General Practice, Solo and Small Firm Section of the State Bar of Texas





Teal Trading and Development, LP v. Champee Springs Ranchers Property Owners Association, 2020 W.L. 499243; Lexis 45 (Tex. 2020)


Restrictive Easements: In 1998, Cop purchased 9,246 acres of land. Cop platted the land as a residential development and called it Champee Springs Ranches. In addition to the plat, Cop signed and recorded restrictions. Among the restrictions is the disputed easement, which largely restricts private access to a main entrance.Later that year, Cop sold a portion of the land. The new buyers platted the acreage as Privilege Creek Ranches. Teal now owns this parcel.


In 1999, the Champee Springs landowners’ replatted their acreage, subdividing their existing interior lots. The replat was filed in the public records, but did not list the disputed restrictive easement. The record further noted non-access easements are not allowed unless they are dedicated to the county.Teal’s predecessor-in-title, BTEX Ranch, LP, purchased the Privilege Creek acreage and an adjoining 1,173 acres. This resulted in the restrictive easement bisecting the contiguous parcels. BTEX attempted to develop both tracts as one residential subdivision and built a private construction road in violation of the restrictive easement. After Champee Springs Ranches Property Owners Association filed suit against BTEX seeking to enforce the easement, Teal acquired BTEX’s land through foreclosure and intervened in the lawsuit.


Held: The Supreme Court reviewed Teal’s assertion that the omission of the restrictive easement from the public records in the filing of the replat terminated the easement and relinquished Champee Springs’ right to enforce it. The Supreme Court held that Champee Springs had standing to sue, and did not relinquish the easement.


Teal further asserted that restrictive easements violate public policy. The Supreme Court stated, “When restrictive covenants are confined to a lawful purpose and are clearly worded, they will be enforced.” The Court affirmed the lower courts holding that enforced the easement, ruling that the easement burdens Teal’s property.



Copano Energy LLC, et al. v. Bujnoch, 2020 W.L. 499765; Lexis 49 (Tex. 2020)


Statute of Frauds-Emails: In December 2012, Copano approached Bujnochs about obtaining an easement to construct a pipeline on their properties. Representatives for each company exchanged emails negotiating the terms of the easement.


Copano began merging with Kinder Morgan. Copano representatives, other than those involved in the email negotiations, made written offers to Bujnochs for far less than had been negotiated. The Bujnochs brought a breach of contract action against Kinder Morgan and Copano.


Held: The Supreme Court reasoned that emails could conceivably be used to supply the essential terms if another writing confirmed that the parties later agreed to the terms stated in the emails. The emails must be carefully examined to determine whether it truly evidences the grave intent to be legally bound. Here, the verbiage of the emails does not reflect an intent to bind Copano to the easement terms stated in the email. As a result, under the statute of frauds, the proffered contract is not enforceable.



Roddy v. Holly Lake Ranch Ass’n, 589 S.W.3d 336 (Tex. App.—Tyler 2019)


Deed Restrictions: Holly Lake Ranch Association (HLRA), a homeowner’s association for several subdivisions, filed suit against nine property owners. The trial court rendered a declaratory judgment that (1) the amendments to the deed restrictions at issue are void and of no further legal effect and (2) votes cast by members of the Holly Lake Ranch subdivision members in the future will be allocated as follows” “each member who owns a lot is entitled to one vote, regardless of how many lots that member owns.” The trial court also awarded attorney fees to HLRA. The nine homeowner’s appealed.


Held: The Appeals Court concluded that the restrictive covenant unambiguously states that vote allotment on an amendment to the deed restrictions is based on the number of lots, and each lot is allotted one vote.

One of the amendments at issue vested the members with a majority vote before the HLRA may levy any assessments, fees, or dues. The Court looked to the bylaws of HLRA to conclude that the amendments to the deed restrictions were illegal, using the ordinary meaning.


The second amendment at issue required the HLRA to provide a mandatory waiver of duplicate fees, and/or dues to owners who own more than one lot. The Court held that this amendment undermined the authority of the board of directors by dispossessing it of their authority to waive duplicate fees to multi-lot owners at their discretion.


The third amendment restricted liens on the property to cover approved assessments, fees, or dues. The Court held that this restriction runs afoul of the corporate bylaws, the management authority of the board of directors and the voting rights of the members. The homeowners contended that the award of attorney’s fees were inequitable and unjust due to the HLRA only joining nine homeowners who filed the amended deed restriction in the public records despite the hundreds of property owners that approved the amendments. The Court remanded the case for the trial court to determine the issue.



Houston Cmty. College Sys. v. HV BTW, LP, 589 S.W.3d 204 (Tex. App.—Houston [14th Dist.] 2019)


Breach of Contract-Easement: In 2013, HV BTW, LP (the Partnership) approached Houston Community College (HCC) about obtaining an easement on a vacant lot adjacent to their commercial building. HCC agreed to grant the easement and the chancellor signed on behalf of HCC. As consideration for the easement, the Partnership agreed to construct the parking facility on the vacant lot at its sole cost and expense. Following the agreement, the chancellor left HCC. The Partnership allegedly spent $500,000 towards the construction and only lacked paving the road and striping the parking lot. To do the paving work, the Partnership needed approval from CenterPoint Energy, which had a utility easement on the vacant lot. To obtain approval, the Partnership submitted a consent form to HCC. HCC refused to sign unless the Partnership agreed to a license agreement instead of an easement.


The Partnership filed a lawsuit against HCC alleging breach of contract and sought a declaration that the Partnership has an easement on the vacant lot. The trial court granted summary judgment and ordered HCC to file an executed easement agreement in the real property records. The trial court also declared that the Partnership has an easement on the vacant lot and awarded attorney’s fees. Held: The Court of Appeals reversed.


HCC alleged that as a public community college, a political subdivision of the state, the college is protected by governmental immunity. The court found that under a contract for services the legislature waived governmental immunity. Here, the parking lot was a service to HCC from the Partnership.


HCC further alleged that the easement agreement was not properly executed under local government chapter 271 because HCC’s board of trustees did not approve the agreement. Under the chancellor’s authority delegated by the board, the chancellor could award contract up to a certain dollar amount, and could grant contracts that were not real property. The board policies excluded easements under the real property provisions. The court remanded the issue to the trial court to determine the dollar value of the easement.



Schear Hampton Drywall, LLC v. Founders Comm. Ltd., 586 S.W.3d 80 (Tex. App.— Houston [14th Dist.] 2019)


Mechanic’s Lien-Foreclosure: Founders entered into general contract with Construction Supervisors, Inc., for the construction of a senior living residential project known as The Abbey.

Construction Supervisors entered into a subcontract for completion of the brick and stucco work on The Abbey. The original subcontractor walked of the job and Schear Hampton served as a substitute for a price increase of $155,967. Construction Supervisors, the general contractor, notified Founders that it could not comply with the general contract due to financial reasons. Founders agreed to pay Schear Hampton directly and let Construction Supervisors manage the project. After failure to receive payment for work completed on The Abbey, Schear Hampton filed a mechanic’s lien in the amount of $152,173.60. Following the lien Schear Hampton filed a lawsuit to foreclose on the lien.


The trial court entered a judgment offsetting the amount of damages awarded to Founders under their contract with Construction Supervisors. The Texas Property Code section 53.153(b) provides in pertinent part: “if the suit results in judgment on the lien against the owner or the owner’s property, the owner is entitled to deduct the amount of the judgment and costs from any amount due…” Held: The Court held that Founders was entitled to an offset, despite Schear Hamptons contention that the Texas Property Code does not expressly allow for such an offset.



Melton v. CU Members Mortgage, 586 S.W.3d (Tex. App.—Austin 2019)


No Right of Foreclosure- Constitutional Prohibition: Melton purchased a leasehold estate interest from the City of San Angelo. The leasehold is Melton’s homestead. Melton made annual payments on the leasehold. In 2009, Melton refinanced an existing note on the property by taking out a home equity loan from Colonial. Melton executed a Texas Home Equity Note and a Texas Home Equity Security Instrument securing a $223,648 lien on the leasehold. Melton stopped paying on the note in February 2013.


Melton filed a lawsuit against the appraiser on the fourth anniversary of the day he signed the loan documents, asserting that the loan was not eligible for foreclosure based on provisions of Article XVI, section 50 of the Texas Constitution.  Melton alleged that the loan exceeds the constitutional limit for a foreclosure eligible loan. Texas Constitution Article XVI, Section 50(a)(6)(B) limits the amount of foreclosure eligible debt on a homestead to 80 percent of the fair market value of the homestead on the date the extension of credit is made.


Melton filed a declaration that the appraisal of his property was too high because the appraiser failed to take into account damage to the home and repairs to correct the damage. This declaration conflicted with the sworn testimony he previously gave acknowledging the fair market value of the homestead of $300,000. The trial court concluded that his declaration was a sham affidavit and excluded the evidence. Held: The court of appeals affirmed the trail court’s conclusion.


Melton argued that the loan failed to take into account an existing encumbrance of about $70,000. However, Colonial’s corporate representative explained that the lender would pay off the $70,000 and the remaining outstanding debt against the homestead would be the $223,648 loan. Thus, the $70,000 did not count towards the constitution’s 80% cap. Melton alleged that the lender failed to provide him with copies of the loan documents executed by both parties and therefore it violated the constitution. While Melton did not receive executed copies at the time of closing, the lender provided the documents within four weeks of closing. The constitution provides a cure provision allowing the lender to comply within 60 days of closing. The lender became compliant before the 60th day.



Schmidt v. Crawford, 584 S.W.3d 640 (Tex. App.—Houston [1st Dist.] 2019)


Citizens Participation Act: Schmidt and Greenbrier had hundreds of deeds of trust signed by homeowners to pledge their homes as security for bail bonds loans. These deeds of trust were filed in the public records. S&G moved to dismiss the plaintiffs’ claim for fraudulently altered deeds under the Citizens Participation Act. This Act provides a summary procedure in which a party may move for dismissal on the basis that the claims made against it are based on, relate to, or are in response to the exercise of the right of free speech, right to petition, or right of association.


The statute provides that the exercise of free-speech right is defined as a communication made in connection with a matter of public concern. The deeds filed in the public records were within the scope of the Act. Held:  The trial court correctly dismissed the claim for fraudulently altered deeds.


Even though Schmidt and Greenbrier secured a written disavowal of homestead status from the plaintiffs, this does not affect the constitutional invalidity of the homestead liens. The plaintiffs’ actions to quiet title and for declaration that the liens were invalid were remanded to the trial court.


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