Ed-Sal Investments, Ltd. v. Needmore Ranch II, Ltd.--Appeal from 111th Judicial District Court of Webb County

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State: Texas

Court: Texas Northern District Court

Docket No: 04-09-00421-CV

Case Date: 12/15/2010

Plaintiff: Ed-Sal Investments, Ltd.

Defendant: Needmore Ranch II, Ltd.--Appeal from 111th Judicial District Court of Webb County

Preview:MEMORANDUM OPINION
No. 04-09-00421-CV ED-SAL INVESTMENTS, LTD., Appellant v. NEEDMORE RANCH II, LTD., Appellee From the 111th Judicial District Court, Webb County, Texas Trial Court No. 2008-CVQ-001272-D2 Honorable Raul Vasquez, Judge Presiding Opinion by: Sitting: Phylis J. Speedlin, Justice Karen Angelini, Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice

Delivered and Filed: December 15, 2010 REVERSED AND RENDERED, INJUNCTION DISSOLVED Ed-Sal Investments, Ltd. and Needmore Ranch II, Ltd. filed competing motions for summary judgment on the issue of whether a restrictive covenant in a deed prohibiting "commercial petroleum or petroleum byproducts storage yards" includes a truck stop. The trial court granted summary judgment in Needmore Ranch's favor, agreeing that the restrictive covenant prohibited the operation of a truck stop on the property at issue. We reverse the judgment of the trial court, and render judgment in Ed-Sal's favor.

04-09-00421-CV

FACTUAL AND PROCEDURAL BACKGROUND In 2007, Ed-Sal acquired title to two parcels of land in Laredo pursuant to two special warranty deeds. The first parcel consists of 1.5281 acres; the second parcel consists of 4.0219 acres. Both parcels of land are subject to restrictive covenants contained in a separate warranty deed dated January 10, 1994 ("the 1994 warranty deed"). In the 1994 warranty deed, section (d) of the "Restrictive Covenants" specifically prohibits fourteen operations and uses on any portion of the property, including the following: Commercial petroleum or petroleum byproducts storage yards; except in limited amounts which are not stored for resale and are used by the owner or tenant in conjunction with the primary land use, and then only with the written approval of Dolores Development Company. 1 Soon after acquiring the 1.5281 acre tract, Ed-Sal recorded a plat for 1.5255 acres in anticipation of building and operating a truck stop on the land. Ed-Sal's plans for the truck stop called for a restaurant, shower facilities, bathroom facilities, a driver's lounge, possibly a game station or room, laundry facilities, gasoline pumps, as well as a facility that would sell food and beverages. Thereafter, Needmore Ranch notified Ed-Sal that the restrictive covenants in the 1994 deed: (1) require approval of any plat by Needmore Ranch; (2) preclude the platting of any property less than two acres in size; and (3) prohibit the operation of a truck stop on the property. In response, Ed-Sal replatted the property and obtained the necessary approvals from the City of Laredo and Needmore Ranch for the platting. Needmore Ranch continued to withhold approval for the building of a truck stop on the property. Ed-Sal then sued Needmore Ranch, requesting a judgment declaring that Ed-Sal may operate a truck stop on the property and permanently enjoining Needmore Ranch from interfering with Ed-Sal's efforts to build and operate a truck stop. Needmore Ranch answered
1

Needmore Ranch is the successor in interest to Dolores Development Company. -2-

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and counterclaimed seeking a declaration that the 1994 warranty deed prohibited the construction and operation of a truck stop. The parties filed competing motions for traditional summary judgment. Ultimately, the trial court granted summary judgment in favor of Needmore Ranch. The order states that Ed-Sal is permanently enjoined from (1) constructing and/or operating a truck stop on the property and (2) storing, selling and/or reselling gasoline, diesel fuel, commercial petroleum and/or petroleum byproducts on the property. Ed-Sal now appeals. STANDARD OF REVIEW AND APPLICABLE LAW The standards for reviewing summary judgments are well established. We review the trial court's decision to grant summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and it 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). Where both parties file motions for summary judgment and one is granted and one is denied, we may consider all questions presented and render the decision the trial court should have rendered. See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001); Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988) (per curiam) (orig. proceeding). If a movant does not show its entitlement to summary judgment as a matter of law, we must remand the case to the trial court. See Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 829 (Tex. 1970). We review the trial court's construction of a restrictive covenant de novo. Ski Masters of Tex., LLC v. Heinemeyer, 269 S.W.3d 662, 667 (Tex. App.--San Antonio 2008, no pet.); Owens v. Ousey, 241 S.W.3d 124, 129 (Tex. App.--Austin 2007, pet. denied). "[R]estrictive covenants are subject to the general rules of contract construction." Pilarcik v. Emmons, 966 S.W.2d 474,

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478 (Tex. 1998); see also Sonterra Capital Partners, Ltd. v. Sonterra Prop. Owners Ass'n, Inc., 216 S.W.3d 417, 420-21 (Tex. App.--San Antonio 2006, pet. denied). Covenants are examined as a whole in light of the circumstances present when the parties entered into the agreement. Pilarcik, 966 S.W.2d at 478. "We give effect to every sentence, clause, and word of a covenant, and avoid constructions that would render parts of the covenant superfluous or inoperative." Owens, 241 S.W.3d at 130 (citing City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003)). The reviewing court's primary intent is to ascertain and give effect to the true intention of the parties as expressed in the instrument. Owens, 241 S.W.3d at 129. Restrictive covenants are liberally construed to effectuate their purposes and intent. See TEX. PROP. CODE ANN.

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