Opinion issued August 1, 2017




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-15-01109-CV
                            ———————————
      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



                        MEMORANDUM OPINION
      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.




                                          2
                                    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

1
      The site plan is attached as Exhibit “A” to this memorandum opinion.
                                          3
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
                                    4
      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.


                                          5
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




                                          6
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

                                          7
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,



                                         8
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

                                          9
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,

                                         10
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.

                                         11
Abdel-Salam, 39 S.W.3d 332, 337 (Tex. App.—Houston [1st Dist.] 2001, pet.

denied). Generally, a trial court abuses its discretion if it misinterprets or

misapplies the law, or if it acts arbitrarily or unreasonably. Tanglewood Homes

Ass’n, 436 S.W.3d at 69.

                                   BSG’s Appeal

   A. Enforceability of Easement

      In its first issue comprised of four sub-issues, BSG contends that the trial court

committed reversible error in determining that the Declaration created an

enforceable easement and entering judgment in favor of Muniba. Specifically, it

argues that (1) the easement granted in the Declaration does not satisfy the statute of

frauds or the statute of conveyances; (2) the trial court’s imposition of an immovable,

straight-line permanent easement misconstrues the term “uninterrupted” and ignores

the express language in the grant permitting BSG to relocate the easement “from

time to time” as its property is developed; (3) Muniba could not maintain its action

for breach of the Declaration because it breached the Declaration itself; and (4) the

trial court abused its discretion in permanently enjoining BSG from obstructing or

parking upon the easement imposed by the court because the easement grant was

unenforceable under the statute of frauds.




                                          12
      1. Statute of Fraud and Statute of Conveyance

      BSG contends that the easement does not satisfy the statute of frauds and

statute of conveyances because the Declaration fails to sufficiently describe the

location and size of the easement. Thus, BSG argues, the easement is void as a

matter of law.

             a. Applicable Law

      The Statute of Frauds requires that a contract for the sale of real estate be in

writing and signed by the person to be charged. TEX. BUS. & COM. CODE ANN.

§ 26.01 (West 2015). The statute of conveyances likewise dictates that a conveyance

of real estate be in writing and subscribed to and delivered by the conveyor. TEX.

PROP. CODE ANN. § 5.021 (West 2014).2 “An easement is an interest in land which

is subject to the Statute of Frauds.” Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983).

“If an easement does not sufficiently describe the interest conveyed, the conveyance

is void.” Schuhardt Consulting Profit Sharing Plan v. Double Knobs Mountain

Ranch, Inc., 426 S.W.3d 800, 803 (Tex. App.—San Antonio 2014, pet. denied)

(quoting West Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 264 (Tex. App.—




2
      The test for sufficiency of a writing is essentially the same in both the statute of
      frauds and the statute of conveyances. See, e.g., Broaddus v. Grout, 152 Tex. 398,
      258 S.W.2d 308, 309 (1953); W. Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248,
      264 (Tex. App.—Austin 2002, no pet.). Thus, for ease of reference, we refer
      generally to the statute of frauds.

                                           13
Austin 2002, no pet.)). “‘To be sufficient, the writing must furnish within itself, or

by reference to some other existing writing, the means or data by which the land to

be conveyed may be identified with reasonable certainty.’” Id. (quoting Morrow v.

Shotwell, 477 S.W.2d 538, 539 (Tex. 1972)).

      Even if an easement is uncertain, however, a court is not authorized “to

completely ignore the valuable right thereby granted if the clause is still susceptible

of a reasonable construction as to its true intent and meaning.” See Hubert v. Davis,

170 S.W.3d 706, 711 (Tex. App.—Tyler 2005, no pet.). “If enough appears in the

description so that a person familiar with the area can locate the premises with

reasonable certainty, it is sufficient to satisfy the Statute of Frauds.” Schuhardt

Consulting Profit Sharing Plan, 426 S.W.3d at 803; Vinson v. Brown, 80 S.W.3d

221, 227 (Tex. App.—Austin 2002, no pet.). With express easements, “an exact

designation of location is unnecessary, as long as the tract of land that will be

burdened by the easement is sufficiently identified,” and inaction in failing to mark

and establish the boundaries of an easement at the time the grant is made “does not

cause the grant to fail.” Vinson, 80 S.W.3d at 227. Language that clearly shows an

intention to grant an easement is sufficient for the purpose; no special form or

particular words need be employed. See Hubert, 170 S.W.3d at 711.

             b. Analysis

      Paragraph 6 of the Declaration provides, in pertinent part:

                                          14
      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. (Emphasis added)

Parcels 1 and 2 are legally described in their parties’ deeds, respectively, as:

      All of Reserve “B” of ALBERTSON’S CENTER STREET, an addition
      in Harris County, Texas, according to the map or plat thereof recorded
      under Film Code No. 364059 of the Map Records of Harris County,
      Texas, together with all improvements thereon (the “Property”).

      All of Restricted Reserve “A,” of Albertson’s Center Street, a
      subdivision in Harris County, Texas, according to the map or plat
      thereof, recorded under Film Code No. 364059 of the Map Records of
      Harris County, Texas.

      In ruling on Muniba’s request for declaratory relief regarding the easement,

the trial court found that “[t]he Restrictive Covenants are valid and enforceable

contracts which are not ambiguous. The legal descriptions of Parcel 1 and 2 in the

Declaration are sufficient to fix the boundaries of the easement created by the

Declaration” (Conclusion of Law No. 12).

      BSG argues that the Declaration does not specify the dimensions or the

location of the easement granted across Parcel 2 for ingress and egress to Parcel 1

from Spencer Highway. It asserts that the site plan attached to the Declaration and

its amendments does nothing more than reflect two curb cuts (i.e., entrances) from
                                          15
Spencer Highway onto Parcel 2. BSG further argues that even if the depicted curb

cuts could be construed as the starting points of an easement for ingress and egress

from Spencer Highway to Parcel 1, the drawing does not depict either the route or

the boundaries of any easement across Parcel 2 from those curb cuts.

      In examining this issue, we find several cases instructive. In Schuhardt

Consulting Profit Sharing Plan, the plaintiffs alleged adverse possession of an

easement across their property that had been previously expressly granted by their

predecessor-in-interest to the defendant’s predecessor-in-interest. 426 S.W.3d at

802. After a bench trial, the trial court entered judgment in favor of the defendants.

See id. On appeal, the plaintiffs argued, among other things, that the express

easement violated the statute of frauds because it could not be located with

reasonable certainty. See id.

      Initially noting that it was undisputed that the 1979 deed in question

sufficiently identified the tract of land burdened by the easement, the trial court

found that the testimony and photographic exhibits established the starting point of

the easement as well as how the property had been previously used. See id. at 803–

04. The court concluded that the evidence established that a person familiar with

the area could locate the easement with reasonable certainty and held that the

easement did not violate the statute of frauds. See id. at 804.




                                          16
      In West Beach Marina Ltd., property owners sued a marina partnership

following the partnership’s repudiation of a mediated settlement agreement

regarding easement rights across the property where the partnership proposed to

build a marina. 94 S.W.3d at 253–54. The 1958 conveyance, which conveyed 5.873

acres (“Tract 3”) of an 88-acre tract of land, included an easement to the water’s

edge but also the right “to install water lines, boat docks, etc. of the type customarily

used in connection with lake property in the area.” Id. at 264. The partnership

argued that the underwater portions of the easement were not adequately described

and, thus, void under the statute of frauds. See id.

      The court noted that the description of the area beyond the water’s edge on

which the property owners could place boat docks and water lines was less exact

than the description of the property to the water’s edge over which passage was

granted. See id. However, it stated that “[t]he fact that an easement is uncertain does

not authorize the court to completely ignore the right granted, if the easement is

susceptible to a reasonable construction as to its true intent and meaning.” Id. The

court concluded that although the easement did not describe its exact width, it

provided the “framework or skeleton” so the court could resort to parole evidence to

fill in this detail. See id. (noting that statute of frauds requires that easement provide

enough detail that court may determine parties’ intent, essential terms of easement,




                                           17
and adequate description of location of easement without resort to extrinsic

evidence).

        In Hubert, the plaintiff, a subdivision lot owner, sought a declaratory

judgment that he was the sole and exclusive owner of the lot, and the defendant

counterclaimed seeking declaratory judgment recognizing an easement burdening

the plaintiff’s lot. 170 S.W.3d at 706. The restrictive covenants stated, in relevant

part:

        There is hereby granted unto all owners of lots in said subdivision the
        free use, liberty and privilege of passage in and along, over and across
        all of Lot No. 9 Block No. 1 of said Subdivision with free ingress and
        egress to said owners with boats, boat trailers and other vehicles, and
        travel by foot, and the right to temporarily park thereon boats, boat
        trailers, and other vehicles incident to the use of such property as a boat
        landing.

Id. at 711. The court concluded, “[b]y its plain language, paragraph 13 creates by

express grant a burden on a servient estate, Lot 9, for the benefit of the dominant

estates, all other lots in the subdivision.” Id.

        Here, it is undisputed that BSG’s deed provides a valid legal description of

Parcel 2 (the tract of land burdened by the easement). See Vinson, 80 S.W.3d at 227

(noting that with express easements, “an exact designation of location is

unnecessary, as long as the tract of land that will be burdened by the easement is

sufficiently identified”). In addition, the site plan attached to the Declaration and its

amendments depicts more than merely the curb cuts from Spencer Highway onto

                                            18
Parcel 2. It delineates the width and location of the curb cuts and, thus, the starting

points of the easement, as well as areas marked for parking and for driveways as are

commonly used in shopping centers. The trial court heard testimony that, prior to

BSG’s purchase of Parcel 2 in 2013, Muniba’s tenants and customers accessed the

shopping center from both curb cuts at Spencer Highway and were able to drive

through the parking lot to reach the center. We also note that the language in

paragraph 6 of the Declaration—“an easement for ingress and egress by vehicular

and pedestrian traffic upon, over and across those portions of Parcel 2”—is similar

to the language of the restrictive covenant the Hubert court found sufficient.

         We conclude that the easement grant is susceptible of a reasonable

construction as to its true intent and meaning. Because the trial court reasonably

concluded that the easement satisfies the statute of frauds and statute of

conveyances, we overrule BSG’s first sub-issue.

         2. Trial Court’s Definition of the Easement

         In its second sub-issue, BSG argues that the trial court’s imposition of an

immovable, straight-line permanent easement (1) misconstrues the term

“uninterrupted” as used in the easement; (2) inappropriately sets the width of the

easement as “at least twenty-eight (28) feet wide” solely by implication; and (3)

creates a permanent, non-moveable easement contrary to the terms of the easement

grant.

                                          19
      In Conclusion of Law No. 15, the trial court stated “[n]either of the

alternatives proposed by BSG-Spencer to date provide uninterrupted ingress and

egress between Spencer and Parcel 1.” The court noted that the first route BSG

proposed required two 90-degree turns to reach the Parcel 1 parking area and

completely obstructed the view of Parcel 1 from Spencer Highway, and the second

proposed route did not appear to provide adequate space for two cars to pass each

other and did not provide relatively straight access without Muniba having to remove

a curbed island and parking spots located at the northwest corner of Parcel 1. In

Conclusion of Law No. 14, the trial court stated “BSG-Spencer’s contention that any

access navigable by an automobile complies with the wording of the easement

ignores the adjective ‘uninterrupted’ and makes it surplusage. In this context the

only reasonable construction of ‘uninterrupted’ is a route that provides an

unobstructed line-of-sight to Parcel 1 as well as adequate space for cars to pass each

other during ingress and egress.” In its first amended final judgment, the trial court

ordered that “the perpetual non-exclusive easement for ingress and egress upon, over

and across Parcel 2 to Parcel 1 from Spencer Highway must be a straight [line-of-

sight] unobstructed and uninterrupted route that is at least twenty-eight (28) feet

wide.”   BSG argues that, in doing so, the trial court misconstrued the term

“uninterrupted.”




                                         20
      The Texas Supreme Court has stated that “[w]hen the grant’s terms are not

specifically defined, they should be given their plain, ordinary, and generally

accepted meaning.” Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 701 (Tex.

2002). “The term ‘uninterrupted’ means ‘continuous[,]’ which means ‘stretching on

without break[.]’” Emmons v. Badanfirouz, No. 09-12-00590, 2013 WL 6705979,

at *4 (Tex. App.—Beaumont Dec. 19, 2013, no pet.). (mem. op.) (citing WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY 493–94, 2499 (2002)). The cases in which

Texas courts have addressed the term “uninterrupted” in the context of easement

grants involve the erection of gates or cattle guards by the grantor which prevented

access to or use of the easement. See, e.g., Emmons, 2013 WL 6705979, at *1

(upholding trial court’s determination that use of term “uninterrupted” in easement

grant precluded erection of gates on easement); McKenna v. Caldwell, 387 S.W.3d

830, 835 (Tex. App.—Eastland 2012, no pet.) (stating that “[m]ost cattle guards

would not be considered an ‘interruption’ or an ‘obstruction’”); Hillburn v.

Providian Holdings, Inc., No. 01–06–00961–CV, 2008 WL 4836840, at *4–6 (Tex.

App.—Houston [1st Dist.] Nov. 6, 2008, no pet.) (mem. op.) (holding that easement

language “providing free and uninterrupted pedestrian and vehicular ingress to and

egress from the Dominant Estate property” prohibited fencing that denied access);

Barrow v. Pickett, No. 01-06-00664, 2007 WL 3293712, at *4 (Tex. App.—

Houston [1st Dist.] Nov. 8, 2007, no pet.) (mem. op.) (holding that absent words

                                        21
“uninterrupted” or “unobstructed” in easement grant, servient estate owner was

permitted to erect gate within easement). However, the plain, ordinary, and generally

accepted meaning of “uninterrupted” does not imply or suggest that the easement at

issue must be straight or have an unobstructed line-of-sight from Spencer Highway

to Parcel 1, and the words straight, unobstructed, and line-of-sight do not appear in

the express easement grant. To impose such requirements would be “to read terms

into the four corners of the document that are not there,” something which courts

cannot do. Barrow, 2007 WL 3293712, at *3 (citing Coleman v. Forister, 514

S.W.2d 899, 903 (Tex. 1974)).

      The trial court also ordered that the easement be “at least twenty-eight (28)

feet wide,” ostensibly based on a City of Pasadena ordinance requiring that “minor”

streets be twenty-eight feet wide. However, the Declaration and site plan are silent

with regard to the width of the easement. See Marcus Cable, 90 S.W.3d at 701

(“Nothing passes by implication ‘except what is reasonably necessary’ to fairly

enjoy the rights expressly granted.”). By imposing such a requirement, the trial court

added a term that is not present in the Declaration or site plan. Barrow, 2007 WL

3293712, at *3; DeWitt Cty. Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 103 (Tex.

1999) (“[W]hen . . . an easement is created by an express grant, the scope of the

easement holder’s rights must be determined by the terms of the grant.”).




                                         22
      Because we conclude that the trial court erred when it interpreted the

Declaration to grant Muniba a straight, unobstructed line-of-sight route that is at least

twenty-weight (28) feet wide, we sustain the portion of BSG’s first issue challenging

the trial court’s imposition of those requirements.

      3. Injunction Enjoining BSG from Parking on or Otherwise Obstructing
         Easement

      In its fourth sub-issue, BSG argues that the trial court abused its discretion in

permanently enjoining BSG from obstructing or parking upon the easement imposed

by the court because the easement was unenforceable under the statute of frauds.

BSG’s argument is premised upon its argument previously raised under its first

sub-issue. Because we concluded that the easement is susceptible of a reasonable

construction as to its true intent and meaning and therefore satisfies the statute of

frauds, we overrule BSG’s fourth sub-issue.

      4. Alleged Prior Breaches of Declaration

      In its third sub-issue, BSG asserts that Muniba breached the Declaration by

allowing its tenants and visitors to its shopping center to park their vehicles on Parcel

2 and by placing its trash dumpsters and those of its tenants on Parcel 2. BSG argues

that because Muniba committed these prior material breaches of the Declaration, it

could not maintain its action for breach of the Declaration by BSG.

      Paragraph 3 of the Declaration, as amended, provides that “[a]dequate vehicle

parking spaces for employees, customers, visitors and other users of any building
                                           23
located on Parcel 1 shall be provided on said Parcel.” In Conclusion of Law No. 19,

the trial court stated, “[t]he easement across Parcel 2 does not include the right to

park on Parcel 2. Muniba’s tenants, employees and customers cannot park on Parcel

2.” In Supplemental Conclusion of Law No. 6, the trial court stated “[t]he parking

of vehicles by Muniba, its tenants, invitees and licensees, as well as the placement

of garbage dumpsters by Muniba and its tenants, upon Parcel 2 constitutes breaches

of the Declaration by Muniba.”

      BSG argues that, despite the language in the Declaration and second

amendment limiting parking by Muniba, its tenants, and customers to Parcel 1,

Muniba, its tenants, and visitors continuously parked their vehicles on Parcel 2,

without BSG’s permission. In support of its argument, BSG relies on the general

contract principle that “a party to a contract who is himself in default cannot maintain

a suit for its breach.” Dobbins v Redden, 785 S.W.2d 377, 378 (Tex. 1990). Thus,

BSG asserts, Muniba’s actions constitute prior material breaches that preclude its

breach of contract action against BSG.

      In response, Muniba asserts that although the defense of prior material breach

applies to claims of breach of contract, it does not apply to claims relating to breach

of other restrictive covenants. Contrary to Muniba’s argument, restrictive covenants

are subject to the same rules of construction and interpretation as contracts. Pilarcik

v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998); Elbar Investments, Inc. v. Garden

                                          24
Oaks Maint. Org., 500 S.W.3d 1, 3 (Tex. App.—Houston [1st Dist.] 2016, pet.

denied) (concluding that deed restrictions at issue were restrictive covenants

concerning real property and subject to rules of contract construction).

      Muniba asserts that even if the defense of prior breach applies, BSG may not

avail itself of the defense because it failed to plead prior material breach as a defense.

See Compass Bank v. MFP Fin. Servs., 152 S.W.3d 844, 852 (Tex. App.—Dallas

2005, pet. denied); RE/MAX of Tex., Inc. v. Katar Corp., 961 S.W.2d 324, 327 (Tex.

App.—Houston [1st Dist.] 1997, writ denied). However, the record reflects that

BSG filed a counterclaim alleging that Muniba breached and was continuing to

breach the Declaration and its amendments by permitting the tenants of and visitors

to Parcel 1 to park their vehicles and place their trash dumpsters on Parcel 2. BSG

sought unspecified actual damages, declaratory relief with respect to the rights and

obligations of the parties, and injunctive relief prohibiting Muniba from continuing

to allow parking and the placement of trash dumpsters on Parcel 2.                BSG’s

counterclaim gave fair notice to Muniba of its intent to raise the affirmative defense

of prior material breach. See West v. Pugh, No. 01-12-00133-CV, 2013 WL

3327287, at *7 (Tex. App.—Houston [1st Dist.] June 27, 2013, no pet.) (mem. op.).

Further, the issue of prior material breach was tried by consent. Here, the record

shows that BSG presented testimonial and photographic evidence that Muniba, its

employees, tenants, and patrons were continuing to park and place dumpsters on

                                           25
Parcel 2. Muniba never objected to this evidence. Considering the record as a

whole, it is apparent that both Muniba and BSG understood that the issue of prior

material breach was in the case and that the issue was actually tried. See id.

      The trial court properly concluded that “[t]he parking of vehicles by Muniba,

its tenants, invitees and licensees, as well as the placement of garbage dumpsters by

Muniba and its tenants, upon Parcel 2 constitutes breaches of the Declaration by

Muniba.” See BMC Software, 83 S.W.3d at 794. Because Muniba committed a prior

material breach of the Declaration, it could not maintain its breach of contract claim

against BSG. See Dobbins, 785 S.W.2d at 378. We sustain BSG’s third sub-issue.

Muniba’s inability to maintain its breach of contract action leaves it only with its

declaratory judgment action requesting an exegesis of the easement language in the

Declaration.

   B. Trial Court’s Denial of BSG’s Request for Permanent Injunction

      In its second issue, BSG contends that the trial court abused its discretion in

denying BSG’s request for a permanent injunction enjoining Muniba from further

breaching the Declaration by continuing to permit its tenants and customers from

parking on BSG’s property as well as placing its dumpsters in BSG’s property.

      Injunctive relief is appropriate upon a showing of the following elements: (1)

the existence of a wrongful act, (2) the existence of imminent harm, (3) the existence

of irreparable injury, and (4) the absence of an adequate remedy at law. Jim

                                         26
Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 849 (Tex.

App.—Houston [14th Dist.] 2000, pet. denied).3 “Because an injunction is an

equitable remedy, a trial court weighs the respective conveniences and hardships of

the parties and balances the equities.” Computek Computer & Office Supplies, Inc.

v. Walton, 156 S.W.3d 217, 220 (Tex. App.—Dallas 2005, no pet.). A party must

substantially violate a deed restriction before the trial court may issue a permanent

injunction. Indian Beach Prop. Owners’ Ass’n v. Linden, 222 S.W.3d 682, 690 (Tex.

App.—Houston [1st Dist.] 2007, no pet.).

      We review a trial court’s ruling on applications for permanent injunctions for

an abuse of discretion. Operation Rescue–Nat’l v. Planned Parenthood of Hous. Se.

Tex., Inc., 975 S.W.2d 546, 560 (Tex. 1998). “The trial court does not abuse its

discretion when its decision is based on conflicting evidence and some evidence in

the record reasonably supports the trial court’s decision.” Triantaphyllis v. Gamble,

93 S.W.3d 398, 402 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). A party

seeking an injunction has the burden of showing that a clear equity demands the

injunction. Christensen v. Integrity Ins. Co., 719 S.W.2d 161, 163 (Tex. 1986);

Indian Beach Prop. Owners’ Ass’n, 222 S.W.3d at 691.


3
      When the basis of the suit is enforcement of deed restrictions, a movant seeking
      injunctive relief is only required to prove that the defendant intends to do an act that
      would breach the restrictive covenant rather than show irreparable injury. See Jim
      Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 849 (Tex.
      App.—Houston [14th Dist.] 2000, pet. denied).
                                             27
      Here, the evidence was undisputed that Muniba, its tenants, and customers

parked their vehicles and placed trash dumpsters on Parcel 2 without BSG’s

permission. The trial court found that “[t]he parking of vehicles by Muniba, its

tenants, invitees and licensees, as well as the placement of garbage dumpsters by

Muniba and its tenants, upon Parcel 2 constitutes breaches of the Declaration by

Muniba.” BSG established the first element of its claim for injunctive relief, the

existence of a wrongful act. See Rutherford Invs., Inc., 25 S.W.3d at 849.

      However, to obtain a permanent injunction, the party seeking it must also bring

forth evidence showing imminent harm. See id. When asked by BSG’s counsel why

Muniba’s parking on BSG’s property was a problem, Robin Parsley, BSG’s

representative, testified “[b]ecause we may use that in our future business plan” and

“[w]e don’t know what type of vehicles they’re going to be or how long they’re

going to stay or what they’re doing.” With regard to the dumpsters, Parsley testified

that Muniba’s and its tenants’ trash dumpsters impeded BSG’s right to use its

driveway for ingress and egress to Center Street by requiring customers to drive

around the trash receptacles to get to the storage facility.

      Muniba presented testimony that BSG never complained about the parking or

trash dumpsters until after it had filed suit against BSG in 2014. In its Finding of

Fact No. 8, the trial court found “[i]nvitees, customers and other patrons of Parcel 1

have been parking in Parcel 2’s ‘No Build Area’ since at least November of 2004

                                           28
when Muniba purchased Parcel 1.” The record further reflects that the “no-build

area” was striped for parking and could not be used to construct any other permanent

building. Mohammed Patel, Muniba’s representative, also testified that the location

of the dumpsters was sometimes a question of where the trash service replaced them

after emptying them.

      Although the trial concluded that Muniba, its tenants, and customers did not

have a right to park or place their dumpsters on Parcel 2 under the terms of the

Declaration, it declined to grant the requested injunctive relief based on its findings

that Muniba, its tenants, and customers had been parking on Parcel 2 since 2004,

nobody else was using the space, and that BSG’s request for an injunction was

“purely vindictive.” Because there is some evidence in the record that supports the

trial court’s conclusion that BSG failed to show that the balance of equities plainly

favored it, the trial court did not abuse its discretion in declining to award injunctive

relief to BSG. See Christensen, 719 S.W.2d at 163 (stating that party seeking

injunctive relief has burden to show clear equity demands injunction); Int’l Paper

Co. v. Harris Cty., 445 S.W.3d 379, 396 (Tex. App.—Houston [1st Dist.] 2013, no

pet.) (concluding that, at best, balance of equities did not weigh in favor of finding

that trial court erred in denying injunctive relief). We overrule BSG’s second issue.




                                           29
                             Muniba’s Cross-Appeal

   A. Scope of the Easement

      In its first cross-issue, Muniba argues that the trial court erred in restricting

the easement to a specific location rather than the described historic use of the

easement. It argues that the unambiguous terms of the Declaration provide Parcel 1

with an easement for unrestricted access over, upon, and across the entirety of Parcel

2 for purposes of ingress and egress.

         1. Applicable Law

      An easement is a non-possessory interest in another’s property that authorizes

its holder to use that property for a particular purpose. See Marcus Cable Assocs.,

90 S.W.3d at 700. “A grant or reservation of an easement in general terms implies

a grant of unlimited reasonable use as is reasonably necessary and convenient and

as little burdensome as possible to the servient owner.” Coleman, 514 S.W.2d at

903. “No interest in real property passes by implication as incidental to a grant

except what is reasonably necessary to its fair enjoyment.” Id.

      When considering the rights and constraints under an express easement, a

court must first consider the language of the easement itself. See Reaves v. Lindsay,

326 S.W.3d 276, 280 (Tex. App.—Houston [1st Dist.] 2010, no pet.). The express

terms in the easement are given their generally accepted meaning. Marcus Cable

Assocs., 90 S.W.3d at 701. “The contracting parties’ intentions, as expressed in the

                                         30
grant, determine the scope of the conveyed easement.” Id. at 700–01. Unless the

language is ambiguous, the court must rely solely on the written instrument. See

Koelsch v. Indus. Gas Supply Corp., 132 S.W.3d 494, 498 (Tex. App.—Houston [1st

Dist.] 2004, pet. denied). Courts may not “read terms into the four corners of the

document that are not there . . . .” Barrow, 2007 WL 3293712, at *3.

          2. Analysis

      For purposes of clarity, we note that both parties to this appeal complain of

the easement imposed by the trial court in its first amended final judgment. Muniba

argues that the imposed easement is too restrictive and that the unambiguous terms

of the Declaration provide Parcel 1 with an easement for unrestricted access over,

upon, and across the entirety of Parcel 2 for purposes of ingress and egress. While

BSG argues in its appeal that the trial court erred in imposing any easement

whatsoever across Parcel 2, it also asserts that the trial court did not err in refusing

to impose an easement across the entirety of BSG’s property.

      Paragraph 6 of the Declaration, which constitutes the grant of the easement

before us, states as follows:

      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
                                          31
      uninterrupted access from Parcel 1 to Center Street and to Spencer
      Highway.

      According to Muniba, “[t]here was no evidence that the intent of [the] initial

grantor and grantee was anything other than to develop the properties for ingress and

egress as expressly provided in the initial Declaration of Restrictions,” and therefore

it should “be permitted to have access over, upon, and across all of the BSG-Spencer

Parcel for purposes of ingress and egress.” Muniba contends that “the trial court

fashioned a new easement more or less out of whole cloth that does not comport with

the intent expressed in the actual language of the easement.”

      BSG asserts that that Muniba’s argument contravenes the express language set

forth in the grant of the easement. Paragraph 6 of the Declaration grants an easement

“upon, over and across those portions of Parcel 2 which are from time to time

developed for ingress and egress” (emphasis added).             To find the grant of

unrestricted easement Muniba is urging, we would be required to rewrite the terms

of the Declaration—e.g., an easement for ingress and egress “upon, over and across

Parcel 2” or “upon, over and across all of Parcel 2”—something we cannot do. See

Barrow, 2007 WL 3293712 at *3; Marcus Cable Assocs., 90 S.W.3d at 700–01 (“The

contracting parties’ intentions, as expressed in the grant, determine the scope of the

conveyed interest.”). We conclude that the trial court did not err in refusing to impose

an easement for ingress and egress covering the entirety of BSG’s property. We

overrule Muniba’s first cross-issue.
                                          32
   B. Construction of “A Building”

      In its second cross-issue, Muniba complains that the trial court erred in

interpreting the second amendment to the Declaration as allowing the owner of Parcel

2 to construct an additional building.

      Paragraph 2 of the Declaration, executed on June 21, 1994, provided that “(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.” On December 16, 1994, Albertson’s and Williams Industries, Inc.

entered into a contract for the construction of an Albertson’s store on Parcel 2.

Paragraph 3.2 of the construction contract stated that “[t]he Contractor shall achieve

Substantial Compliance of the entire Work not later than June 24, 1995.” On August

4, 1995, the parties executed a second amendment to the Declaration which amended,

among other provisions, paragraph 2 of the Declaration to read, in pertinent part:

“The Owner of Parcel 2 may construct a building anywhere on Parcel 2 except within

the ‘No Build Area’ shown on Exhibit A.”

      In Amended Finding of Fact No. 7, the trial court stated, “The June, 1994

Declaration permitted the construction of ‘building(s)’ on Parcel 2. No building

existed on Parcel 2 on the date of the Declaration. The August, 1995 Second

Amendment, dated after the construction of the Alberston’s building on Parcel 2,

                                         33
changed this to ‘a building.’” In Finding of Fact No. 18, the court stated that “[t]he

term ‘a building’ in the Second Amendment to the Declaration [] means one

additional building. One additional building was built on Parcel 2 after the Second

Amendment, Building B, and as such, no more buildings may be built on Parcel 2.”

In its amended final judgment, the trial court ordered that “the term ‘a building’ as

used in Paragraph 2(b) of the Second Amendment means one additional building”

and “that no additional buildings may be built on Parcel 2.”

      Muniba contends that the change from “building(s)” in Paragraph 2 of the

Declaration to “a building” in the second amendment was intended to limit Parcel 2

to one building just as Parcel 1 had been limited to one building in the Declaration.

It concludes that because there was no evidence that the Alberston’s store had been

constructed at the time of the second amendment, there was no basis from which the

trial court could have reasonably concluded that the change from “building(s)” to “a

building” meant that the original grantor and grantee intended to allow Albertson’s

to construct one additional building.

      Absent any evidence to the contrary, the trial court could have reasonably

inferred that Albertson’s and Williams Industries, Inc. complied with the terms of

their construction contract and completed the store prior to execution of the second

amendment. See Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001) (noting that

factfinder is entitled to make reasonable inferences from evidence it chooses to

                                         34
believe). Under these circumstances, the trial court could have also reasonably

inferred that by amending the language to “a building” after the store was completed,

the parties intended to permit Albertson’s to construct one more building on Parcel 2

provided that it was not located in the “no build” area. The trial court did not err in

interpreting the Declaration to allow BSG to construct the additional building now in

existence on Parcel 2. We overrule Muniba’s second cross-issue.

   C. Parking in Parcel 2’s “No Build” Area

      In its third cross-issue, Muniba contends that the trial court erred in finding

that tenants and patrons of Parcel 1 could not use the “no build” area of Parcel 2 for

parking. It argues that the evidence established that the “no build” area had been

used for parking for at least ten years and that the owners of Parcel 2 had waived any

violation of the Declaration regarding limitations on parking in the “no build” area.

      In Amended Conclusion of Law 19, the trial court stated “[t]he easement

across Parcel 2 does not include the right to park on Parcel 2. Muniba’s tenants,

employees and customers cannot park on Parcel 2.” In Amended Finding of Fact

No. 8, the court stated, “[t]he “No Build Area” is a part of Parcel 2. Invitees,

customers and other patrons of Parcel 1 have been parking in Parcel 2’s “No Build

Area” since at least November of 2004 when Muniba purchased Parcel 1.” In

Supplemental Finding of Fact. No. 1, the court stated “Any prior use of Parcel 2’s




                                          35
parking lots and other areas by Muniba, its tenants and its tenants’ customers was

solely by silent acquiescence of Alberston’s and BSG.”

      Relying on the trial court’s findings and conclusions that BSG silently

acquiesced to Muniba’s prior use of Parcel 2’s parking lots, Muniba claims that BSG

waived its right to enforce the parking restrictions set out in Paragraph 3 of the

Declaration (limiting parking by Muniba, its tenants, and customers to Parcel 1).

However, there is a non-waiver provision in the Declaration which precludes

Muniba’s claim. Paragraph 13 of the Declaration4 states:

      Waiver: The failure of a person to insist upon strict performance of any
      of the restrictions or other terms and conditions contained herein shall
      not be deemed a waiver of any rights or remedies that said person may
      have, and shall not be deemed a waiver of any subsequent breach or
      default in the performance of any of the restrictions, or other terms and
      conditions contained herein by the same or any other person.

      Absent pleadings and proof that enforcement of a non-waiver provision was

itself waived, non-waiver provisions are valid and enforceable. See A.G.E., Inc. v.

Buford, 105 S.W.3d 667, 676 (Tex. App.—Austin 2003, pet. denied). Muniba did

not plead or present evidence that BSG waived enforcement of the non-waiver

provision. We conclude that the trial court did not err in finding that tenants and

patrons of Parcel 1 could not use the “no build” area of Parcel 2 for parking. See TX




4
      Neither the first nor the second amendment to the Declaration altered Paragraph 13.
                                          36
Far W., Ltd. v. Texas Investments Mgmt., Inc., 127 S.W.3d 295, 306 (Tex. App.—

Austin 2004, no pet.) Muniba’s third cross-issue is overruled.

                                  Attorney’s Fees

      In its third issue, BSG asserts that the trial court abused its discretion in

awarding attorney’s fees to Muniba and in refusing to award any attorney’s fees to

BSG because BSG should have been determined to be the prevailing party in the

litigation rather than Muniba

      Paragraph 14 of the Declaration provides that “[i]n 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 appeal).” At trial, the parties presented evidence in support of their claims

for attorney’s fees. In Amended Finding of Fact 9, the trial court found that Muniba

had incurred reasonable and necessary attorney’s fees in the amount of $54,800.00

and expenses of $4,567.00 through trial. In Amended Finding of Fact 9, the trial

court found that BSG had incurred reasonable and necessary attorney’s fees through

trial of $39,582.50. In its amended final judgment, the trial court concluded that

Muniba was the prevailing party and awarded Muniba its reasonable and necessary

attorney’s fees and costs and that BSG was not entitled to recover its attorney’s fees.

                                          37
      When interpreting a contractual attorney’s fee provision in which the

“prevailing party” term is left undefined, as is the case here, we are to “presume the

parties intended the term’s ordinary meaning.” Intercont’l Grp. P’ship v. KB Home

Lone Star L.P., 295 S.W.3d 650, 653 (Tex. 2009). A prevailing party is the party

“who successfully prosecutes the action or successfully defends against it, prevailing

on the main issue, even though not to the extent of its original contention.”

WWW.URBAN.INC. v. Drummond, 508 S.W.3d 657, 666 (Tex. App.—Houston [1st

Dist.] 2016, no pet.) (quoting Johns v. Ram–Forwarding, Inc., 29 S.W.3d 635, 637–

38 (Tex. App.—Houston [1st Dist.] 2000, no pet.). Determination of whether a party

is the prevailing or successful party is based upon success on the merits, and not on

whether damages were awarded. City of Amarillo v. Glick, 991 S.W.2d 14, 17 (Tex.

App.—Amarillo 1997, pet. denied); see also Robbins v. Capozzi, 100 S.W.3d 18, 27

(Tex. App.—Tyler 2002, no pet.). In other words, the prevailing party is the party

who is vindicated by the trial court’s judgment. Glick, 991 S.W.2d at 17; see also

Mohican Oil & Gas, LLC v. Scorpion Expl. & Prod., Inc., 337 S.W.3d 310, 322

(Tex. App.—Corpus Christi 2011, pet. denied) (“In short, ‘[w]hether a party prevails

turns on whether the party prevails upon the court to award it something, either

monetary or equitable,’ and the court then makes such an award.” (quoting

Intercont’l Grp. P’ship, 295 S.W.3d at 655)).




                                         38
      The main issues at trial, as they have been on appeal, were the enforceability

of the express easement and the parties’ respective breach of contract claims arising

from alleged breaches of the Declaration. These claims were the bases for the vast

majority of the testimony and evidence presented at trial. In its amended final

judgment, the trial court found that the Declaration and its amendments were valid

and enforceable contracts and contained a valid and enforceable easement for ingress

and egress, and enjoined BSG from, among other things, obstructing the easement

tracts or interfering with Muniba’s uninterrupted and unobstructed straight line-of-

sight access to Parcel 1 from Spencer Highway. Although it found that the parking

of vehicles and placement of trash dumpsters on Parcel 2 by Muniba, its tenants, and

patrons constituted breaches of the Declaration, it declined to grant BSG’s request

for injunctive relief. Thus, Muniba was the prevailing party on some of the main

issues decided by the trial court.

      However, in light of our disposition that the trial court erred with respect to

imposition of an immovable straight-line permanent easement and that Muniba’s

prior material breach of the Declaration precluded it from maintaining its breach of

contract claim against BSG, we conclude that both Muniba and BSG are prevailing

parties on the main issues in this case. See Mohican Oil & Gas, LLC, 337 S.W.3d

at 322–23; Apache Corp. v. Dynegy Midstream Servs., Ltd. P’ship, 214 S.W.3d 554,

566 (Tex. App.—Houston [14th Dist.] 2006), aff’d in part, rev’d in part on other

                                         39
grounds, 294 S.W.3d 164 (Tex. 2009). In Mohican, a development company and a

drilling contractor sued each other over alleged breaches of the same turnkey drilling

contract. See 337 S.W.3d at 314. One side prevailed on a declaratory judgment

theory and the other side won its breach of contract action. See id. at 322–23. The

court determined that both parties were, therefore, prevailing parties and both were

entitled to their attorney’s fees. Id. Similarly, our disposition of the issues in this

complicated case means that both parties have obtained at least some relief on the

merits of their respective claims, and that both parties are prevailing parties and are

entitled to their attorney’s fees.

       The trial court made findings of fact regarding Muniba’s and BSG’s

reasonable and necessary attorney’s fees and expenses, and neither party is

challenging those findings on appeal. We therefore conclude that the trial court

properly awarded Muniba $54,800.00 in attorney’s fees and $4,567.00 in expenses

but that it erred in denying BSG’s request for attorney’s fees in the amount of

$39,582.50. Accordingly, we sustain BSG’s third issue in so far as it complains that

the trial court erred in denying BSG attorney’s fees but overrule in so far as it

complains that the trial court erred in awarding attorney’s fees to Muniba.

                                     Conclusion

       We affirm the portion of the trial court’s judgment awarding Muniba

declaratory relief in determining that the Declaration and its amendments created a

                                          40
valid and enforceable easement for ingress and egress. We vacate the portion of the

trial court’s judgment imposing a straight, unobstructed line-of-sight easement at

least twenty-eight (28) feet wide and remand to the trial court for further proceedings.

We find that Muniba could not maintain its breach of contract claim against BSG

because of Muniba’s prior material breach of the Declaration. We therefore order

that Muniba take nothing on its breach of contract claim. We affirm the portion of

the trial court’s judgment awarding $54,800.00 in attorney’s fees and $4,567.00 in

expenses to Muniba, but we reverse the portion of the judgment denying BSG’s

request for attorney’s fees, and we render judgment that BSG is entitled to recover

its reasonable and necessary attorney’s fees in the amount of $39,582.50. We affirm

the remainder of the trial court’s judgment.




                                               Russell Lloyd
                                               Justice

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




                                          41
                        Exhibit “A”




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GENERAL NOTES



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