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BSG-Spencer Highway Joint Venture, G.P. v. Muniba Enterprises, Inc.

Court of Appeals of Texas, First District

August 1, 2017

BSG-SPENCER HIGHWAY JOINT VENTURE, G.P. AND BEST STORAGE GROUP, LLC, Appellants/Cross-Appellees
v.
MUNIBA ENTERPRISES, INC., Appellee/Cross-Appellant

         On Appeal from the 11th District Court Harris County, Texas Trial Court Case No. 2014-70102

          Panel consists of Chief Justice Radack, and Justices Brown and Lloyd.

          MEMORANDUM OPINION

          Russell Lloyd Justice.

         This appeal and cross-appeal concern the interpretation of restrictions and reciprocal easements between two contiguous tracts of commercial real property located at the intersection of Spencer Highway and Center Street in Pasadena, Texas. Appellee/cross-appellant Muniba Enterprises, Inc. sued BSG-Spencer Highway Joint Venture, G.P. and Best Storage Group, LLC (collectively "BSG") alleging breach of the Declaration of Restrictions and Grant of Easements ("the Declaration") and seeking a declaratory judgment with respect to the validity and location of the easement set forth in the Declaration. BSG asserted counterclaims alleging, among other things, breach of the Declaration and its amendments. Following a two-day bench trial, the trial court issued findings of fact and conclusion of law and entered an amended final judgment.

         In three issues, BSG contends that the trial court erred in (1) determining that the Declaration created an enforceable easement and entering judgment in favor of Muniba; (2) refusing to grant a permanent injunction enjoining Muniba from allowing its tenants and customers to park and place its dumpsters on BSG's property; and (3) awarding attorney's fees to Muniba and refusing to award attorney's fees to BSG. In three cross-issues, Muniba contends that the trial court erred in (1) interpreting the terms of the Declaration and limiting the easement to a specific location; (2) interpreting the second amendment to the Declaration to allow the construction of a second building on the property owned by BSG; and (3) prohibiting Muniba's tenants and patrons from using the "no-build area" of BSG's property for parking. We affirm in part and reverse in part.

         Background

         A. Factual History

         By deed dated June 21, 1994, Steven Graham sold to Albertson's, Inc. all of "Reserve A" of "Albertson's Center Street" property consisting of 7.007 acres located at 7430 Spencer Highway ("Parcel 2"). Graham retained ownership of a 31, 859 square foot area in the southeast quadrant of the shopping center adjoining Center Street, denominated as "Reserve B" of Albertson's Center Street and commonly known as 7438 Spencer Highway ("Parcel 1").

         On June 21, 1994, the parties executed a "Declaration of Restrictions and Grant of Easements" setting forth the rules and restrictions binding the two parcels. A metes-and-bounds description of Parcels 1 and 2 ("Schedule 1") as well as a site plan depicting the two parcels, two curb cuts from Spencer Highway on the northern end of the shopping center, two curb cuts from Center Street on the eastern side of the center, and areas marked for parking and driveways are attached to the Declaration.[1] Graham and Albertson's executed two amendments to the Declaration on December 16, 1994 and August 4, 1995.

The Declaration provides, in pertinent part:
Paragraph 2: Buildings Size and Location: One building may be constructed on Parcel 1. . . . Notwithstanding anything to the contrary which may be shown on Exhibit "A, " (a) [Graham] shall have the right to construct its building anywhere on Parcel 1 subject to the provisions of this Declaration, and (b) Albertson's shall have the right to construct its building(s) anywhere on Parcel 2 subject to the provisions of this Declaration. Nothing in this Declaration shall be deemed to require either party to construct a building on its parcel or to limit the size of the building(s) constructed on Parcel 2.
Paragraph 3: Parking Requirements: Adequate vehicle parking spaces for employees, customers, visitors and all other users of any building on Parcel 1 shall be provided for on such parcel.
Paragraph 6: Easement: Albertson's grants to [Graham] and to all subsequent owners of any portion of Parcel 1, their respective tenants, contractors, employees, agents, customers, licensees and invitees, and the subtenants, contractors, employees, agents, customers, licensees and invitees of such tenants, for the benefit of Parcel 1, a perpetual non-exclusive easement for ingress and egress by vehicular and pedestrian traffic upon, over and across those portions of Parcel 2 which are from time to time developed for ingress and egress for the purpose of providing uninterrupted access from Parcel 1 to Center Street and to Spencer Highway. [Graham] grants to Albertson's and to all subsequent owners of any portion of Parcel 2, their respective tenants, contractors, employees, agents, customers, licensees and invitees, and the subtenants, contractors, employees, agents, customers, licensees and invitees of such tenants, for the benefit of Parcel 2, as [sic] perpetual non-exclusive easement for ingress and egress by vehicular and pedestrian traffic upon, over and across those portions of Parcel 1 which are from time to time developed for ingress and egress for the purpose of providing uninterrupted access to Parcel 2.
Paragraph 11: Injunctive Relief: In the event of any violation or threatened violation by any person of any of the restrictions contained in this Declaration, any or all of the owners of Parcel 1 and Parcel 2 shall have the right to enjoin such violation or threatened violation in a court of competent jurisdiction. The right of injunction shall be in addition to all other remedies set forth in this Declaration or provided by law.
Paragraph 14: Attorney's Fees: In the event any person initiates or defends any legal action or proceeding to enforce or interpret any of the terms of this Declaration, the prevailing party in any such action or proceeding shall be entitled to recover from the losing party in any such action or proceeding its reasonable costs and attorney's fees (including its reasonable costs and attorney's fees on any appeal).

         Thus, it is apparent that, for easement purposes, Parcel 1 retained by the original owner was the dominant estate and Parcel 2 was the servient estate.

         The first amendment to the Declaration referred to a previously agreed upon adjustment of the boundaries between Parcel 1 and Parcel 2, and revised the site plan and the property description of the parcels in Schedule 1 incorporated in and attached to the Declaration to reflect the adjustment. The second amendment made the following substantive changes to the original declaration:

2. Amendment to Section 2. Section 2 of the Declaration is amended so as to read in its entirety as follows:
(b) The Owner of Parcel 2 may construct a building anywhere on Parcel 2 except within the "No Build Area" shown on Exhibit "A." The Owner of Parcel 2 may locate up to two "kiosk" style facilities (such as, for purposes of example only) an espresso cart or stand, a remote drive-up bank facility, a shaved ice or snow cone stand) within the No Build Area north of the drive aisle leading east and west across the No Build Area from the curb cut onto Center Street, provided that no such "kioskuse" [sic] located within the "No Build Area" shall occupy an area larger than four (4) parking spaces.

         Section 3 of the Declaration, which provides that "[a]dequate vehicle parking spaces for employees, customers, visitors and all other users of any building located on Parcel 1 shall be provided for on said parcel, " was also amended to increase the minimum number of required parking spaces.

         In 1994, Albertson's began construction of its main supermarket building on Parcel 2 with a contractually required substantial completion date of June 24, 1995. In 2000, Albertson's constructed a gas station with pumps, a canopy over the pumps, and an administrative office in the northwest corner of Parcel 2.

         By special warranty deed dated November 9, 2004, Muniba purchased Parcel 1 subject to the conditions expressly stated in the deed and set out in Exhibit A attached to the deed, which referenced the Declaration and subsequent amendments. On June 25, 2013, BSG purchased Parcel 2 "subject to all easements, restrictions, reservations and covenants now of record, " which included the Declaration and its amendments.

         Following its purchase of Parcel 2, BSG redeveloped the tract as a self-storage rental facility. As part of the redevelopment, BSG tore down the Albertson's gas station structure, constructed a sales office, closed the westernmost curb cut along Spencer Highway, and added a canopy to the original Albertson's building which allegedly extended over and obstructed the driveway from Spencer Highway to Parcel 1. BSG's proposed site plans also included a fence separating Parcel 1 and Parcel 2 and the construction of a second building on Parcel 2.

         B. Procedural History

         On October 30, 2014, Muniba provided BSG with written notice advising that BSG's actions were in violation of the Declaration. According to Muniba, BSG's proposed plans would have eliminated the previously "uninterrupted access" afforded under the easement "upon, over and across" BSG's property, and "severely restrict[] use of the easement by persons seeking to access Parcel 1 from Spencer Highway, " in violation of the Declaration and amendments. On November 3, 2014, BSG responded in writing that the Declaration, as amended, did not restrict BSG from using its property as it proposed to do.

         On December 2, 2014, Muniba filed its original petition and application for temporary restraining order and temporary injunction against BSG, alleging breach of contract based on BSG's violations of the Declaration and its amendments. Muniba also sought declaratory relief that (1) the Declaration and its amendments are valid and subsisting contracts; (2) the Declaration prohibits BSG from erecting a fence between Parcel 1 and Parcel 2; (3) BSG's proposed site plans violate the Declaration and its amendments; (4) the Declaration was intended to provide for equal ingress and egress to and from Spencer Highway and Center Street across Parcel 1 and Parcel 2; (5) only one building can exist on Parcel 2, one building already exists, and therefore no other building can be constructed; and (6) both parties have a reciprocal easement to use their respective lots for parking. Muniba also sought temporary and permanent injunctions as well as attorney's fees.

         On December 19, 2014, the trial court signed a temporary injunction enjoining BSG from (1) erecting or maintaining any fence dividing the two parcels and (2) interfering with the ingress or egress "upon, over or across Parcel 2" or interfering with the northeastern most driveway (closest to Center Street). The court's order did not require BSG to alter its temporary construction fencing on Parcel 2, cease construction of its sales office, or prohibit BSG from closing the western curb cut from Spencer Highway. The trial court amended the temporary injunction on January 8, 2015 and March 2, 2015.

         On February 6, 2015, BSG answered asserting the affirmative defenses of waiver, estoppel, statute of frauds, and statute of conveyances. BSG also filed counterclaims against Muniba for trespass and nuisance as well as breach of the Declaration and its amendments based on Muniba's permitting its tenants and visitors to Parcel 1 to park their vehicles and place their trash dumpsters on Parcel 2. BSG sought actual damages, declaratory and injunctive relief, and attorney's fees.

         On March 30, 2015, Muniba filed its second amended petition and, on April 29, 2015, it filed a supplemental petition (the live pleadings). On April 8, 2015, Muniba answered BSG's counterclaim and asserted a limitations defense with respect to BSG's claims for trespass and nuisance.

         A two-day bench trial began on April 28, 2015. After Muniba rested, BSG moved for judgment as a matter of law. The trial court denied BSG's motion. The trial court later granted Muniba's request for a trial amendment alleging easements by necessity and estoppel.

         On May 21, 2015, the trial court signed initial findings of fact and conclusions of law; on July 28, 2015, the court entered amended findings and conclusions; and, on September 22, 2015, it signed supplemental findings and conclusions. On September 21, 2015, the trial court entered a final judgment and, on September 29, 2015, it signed an amended final judgment.

         In its amended final judgment, the trial court ordered that (1) the Declaration and amendments "are valid and enforceable contracts which are not ambiguous"; (2) Muniba is entitled to "a perpetual non-exclusive easement for vehicular and pedestrian ingress and egress for the purpose of providing straight, uninterrupted, and unobstructed access upon, over and across Parcel 2 to Parcel 1 to and from Center Street and to and from Spencer Highway"; (3) the easement over and across Parcel 2 to Parcel 1 from Spencer Highway must be a straight, unobstructed, and uninterrupted route that is at least twenty-eight feet wide; (4) no vehicles may be parked at any time upon the easements tracts, and the tracts are to remain free from obstruction, including, without limitation, fencing, curbing areas, and support structure for canopies or awnings; and (5) no supporting portion of the canopy/awning on the eastern side of BSG's Building A on Parcel 2 from the grounds to the currently existing canopy/awning may exist within the easement tracts, and that all columns, supporting structures, and concrete footings must be removed within thirty days after the date of judgment. The amended judgment further enjoined BSG from (1) constructing any fence or other structure on Parcel 2 that would eliminate Muniba's uninterrupted and unobstructed straight line-of-sight access to Parcel 1 from Spencer Highway and (2) using any building on Parcel 2 for residential purposes. The court declared that the term "a building, " as used in Paragraph 2(b) of the second amendment to the Declaration, means one additional building, and that no additional buildings may be built on Parcel 2. The court further ordered that BSG's counterclaims of trespass and nuisance were barred by the statute of limitations and it denied all relief requested by BSG with respect to those claims. The trial court awarded attorney's fees to Muniba.

         BSG appealed, and Muniba cross-appealed.

         Standards of Review

         In an appeal from a bench trial, the trial court's findings of fact have the same weight as a jury verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Nguyen v. Yovan, 317 S.W.3d 261, 269-70 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). When challenged, a trial court's findings of fact are not conclusive if there is a complete reporter's record on appeal. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). We review a trial court's findings of fact under the same legal sufficiency of the evidence standard used when determining whether sufficient evidence exists to support an answer to a jury question. See Catalina, 881 S.W.2d at 297; Nguyen, 317 S.W.3d at 269-70.

         An appellant may not challenge a trial court's conclusions of law for factual sufficiency, but we may review the legal conclusions drawn from the facts to determine their correctness. See BMC Software, 83 S.W.3d at 794. In an appeal from a bench trial, we review the conclusions of law de novo and will uphold them if the judgment can be sustained on any legal theory supported by the evidence. See id. "If the reviewing court determines a conclusion of law is erroneous, but the trial court rendered the proper judgment, the erroneous conclusion of law does not require reversal." Id.

         The grant or denial of a permanent injunction is reviewed under an abuse of discretion standard. Tanglewood Homes Ass'n, Inc. v. Feldman, 436 S.W.3d 48, 76 (Tex. App.-Houston [14th Dist.] 2014, pet. denied) (citing Lakeside Realty, Inc. v. Life Scape Homeowners Ass'n, 202 S.W.3d 186, 190 (Tex. App.- Tyler 2005, no pet.)). Similarly, a trial court's determination and award of attorney's fees is also reviewed under an abuse of discretion standard. Ryan v.Abdel-Salam, 39 S.W.3d 332, 337 (Tex. App.-Houston [1st Dist.] 2001, pet. denied). Generally, a trial court ...


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