R2 Rests., Inc. v. Mineola Cmty. Bank

• Decision Date: 25 July 2018
• Docket Number: NO. 12-17-00328-CV,12-17-00328-CV
• Citation: 561 S.W.3d 642
• Parties: R2 RESTAURANTS, INC., Appellant v. MINEOLA COMMUNITY BANK, SSB, Appellee
• Court: Texas Court of Appeals

561 S.W.3d 642

R2 RESTAURANTS, INC., Appellant

v.MINEOLA COMMUNITY BANK, SSB, Appellee

NO. 12-17-00328-CV

Court of Appeals of Texas, Tyler.

Opinion delivered July 25, 2018

M. Keith Dollahite, for Appellant.

Julie P. Wright, for Appellee.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

OPINION

James T. Worthen, Chief Justice

R2 Restaurants, Inc. appeals the trial court’s declaratory judgment and award of attorney’s fees rendered in favor of Appellee Mineola Community Bank, SSB. R2 raises four issues on appeal. We affirm in part and reverse and remand in part.

BACKGROUND

The instant case arises out of easements on property adjacent to a Wal-Mart parking lot in Wood County, Texas. The property, which consists of two vacant lots, was conveyed by Wal-Mart to Perimeter Properties, L.P. in 1994. At or about that time, Wal-Mart conveyed to Perimeter an easement, which set forth, in pertinent part, as follows:

WHEREAS, Wal-Mart is the owner of that certain tract or parcel of land situated in the city of MINEOLA, county of WOOD, state of TEXAS identified as Tract 1 on the site plan attached hereto as Exhibit "A" and more fully described on Exhibit "B" ("Tract 1"); and

WHEREAS, Grantee will be by the time this instrument is recorded the owner of that certain 1.117 acre tract or parcel of land in the same city, county, and state, which tract lies adjacent to Tract 1 and is identified as Tract 2 on Exhibit "A" and more fully described on Exhibit "C" ("Tract 2") which tract Wal-Mart Stores, Inc. is current owner of and intends to convey fee simple title to Grantee by a warranty deed; and

WHEREAS, Grantee has requested from Wal-Mart, and Wal-Mart is desirous of granting to Grantee, a non-exclusive easement for pedestrian and vehicular ingress and egress over and across that portion of Tract 1 part of which is identified as Easement A and Easement B on Exhibit "A" and more fully described on Exhibit "D," which Easement A and Easement B are actually the drive way/curb cut connectors to the limits of agreed access (collectively the "Access Area").

NOW THEREFORE, in consideration of one dollar ($1.00) and other good and valuable consideration, Wal-Mart does hereby grant, sell, and convey to Grantee a non-exclusive, perpetual easement for the benefit of and appurtenant to Tract 2, for the purpose of vehicular and pedestrian ingress and egress over and across the Access Area, and then across Tract 1 to the extent necessary and convenient for access between Tract 2 and State Highway 37 and State Highway 584, to have and to hold, unto Grantees, its successors and assigns, and all of their tenants and their respective customers, invitees, employees, agents, contractors, and suppliers....

....

7. Duration. The agreements contained herein and the rights granted hereby shall run with the titles to Tract 2 and the Access Area and shall bind and enure to the benefit of the parties hereto and their respective heirs, successors, and assigns.

The site plan comprising Exhibit "A" to the Wal-Mart easement depicts the tracts and easements, in pertinent part, as follows:

In 1995, Perimeter conveyed the north lot to UP Enterprises, a Taco Bell franchisee. Around that time, Perimeter and UP entered into a reciprocal easement agreement (REA).¹ The REA stated, in pertinent part, as follows:

WHEREAS, Perimeter Properties, L.P. and UP Enterprises, Inc. wish to grant to each other certain easement rights for the benefit of their respective tracts and impose certain obligations and restrictions;

NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Perimeter Properties, L.P. and UP Enterprises, Inc. do hereby agree as follows:

....

2. Perimeter Properties, L.P. to UP Enterprises, Inc. Access Easement. Perimeter Properties, L.P. does hereby grant to UP Enterprises, Inc. a perpetual non-exclusive easement for pedestrian and vehicular ingress and egress over and across the drive lanes and sidewalks, and entrances on Tract 1 identified as (the "Access Easement 1") attached hereto and shown on Exhibit D. UP Enterprises, Inc. shall use the Access Easement 1 for vehicular and pedestrian ingress, access and egress. The Access Easement granted hereunder is a permanent easement and will continue in full force and effect so long as the easement is used by the owners of Tract 1 and Tract 2, its successors and assigns pursuant to this document recorded in the Real Property Records of Wood County, Texas. Access Easement 1 shall be used by UP Enterprises, Inc., its customers, employees, tenants and invitees.

3. UP Enterprises, Inc. to Perimeter Properties, L.P. Access Easement. UP Enterprises, Inc. does hereby grant to Perimeter Properties, L.P. a perpetual, non-exclusive easement for vehicular and pedestrian ingress and egress over and across the drive lanes, sidewalks and entrances on Tract 2 identified as (the "Access Easement 2") attached hereto as Exhibit D and made a part hereof. Perimeter Properties, L.P. shall use Access Easement 2 for vehicular and pedestrian ingress, access, and egress. The Access Easement 2 granted hereunder is a permanent easement and will continue in full force and effect so long as the easement is used by the owners of Tract 1 and Tract 2, its successors and assigns pursuant to this document recorded in the Real Property Records of Wood County, Texas. The Access Easement 2 shall be used by Perimeter Properties, L.P., its customers, employees, tenants and invitees.

....

8. Successors. The rights and obligations contained herein shall run with the title to Tract 1 and Tract 2 and shall bind and inure to the benefit of the respective successors and assigns of the parties hereto.

9. Severability. In the event that any of the terms or conditions of this Reciprocal Easement Agreement shall be deemed invalid, illegal, or unenforceable in any respect, the validity of the remainder of this Reciprocal Easement Agreement shall in no way be affected and shall remain in full force and effect to the fullest extent permitted by law.

10. Development Plan. Prior to commencing site grading on Tract 2, UP Enterprises, Inc., shall provide to Perimeter Properties, L.P. a Plan of Development for approval which includes exterior plans, specifications, and curb cuts showing the placement of buildings and other improvements, including signage, setbacks from lot lines, location and dimensions of parking areas and spaces, driveways, service areas and landscaping and such approval shall not be unreasonably withheld.

(a) Sanitary Sewer. UP Enterprises, Inc. shall design and construct an 8" sanitary sewer line and in accordance with plans and specifications approved by Perimeter Properties, L.P.’s engineers, Doucet & Associates....

(b) Curb Cuts. UP Enterprises, Inc. shall design and construct two curb cuts to the Wal-Mart parking lot, two curb cuts to the Perimeter Properties, L.P. parking lot and the mutual access drive from State Highway 37 located as shown on the site plan attached hereto as Exhibit A, in accordance with plans and specifications approved by Perimeter Properties, L.P.’s engineers, Doucet & Associates....

....

14. Duration. All covenants, conditions and restrictions shall remain in force for fifty (50) years.

The site plan comprising Exhibit "A" to the REA depicts the tracts and easements, in pertinent part, as follows:

Further, Exhibit "D" to the REA depicts the tracts and easements, in pertinent part, as follows:

UP installed a "mutual access" lane between the two lots. But neither Perimeter nor its successors installed a "mutual access" driveway to Highway 564.

That same year, UP constructed a Taco Bell franchise on the north lot. R2 has owned and operated this Taco Bell franchise continuously since 1995. For seven and one-half years, the south lot remained vacant. But on June 25, 2002, Perimeter and UP executed an Amendment to the REA, in part to correct representations of ownership set forth in the REA. The amendment further states that " ‘Access Easement’ shall mean the driveways, walkways and sidewalks, curb cuts, exits and entrances and other common areas as may from time to time exist on [the south lot]."

Fifteen Thirteen, LLC later acquired the south lot and constructed a car wash on it in July 2002. During that time, Fifteen Thirteen constructed a driveway from the south lot to Highway 37. On September 24, 2010, Fifteen Thirteen sold the south lot to MCB. MCB demolished the car wash building in 2011, but left in place the pad and concrete driveway connecting the two lots at the mutual access easement on the eastern side of the lots. During the years that followed, MCB’s activities on the lot were limited to having someone mow the grass, placing an advertising sign on the lot for the bank, and permitting community groups to put signs at the corner of the lot. The following aerial photograph of the property as it currently exists is part of the record in this case:

In 2016, R2 commenced reconstruction of the Taco Bell located on the north lot. The new restaurant was to be built in accordance to a corporate prototype plan, one aspect of which required the dumpster to be placed as far away from customers as possible. Prior to the commencement of construction, Chet Davis, R2’s vice president, contacted James Herlocker, MCB’s president, and asked if R2’s contractor could place a small portable building and a temporary dumpster on the south lot during construction. Herlocker gave permission for the contractor to do so.

During construction, a new dumpster enclosure was constructed in the southeast corner of the north lot where the easement between the two lots was located. Furthermore, the curb cut at the location of the easement between lots on their western sides was closed. Thereafter, Herlocker complained to Davis about the location of the dumpster enclosure. In response, Davis suggested that MCB get its own easement from Wal-Mart to access the Wal-Mart parking lot. MCB also contacted...