Appeal from the 268th Judicial District Court Fort Bend
County, Texas Trial Court Case No. 12-DCV-201294
consists of Justices Massengale, Brown, and Huddle.
First Colony Community Services Association, Inc. appeals the
trial court's rendition of summary judgment in favor of
appellees Arthur J. Valentz and Lynn Valentz (the
"Valentzes"). The Valentzes are homeowners in First
Colony. They are also grantees of a non-exclusive landscape
easement the Association granted them in 2000. The
Association sued the Valentzes, claiming the Valentzes'
erection of a fence with a locked gate violated the terms of
the easement. The trial court granted summary judgment in
favor of the Valentzes, and the Association appealed. We
reverse and render partial summary judgment in favor of the
Association, and we remand for further proceedings consistent
with this opinion.
Association is a property owners' association that
represents residential and commercial properties within the
development community known as First Colony. The Valentzes
reside in a home in First Colony on a street named Pipers
2000, the Association granted the Valentzes a non-exclusive
landscape easement on a strip of land running alongside the
Valentzes' lot connecting Pipers Walk to the Sweetwater
Country Club golf course, which is behind the Valentzes'
home. The easement refers to the strip of land as Reserve E
and grants the Valentzes a recorded "non-exclusive
landscape easement on, over, under, across, along, and
through" Reserve E.
Valentzes accepted the easement subject to "[a]ll valid
and subsisting easements" and certain other limitations.
Two are of importance here. The first limitation sets forth
the purposes for which the easement shall be used:
Grantee's use of the Easement Area shall be for the
installation, construction, maintenance, operation,
replacement, change, or removal of landscaping and
appurtenances ("landscaping and appurtenances"
being defined to include but not limited to, all plants,
trees, bushes, shrubs, flowers, grasses, soil, mulch, bark,
gazebos, decking, fences and walks, rocks and boulders,
benches, fountains, sprinkler systems, lighting systems and
other landscape treatment items).
limitation requires that the Valentzes' and their
successors' use of the easement be consistent with the
Declaration, which is the Association's governing
As part of the consideration for this easement, Grantee
covenants and agrees that any landscaping and appurtenances
installed and maintained by Grantee or their heirs,
successors, or assigns pursuant to this easement shall comply
with the requirements and standards set out in (i) the
Declaration . . . and any amendments thereto.
Declaration referenced in the easement details covenants,
conditions and restrictions that are binding on all parties
having any right, title or interest in any property subject
to its provisions or any portion thereof. Article III of the
Declaration explains residential owners' property rights
in the common areas, including Reserve E:
Each Owner of a Residential Unit shall have a right and
easement of enjoyment in and to the Common Area, subject to
any restrictions or limitations on use set forth in any deed
or this Declaration and subject to any rules and regulations
promulgated and published by the Board of Directors of the
Valentzes installed landscaping and appurtenances, including
a brick walkway and wrought iron fencing on Reserve E. The
Valentzes also eventually installed a gate on Reserve E that,
when closed, prohibited access to the Reserve. In 2011,
without receiving the Association's approval, the
Valentzes began locking the gate, thereby excluding other
owners. The Association asked the Valentzes to remove the
lock and leave the gate open so as to allow other owners to
freely access Reserve E. The Valentzes refused ...