location of =
said=20
easement shall be fixed by Cypress within two years from the =
date=20
hereof. Duddlesten retains the right to approve the final =
geometric design=20
of this easement as well as the easement for Riata =
Ranch=20
Drive as shown on Exhibit =E2=80=9CA=E2=80=9D, prior to recording =
any plat covering either=20
the easement or roadway.
(Emphasis added.) Three months later, =
rather than=20
dedicate an easement as contemplated by the Development Agreement, =
Duddlesten executed a deed (=E2=80=9Cthe Duddlesten Deed=E2=80=9D) =
conveying 1.0265 acres=20
(=E2=80=9Cthe Deeded Strip=E2=80=9D) to Cypress. The Duddlesten =
Deed conveyed all right,=20
title and interest, if any, in and to
(d) any easements, rights-of-way, rights =
of=20
ingress and egress or other interests in, on, or to any land, =
highway,=20
street, road or avenue, open or proposed in, on, across from, in =
front of,=20
abutting, adjoining or otherwise appurtenant to [the Deeded =
Strip], as=20
well as all rights, privileges and appurtenances owned by =
[Duddlesten] and=20
in any way related to [the Deeded Strip] and other rights and =
interest of=20
[Duddlesten] hereunder conveyed; provided, however, that such =
conveyance=20
is without prejudice to, and does not transfer, any rights or =
benefits=20
held by [Duddlesten], its successors and assigns to the extent =
they=20
benefit any other properties owned by [Duddlesten] to which such =
rights=20
are appurtenant . . . .
The=20
Duddlesten Deed included a restrictive covenant (=E2=80=9Cthe =
Restrictive=20
Covenant=E2=80=9D)
limiting the=20
acceptable uses of the land. The Restrictive Covenant =
states:
The use of [the Deeded Strip] is hereby =
restricted=20
to use as a roadway or road of [sic] right-of-way to provide =
vehicular=20
access, ingress and egress to and from Barker Cypress Road to and =
from=20
adjacent real property currently owned by [Cypress], for =
landscaping and=20
other similar uses incidental to and associated with use as a =
roadway or=20
road right-of-way, and for the additional purpose of the =
construction,=20
installation, use, operation, maintenance, repair and replacement =
of=20
underground public utility lines, including, but not limited to =
water,=20
sanitary sewer, storm sewer, electricity and telephone.
At the time the parties entered into the =
Development Agreement, Cypress was planning for the construction =
of a=20
school near the intersection of Barker Cypress Road and =
Cypress-North=20
Houston Road. It sought an additional access road in order to =
facilitate=20
traffic around the proposed school. Duddlesten agreed because it believed =
the property=20
would be more valuable if it was divided into two corner =
commercial lots=20
by a road leading into the neighborhood. The plans to build the =
school=20
later were abandoned.
<=
/SPAN>Cypress=20
has not built a road across the Deeded Strip, claiming that =
neither the=20
Development Agreement nor the Restrictive Covenant impose any =
obligation=20
upon it to construct such a road. On March 12, 2001, Cypress =
executed a=20
final plat of the Riata Ranch subdivision that did not include an =
access=20
road across the Deeded Strip. Instead, the tract was platted as=20
=E2=80=9CRestricted Reserve =E2=80=98C=E2=80=99 Restricted to U.E. =
STM. S.E. & Landscaping.=E2=80=9D=20
The plat also showed a =
cul-de-sac=20
abutting the Deeded Strip, which would prevent a roadway on the =
Deeded=20
Strip from accessing the Riata Ranch subdivision.
<=
/SPAN>Duddlesten=20
filed suit on February 13, 2004, claiming that Cypress breached =
the=20
express terms and implied obligations contained in the Development =
Agreement and the Restrictive Covenant by failing to construct a =
road=20
across the Deeded Strip. Both parties moved for summary judgment =
on the=20
issue of liability. The trial court granted Duddlesten=E2=80=99s =
motion and denied=20
Cypress=E2=80=99s motion.
<=
/SPAN>The=20
case proceeded to trial solely on the issue of damages. The trial =
court=20
instructed the jury that Duddlesten =E2=80=9Cwas entitled to have =
an entry=20
road cross the commercial property in question into Riata =
Ranch=E2=80=9D and=20
asked that the jury determine =E2=80=9Cthe difference between the =
market value of=20
the commercial property having an entry road into Riata =
Ranch=20
Subdivision that crosses the property owned by [Duddlesten] and =
the market=20
value of that commercial property without an entry road.=E2=80=9D =
(Emphasis=20
added.) The jury awarded Duddlesten $1,110,000 in damages. Cypress =
appeals=20
the trial court=E2=80=99s order granting Duddlesten=E2=80=99s =
motion for summary judgment.=20
Summary=20
Judgment
<=
/SPAN>Our=20
review of a trial court=E2=80=99s decision to grant summary =
judgment is de novo.=20
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. =
2005). In a traditional =
summary=20
judgment motion, the movant must show that there is no genuine =
issue of=20
material fact and that he is entitled to judgment as a matter of =
law.=20
Tex. R. Civ. P.=20
166a(c); Pustejovsky v. =
Rapid-Am.=20
Corp., 35 S.W.3d 643, 645=E2=80=9346 (Tex. 2000). In deciding =
whether a=20
disputed material fact issue precludes summary judgment, we take =
evidence=20
favorable to the nonmovant as true, and indulge every reasonable =
inference=20
and resolve any doubts in favor of the nonmovant. Provident =
Life &=20
Accid. Ins. Co. v. Knott, 128=20
S.W.3d 211, 215 (Tex. 2003). When, as=20
here, the trial court does not specify the grounds upon which it =
ruled,=20
the summary judgment may be affirmed if any of the grounds stated =
in the=20
motion is meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d =
547, 550=20
(Tex. 2005); Mayes v. =
Goodyear=20
Tire & Rubber Co., =
144 S.W.3d=20
50, 55 (Tex. App.=E2=80=94Houston [1st Dist.]=20
2004, no pet.). When, as here, competing motions for summary =
judgment are=20
filed, and one is granted and the other denied, the reviewing =
court must=20
review the summary judgment evidence presented by both sides and =
determine=20
all questions presented. Comm=E2=80=99rs Court of Titus County =
v. Agan, 940=20
S.W.2d 77, 81 (Tex. 1997).
<=
/SPAN>The standard of review for =
interpreting=20
an unambiguous contract is de novo. MCI Telecomms. Corp. v. =
Tex. Utils.=20
Elec. Co., 995 S.W.2d 647, 650=E2=80=9351 (Tex. 1999); =
Atlantic Lloyds Ins.=20
Co. v. Butler, 137 S.W.3d=20
199, 209 (Tex. App.=E2=80=94Houston [1st Dist.] 2004, pet. =
denied). Whether a contract is ambiguous is a =
question of=20
law that is also reviewed de novo. Butler, 137 S.W.3d=20
at 209.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Breach of Contract
<=
/SPAN>In=20
issue one, Cypress contends that the trial court erred in finding =
Cypress=20
liable for breach of contract because there is no evidence that it =
failed=20
to comply with any express provision of the Development Agreement. =
Cypress=20
further complains that the Duddlesten Deed=E2=80=99s restrictive =
covenant imposes=20
no affirmative obligation on Cypress, and there is no evidence =
that=20
Cypress violated the Deed=E2=80=99s restrictive covenant. In issue =
two, Cypress=20
asserts that the trial court erred by =E2=80=9Cimproperly imposing =
two =E2=80=98implied=E2=80=99=20
obligations on Cypress that are not contained in or supported by =
the=20
language of the Development Agreement.=E2=80=9D The two =
=E2=80=9Cimplied=E2=80=9D obligations are=20
that (1) Cypress must construct a road on the Deeded Strip and (2) =
Cypress=20
must grant an easement across its land and construct a road on it =
as an=20
extension of the Deeded Strip roadway. Cypress contends that the =
trial=20
court erred in concluding that the Development Agreement requires =
Cypress=20
to construct a roadway on the Deeded Strip.
<=
/SPAN>The=20
law concerning contract interpretation is well-settled. Id. When construing a written contract, our =
primary=20
concern is to give effect to the true intent of the parties as =
expressed=20
in the instrument. Forbau v. Aetna Life Ins. Co., 876 =
S.W.2d 132,=20
133 (Tex. 1994). If a =
written=20
contract is worded in such a way that it can be given a definite =
legal=20
meaning, then the contract is not ambiguous. Nat=E2=80=99l =
Union Fire Ins. Co.=20
v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.=20
1995). If the contract is =
unambiguous, the=20
court must enforce the contract as written. Transcon. Gas =
Pipeline=20
Corp. v. Texaco, Inc., 35 S.W.3d 658, 665 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2000, pet. =
denied).
<=
/SPAN>To=20
prevail on a breach of contract claim, Duddlesten was required to =
prove=20
(1) a valid enforceable contract, (2) Duddlesten and Cypress =
signed the=20
contract or were in privity with a contract signatory, (3) =
Duddlesten=20
performed its contractual obligations,
(4) Cypress breached its =
contract, and (5)=20
Cypress=E2=80=99s breach caused Duddlesten=E2=80=99s injury. =
See Valero Mktg. &=20
Supply Co. v. Kalama Int=E2=80=99l, 51 S.W.3d 345, 351 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2001, no pet.). It is uncontested that there was a valid =
contract.=20
The real question is whether Cypress breached either the Right of =
Way=20
provision of the Development Agreement or the Deed=E2=80=99s =
restrictive=20
covenant.
Deed =
v.=20
Easement
<=
/SPAN>The=20
Development Agreement: Additional Right of Way provision, by its =
express=20
terms, contemplates the creation and existence of an easement =
on=20
property owned by Duddlesten. However, Duddlesten,=20
extra-contractually, opted to deed the property instead of =
dedicating an=20
easement. Consequently, Duddlesten no longer owns the property =
and,=20
pursuant to the express language of the deed, has no =
=E2=80=9Cright, title [or]=20
interest=E2=80=9D to the property beyond what is found in the =
Restrictive=20
Covenant. Simply put, the Additional Right of Way provision does =
not=20
create any obligations with respect to property owned by=20
Cypress=E2=80=94including the Deeded Strip. It only creates =
obligations with=20
respect to property owned by Duddlesten. Therefore, the provision =
in the=20
Development Agreement relied upon by Duddlesten for its breach of =
contract=20
claim does not apply to the use of the deeded property at issue in =
this=20
lawsuit.
<=
/SPAN>Duddlesten=20
nevertheless argues that we should read the language of the Right =
of Way=20
provision piecemeal, ignoring the language referencing the =
creation and=20
existence of an easement on Duddlesten=E2=80=99s property, to find =
an obligation=20
on the part of Cypress to allow access across the Deeded Strip.=20
Specifically, Duddlesten argues that the first two sentences in =
the=20
provision, along with the provision=E2=80=99s reference to a =
=E2=80=9Cright of way,=E2=80=9D=20
creates this obligation to provide access. We disagree. To read =
the=20
provision piecemeal as Duddlesten suggests would require us to =
ignore that=20
the provision contemplates the creation and existence of an =
easement.=20
Here, Duddlesten chose to deed the property instead of grant an =
easement.=20
<=
/SPAN>Duddlesten=20
deeded the property contemplated by the easement to Cypress within =
months=20
of creating the Development Agreement, and Duddlesten does not =
complain=20
that Cypress failed to comply with its corresponding financial =
obligations=20
under the contract. As mentioned above, instead of dedicating the =
roadway=20
easement as required by the contract,=20
Duddlesten deeded land according to its own specifications as to =
the size=20
and shape of the tract. Consequently, we hold that, contrary to =
the trial=20
court=E2=80=99s finding, Cypress did not breach the Development =
Agreement, and the=20
trial court erred in concluding that the Development Agreement =
required=20
Cypress to construct a roadway on the Deeded Strip.
<=
/SPAN>We=20
next turn to examine whether Cypress=E2=80=99 conduct breached the =
Deed=E2=80=99s=20
restrictive covenant. =
Restrictive=20
Covenant
<=
/SPAN>Cypress=20
asserts that there is no evidence that it violated the Duddlesten =
Deed=E2=80=99s=20
restrictive covenant, which imposes no affirmative obligation on =
Cypress.=20
The parties dispute the meaning of the Restrictive Covenant =
imposed by=20
Duddlesten upon the Deeded Strip when it conveyed the land to =
Cypress.=20
Duddlesten contends that =
Cypress=20
violated the Restrictive Covenant when it caused the final plat =
for=20
Section 10 of Riata Ranch =
to be=20
recorded in May 2001. The =
plat=20
showed a cul-de-sac at the end of Riata Ranch Road, blocking =
access to the=20
subdivision through the Deeded Strip. Duddlesten argues that, in =
violation=20
of the Restrictive Covenant, the=20
cul-de-sac has prevented the future use of the Deeded Strip as a =
roadway.=20
<=
/SPAN>In=20
addition, the subdivision plat shows an arrow pointed at the =
Deeded Strip,=20
next to which is written, =E2=80=9CRESTRICTED RESERVE =
=E2=80=9CC=E2=80=9D RESTRICTED TO U.E., STM.=20
S.E. & LANDSCAPING.=E2=80=9D This language provides that =
Cypress plans utility=20
and storm easements across the Deeded Strip, as well as =
landscaping.=20
Duddlesten contends that these uses violate the Restrictive =
Covenant.=20
Cypress has argued that the Restrictive Covenant does not bar this =
activity because Cypress is not using the property, which has been =
left as=20
open space.
&nbs=
p;Restrictive=20
covenants are subject to the same general rules of construction as =
contracts. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. =
1998).=20
Like a contract, a restrictive covenant is unambiguous if it can =
be given=20
a certain or definite legal meaning. Id. Whether =
restrictive=20
covenants are ambiguous is a matter of law for the court to =
decide.=20
City of Pasadena v. Gennedy, 125=20
S.W.3d 687, 692 (Tex.=20
App.=E2=80=94Houston [1st =
Dist.] 2003, pet.=20
denied). At common =
law,=20
covenants restricting the free use of land are not favored, but =
will still=20
be enforced when they are confined to a lawful purpose and are =
clearly=20
worded. Id. at 693. All doubts concerning a restrictive =
covenant=E2=80=99s=20
terms are resolved in favor of the free and unrestricted use of =
the land,=20
and any ambiguity must be strictly construed against the party =
seeking to=20
enforce the covenant. Id. The Texas Property Code states =
that =E2=80=9C[a]=20
restrictive covenant shall be liberally construed to give effect =
to its=20
purposes and intent.=E2=80=9D Tex. Prop.=20
Code Ann. =C2=A7 202.003(a) (Vernon 2007). In=20
Gennedy, we noted =
the=20
potential conflict in the common law and statutory law, but do not =
intend=20
to resolve this potential conflict in this case for the same =
reasons that=20
we did not do so in Gennedy. See Gennedy, 125 =
S.W.3d=20
at 695.
<=
/SPAN>Regardless=20
of whether we subject the Restrictive Covenant to a liberal or =
strict=20
construction, the outcome remains the same. The plain language =
reveals=20
that the parties intended that Cypress would not use the property =
for any=20
other purpose than as =E2=80=9Ca roadway or road of [sic] =
right-of-way to provide=20
vehicular access, . . . landscaping and other similar uses =
incidental to=20
and associated with uses as a roadway or road right-of-way . . .=20
.=E2=80=9D
<=
/SPAN>We=20
agree with Cypress that the Restrictive Covenant does not obligate =
Cypress=20
to do anything with its own land. A lease provision that says the =
premises=20
are only to be used for a particular purpose does not obligate =
=E2=80=9Cthe lessee=20
to use or continue to use the premises for that purpose; such a =
provision=20
is a covenant against a noncomplying use, not a covenant to =
use.=E2=80=9D=20
Universal Health Servs., Inc. v. Renaissance Women=E2=80=99s =
Group,=20
P.A., 121 S.W.3d 742, =
747 (Tex.=20
2003).
<=
/SPAN>Similarly,=20
the Restrictive Covenant limits use of the Deeded Strip. =
Cypress indicated on the subdivision =
plat that the=20
Strip could be used for landscaping, utility, and storm easements. =
Cypress=20
has thus allowed for the possibility that these easements could be =
used in=20
ways which could potentially interfere with the restrictive =
covenant, but=20
it is unclear from the summary judgment record whether Cypress =
actually=20
has used the land for any noncomplying purpose in violation of the =
covenant. The filing of the plat, in and of itself, does not =
constitute a=20
breach of the Restrictive Covenant, as the plat alone does not =
indicate=20
that Cypress has used the Deeded Strip in any way that violates =
the=20
covenant.
<=
/SPAN>The=20
summary judgment record reveals, however, that the land has been =
or is=20
currently being landscaped, though it is unclear what sort of =
alterations=20
have been made. Landscaping does not violate the Restrictive =
Covenant=20
per se, but it may be if the landscaping on the Deeded =
Strip=20
interferes with the land=E2=80=99s potential use as a roadway. =
Without evidence=20
regarding the nature and scope of the landscaping on the Deeded =
Strip, it=20
nevertheless cannot be determined whether Cypress has violated the =
terms=20
of the Restrictive Covenant. Thus, whether Cypress has violated =
the=20
Restrictive Covenant presents a question of fact that we cannot =
resolve on=20
the summary judgment record before us.
<=
/SPAN>Because a fact question exists regarding =
the=20
nature and scope of use of the Deeded Strip, the trial court erred =
in=20
finding, as a matter of law, that Cypress breached the restrictive =
covenant.
<=
/SPAN>We=20
sustain issue one.
Implied=20
Obligations
<=
/SPAN>In issue two, Cypress asserts that the =
trial court=20
erred by =E2=80=9Cimproperly imposing two =
=E2=80=98implied=E2=80=99 obligations on Cypress that=20
are not contained in or supported by the language of the =
Development=20
Agreement.=E2=80=9D The two =E2=80=9Cimplied=E2=80=9D obligations =
are that (1) Cypress must=20
construct a road on the Deeded Strip and (2) Cypress must grant an =
easement across its land and construct a road on it as an =
extension of the=20
Deeded Strip roadway.
<=
/SPAN>The=20
trial court instructed the jury, and thus found as a matter of =
law, that=20
Duddlesten =E2=80=9Cwas entitled to have an entry road =
cross the commercial=20
property
in question into Riata Ranch =
Subdivision at=20
the time the Plat was filed in May 2001 [the contract] and that =
such Plat=20
failed to include such entry road [the breach].=E2=80=9D =
(Emphasis added.)=20
The charge further asked that the jury determine =E2=80=9Cthe =
difference between=20
the market value of the commercial property having an entry =
road=20
into Riata Ranch Subdivision that crosses the property owned by=20
[Duddlesten] and the market value of that commercial property =
without an=20
entry road.=E2=80=9D (Emphasis added.)
<=
/SPAN>In=20
moving for summary judgment in the trial court, Duddlesten claimed =
that=20
=E2=80=9Cthere was clearly an implied obligation on Cypress to =
construct the=20
street.=E2=80=9D On appeal, Duddlesten now concedes that =
=E2=80=9CCypress is correct that=20
the Residential Development Agreement does not require Cypress to =
actually=20
build a road . . . . In other words, Cypress was not obligated to=20
construct the road, but it was obligated to provide access to the=20
subdivision by a road.=E2=80=9D =E2=80=9CFor that=20
reason, Duddlesten[, on appeal, addressed] only Cypress=E2=80=99s =
argument that it=20
had no implied obligation to grant an easement across its =
property.=E2=80=9D=20
Though the Development Agreement makes no mention of such an =
obligation,=20
Duddlesten argues that access to the Riata Ranch subdivision would =
be=20
impossible without the construction of a road traversing both =
Duddlesten=E2=80=99s=20
and Cypress=E2=80=99s property and would thus create a =
=E2=80=9Croad to nowhere.=E2=80=9D=20
Duddlesten, however, has deeded the property and retained no =
=E2=80=9Cright, title=20
[or] interest=E2=80=9D in it.
<=
/SPAN>Implied=20
covenants are not favored by law and will only be read into a =
contract=20
when necessary to give effect to the plain, unmistakable intent of =
the=20
parties. In re Bass, 113 S.W.3d 735, 743 (Tex. 2003). An =
implied=20
covenant must appear to be so clearly within the contemplation of =
the=20
parties that they deemed it unnecessary to express it in writing.=20
Danciger Oil & Ref. Co. v. Powell, 154 S.W.2d 632, 635 (Tex. 1941). It is not enough to say that an implied =
covenant=20
is necessary in order to make the contract fair or that without =
such a=20
covenant the contract would operate unjustly. Id. An =
implied=20
covenant must arise from the presumed intention of the parties as =
gathered=20
from the agreement as a whole. Id.
<=
/SPAN>Duddlesten=20
asks this Court to impose an unwritten, =E2=80=9Cimplied=E2=80=9D =
obligation on Cypress=20
that, if actually agreed to by the parties, would have been barred =
by the=20
statute of frauds. An easement is an interest in land to which the =
statute=20
of frauds applies, and any grant of an easement must be in =
writing.=20
Cummins v. Travis County Water Control & Improvement Dist. =
No.=20
17, 175 S.W.3d 34, 51 (Tex. App.=E2=80=94Austin 2005, pet. =
denied). The=20
easement which Duddlesten promised to grant is one which attaches =
to the=20
land itself and passes with it, and thus, is an easement =
appurtenant to=20
the land. See Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d =
196, 203=20
(Tex. 1962). As such, it is an interest in land which requires a =
writing=20
to create or transfer. See Tex. Prop. Code Ann. =
=C2=A7 5.021=20
(Vernon 2004); Drye, 364 S.W.2d at 203.
<=
/SPAN>The=20
Development Agreement contains no mention of Cypress=E2=80=99s =
property, no=20
requirement that a roadway would even be built on the Deeded =
Strip, and no=20
statement of Duddlesten=E2=80=99s alleged intent that its =
easement, and ultimately=20
deeded property was =E2=80=9Cto create two, more valuable corner =
commercial lots,=E2=80=9D=20
a goal that could only be accomplished with an additional easement =
across=20
Cypress=E2=80=99s land. Accordingly, there is no evidence to =
support the trial=20
court=E2=80=99s implied finding that Cypress must create an =
easement over its=20
property as a matter of law, and the trial court erred in =
submitting an=20
instruction containing an implied finding to the jury based on a =
breach of=20
the Development Agreement.
<=
/SPAN>We=20
sustain issue two.
Statute of=20
Limitations
<=
/SPAN>In issue three, Cypress argues that =
Duddlesten=E2=80=99s=20
breach of contract claim was barred by the four-year statute of=20
limitations because either (1) the discovery rule does not apply =
to=20
Duddlesten=E2=80=99s claim or, (2) if the discovery rule does =
apply, Duddlesten=20
had actual notice of Cypress=E2=80=99s intentions more than four =
years before it=20
filed suit.
Standard of=20
Review
<=
/SPAN>The determination of whether the statute =
of=20
limitations has run on a particular cause of action is a question =
of law=20
that we also review de novo. See Knott, 128 S.W.3d at=20
221. As a general rule, a =
cause of=20
action begins to run when facts come into existence that authorize =
a party=20
to seek a judicial remedy. Id.=20
A breach of contract claim accrues when the contract is =
breached.=20
Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). =
Analysis
<=
/SPAN>Cypress=20
first argues that Duddlesten should =
have been=20
aware of the facts that led to its breach of contract claim in =
September=20
of 1999, when Cypress filed a development plat =
with the=20
City of Houston that did not include an access road through the =
Deeded=20
Strip. But, as Duddlesten points out, this plat was preliminary =
and=20
subject to change. Cypress further argues that, after a meeting on =
February 11, 2000, Duddlesten =
either knew or=20
should have known about Cypress=E2=80=99s plans not to construct a =
road through=20
the Deeded Strip. At the meeting, Cypress showed Duddlesten=20
documents from the City of =
Houston=20
Planning Commission, including a development plat that showed the =
Deeded=20
Strip not being used as an access road. Duddlesten contends that =
he did=20
not discuss the access road at the meeting in February because the =
meeting=20
centered on property west of Barker Cypress Road. He claims that =
Cypress=20
intentionally drew his attention away from the access road by =
displaying=20
the property west of Barker Cypress Road in color and the rest of =
the=20
property in black-and-white. Duddlesten asserts that =
=E2=80=9CCypress breached the=20
[Development] Agreement and the restrictive covenants in the =
[Duddlesten]=20
Deed on May 21, 2001, when it caused the final plat for Riata =
Ranch,=20
Section 10, to be recorded.=E2=80=9D
<=
/SPAN>Duddlesten=20
filed suit on February 13, 2004, within four years of the date =
that=20
Cypress recorded the final plat for the subdivision. See =
Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 16.051 (Vernon 1997) (stating that every action =
for which=20
there is no statute of limitations must be brought within four =
years after=20
the cause of action accrues); see also Stine, 80 =
S.W.3d at=20
592 (noting that the statute of limitations for breach of contract =
claims=20
is four years).
<=
/SPAN>Until=20
the final plat was recorded, the street pattern plan could have =
been=20
amended to comply with the terms of the Development Agreement and =
the=20
Duddlesten Deed. See Tex.=20
Loc. Gov=E2=80=99t Code Ann. =C2=A7 212.013 (Vernon 1999) =
(a final plat may be=20
vacated before the first lot is sold). A reasonable juror could =
conclude=20
that limitations did not begin to run until Cypress filed its =
final plat=20
without the access road. As such, a fact question remains =
concerning=20
whether Duddlesten was aware or should have been aware of the =
alleged=20
breach more than four years before filing suit. Accordingly, =
Cypress is=20
not entitled to rendition on its cross-motion on this=20
issue.
<=
/SPAN>We=20
overrule issue three.Conclusion
<=
/SPAN>We=20
reverse the trial court=E2=80=99s summary judgment on liability =
and render=20
judgment that Cypress did not breach the Development Agreement, =
and we=20
remand the remaining claims for further proceedings consistent =
with this=20
opinion.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
George=20
C. Hanks, Jr.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Justice
Panel consists of Justices Hanks, Bland, =
and=20
Wilson.
|