Appeal from the 334th District Court Harris County, Texas
Trial Court Cause No. 2016-17197
consists of Justices Jewell, Zimmerer, and Spain.
CHARLES A. SPAIN, JUSTICE
appeal largely turns on standing and appellant's failure
to address all grounds for summary judgment on appeal. In the
trial court, appellant Dealer Computer Services, Inc.
("Dealer CS") asserted two claims against its
across-the-street neighbor, DCT Hollister Rd, LLC
("DCT"), and DCT's tenant, Staples, Inc.
("Staples"). Dealer CS claimed DCT and Staples had
violated deed restrictions and created a nuisance. Dealer CS
also asserted claims for negligence and gross negligence
against its community association (Northwest Crossing
Association, Inc.), community association directors (Keith
Grothaus, Jared Hothan, and Victoria Brown), and property
management company (FirstService Residential Houston, Inc.).
The negligence claims were based on the alleged failure of
these parties to enforce deed restrictions. In three separate
motions, all defendants moved for summary judgment. The trial
court granted each motion, dismissing Dealer CS's claims
with prejudice. The trial court also awarded attorney's
fees to defendants' attorneys.
issues, Dealer CS appeals the dismissal of its claims on
summary judgment and the awards of attorney's fees. We
conclude Dealer CS lacks standing to assert deed-restriction
violations. Because the trial court's award of
attorney's fees was authorized by deed restrictions not
enforceable by, or applicable to, Dealer CS, we reverse the
trial court's award of attorney's fees. With respect
to Dealer CS's other causes of action, we affirm the
judgment because Dealer CS failed to address all grounds on
which summary judgment may have been granted. Accordingly, we
affirm the dismissal of claims and reverse the award of
CS owns an office building in the community known as
Northwest Crossing. In 2014, DCT acquired the property and
warehouse across the street from Dealer CS's office
building. DCT's tenant, Staples, uses the warehouse as a
"fulfillment center." In 2015, DCT and Staples
expanded the warehouse.
Crossing contains four sections built in three different
stages. Sections 1 and 2 were established in 1975 under
section 1 and 2 deed restrictions. Section 3 was established
in 1980 with its own set of restrictions. Section 4 was
established in 1981 with yet another set of restrictions.
Although DCT's warehouse is across the street from Dealer
CS's office building, the warehouse and the office
building are in different sections of Northwest Crossing.
DCT's warehouse is in section 3 while Dealer CS's
office building is in section 4. Section 3 is governed by
section 3 restrictions, and section 4 is governed by section
Crossing Association, Inc. (the "Association")
administers deed restrictions in all sections of Northwest
Crossing. The enforcement provision of section 3 restrictions
provides that the Association may enforce section 3
restrictions "individually and as representative of all
Property Owners in Northwest Crossing, Section 3." The
enforcement provision further provides that any section 3
property owner may enforce the restrictions if the
Association fails to do so.
2016, weeks after the completion of the warehouse expansion,
Dealer CS filed suit against DCT and Staples, alleging the
expansion violated section 3 restrictions and created a
nuisance. According to Dealer CS, the expansion violated the
restrictions because: (1) construction of the building was
not approved in writing; (2) loading docks face the street
and neighboring property; (3) loading docks lack screening;
(4) there is encroachment on setback lines; (5) there is
inadequate "green space"; and (6) there is
inadequate parking. Dealer CS also included as defendants the
Association; its directors, Grothaus, Hothan and Brown; and
the property management company, FirstService Residential
Houston, Inc. (collectively, "Association
Defendants"). Dealer CS alleged Association Defendants
were liable for negligence and gross negligence in failing to
enforce the deed restrictions.
Staples, and Association Defendants filed three separate
motions for traditional summary judgment, each of which the
trial court granted in full. The trial court rendered final
judgment in favor of all defendants and awarded
attorney's fees to defendants.
CS presents nine issues on appeal. Dealer CS argues that the
trial court erred by deciding the following issues in favor
of DCT, Staples, and Association Defendants on summary
judgment: (1) standing; (2) amendment; (3) duty; (4)
nuisance; (5) limitations; (6) laches, waiver, and estoppel;
and (7) settlement and release. Dealer CS also argues that
the trial court erred when it (8)overruled Dealer CS's
objections to untimely filed evidence,  and (9) awarded
attorney's fees based on summary monthly totals.
Standard of review
review a trial court's granting of a summary judgment de
novo. Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005). When reviewing a summary judgment, we
take as true all evidence favorable to the nonmovant,
indulging every reasonable inference and resolving any doubts
in the nonmovant's favor. Id. Where, as here, a
trial court's order granting summary judgment does not
specify the ground or grounds relied on for its ruling, we
must affirm summary judgment if any of the grounds advanced
is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569
(Tex. 1989). We must affirm if an appellant fails to
challenge all grounds on which summary judgment may have been
granted. Malooly Bros., Inc. v. Napier, 461 S.W.2d
119, 121 (Tex. 1970).
Courts properly render traditional summary judgment if the
motion and evidence show there is no genuine issue of
material fact and the movant is entitled to judgment as a
matter of law. See Tex. R. Civ. P. 166a(c);
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548
(Tex. 1985). A defendant moving for summary judgment must
conclusively disprove at least one element of the
plaintiff's claim or prove every element of an
affirmative defense. Friendswood Dev. Co. v. McDade &
Co., 926 S.W.2d 280, 282 (Tex. 1996).
the movant facially establishes its right to summary
judgment, the burden shifts to the nonmovant to present a
material fact issue that precludes summary judgment. See
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d
671, 678-79 (Tex. 1979). Evidence raises a genuine issue of
fact if reasonable and fair-minded jurors could differ in
their conclusions considering all the summary-judgment
evidence. See Goodyear Tire & Rubber Co. v.
Mayes, 236 S.W.3d 754, 755-57 (Tex. 2007) (per curiam).
evidence. A no-evidence motion for summary judgment is
essentially a motion for a pretrial directed verdict and is
governed by the standards of Texas Rule of Civil Procedure
166a(i). Timpte Indus., Inc. v. Gish, 286 S.W.3d
306, 310 (Tex. 2009). After an adequate time for discovery, a
party without the burden of proof may, without presenting
evidence, seek summary judgment on the ground that there is
no evidence to support one or more essential elements of the
nonmovant's claim or defense. Tex.R.Civ.P. 166a(i).
the movant specifically states the elements for which there
is no evidence, the burden shifts to the nonmovant to produce
more than a scintilla of probative evidence raising a genuine
issue of material fact on those elements. See id.;
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582
(Tex. 2006). More than a scintilla of evidence exists when
reasonable and fair-minded persons could differ in their
conclusions. Dallas Morning News, Inc. v. Tatum, 554
S.W.3d 614, 625 (Tex. 2018). Less than a scintilla of
evidence exists if the evidence creates no more than a mere
surmise or suspicion of fact regarding a challenged element.
Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d
167, 172 (Tex. 2003). Unless the nonmovant produces
summary-judgment evidence that raises a genuine issue of
material fact, the trial court must grant summary judgment.
Tex.R.Civ.P. 166a(i). If the nonmovant satisfies its burden
of production on the no-evidence motion, then the trial court
cannot properly grant summary judgment. See Smith v.
O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009).
we address whether Dealer CS, who owns property in section 4,
can enforce deed restrictions applicable to section 3. On
summary judgment, DCT and Staples argued that Dealer CS
lacked standing to assert claims based on violations of
section 3 deed restrictions because Dealer CS did not own
property in section 3 and was not a party to section 3 deed
restrictions. Dealer CS argues on appeal that the trial court
erred in granting summary judgment based on lack of standing.
Dealer CS concedes that it does not own property in section
3, but argues that it nonetheless has standing to seek
enforcement of section 3 deed restrictions. Dealer CS
contends that the four sections of Northwest Crossing were
developed in accordance with a common scheme or plan of
development, and therefore, each property owner in the
development has standing to enforce section deed restrictions
against any other property owner in the development. Dealer
CS contends, therefore, that because it owns property in
section 4, it has standing to enforce section 3 restrictions
against DCT and Staples.
is implicit in the concept of subject-matter jurisdiction,
and subject-matter jurisdiction is essential to the authority
of a court to decide a case. Tex. Ass'n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.
1993). We review standing under the same standard
by which we review subject-matter jurisdiction generally.
Id. at 446. Whether the trial court has
subject-matter jurisdiction is a question of law that we
review de novo. Tex. Dep't of Transp. v. A.P.I. Pipe
& Supply, LLC, 397 S.W.3d 162, 166 (Tex. 2013);
Tex. Dep't of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004).
restrictive covenant such as a deed restriction "is a
contractual agreement between the seller and purchaser of
real property." Ski Masters of Tex., LLC v.
Heinemeyer, 269 S.W.3d 662, 668 (Tex. App.-San Antonio
2008, no pet.). Ordinarily, only the contracting parties and
those in direct privity with the contracting parties have
standing to enforce restrictive covenants. See,
e.g., Davis v. Skipper, 83 S.W.2d 318, 321-22
(Tex. 1935); Ski Masters, 269 S.W.3d at 668. Dealer
CS was not party to section 3 deed restrictions, and section
3 deed restrictions do not list Dealer CS as a party who may
enforce section 3 deed restrictions. Dealer CS does not
dispute that it lacks standing under the terms of the deed
restrictions themselves. The enforcement provision of section
3 deed restrictions states that the Association or section 3
property owners may enforce section 3 deed restrictions; they
do not provide for enforcement by section 4 property owners
or property owners in other sections. Dealer CS nonetheless
contends that it has standing to enforce the restrictions
because the property is operated under a common scheme or
plan. DCT and Staples respond that sections 3 and 4 are
separate and distinct subdivisions, pointing out that they
were created in different stages, each with its own set of
Texas law, "[a] property owner may subdivide property
into lots and create a subdivision in which all property
owners agree to the same or similar restrictive covenants
designed to further the owner's general plan or scheme of
development." Jeansonne v. T-Mobile West Corp.,
No. 01-13-00069-CV, 2014 WL 4374118, *4 (Tex. App.-Houston
[1st Dist.] Sept. 4, 2014, no pet.) (mem. op.). When property
has been developed under such a general plan or scheme of
development, each property owner in the development has
standing to enforce deed restrictions against other property
owners within the development.CountryCmty.
Timberland Vill., L.P. v. HMW Special Util. Dist., 438
S.W.3d 661, 667-78 (Tex. App.-Houston [1st Dist.] 2014, pet.
denied); Calvary Temple v. Taylor, 288 S.W.2d 868,
872-73 (Tex. App.-Galveston 1956, no writ). The leading case
outlining this doctrine is Hooper v. Lottman, 171
S.W. 270 (Tex. App.-El Paso 1914, no writ). Curlee v.
Walker, 244 S.W. 497, 498 (Tex. 1922) (quoting
Hooper at length and describing the case as setting
out the "correct rules"); Country Cmty.
Timberland Vill., 438 S.W.3d at 667 (describing
Hooper as the "seminal case regarding
enforcement of restrictive covenants by persons who were not
party to the covenants"); Interstate Circuit, Inc.
v. Pine Forest Country Club, 409 S.W.2d 922, 926 (Tex.
App.-Houston 1967, writ ref'd n.r.e.) ...