Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass'n, 04-16-00063-CV

CourtCourt of Appeals of Texas
Citation534 S.W.3d 558
Docket NumberNo. 04-16-00063-CV,04-16-00063-CV
Decision Date05 July 2017

534 S.W.3d 558


No. 04-16-00063-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: July 5, 2017

Kimberly S. Keller, Keller Stolarczyk, PLLC, Boerne, TX,Richard C. Mosty, Charles Dixon Mosty, Mosty Law Firm, Kerrville, TX, for Appellant.

Randall B. Richards, The Law Office of Randy Richards, Boerne, TX, for Appellee.

Sitting: Sandee Bryan Marion, Chief Justice, Marialyn Barnard, Justice, Patricia O. Alvarez, Justice

Opinion by: Marialyn Barnard, Justice

This appeal concerns the validity and enforceability of a property restriction—specifically a one-foot reserve strip ("the Non-Access Easement")—that if valid precludes ingress and egress across the strip. This court has previously reviewed this dispute, holding that neither side was entitled to summary judgment and remanding to the trial court for further proceedings. See Teal Trading and Dev., LP v. Champee Springs Ranches Prop. Owners Ass'n , 432 S.W.3d 381, 384 (Tex. App.—San Antonio 2014, pet. denied). Upon remand, the trial court granted partial summary judgment in favor of appellee Champee Springs Ranches Property Owners Association ("Champee Springs"), and the remaining issues were tried to the court. After trial, the trial court ruled the Non-Access Easement was valid and awarded attorney's fees and costs to Champee Springs. On appeal, appellant Teal Trading and Development, LP ("Teal Trading") raises three issues challenging the trial court's partial summary judgment, its findings, and the award of attorney's fees and costs.1 We affirm the trial court's judgment.


As noted above, we previously reviewed this matter. See id. In our prior opinion, we provided a detailed rendition of the facts. Accordingly, we have taken portions of the factual background from our prior

534 S.W.3d 566

opinion and then revised, updated, and supplemented it as necessary. See id.

Teal Trading owns almost 2,000 contiguous acres of land in the Texas Hill Country. The majority of its property lies in Kerr County, Texas, although some portion of its land spills into neighboring Kendall County, Texas. Champee Springs represents residents of the Champee Springs Ranches subdivision and The Quarry at Champee Springs Ranches subdivision, which are located in Kendall County. See TEX. PROP. CODE ANN. § 204.004 (West 2014) (describing property owners' association).

Six hundred and sixty acres of Teal Trading's property, and some or all of the land now comprising the subdivisions represented by Champee Springs, were originally owned by E.J. Cop, who purchased 9,245.95 acres of land in Kendall and Kerr Counties on June 3, 1998. Cop platted and developed his property as Champee Springs Ranches. On June 4, 1998, Cop signed a "Declaration of Covenants, Conditions and Restrictions," which was recorded in the deed records of Kendall and Kerr Counties. See TEX. PROP. CODE ANN. § 202.001(1)(A) (defining dedicatory instruments, which includes restrictive covenants). The Declaration contains the restriction, i.e., Non-Access Easement, at issue. In pertinent part, the Declaration states:


* * *

THAT WHEREAS, E.J. Cop, hereinafter called the Declarant, is the owner of all that certain 9245.95 acres, more or less, tract of land ("PROPERTY") located in Kendall and Kerr Counties, Texas as more particularly described on Exhibit "A" attached hereto and incorporated herein for all purposes.

WHEREAS, the Declarant will convey the PROPERTY, subject to certain protective covenants, conditions, restrictions and easements as hereinafter set forth;

NOW, THEREFORE, it is hereby declared that all of the PROPERTY shall be held, sold, and conveyed subject to the following easements, restrictions, covenants, and conditions, which are established for the purposes of creating and carrying out a uniform plan for the improvement, development and sale of the PROPERTY and for the further purpose of protecting the value attractiveness and desirability of the PROPERTY for the mutual benefit of the owners of same and accordingly shall run with the title to the PROPERTY or any part thereof and bind the Declarant, his heirs, successors and assigns and all owners and purchasers of the PROPERTY, or any part thereof, their, [sic] heirs, successors, executors, administrators and assigns.

* * *

2. There is hereby reserved unto Declarant a one (1) foot easement for precluding and prohibiting access to the PROPERTY or Ranger Creek Road or Turkey Knob Road by adjoining property owners other than Declarant and Declarant's express assigns. This easement is inside of and contiguous to the perimeter of the PROPERTY as described in exhibit "A" hereto, provided that no easement is reserved over, across or upon any public road right-of-way which is dedicated by and shown on that certain Plat of Champee Springs Ranches, a subdivision in Kendall and Kerr Counties, Texas, of record in Volume 3, Page 69, of the Plat Records of Kendall County, Texas, and further provided Tract 4 of said Champee Springs Ranches subdivision shall be entitled to one access entrance across the restrictive easement along the southwestern boundary line of said Tract 4, but none other access without
534 S.W.3d 567
Declarant's express written consent thereto.

The restriction in paragraph two is the "Non-Access Easement." The parties appeared to agree on original submission to this court and still seem to agree the Non-Access Easement prohibits any person—aside from Cop or his assignees—who owns land along the original edge of the Cop tract from permitting anyone else access across the edge of their property.2

Ultimately, Cop began to sell lots from his property. The following is a summary of relevant events and conveyances in chronological order:

• June 3, 1998—E.J. Cop purchased 9,245.95 acres of land in Kendall and Kerr Counties.

• June 4, 1998—Cop signed the Declaration containing the Non-Access Easement.

• July 9, 1998—Cop sold 1,328 acres to C.R. Luigs.

• July 10, 1999—Luigs sold approximately 660 acres in Kerr County to Marrs and Marianne Bowman. The Bowmans platted the 660 acres as Privilege Creek Ranches, but did not sell any lots.

• July 29, 1999—Michael Wall, owner of 2,300 acres in Champee Springs Ranches, filed a replat, which decreased the size of the lots in Champee Springs Ranches and removed the Bowmans' 660 acres from Champee Springs Ranches.

• July 11, 2006—Mallard Royalty Partners3 purchased the tract owned by the Bowmans, who executed separate deeds conveying their respective interests.

• July 12, 2006—Mallard Royalty Partners sold the 660 acres, and an additional 1,173 acres that had not been owned by Cop, to BTEX Ranch, LP.

• July 17, 2006—BTEX Ranch, LP executed a deed of trust covering all of its property—the 1,173 acre-tract and the 660 acre tract. BTEX attempted to develop its property as "Boerne Falls Ranch."

• November 12, 2009—Teal Trading acquired BTEX Ranch, LP's deed of trust and foreclosed on its interest.

We will refer to the 660-acre tract sold by Luigs and now owned by Teal Trading as the "Privilege Creek Tract." All of the deeds in the chain of title from Cop to Teal Trading state, in some form or another, that the property conveyed is "subject to" the restrictions in the Declaration filed by Cop.

When Cop acquired 9,245.95 acres, the portion of his property that would later be sold as the Privilege Creek Tract was at the northwestern end of his tract. Thus, the Non-Access Easement runs along the edge of the Privilege Creek Tract to the extent that the edge of the tract was also the edge of the original Cop tract. The additional 1,173 acres owned by Teal Trading adjacent to the Privilege Creek Tract were not part of Cop's original 9,245.95 acres. Accordingly, Teal Trading's additional acreage is seemingly "divided" from the Privilege Creek Tract by the Non-Access Easement. In contrast, although the Champee Springs Ranches subdivision is directly adjacent to the Privilege Creek Tract, it was not "divided" from the tract by the Non-Access Easement because the property comprising the subdivision was also part of Cop's original tract. This is

534 S.W.3d 568

demonstrated by the following illustrative map:

The area depicted in orange—also designated as "section 1"—is the 1,173 acres owned by Teal Trading that was not part of the original Cop Tract. The acreage in yellow—also designated as "section 2"—is the Privilege Creek Tract. The Non-Access Easement, which is depicted by the bolded red line,4 "divides" the properties owned by Teal Trading. The document shows how the Champee Springs Ranches subdivision is adjacent to the Privilege Creek Tract,

534 S.W.3d 569

but not "divided" from the tract by the Non-Access Easement.

After BTEX Ranch, LP acquired its property from Mallard Royalty Partners, it began to develop the entire property as a single, contiguous residential subdivision. It then built a construction road that connected Turkey Knob Road to Lane Valley Road. Turkey Knob Road is located within the Privilege Creek Tract and the Champee Springs...

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