 REVERSE, RENDER, ,\FFlRN’1. and RKMANDz Opinion Issued November 2 2012.




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                                     Itiiirt uf Appimls
                         ,.!Fiftti iitrirt i.if cxa at Jzi1hui

                                       No, 05-1O-01028-CV


                                CAPITAL ONE, N.A., Appellant

                                                 V.

                              STANLEY C. IiAl)DOCK, Appellee


                       On Appeal from the 44th Judicial District Court
                                    Dallas County, Texas
                             ‘Frial Court Cause No. 08-13162


                                           OPINION
                            Bcftre Justices O’Neill, Richter, and Lang
                                   Opinion By Justice O’Neill

       Appellant Capital One, N.A. appeals a judgment awarding damages to Stanley C. Haddock

for breach of a “crosseascment agreement.” Haddock has raised a conditional cross-point, asserting

if we reverse the judgment on his breach of contract claim, we should also reverse the trial court’s

order granting Capital One’s motion for summary judgment on his quantum meruit claim. For the

following reasons, we reverse the trial court judgment on Haddock’s breach of contract claim and

render judgment that Hacldock take nothing on that claim. We affirm the trial court’s judgment

granting summary judgment in favor of Capital One on Haddock’s      quantum meruit   claim,

       This dispute concerns which of two adjacent landowners, Capital One or Haddock, is

responsible for the cost of a driveway Haddock constructed on Capital One’s property.         Prior to
  2004, Haddock, a real estate developer, acquired the rights to purchase ad jolmng tracts of land in the

  City ofWylic, Prior to that time, the tracts had been owned and developed separately, and there was

 no access between the tracts and each relied on its own approaches for access to surrounding public

 streets.

            In 2004, Capital One contacted Haddock about purchasing the easternmost tract,                                                While

 negotiating the sale, Iladdock and Capital One representatives met with city officials to discuss the

 City’s requirements for any redevelopment. The City told Haddock and Capital One that the tracts

 would have to be developed as one site, and that the public access points to the surrounding streets

 had to be reconligured. Specifically, the City was going to require that the two existing access points

 on the Haddock and proposed Capital One tracts be closed and one new access point to be

 constructed on thc Capital One tract. The new access location would allow the driveway to line up

 with Mardi Gras Street. which intersected with Kirby across from the Capital One tract. The City

 also required Haddock to close the approach on his tract because it was too close to the intersection

to the west, posing safety and traffic flow concerns.

            In May 2004, the parties executed the Purchase Sale Agreement (PSA). The PSA required

the parties to negotiate in good faith a cross-easement agreement (CEA) to allow for access between

the Haddock and Capital One tracts. The parties subsequently executed a CEA. The CEA set forth

the required access areas between tracts and required Capital One to join the tracts, paving the

internal drives such that there would be a seamless transition between the tracts. However, the CEA

did not include any provisions for reconfiguration of access points or obligations to pay for

construction or paving of access points. A preliminary site plan attached to the CEA likewise



       in 2001. Capital Onc was actually known as Ilibemia Bank. At sonic point in 2007. Capital One succeeded to
                                                                                                                  Ilibernia’s interests
relevant in this appeal. For clarity, we refer to the bank as Capital One throughout.
  showed the access areas between the tracts, but did not include any proposed changes in

 reconfiguration of public access.

            After the bank purchased the property, it began its development Capital One’s preliminary

 paving plan showed an approach to Kirby Street on Capital One’s tract, fining up with Mardi Gras

 Street would be constructed at some point in the future. Capital One’s final plat included a

 dedication of an easement for public use to allow for such a driveway approach. According to

 Claude Thompson, director of planning and zoning for the City from 2000 until January 2006,

 Capital One’s plan would not have been approved without the access point at that location.

            When Capital One began its construction, it started the process of building the approach.

 However, according to Haddock, the City instructed Capital One it could not build the public

 approach until Haddock closed the approach on his property. Haddock could not do so until his

 tenant vacated the premises, which was to occur in about six months. Capital One ultimately

 concluded its construction, without constructing the approach, and obtained an unqualified

Certificate of Occupancy (CO). A CO indicates all governmental requirements, directives, and

orders with respect to that property have been complied with as of that date?

           In 2007, Haddock began developing his property. Haddock submitted several plans to the

City to address various issues and concerns. Ultimately, Haddock submitted a final plan to the City

in July2007 that closed his existing approach and included a new “shared approach” to Kirby Street,

mostly on Haddock’s property, but partially on Capital One’s property. This approach was in a

different location than the one shown on Capital One’s plat. According to Haddock, this plan was

submitted by mistake and the driveway should have been entirely on the bank’s property in



    The City can, and does sometimes. issue temporary CO’S allowing a business to open with the understanding that certain conditions
    2
                                                                                                                                      will
be have to complied with in the futute in order to get its final pennit CO.




                                                                   -3-
 accordance with the City’s lrmor direciives,                        Nevertheless, the City approved the plan.

             Haddock testified he first noticed the mistake in early September2007 when he began staking

 his tract to begin construction, lie immediately called the city engineer. Chris Holstead. Haddock

 met Hol stead at the site soon thereafter to discuss the issue. Haddock testified Hoistead told him the

 approach needed to he moved enlirely onto the Capital One’s property in accordance with the prior

 plans and requirements. Using a “Sharpie,” Koistead drew on the plan where the approach needed

 to he located. According to Haddock, Hoistead told him to tell Capital One that Capital One had to

 “finish” their driveway and “connect” it to the street.

            After speaking with Holstead, Haddock met with Capital One representative Brian Smith

 and showed him the plan Hoistead had revised. Haddock said he told Smith the City had “ordered”

 the bank to “complete their driveway.” Smith told Haddock that the bank didn’t have the budget,

 but Haddock could construct it. Haddock responded it was the bank’s obligation to construct the

driveway. Smith said he would confer with other Capital One representatives. Thereafter, Haddock

tried to follow up with others at Capital One, but they would not return his calls, In December,

Haddock called Hoistead and told him the bank was not returning his calls. Holstead told Haddock

to go ahead and “pour the concrete.” Haddock asked Holstead for a letter from the City to send to

Capital One. In response, 1-lolstead sent Haddock a letter instructing Haddock to relocate the

driveway onto the bank’s property. Haddock sent the letter to Smith and told him if the bank did not

construct the driveway, he would. Capital One did not respond and Haddock constructed the

driveway to Kirby Street. In July 2008, Haddock sent Capital One a letter demanding it pay for the

cost of construction.



      Haddock testified the reason his architect created such a plan was because a city council person had requested to
                                                                                                                        see whether Haddock
would have had sufficient parking ii the driveway had been placed in the hypothetical location.
         Ifolstead testified by deposition and confinned Haddock’s testimony in some regards. He

 stated that he had met with Haddock to discuss the location ofthe approach and they agreed that the

 “best location” would be to line it up with Mardi Gras Street to the south. Holstcad testified that

 Capital One had previously been told the approach had to be across from Mardi Gras. Because

 Haddock’s plan did not place the driveway in that location, Holstead wrote the change on the plan.

 Holstead testified he was permitted to make such changes to development plans in “the field.”

 Holstead said he told Haddock he would have to contact Capital One because the approach was on

 the bank’s property, but he denied telling Capital One it had to construct or pay for the approach and

he was unaware of anyone else at the City so instructing Capital One.

        Brian Smith testified that in late 2007, Haddock had demanded Capital One help pay for a

shared approach, but the bank did not agree. He testified the City never told Capital One that it had

a present obligation to construct a driveway. Smith conceded earlier plans Capital One had

submitted, and the City approved, provided for the approach on Capital One’s property.

        After hearing the evidence, the trial court found in Haddock’s favor, concluding Capital One

breached the CEA by failing to comply with governmental requirements. In its findings of fact, the

trial court found the parties entered into the CEA rmaking “each partyresponsible for the cost ofwork

necessary to comply with governmental requirements on their respective tracts.” The trial court

found the City “ordered” a driveway on Capital One’s tract be completed and that Capital One’s

failure to do so constituted a breach ofthe CEA. It appears from its findings that the “orders” the

trial court was referencing concerned statements the City made to Capital One in 2005 and 2006

discussing development plans, Capital One’s final plat that included a dedication for public access,

and statements Holstead later made to Haddock regarding location ofthe approach. The trial court

awarded $21,882.14 in actual damages and $100,589.50 in attorney fees. In this appeal, Capital One



                                                -5-
 generally asserts there is no evidence it breached the (1A.

         in an appeal from a bench trial, a trial court’s findings have the same force and dignity as a

 jury’s verdict upon questions. Anderson v.   (iii’   of 5eie,i Points, 06 S.W.2d 791, 794 (Tex. 1991).

 A trial court’s findings may be reviewed for legal and factual sufficiency under the same standards

 that are applied in reviewing evidence to support a jury’s answers.    Orli:   v. Jones, 91 7 S.W.2d 770,

 772 (Tex. 1996). We review a trial court’s conclusions of law de novo to determine whether the trial

 court drew the correct legal conclusions from the facts. State v, Heal, 917 S.W,2d 6, 9 (Tex. 1996);

 Hacken/os v. Hackenjos. 204 S.W.3d 906, 908 (Tex. App.— Dallas 2006. no pet.). We are not hound

by the trial court’s conclusions of law and will review them independently to determine their legal

correctness. Am. Hood Research. Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) (per curiarn):

Sears Roebuck& Co. v. Dallas C’ent. Appraisal Dist., 53 S.W.3d 382, 389 (Tex. App,Dallas 2000,

pet. denied).

        The interpretation of an unambiguous contract is a question of law for the court. 4ItZ’I

Teleconim. Corp.   i.   Tex. Util. Flee. Co., 995 S.W.2d 647, 650 (Tex. 1999). When parties disagree

over the meaning otan unambiguous contract, the court must determine the parties’ mutual intent

by examining the entire instrument. Heritage Res,, Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.

1996); Wells Fargo Bank, Mum., N.A. v. N. C’ent. Plaza I, L.L.P., 194 S.W.3d 723, 726 (Tex.

App.—Dallas 2006, pet. denied). The court must favor an interpretation that harmonizes and gives

effect to all the provisions of the contract so that none will be rendered meaningless and no single

provision taken alone will be given controlling et’fect. Heritage Res., 939 S.W.2d at 121; Wells

Fargo, 194 S.W.3d at 726. Unless the agreement shows the parties used a term in a technical or

different sense, the terms are given their plain, ordinary, and generally accepted meaning. Heritage

Res., 939 S.W.2d at 121.




                                                 -    6-
        The sole question presented here is whether Capital One breached the CEA by tilling to

 construct the approach to Kirby Sheet. It is unclear from the trial court’s findings of tict and

 conclusions of law exactly which provision or provisions of the CEA Capital One breached, but

 Haddock alleges two provisions support the trial court’s conclusion. First, Haddock relies on article

 3.1 ofthe CEA concerning “Maintenance.” Article 3.1 of the CEA, provides “[e]ach tract owner

 shall have the duties and responsibilities, at its sole cost and expense, to keep and maintain the

driveways, parking areas, access entrances (including the Access Areas) and exits, including curb

cuts and curbs, on its tract, in good repair, working and operable order and in a safe, clean and

attractive condition at all times.” According to article 3.1, such duties include (1) keeping parking

areas, driveways, road, curb cuts and curbs in good repair, and (2) complying with all applicable

government requiremcnts.

        The trial court’s judgment is based on its findings that (I) at the time the City approved

Capital One’s plat it required a driveway to be placed at the Mardi Gras location, (2) Capital One

began constructing such a driveway, but was requiredto stop construction until Haddock’s driveway

could be closed, and (3) Capital One then tidIed to complete its driveway when the City told

Haddock the driveway had to be completed. According to Haddock, these findings support a

conclusion that Capital One fhiled to “keep” or “maintain” its driveways in “working and operable

order” because Capital One started to construct the public approach, but did not “finish” it.

       The CEA required the tract owners to “keep and maintain” existing, relocated, and future

driveways and curb cuts, but did not impose an obligation to construct any new driveways or

approaches. Haddock’s argument presumes there existed a driveway that was not “kept” in working

and operable order. While there was evidence the bank started to construct an approach to Kirby

Street, it did not do so and instead constructed a curb at Kirby Street. After it completed this




                                               —7—
construction, the City issued a Co to Capital One, Thus, the bank s improvements complied with

the governmental requirements at that time, and there was no driveway that was not in “working and

operable order” at that time, The bank’s later directive to Haddock to have the public approach

constructed did not concern the bank’s ftnlure to “keep or maintain” a drive or approach because

such an approach did not exist. Therefore, the bank’s failure to construct the approach did not

violate section 3.1 of the CEA.

        Haddock next relies on Article S of the CEA. Article 8, entitled “Uses and Prohibited Uses,”

begins with the following “General” requirement:

                No use shall be permitted on the Tracts which is not allowed under applicable
        Governmental Requirements. Each Tract Owner, Occupant or other user of any
        portion of the Tracts at all times shall comply in every respect with this agreement
        and with any an(l all laws, ordinances, policies, rules, regulations and orders of all
        federal, state, county, and munjcipal governments or their agencies having
        jurisdictional control over the tracts.


        Specific provisions detailing prohibited “uses” and “activities” followed.       We begin by

noting that I laddock’s claim that the bank was required to construct an approach on its property does

not concern a use or activity on the property. Regardless, assuming this provision is not limited to

uses or activities on the tracts, we conclude there is no evidence that the bank failed to comply with

a government requirement.

       The CEA provides, ‘“[g]ovemmcnt requirements’ shall mean all laws, ordinances, statutes,

codes, rules, regulations, orders and decrees of the United States, the state, county, city, or any

political subdivision in which the Tracts are located, and any other political subdivision, agency or

instrumentality exercising jurisdiction over the Tracts     “Haddock contends the bank breached

article S because the City required an approach to be constructed on the bank’s tract.




                                                —8—
         The evidence showed the City had intended to require Capital One to build an approach to

 Kirby when it approved Capital One’s plan. There was also evidence that Capital One’s plat

 included a pub! it dedication br this purpose.        l3tit Capital One developed its tract without

 constructing such a driveway and the City issued Capital One a Certificate of Occupancy. The City

 engineer testilied that notwithstanding the tact the City issued a CO to the bank, the City could still

 later require the hank to construct the approach in accordance with its development plan and its

 dedication in the linal plat. [lowever, the question is not whether the City could have ordered the

bank to construct the driveway, but whether the City ever actually did so. We conclude it did not.

        it is undisputed that the City did not require the bank to construct the approach at the time

it developed its property. Indeed, the City prohibited the hank trom doing so at that time. Later,

when Haddock was seeking to develop his property, the City informed Haddock an approach had

to be constructed on Capital One’s property. But there is no evidence olany steps taken by the City

directed toward the bank that would have triggered any requirement that it construct the driveway.

 Rather, all the directives Haddock relies on to show the City ordered the driveway were directed to

Haddock, and Haddock ultimately constructed the approach to obtain the approval he needed to

develop his own property. Because there is no evidence the City ever requested, informed, or

ordered Capital One to construct the approach, we conclude there is no evidence Capital One “failed

to comply” with a government regulation.       Consequently, we conclude there is no evidence that

Capital One breached the CEA.

        Haddock brings a conditional cross-point asserting that, if the trial court erred in granting

judgment on the breach of contract claim, it also erred in granting Capital One’s motion for summary

judgment on his quantum meruit claim. Prior to trial, the bank filed a no-evidence motion for

summary judgment on Haddock’s quantum meruit claim asserting there was no evidence (1)




                                                 —9—
 Haddock provided valuable services or materials “to’ and “or’ Capital One, (2) Capital ( )ne

 “accep1ed’ such services or materials, or (3) Capital One had reasonable notice that Haddock

 expected compensation br any services or materials provided. The bank also filed a traditional

 motion for summary judgment on the quantum meruit claim asserting it had negated the above

 elements as a matter of law. It also alleged there could he no quantum meruit claim when a contract

 exists between the parties covering the same subject matter. The trial Court granted the motion for

 summary judgment on the quantum meruit claim. The trial court’s order does not state the trial

 court’s basis for granting the summary judgment. Haddock, relying on oral statements the trial court

 made at the summary judgment hearing, asserts the trial court granted summary judgment on this

claim for the sole reason that a contract governing the subject matter exists.

        When more than one ground is asserted in a motion for summary judgment and the trial court

does not specify the grounds on which it rendered summary judgment, an appellant must challenge

each ground asserted.    Worldwide Asset   Purchasing,   LLC v RentA —Center E.. Inc., 290 S.W.3d

554, 569 (Tex. App.— Dallas 2009, no pet.). In reviewing a summary judgment, we look only to

the trial court’s written order for determining the basis for granting the summary judgment and may

not consider any oral reason given at the summary judgment hearing. Ajudani v. Walker, I 77

S.W.3d 415, 418 n.3 (Tex. App.—Houston [1st Dist.] 2005, no pet.) Richardson v. Johnson &

Fliggenc of Tev   mc,   905 S W 2d 9, ii (Tex App —Houston [1st Dist 11995, writ denied),          c/

Sliaipe v. Roman Catholic Diocese of Dalla.s, 97 S.W.3d 791, 796 (Tex. App.—Dallas 2003, pet.

denied) (letter from trial court cannot be considered on appeal for providing reasons for summary

judgment). Indeed, a statement of facts from a summary judgment hearing is neither necessary nor

appropriate in an appeal from a summary judgment. See Olsen v. coinin     ‘ii/ói   Laiyer Discipline,

347 S.W.3d 876, 885-86 (Tex. App.—Dallas 2011, pet. denied).




                                               —10—
         Here, the trial courts summary judgment order did not specify the ernunds on which it relied

 to grant the summary judgment In his brief Haddock has tided to piopcily challenge etch ground

 asserted in the motion. Haddock’s brLef does include a loolnote in which he asserts, without citation

 to any legal authority, that summaiy judgment was improper on the no—evidence grounds. Because

 this footnote is not supported by proper legal argument or authority, it fails to properly challenge the

 no—evidence grounds. See Bever Properties, L.L. ( v. Jeri-i flu//man Cusioni Builder, L.L. C, 355
                                                       ‘.




 S.W.3d 878, 885-86 (Tex. App.——[)allas 2011, no pet.). Further, Haddock wholly fails to challenge

traditional grounds raised in Capital One’s motion for summary judgment. We conclude Haddock

has failed to properly challenge each ground on which summary judgment may have been granted.

TEx. R. APP. P. 38.1(h); flenriquez v. Cetnr Management, Inc., 177 S.W.3d 241, 255 (Tex.

App.—llouston [I st I)ist.] 2005, pet. denie). Therefore, we cannot conclude the trial court erred in

granting summary judgment on 1—laddock’s quantum meruit claim. Lagow v. Ilainon cx rd. J?oach,

     SW3d          2012 WL3636893 at7(Tex App—Dallas2Ol2 nopet)

        The trial court’s judgment also awarded Haddock attorney’s fifes based on its conclusion that

Capital One breached the contract. Because we have concluded otherwise, Haddock’s attorney’s

fee award must also be reversed. Capital One further asks that we award it its attorney’s fees.

Capital One tiled a claim fir attorney’s fees in the trial court based on the contract, which allowed

the prevailing party to recover its attorney’s fees from the losing party. The trial court did not

consider Capital One’s claim below because Haddock was the prevailing party. Therefore, we

remand to the trial court to determine Capital One’s right to such an award. In determining the

reasonableness of any such award, the trial court is instructed to consider the reasonableness of those

fees in light of the Arthur Anderson factors. Arthur Anderson & Co v. Perry Equip. Corp., 945

S.W.2d 812, 818 (Tex. 1997).




                                                —Il—
        We reverse the trial court’s judgment awarding damages to Haddock for breach of contract

md attorney’s ices and render judgment Haddock take nothing on his claims. We remand Capita
                                                                                            l

One’s claim for attorney s ices to the trial court for further proceedings consistent with this opinio
                                                                                                       n.




                                                         ,4’/            I   I’   c        It
                                                        4tt1AEL J. Q,NE114
                                                       ‘JUSTICE    :/


lO1O28FPO5




                                                —12—
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                                                          11&ii

                                       JUDGMENT
CAPITAL ONE,            Appellant                  Appeal from the 44th Judicial District Court
                                                   of Dallas County. Texas. (Trf t.No. No. O
No. O5 I (LO I 028-C\
               7              V.                    13162).
                                                   Opinion delivered by Justice O’Neill,
STANLEY C. HADDOCK, Appellee                       Justices Richter and Lang participating.


         in accordance with this Court’s opinion of this date, we REVERSE the trial court’s
judgment on Stanley C. Haddock’s breach of contract claim and RENDER judgment that
Haddock take nothing on that claim. We AFFIRM the trial court’s judgment granting summary
judgment in favor ot Capital One on Haddock’s quantum meruit claim. We REMAND this case
to the trial court for a determination of Capital One’s claim for attorneys fees. We ORDER that
appellant Capital One, NA. recover its costs of this appeal from appellee Stanley C. Haddock.


Judgment entered November 2, 2012.




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