                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00034-CV


JOSH AND KELLI SAVERING,                                            APPELLANTS
CHATTANYA CHAVDA,
PANNABEN NANCHA, PHILLIP
AND LISA KLOTZ, PAUL
ARSENEAU, ALLISON
BLACKSTEIN, AND JACK A.
MUHLBEIER

                                         V.

CITY OF MANSFIELD                                                       APPELLEE


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        FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
                  TRIAL COURT NO. 348-270155-14

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                           DISSENTING OPINION

                                      ----------

      The majority’s reasoning that the trial court could have determined that

Appellants failed to demonstrate extreme necessity or hardship is premised upon

a misidentification of the type of injunctive relief sought by Appellants. Because I
disagree with this analysis, and because Appellants are otherwise entitled to

temporary injunctive relief, I dissent.

                            I. TYPE OF INJUNCTIVE RELIEF

      The majority agrees with the City’s argument that Appellants must be

seeking mandatory injunctive relief—and were therefore required to demonstrate

extreme necessity or hardship—because they asked that a temporary barricade

be placed on the bridge and that a “no trespassing” sign be placed on the

barricade. See Tri-Star Petroleum Co. v. Tipperary Corp., 101 S.W.3d 583, 592

(Tex. App.—El Paso 2003, pet. denied) (reasoning that mandatory injunction

requires showing of “a clear and compelling presentation of extreme necessity or

hardship”). But Appellants also requested that the trial court enjoin the City from

permitting the public, or encouraging others, to enter the R2 lots by crossing over

the bridge. Appellants’ requested injunctive relief thus contains elements of both

a mandatory and prohibitive character. When identifying the type of injunction

sought under these unique circumstances, a court should resort to the pleadings

and examine the nature of the applicant’s underlying claims to determine which

element of injunctive relief is merely incidental to the primary relief sought. See

id. at 592‒93.

      In this case, Appellants sued the City because it had built a bridge onto

property that is allegedly owned by a different entity, leading to a sharp increase

in the number of nonresidents who utilize the R2 lots for recreation, leading to a

decrease in Appellants’ privacy and safety. These are the primary motivating

                                          2
factors in Appellants’ decision to pursue this litigation. There can be no doubt,

therefore, that the primary injunctive relief sought by Appellants is to prohibit the

City from permitting the public, or encouraging others, to enter the R2 lots by

crossing over the bridge. Sure, placing a barricade and sign are mandatory-type

requests, but they are merely incidental to Appellants’ primary relief because

without them, nothing would notify the public that crossing over the bridge and

onto the R2 lots is prohibited, thus rendering the primary, prohibitive injunctive

relief unenforceable, meaningless, or both. I would hold that Appellants seek a

prohibitive temporary injunction, and I would not require Appellants to

demonstrate extreme hardship or necessity.

         II. APPELLANTS ARE ENTITLED TO TEMPORARY INJUNCTIVE RELIEF

       Further, Appellants conclusively established a probable right to relief on

their trespass claim and a probable, irreparable injury in the interim.

       The purpose of a temporary injunction is to preserve the status quo of the

litigation’s subject matter pending a trial on the merits. Butnaru v. Ford Motor

Co., 84 S.W.3d 198, 204 (Tex. 2002). A temporary injunction is an extraordinary

remedy and will not issue as a matter of right.            Id.   To obtain a temporary

injunction, an applicant must plead and prove (1) a cause of action against the

defendant; (2) a probable right to the relief sought; and (3) a probable, imminent,

and irreparable injury in the interim. Id. To establish a probable right to relief, a

party is not required to prove that it will prevail at a final trial in order to invoke the

trial court’s discretion to grant a temporary injunction. Oil Field Haulers Ass’n v.

                                            3
R.R. Comm’n, 381 S.W.2d 183, 196 (Tex. 1964). Rather, a probable right of

recovery is shown by alleging a cause of action and presenting evidence tending

to sustain it. Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215,

220 (Tex. App.—Fort Worth 2009, pet. denied), cert. denied, 559 U.S. 1036

(2010).

      Whether to grant or deny a temporary injunction is within the trial court’s

sound discretion. Butnaru, 84 S.W.3d at 204. A trial court abuses its discretion if

the court acts without reference to any guiding rules or principles, that is, if the

act is arbitrary or unreasonable.    Low v. Henry, 221 S.W.3d 609, 614 (Tex.

2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).

      Courts apply general rules of contract interpretation when construing a

declaration of covenants. See Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.

1998); Harris Cty. Flood Control Dist. v. Glenbrook Patiohome Owners Ass’n,

933 S.W.2d 570, 580 (Tex. App.—Houston [1st Dist.] 1996, writ denied). The

primary duty is to ascertain the parties’ objective intent from the language used in

the entire instrument. Cherokee Water Co. v. Forderhause, 641 S.W.2d 522,

524‒25 (Tex. 1982); Cooke v. Morrison, 404 S.W.3d 100, 113 (Tex. App.—

Houston [1st Dist.] 2013, no pet.). A court strives to harmonize and give effect to

all the provisions so that none are rendered meaningless. See J.M. Davidson,

Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003).




                                         4
      A.     Probable Right to Relief—Trespass

      Appellants argue in the first part of their only issue that they established a

probable right to relief on their pleaded claim for trespass because the Joint

Venture conveyed the Common Properties—which include the R2 lots—to the

HOA by dedication in the Declaration before conveying the R2 lots by warranty

deed to the Foundation. Because the December 11, 1995 dedication preceded

the December 22, 1995 conveyance by deed, the Joint Venture held no title to

the R2 lots to convey to the Foundation, and the City’s actions on the R2 lots,

including the construction of a bridge over Walnut Creek, constitute trespass,

according to Appellants.1 See United Food & Commercial Workers Int’l Union v.

Wal-Mart Stores, Inc., 430 S.W.3d 508, 512 (Tex. App.—Fort Worth 2014, no

pet.) (“Trespass to real property requires a showing of an unauthorized physical

entry onto the plaintiff’s property by some person or thing.”).

      Relying upon a number of provisions contained in the Plat and the

Declaration, the City responds that the Joint Venture did not intend to convey the

R2 lots to the HOA through the Declaration. Therefore, according to the City, the

Joint Venture’s deeds legally transferred the R2 lots to the Foundation, which

later transferred them to the Park Corporation, which owns them today.

      The primary dispute between the parties thus centers on whether the Joint

Venture intended to convey the R2 lots to the HOA by dedication in the

      1
       By pleading a cause of action for trespass, Appellants satisfied the first
requirement for temporary injunctive relief. See Butnaru, 84 S.W.3d at 204.

                                          5
Declaration. A proper application of the relevant rules of construction establishes

that the Declaration conveyed the R2 lots to the HOA.

             1.     Standing

      Relying on Declaration section 10.02, the City argues that Appellants lack

standing to challenge the HOA Board’s Declaration-derived determination that it

does not own the R2 lots. Section 10.02 states in relevant part,

      The Board shall have the right, power and authority to determine all
      questions arising under or in connection with this Declaration and to
      construe and interpret the provisions thereof, and any determination,
      construction or interpretation made by the Board, in the absence of
      an adjudication by a court of competent jurisdiction that any such
      action was an abuse of discretion, shall be binding on the Owners.

According to the City, Appellants “manifestly do not have the right to interpret the

provisions of the Declaration, and that is precisely what they are attempting to do

by this action.”

      Appellants rely on Declaration section 10.04 and respond that they have

standing to seek injunctive relief both in contract and by law. Section 10.04

states in relevant part,

             Declarant, the [HOA], and the Owners shall have the right, but
      not the obligation, to enforce the covenants and restrictions set out
      in this Declaration. Enforcement may be made by any proceedings
      at law or in equity against any Person violating or attempting to
      violate any part of this Declaration, as such may be amended or
      modified, to restrain or enjoin violations thereof, to recover damages,
      or to seek such other relief available pursuant to applicable law.
      Damages shall not be deemed adequate compensation for any
      breach or violation of any provision of this Declaration, and
      Declarant, the [HOA], and each Owner . . . shall be entitled to relief
      by way of injunction, as well as any other remedy either at law or in
      equity. [Emphasis added.]

                                         6
      Appellants are proceeding within the terms of the Declaration. Section

10.02 certainly gives the HOA the authority to interpret the Declaration, but the

HOA’s interpretation is binding only “in the absence of final adjudication by a

court of competent jurisdiction” that concludes otherwise. Section 10.02 thus

contemplates (i) a scenario in which a homeowner’s interpretation of the

Declaration is at odds with the HOA’s interpretation of the Declaration and

(ii) that homeowner-initiated litigation successfully challenging the HOA’s

interpretation of the Declaration will avoid the binding effect thereof. Section

10.04, which is located in the very same article as section 10.02, expressly gives

a homeowner the right alluded to by section 10.02—the right to enforce the

provisions of the Declaration, which action may or may not involve challenging an

HOA interpretation of the Declaration.

      Here, Appellants sued the City in a court of competent jurisdiction, and

each of their trespass, suit to quiet title, trespass to quiet title, declaratory

judgment, and inverse condemnation claims challenge or implicate the HOA’s

interpretation of the Declaration that the HOA does not own the R2 lots. By

pursuing such relief, Appellants are in effect seeking—even if indirectly—an

adjudication that the HOA’s interpretation of the Declaration that the HOA does

not own the R2 lots is erroneous. Further, nothing in either section 10.02 or

section 10.04, or in Article X, conditions Appellants’ ability to file suit and seek

this temporary injunctive relief upon only a prior adjudication of the HOA’s


                                         7
Declaration interpretation. Giving effect to all of section 10.02, reconciling it with

section 10.04, and considering the nature of, and the relief sought by, Appellants’

claims, section 10.02 is no impediment to Appellants’ application for temporary

injunctive relief. See J.M. Davidson, 128 S.W.3d at 229 (reasoning that when

construing written agreement, no single provision taken alone will be given

controlling effect and that all provisions must be considered with reference to

whole instrument).

             2.      Public Recreation Use

      The City argues that the Joint Venture could not have intended to convey

the R2 lots to the HOA because the Joint Venture’s “clear and express intent was

to exclude the R2 lots from the Declaration, and instead to designate them for

‘public recreation use.’” As support, the City observes that “the Declaration by its

express terms affects only ‘the Property’” and that the R2 lots were excluded

from the Declaration’s definition of that term.2 The City improperly blurs the

careful distinction that the Declaration intentionally draws between the Property

and the Common Properties. The definition of Property excludes the R2 lots, but

it also does not include the Common Properties. The Declaration provides a

separate, specific, and detailed definition of Common Properties, which includes




      2
       The Declaration states that “Property” “shall mean the real property
situated in the City of Mansfield, Tarrant County, Texas, more particularly
described on Exhibit ‘A’ attached hereto.” The description includes the R1 lots
(and several other numbered lots) but not the R2 lots.

                                          8
the streets, any guardhouses, the entry areas, the improvements installed by the

HOA, and the following:

            Any and all greenbelt areas, bicycle and/or jogging paths,
      landscape easements, floodways, creeks, drainage ways, open
      spaces, pedestrian access easement or other similar areas as
      shown on the Plat (as hereinafter defined) of the Subdivision,
      whether within or surrounding or along the boundaries of the
      Property . . . . [Emphasis added.]

This distinct definition demonstrates that the Joint Venture intended to

differentiate and segregate the Common Properties from the Property.

Therefore, if the Declaration included the R2 lots in the Common Properties, as

Appellants argue, then it follows that the Joint Venture purposefully excluded

them from the definition of Property. Construing the Declaration as a whole, the

R2 lots’ exclusion from the definition of Property merely expresses the Joint

Venture’s intent to do just that—exclude the R2 lots from the definition of

Property, not from the entire Declaration.

      The City next points to the Plat’s first Condition for Approval, which states

that the R2 lots “are inten[d]ed for public recreation use and shall not be

converted to other uses. No building permits will be issued for any of said lots

unless it is for construction related to public recreation use.” The City contends

that “[t]his restriction is directly contrary to the [Appellants’] suggestion that the

[Joint Venture’s] intent was to allow only private use of the R2 lots by the

homeowners.” The City also argues that the Joint Venture “was no longer free to

convey the R2 lots to the HOA” once it filed the Plat containing the first Condition


                                          9
of Approval because the Plat “set aside [the R2 lots] for the public’s use.” The

former argument overlooks a crucial distinction; the latter misconstrues the Plat’s

first Condition. Appellants do not argue that the R2 lots were intended for private

use; they argue that the Joint Venture conveyed the R2 lots to the HOA by

dedication in the Declaration. As for the Plat’s first Condition, it does not prohibit

conveyance of the R2 lots; it prohibits their development for nonrecreational

uses. The Joint Venture’s intent as expressed in the Plat’s first Condition is not

compromised by a mere conveyance of the R2 lots to the HOA. Further, there is

nothing in the Declaration that somehow associates a conveyance of the R2 lots

to the HOA with a Plat-prohibited development of the R2 lots for nonrecreational

purposes.

      As further evidence that the Joint Venture did not intend to convey the R2

lots to the HOA, or to demonstrate the Joint Venture’s intent to set aside the R2

lots for public recreation use, the City asserts that there is no mention in either

the Declaration or the Plat of the HOA having any maintenance responsibility for

the R2 lots.      However, Declaration section 9.04 unambiguously imposes the

responsibility to maintain the Common Properties upon the HOA. Appellants

argue that the Common Properties include the R2 lots, and I would conclude that

they do, so section 9.04 is sufficient to account for the R2 lots’ maintenance.

             3.      Declaration’s Conveyance of Common Properties to HOA

      For the HOA to own the R2 lots, the Declaration must have conveyed the

Common Properties to the HOA. Appellants argue that the Declaration did so.

                                         10
The City argues that the Declaration did not do so. Declaration section 5.01

states as follows:

      5.01 Title to the Common Properties. The [HOA] will hold record
      fee simple title to the Streets and all other Common Properties, and
      all portions of the Property which are not within any of the Lots as
      shown on the Plat, all of which have been or will be dedicated to the
      [HOA] as shown on and pursuant to, the Plat, subject to the
      easements set forth is this Article and in Article VIII hereof.
      Declarant or the [HOA] shall have the right to execute any open
      space declarations applicable to the Common Properties owned by,
      or dedicated to, the Association which may be permitted by law in
      order to reduce property taxes. [Emphasis added.]

Appellants argue that the Declaration intended section 5.01 to affect a present

transfer of the Common Properties. The City argues that the Joint Venture did

not intend section 5.01 as a present conveyance because “will hold” indicates a

future tense and “have been or will be” are terms signifying either past or future

actions. According to the City, “any conveyance to the HOA was to occur before

or after the filing of the Declaration, not by the Declaration.”         The City’s

construction is faulty.

      I agree with Appellants that “the word ‘will’ does not always refer to a future

event; it is an ordinary word of promise that may be used to create a contractual

obligation.”   See Webster’s Third New Int’l Dictionary 2616 (2002).           Thus,

whether the Joint Venture intended “will hold” to refer to a future event depends

on how, and in what context, the term is used. See Provident Life & Accident

Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003) (reasoning that contract

provisions should be read in context, not in isolation). The City argues that the


                                        11
latter part of section 5.01’s first sentence—“will be dedicated to the [HOA]”—

demonstrates that “will hold” means a future event, but that argument is itself

predicated upon a defective reading of section 5.01.         Specifically, the City

construes section 5.01 as providing that “[t]he [HOA] will hold record fee simple

title to the Streets and all other Common Properties, . . . all of which have been

or will be dedicated to the Association as shown on and pursuant to, the Plat.”

But section 5.01 is more properly read as providing that the HOA will hold fee

simple title to (1) the Streets, (2) the Common Properties, and (3) “all portions of

the Property which are not within any of the Lots as shown on the Plat, all of

which have been or will be dedicated to the Association as shown on and

pursuant to, the Plat.” See Samano v. Sun Oil Co., 621 S.W.2d 580, 581‒82

(Tex. 1981) (stating that “modifiers are intended to refer to the words closest to

them in the sentence”). The last antecedent rule “can be overcome by indicia of

other meaning,” but this construction is supported by several other sections in the

Declaration. Mikob Props., Inc. v. Joachim, 468 S.W.3d 587, 596 (Tex. App.—

Dallas 2015, no pet.).

      Section 6.01(q) provides that the HOA’s Board “shall have” the exclusive

right, power, and duty “[t]o own fee simple title, or an easement interest, in the

Common Properties.” Section 6.01(q) thus gives the HOA the express authority

to own the Common Properties, and section 5.01 simultaneously carried out the

Declaration’s conveyance.



                                        12
      Declaration section 4.10 gives the City the right to assume the HOA’s

obligation to maintain the Common Properties if the HOA dissolves and the

Common Properties are not either “dedicated to and accepted by an appropriate

municipal corporation, public agency, authority or utility” or “conveyed to another

organization or entity which assumes all obligations imposed hereunder upon

the” HOA. Thus, the HOA’s dissolution is a predicate occurrence for either a

dedication or a conveyance of the Common Properties.

      Further, section 6.01(k) gives the HOA’s Board the power to “protect or

defend the Common Properties from loss or damage by suit or otherwise”;

section 6.01(l) gives the HOA’s Board the power to “make reasonable rules and

regulations for the operation and use of the Common Properties”; section 4.02

requires homeowners to pay assessments to the HOA for the improvement and

maintenance of the Common Properties; and section 9.04 imposes the

responsibility to maintain the Common Properties upon the HOA, something it

has done in part for years. While none of these provisions considered in isolation

are determinative, considered together, they are indicative of the Joint Venture’s

intent to convey the Common Properties to the HOA.3

      The City alternatively argues that the terms “as shown on and pursuant to

the Plat” “clearly indicate that the Plat, not the Declaration, was intended as a

      3
        Arguing that section 5.01 is “erroneous,” the City contends that the phrase
“all portions of the Property which are not within any of the Lots as shown on the
Plat” is surplusage because no portion of the Property lies outside of the lots.
The argument is unpersuasive in light of the last antecedent rule.

                                        13
conveyance.” According to the City, “[n]o conveyance by the [Joint Venture] of

the private streets and private easements, whether by deed or through the

Declaration, was necessary because the private streets and easements had

already been conveyed through the Plat.” However, as explained immediately

above, the terms “as shown on and pursuant to the Plat” modify “all portions of

the Property which are not within any of the Lots as shown on the Plat,” not the

Common Properties.        Moreover, it cannot be ignored that the Joint Venture

separately identified the Common Properties and “all portions of the Property

which are not within any of the Lots as shown on the Plat,” purportedly indicating

that they are not identical forms of property.      Thus, there is no conflict in

construing the Declaration to convey the Common Properties but reading the Plat

to convey “all portions of the Property which are not within any of the Lots as

shown on the Plat.”

      Finally, referencing the Plat, the City argues that “rather than dedicating or

conveying fee title to the private common property, the [Joint Venture] conveyed

easement interests only.” If this is an accurate interpretation of the Plat, then it

supports Appellants’ argument that the Declaration was free to convey fee title to

the R2 lots to the HOA.

      I would hold that the Joint Venture intended to convey the Common

Properties to the HOA by dedication in the Declaration.




                                        14
            4.    R2 Lots Included in Definition of Common Properties

      The City next argues that even if the Declaration conveyed the Common

Properties to the HOA, the Common Properties do not include the R2 lots.

However, as set out above, Article I, subparagraph (k)(ii) of the Declaration

defines Common Properties to mean all “greenbelt areas, bicycle and/or jogging

paths, landscape easements, floodways, creeks, drainage ways, open spaces,

pedestrian access easement or other similar areas as shown on the Plat . . . ,

whether within or surrounding or along the boundaries of the Property.”

[Emphasis added.]    Michael Goodrich testified at the hearing on Appellants’

amended application, and the record reflects, that several items included in the

definition—the greenbelt areas, bicycle and jogging paths, and floodways—

correspond to areas that are located within, or that entirely encompass, the R2

lots. Indeed, the jogging path is located in the R2 lots, the floodways completely

encompass the R2 lots, and Walnut Creek and its trees and grass border

Creekwood’s northern and western boundaries. Moreover, the R2 lots—which

are undeveloped, open spaces—surround or run along the boundaries of the

Property.4 Goodrich consequently opined, and I agree, that these numerous




      4
       The City argues that this language—“within or surrounding or along the
boundaries of the boundaries of the Property”—“could easily have been either
intended to simply cover any strips or gores that were excluded, or perhaps it
was inadvertently held over from a prior draft of the Declaration before the R2
lots were carved out of the R1 lots.” This argument is based on speculation, not
the language contained in the Declaration.

                                       15
items contained in the definition of Common Properties are not boilerplate but

were “clearly tailored” for this particular development.

      The City acknowledges that the definition of Common Properties “arguably

could include portions of the R2 lots,” but it nevertheless contends that the Joint

Venture did not intend to include the R2 lots in the definition of Common

Properties because the R2 lots are excluded from the terms “Property” and

“Subdivision.”5 This is a slight variation of the same unpersuasive argument that

we already addressed. For the same reasons, the R2 lots’ exclusion from the

terms “Property” and “Subdivision” does not evidence the Joint Venture’s intent

to exclude the R2 lots from the meaning of Common Properties.

      The City also points to the definitions of “Lot” or “Lots” and “Total Lots,” all

of which expressly exclude from their meaning any lots “shown on the Plat as

intended for public recreation use or public park purposes,” and argues that this

demonstrates the Joint Venture’s intent to limit the scope of the Declaration

because the Plat’s first Condition designated the R2 lots for public recreation

use. Once again, the Plat’s first Condition prohibits the R2 lots’ development for

nonrecreational use; it does not prohibit the R2 lots from being conveyed to the




      5
        The Declaration defines “Subdivision” as “the Property as shown on the
Plat, to be commonly known as ‘The Arbors of Creekwood ‒ Gated Community.’”

                                         16
HOA, nor is the Declaration incompatible with a conveyance of the R2 lots to the

HOA.6

      In a related argument, the City asserts that the Plat’s first Condition

designating the R2 lots for public recreation use, which is specific, controls over

the Declaration’s definition of Common Properties, which is more general. The

rule of contract construction that the City seeks to apply is inapposite because,

as explained, the Plat’s first Condition of Approval does not conflict with the

definition of Common Properties. See Sefzik v. Mady Dev., L.P., 231 S.W.3d

456, 462 (Tex. App.—Dallas 2007, no pet.) (stating that specific-controls-over-

general rule applies when contract provisions conflict).

      I agree with Appellants that the R2 lots are included within the definition of

Common Properties.

             5.     Existence of HOA

      The City also argues that the Declaration could not have conveyed the R2

lots to the HOA because the HOA “didn’t exist at the time the Declaration was

filed.”7 See Parham Family Ltd. P’ship v. Morgan, 434 S.W.3d 774, 787 (Tex.




      6
       The City observes a potential conflict between the boundaries of the R1
residential lots, which partially lie within the floodways, and the definition of
Common Properties, which expressly includes the floodways. If this is a conflict
between the Plat and the Declaration, it did not arise as a result of this litigation,
and our court has no ability, authority, or responsibility to re-write the terms of the
documents.
      7
      Insofar as the City argues that the R2 lots could not have been conveyed
because the HOA had not been formed when the Plat was filed, this is of no
                                       17
App.—Houston [14th Dist] 2014, no pet.).        The Joint Venture executed the

Declaration on December 6, 1995, the very same day that the incorporator

created the document pursuant to which the HOA’s Articles of Incorporation were

drafted. The Declaration became effective upon its filing on December 11, 1995,

just one day before the Articles of Incorporation were executed and four days

before they were filed. Robert McCaslin signed the Declaration as Managing

Partner of the Joint Venture, and the Articles of Incorporation identify him as the

lone initial member of the HOA’s Board. The HOA’s Articles of Incorporation

were filed before the Joint Venture executed the deed to the Foundation. This is

not a case in which the HOA’s Articles of Incorporation were filed weeks, months,

or years after the Declaration was filed, or were not even filed at all. The record

plainly demonstrates that all of these events occurred contemporaneously and

involved the same individuals.      We should decline to ignore the realities

associated with the complicated process of formalizing a development and to

resolve this challenging case upon a hypertechnical reading of the rule relied

upon by the City.8




consequence because Appellants argue that the Declaration conveyed the R2
lots to the HOA, not the Plat.
      8
        In any event, the cases cited by the City are factually distinguishable. In
one case, the grantee-entity never existed. See Parham Family Ltd. P’ship, 434
S.W.3d at 777, 787. In another case, the grantee had a statutory right to
reinstate its corporate charter after it had been forfeited. See Lighthouse Church
of Cloverleaf v. Tex. Bank, 889 S.W.2d 595, 599‒601 (Tex. App.—Houston [14th
Dist.] 1994, writ denied). And in another case, the deed conveyed land to
                                           18
      The City argues that the HOA could not own the R2 lots because the

HOA’s Articles of Incorporation “do no express any intent that the [HOA] actually

own any real property.” However, the Articles of Incorporation provide that the

purpose for organizing the HOA is “[t]o define and enforce the Deed Restrictions

of [Creekwood] and carry out the duties authorized therein.” [Emphasis added.]

The Declaration expressly gives the HOA the right, power, and duty to own fee

simple title in the Common Properties. The HOA’s ownership of the R2 lots is

therefore not inconsistent with the purpose of the Articles of Incorporation.

              6.   Statute of Frauds

      The City alternatively argues that even if Declaration section 5.01 were

intended as a present conveyance of the R2 lots, it violates the statute of frauds

because the definition of Common Properties contained in Article I,

subparagraph (k)(ii), and set out above, “is too vague to identify the property

described.”

      An instrument that conveys land must contain a sufficient legal description,

or it is void under the statute of frauds. Greer v. Greer, 144 Tex. 528, 530, 191

S.W.2d 848, 849 (1946).       “A property description is sufficient if the writing

furnishes within itself, or by reference to some other existing writing, the means

or data by which the particular land to be conveyed may be identified with

reasonable certainty.” AIC Mgmt. v. Crews, 246 S.W.3d 640, 645 (Tex. 2008).


individuals, not to a yet-to-be-created entity. See William Cameron & Co. v.
Trueheart, 165 S.W. 58, 61 (Tex. Civ. App.—Austin 1914, no writ).

                                         19
In other words, “[i]f enough appears in the description so that a party familiar with

the locality can identify the premises with reasonable certainty, it will be

sufficient.” Gates v. Asher, 154 Tex. 538, 541, 280 S.W.2d 247, 248‒49 (1955).

The writing does not have to list metes and bounds to be enforceable. Nguyen v.

Yovan, 317 S.W.3d 261, 267 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

Extrinsic evidence may be used “only for the purpose of identifying [the property]

with reasonable certainty from the data” contained in the conveying instrument,

“not for the purpose of supplying the location or description of the” property.

Morrow v. Shotwell, 477 S.W.2d 538, 541 (Tex. 1972).

      The City argues that the definition of Common Properties is not sufficiently

specific because it does not identify the R2 lots “by tract survey and county” or

contain information regarding their “size, shape, and boundaries.” The test for

sufficient specificity does not require mathematical certainty. See Gates, 154

Tex. at 542, 280 S.W.2d at 249. Although certain cases may require a survey

and county identification, this is not one of them. As explained above, several

items included in the definition of Common Properties correspond to, and

specifically identify, areas that are actually located within, or that entirely

encompass, the R2 lots. The language is not merely boilerplate, and there is no

dispute that the language references property that is contained within

Creekwood.




                                         20
       The City contends that the phrase “as shown on the Plat . . . of the

Subdivision” is of no help because the Plat does not show the location of the

greenbelt areas or jogging paths. But the Plat identifies Walnut Creek’s location

and the floodways, and according to Goodrich, considering the Declaration’s

Article I, subparagraph (k)(ii) and the Plat, and having seen the property, “all

those taken together, you can identify [the greenbelt areas] clearly.” Moreover, in

Templeton v. Dreiss, the court of appeals explained,

       [W]here a map, plat, plan or survey of the premises conveyed is
       adequately referred to [in the] deed, it is usually to be considered as
       a part of the latter instrument and construed in connection therewith
       and the courses, distances, or other particulars which appear on
       such map, plat, plan or survey, are as a general rule to be
       considered as the true, or part of the true, description of the land
       conveyed.

961 S.W.2d 645, 660 (Tex. App.—San Antonio 1998, pet. denied) (citing

Pritchard v. Burnside, 140 Tex. 212, 167 S.W.2d 159, 162 (1943)).                       If this

authority is still relevant to this inquiry, the Plat clearly identifies the R2 lots.

       The City also argues that the definition of Common Properties references a

plat that is incapable of being identified because “Plat” is defined by the

Declaration to mean “the final plats of The Arbors of Creekwood ‒ Gated

Community,” but there is no plat on file in Tarrant County that is designated as a

plat of “The Arbors of Creekwood ‒ Gated Community.” Both parties repeatedly

cite to and rely upon the same plat that was entered into evidence at the hearing

on Appellants’ amended application for a temporary injunction—the one identified

as “Plat Revision, Lots 52-R1, through . . . 71-R2, Arbors of Creekwood Phase

                                            21
Two and Five.” Referencing that plat, at the hearing on Appellant’s application,

the City acknowledged during its closing argument that “[w]e all believe we have

the correct plat in front of us.” Although the Declaration’s definition of “Plat”

references an incorrect plat, the definition of “Property,” which is described in

Exhibit A to the Declaration, references the “Arbors of Creekwood Phase Two

and Five” plat. Liberally construing the Declaration to give effect to its purpose

and intent, the Declaration properly refers to the plat that is referenced in the

definition of “Property.” See Leake v. Campbell, 352 S.W.3d 180, 184 (Tex.

App.—Fort Worth 2011, no pet.).

      I would conclude that the Declaration describes the Common Properties

with reasonable certainty. See Gates, 154 Tex. at 541, 280 S.W.2d at 248‒49.

            7.     Ambiguity

      In the City’s final alternative argument, it contends that “[i]f there is any

question as to whether the Declaration was intended as a conveyance, the

provisions of the Declaration are ambiguous because the language is subject to

two or more interpretations.”

      If a written contract is so worded that it can be given a definite or certain

legal meaning, then it is not ambiguous. Nat’l Union Fire Ins. Co. of Pittsburgh,

PA v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). A contract is not

ambiguous simply because the parties disagree over its meaning.            Dynegy

Midstream Svcs., Ltd v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009).



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       In light of all of the above, the Joint Venture unambiguously intended to

convey the R2 lots to the HOA by dedication in the Declaration. I would therefore

decline to consider the City’s extrinsic evidence for purposes of determining

whether the Joint Venture intended such a conveyance. See R&P Enters. v.

LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex. 1980) (“If after applying

the established rules of interpretation, a written instrument remains reasonably

susceptible to more than one meaning, extraneous evidence is admissible to

determine the true meaning of the instrument.”).

       Because the Joint Venture intended to convey the R2 lots to the HOA

through a dedication in the Declaration, and because the effective date of the

Declaration preceded the Joint Venture’s deed to the Foundation, I would hold

that Appellants established a probable right to relief on their trespass claim. See

Oil Field Haulers Ass’n, 381 S.W.2d at 196; Frequent Flyer Depot, 281 S.W.3d at

220.

       B.    Probable Injury

       In the other part of their only issue, Appellants argue that they met their

burden to show that a probable, irreparable injury will result before trial absent a

temporary injunction. Probable injury includes the elements of imminent harm,

irreparable injury, and no adequate remedy at law. Shor v. Pelican Oil & Gas

Mgmt., LLC, 405 S.W.3d 737, 750 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

An injury is irreparable if the injured party cannot be adequately compensated in



                                        23
damages or if the damages cannot be measured by any certain pecuniary

standard. Butnaru, 84 S.W.3d at 204.

      Appellants pleaded that the Park Corporation, in conjunction with the City,

constructed and affixed a permanent structure on property that it does not own—

the R2 lots.   The City argues that damages would be sufficient to redress

Appellants’ alleged injury for trespass, but this ignores the very reason why

Appellants initiated this lawsuit.   The evidence at the hearing on Appellants’

amended application demonstrates that the construction and opening of the

bridge has led to a dramatic increase in the number of people accessing the R2

lots on both weekdays and weekends, destroying Appellants’ sense of privacy.

Where a trespass invades the possession of a person’s land, or destroys the use

and enjoyment of the land, an injunction is a proper remedy. Beathard Joint

Venture v. W. Houston Airport Corp., 72 S.W.3d 426, 432 (Tex. App.—

Texarkana 2002, no pet.); see Yarto v. Gilliland, 287 S.W.3d 83, 97 (Tex. App.—

Corpus Christi 2009, no pet.) (holding that the potential loss of rights in real

property is a probable, imminent, and irreparable injury that qualifies a party for a

temporary injunction); Rus-Ann Dev., Inc. v. ECGC, Inc., 222 S.W.3d 921, 927

(Tex. App.—Tyler 2007, no pet.) (same); see also Seghers v. Kormanik, No. 03-

13-00104-CV, 2013 WL 3336845, at *5 (Tex. App.—Austin June 26, 2013, no

pet.) (mem. op.) (same).

      Appellants thus met their burden to show that a probable, irreparable injury

will result before trial absent a temporary injunction. Accordingly, I would sustain

                                         24
Appellants’ only issue and hold that the trial court abused its discretion by

denying Appellants’ amended application for a temporary injunction. Because

the majority holds otherwise, I respectfully dissent.



                                                    /s/ Bill Meier
                                                    BILL MEIER
                                                    JUSTICE

DELIVERED: January 21, 2016




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