                                MEMORANDUM OPINION
                                       No. 04-09-00256-CV

                          Darren S. FALLIS and wife Stacy D. FALLIS,
                                          Appellants

                                                v.

       RIVER MOUNTAIN RANCH PROPERTY OWNERS ASSOCIATION, INC.,
                              Appellee

                       From the County Court at Law, Kendall County, Texas
                                 Trial Court No. 07-307-CCL-A
                            Honorable Bill R. Palmer, Judge Presiding

Opinion by:      Marialyn Barnard, Justice

Sitting:         Karen Angelini, Justice
                 Steven C. Hilbig, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: July 7, 2010

AFFIRMED IN PART; REVERSED IN PART

           The prior tortured procedural history of the underlying cause between Darren S. and

Stacy D. Fallis (“the Fallises”) and River Mountain Ranch Property Owners Association, Inc.

(“the Association”) is detailed in this court’s opinion in In re Fallis, No. 04-08-00781-CV, 2009

WL 262119 (Tex. App.—San Antonio Feb. 4 2009, orig. proceeding) (mem. op.) (per curiam).

In this appeal, the Fallises challenge a series of orders in which the trial court: (1) granted the

Association’s amended motion for partial summary judgment, which asserted lack of standing
                                                                                   04-09-00256-CV


and limitations as to several of the Fallises’ claims, (2) granted a subsequent motion for summary

judgment as to the Fallises’ declaratory relief claim relating to a Water Well Easement, and (3)

severed all of the Fallises’ claims from the Association’s declaratory relief claim relating to a

Mailbox Easement. The Fallises also seek to challenge the trial court’s order denying their

motion for summary judgment on their declaratory relief claims. After providing a factual

context for this appeal, we will first consider what claims are properly before this court before

addressing the merits of the trial court’s rulings.

                                      FACTUAL BACKGROUND

       Properties of the Southwest, Inc. developed a residential subdivision known as River

Mountain Ranch in Kendall County, Texas. After developing the subdivision, Properties of the

Southwest, Inc. filed a Declaration of Covenants, Conditions, and Restrictions (“the restrictive

covenants”) in the Kendall County records in October of 1996. In pertinent part, the restrictive

covenant prevents any building of any kind from being built on “any five (5) acre or larger tract

nearer than twenty-five (25) feet to the side property line or no nearer than one hundred (100)

feet to any public road or no nearer than fifty (50) feet to the rear property line.”         The

Association subsequently became the property owners association of the subdivision.

       In 1998, a Mailbox Easement and Water Well Easement from Properties of the

Southwest, Inc. to the Association were filed of record. After these easements were filed, the

Association installed postal mailboxes and a structure over the mailboxes on land covered by the

Mailbox Easement.

       In 2004, the Fallises purchased Lot 28A in the subdivision. The deed to Lot 28A was

subject to the restrictive covenants, the Mailbox Easement, and the Water Well Easement. Three

years after they acquired the property, the Fallises informed the Association that the structure



                                                 -2-
                                                                                     04-09-00256-CV


over the mailboxes violated the restrictive covenants and the Mailbox Easement, and they

demanded the Association remove the structure. The Association refused to comply with the

Fallises’ demand and subsequently filed suit against the Fallises on February 3, 2007, seeking a

declaratory judgment and attorney’s fees. In response, the Fallises filed their original answer and

counterclaims, alleging multiple causes of action against the Association.

       Both the Association and the Fallises each asserted a claim for declaratory relief

regarding the Mailbox Easement, seeking a declaration that the Mailbox Easement either did or

did not allow the Association to build and maintain the structure over the mailboxes. The

Fallises also asserted two additional claims for declaratory relief: (1) a claim seeking a

declaration that the Water Well Easement did not allow the Association to remove and use water

from the well; and (2) a claim seeking a declaration that the structure over the mailboxes violated

the restrictive covenants. In addition to their declaratory relief claims, the Fallises also sought

injunctive relief, asking the trial court to: (1) order the Association to remove the structure over

the mailboxes; and (2) prohibit the Association from interfering with the use and ownership of

the water well and underground water on the Fallises’ lot. Lastly, the Fallises asserted claims

for: (1) breach of contract, contending the Association breached both the restrictive covenants

and the Mailbox Easement by installing the structure over the mailboxes; (2) trespass,

contending the placing and maintaining of the structure over the mailboxes constituted a trespass

on the Fallises’ property; and (3) breach of fiduciary duty and fraud, contending the Association

breached its fiduciary duty to the Fallises, who are members of the Association, by violating the

restrictive covenants and the Mailbox Easement.

       Both parties moved for summary judgment on independent grounds.               The Fallises’

second amended motion for summary judgment sought summary judgment as to all of their



                                                -3-
                                                                                               04-09-00256-CV


claims for declaratory relief. The Association’s amended motion for partial summary judgment

alleged it was entitled to summary judgment because: (1) the Fallises lacked standing to bring a

suit for breach of contract or tort; and (2) the Fallises’ claims for unauthorized use of an

easement, breach of restrictive covenants, breach of contract, trespass, breach of fiduciary duty,

and fraud were barred by the applicable statutes of limitations. 1 The Association’s motion

expressly recognized that the motion did not address the Fallises’ claim for declaratory relief

regarding the Water Well Easement. After a hearing, the trial court granted the Association’s

motion for partial summary judgment. Notwithstanding the motion’s express recognition that

the motion did not address at least one of the Fallises’ claims, the trial court’s order provided the

Fallises “take nothing against [the] Association, and that all claims asserted by [the Fallises]

against [the Association] are hereby denied.”

        Thereafter, the Association filed an additional motion for summary judgment and motion

to sever. The motion alleged the Association was entitled to summary judgment with regard to

the Fallises’ Water Well Easement claim because the Water Well Easement was clear and

unambiguous and gave the Association the right to use water from the existing well. The

Association also moved for a severance, asserting, “If this motion for summary judgment is

granted, the Association as Counter-Defendant will have no further causes of action to defend

itself against. Therefore, the Association hereby moves for a severance of any remaining issues

that exist as to the declaratory action originally filed by the Association.”

        After another hearing, the trial court signed three orders. First, the trial court denied the

Fallises’ second amended motion for summary judgment. Second, the trial court granted the

Association’s motion with regard to the Water Well Easement. That order again provided the

1
  The Association’s motion also addressed the Fallises’ allegations of ratification, reaffirmation, waiver, and
equitable estoppel; however, the Fallises’ brief does not contain any challenge to the summary judgment on these
allegations.

                                                      -4-
                                                                                      04-09-00256-CV


Fallises “take nothing against [the] Association, and that all claims asserted by [the Fallises]

against [the Association] are hereby denied.” Finally, the trial court granted the Association’s

motion to sever. That order stated that all of the Fallises’ causes of action were “resolved by

final disposition on their merits by summary judgment.”

                                      STANDARD OF REVIEW

       We review a trial court’s granting of a traditional summary judgment de novo. Valence

Operation Co., v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The party moving for summary

judgment bears the burden of establishing as a matter of law that no genuine issue of material

fact exists as to one or more of the essential elements of the plaintiff’s cause of action, and it is

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); City of Garland v. Dallas

Morning News, 222 S.W.2d 351, 356 (Tex. 2000). Once the movant establishes its right to

summary judgment, the burden shifts to the respondent to present evidence that would raise a

genuine issue of material fact. Brookview Ptnrs. L.P. v. Hannah, 260 S.W.3d 643, 645 (Tex.

App.—Dallas 2008, no pet.). In reviewing an order granting a traditional summary judgment

motion, we indulge every reasonable inference in favor of the nonmovant, take all evidence

favorable to the nonmovant as true, and resolve any doubts in favor of the nonmovant. Valence

Operation Co., 164 S.W.3d at 661. Where the trial court does not state the grounds upon which

it granted summary judgment and, as here, several grounds are provided, then the nonmoving

party on appeal must negate all grounds on which the trial court could have granted the order,

and we must affirm the summary judgment if any ground would support the judgment. See State

Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).




                                                -5-
                                                                                      04-09-00256-CV


            OVERLY BROAD RELIEF AND CLAIMS SUBJECT TO APPELLATE REVIEW

       In their brief, the Fallises note the Association’s amended motion for partial summary

judgment expressly stated the motion did not specifically address the Fallises’ declaratory relief

claim regarding the Water Well Easement; however, the Fallises contend the Association’s

motion also did not address the Fallises’ declaratory relief claims regarding the Mailbox

Easement or the restrictive covenants. We agree.

       In asserting the Fallises lacked standing, the Association challenged only the Fallises’

claims for breach of contract or tort. In asserting the Fallises’ claims were barred by limitations,

the Association challenged only the Fallises’ claims for unauthorized use of an easement, breach

of restrictive covenants, breach of contract, trespass, breach of fiduciary duty, and fraud. The

Association’s motion does not address any of the Fallises’ declaratory relief claims or their

request for an injunction. The Association’s subsequent motion addressed only the Fallises’

claim for declaratory relief with regard to the Water Well Easement.

       “It is axiomatic that one may not be granted judgment as a matter of law on a cause of

action not addressed in a summary judgment proceeding.”            Chessher v. Southwestern Bell

Telephone Co., 658 S.W.2d 563, 564 (Tex. 1983). “Granting more relief than the movant is

entitled to makes the order reversible” but does not affect this court’s jurisdiction to consider the

order. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 204 (Tex. 2001). Instead, we consider all

matters properly raised on appeal and reverse only those portions of the judgment rendered in

error, which reversal will include those portions of the judgment disposing of causes of action

that were not addressed in the summary judgment motion. See Page v. Geller, 941 S.W.2d 101,

102 (Tex. 1997); Thompson v. CPN Partners, L.P., 23 S.W.3d 64, 68 (Tex. App.—Austin 2000,

no pet.).   Because the Association’s motions did not address the Fallises’ claims seeking



                                                -6-
                                                                                  04-09-00256-CV


declaratory relief regarding the Mailbox Easement or the restrictive covenants or its request for

an injunction in relation thereto, the trial court’s order was overly broad and is reversed as to

those claims.

       The Fallises briefed the merits of the claim for declaratory relief regarding the Mailbox

Easement based on the trial court’s denial of their motion for summary judgment. However, this

court is generally permitted to consider the denial of a motion for summary judgment only when

the parties file competing motions. Cullins v. Foster, 171 S.W.3d 521, 529-30 (Tex. App.—

Houston [14th Dist.] 2005, pet. denied); Montgomery v. Blue Cross & Blue Shield of Tex., Inc.,

923 S.W.2d 147, 152 (Tex. App.—Austin 1996, writ denied.). In this case, the Association did

not file a competing motion for summary judgment as to the declaratory relief claim regarding

the Mailbox Easement. In fact, the Association’s motion does not even address that claim.

Because the motions are premised differently, we are unable to consider the merits of the

declaratory relief claim pertaining to the Mailbox Easement based on the trial court’s denial of

the Fallises’ motion. See Sarandos v. Blanton, 25 S.W.3d 811, 814 n.5 (Tex. App.—Waco 2000,

pet. denied).

                                   WATER WELL EASEMENT

       The Fallises sought a declaration that the Water Well Easement conveys the Association

the right to use only the existing waterline that is connected to the Fallises’ well, and not the

right to use the actual water from the well. In response, the Association moved for summary

judgment on this claim, asserting the Water Well Easement gives the Association the right to use

the actual water from the existing well. The trial court granted the summary judgment in favor

of the Association.




                                              -7-
                                                                                    04-09-00256-CV


       We review the trial court’s interpretation of easements de novo. Hubert v. Davis, 170

S.W.3d 706, 711 (Tex. App.—Tyler 2005, no pet.). An easement is a non-possessory interest in

property that allows its holder to use the property for a particular purpose. Marcus Cable

Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002); Koelsch v. Indus. Gas Supply Corp.,

132 S.W.3d 494, 497 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). An easement may be

created by express grant, implication, necessity, estoppel, or prescription. Machala v. Weems, 56

S.W.3d 748, (Tex. App.—Texarkana 2001, no pet.). When, as here, an easement is created by an

express grant, the scope of the easement holder’s rights must be decided by the terms of the

grant. DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 103 (Tex. 1999).

       To determine the meaning of an easement agreement, we apply basic rules of contract

construction and interpretation. Marcus Cable, 90 S.W.3d at 700; Koelsch, 132 S.W.3d at 498.

In accordance with those rules, we read the easement agreement as a whole to attain an adequate

interpretation of the parties’ intentions and to fulfill the purpose of the easement’s creation.

Marcus Cable, 90 S.W.3d at 701; Koelsch, 132 S.W.3d at 498. The language of an easement

agreement must be given its plain grammatical meaning unless doing so would defeat the parties’

intentions. DeWitt County Elec. Co-op., Inc., 1 S.W.3d at 101. When a term in the easement

agreement is not specifically defined, that term should be given its ordinary, plain, and generally

accepted meaning. Id. Unless the language of the easement agreement is ambiguous, we rely

solely on the written instrument and presume that the parties intended for every clause to have

some effect. Koelsch, 132 S.W.3d at 498. Should the provisions of the easement agreement

conflict, we harmonize them, if possible, to reflect the parties’ intentions. Id.

       Both parties agree the Water Well Easement is clear and unambiguous on its face. The

Water Well Easement conveys, in pertinent part, “a perpetual, non-exclusive easement and right-



                                                 -8-
                                                                                    04-09-00256-CV


of-way for the purpose of operating, maintaining, constructing, repairing, removing, and

reconstructing an existing water line . . .” to the Association along with “the right of ingress,

egress and regress in, upon, along, over and through said easement for the purposes of providing

water from an existing well located upon Lot 29 and for the benefit of a Sign Easement situated

and located upon Lot 30.” Here, the Water Well Easement expressly grants the Association the

right to operate and maintain the existing water line in order to provide water for the Sign

Easement. Although the Fallises contend the easement does not authorize the Association’s use

of the actual water from the well, we hold the Water Well Easement expressly grants the

Association the right to use water from the Fallises’ well. When reading the easement as a

whole, the purpose of the Water Well Easement is to provide water from the Fallises’ well to the

waterfall pond and sprinkler system located on the Sign Easement. See Marcus Cable, 90

S.W.3d at 701; Koelsch, 132 S.W.3d at 498. Accordingly, the Association has the right to use

both the actual water from the Fallises’ well and the existing waterline for the purposes of

transporting water to and from the items located on the Sign Easement.

       Therefore, because the Water Well Easement grants the Association the right to use the

actual water from the Fallises’ well, the trial court did not err in granting the Association’s

motion for summary judgment with regard to this claim.

                             NON-DECLARATORY RELIEF CLAIMS

       In addition to their claims for declaratory relief, the Fallises asserted several causes of

action against the Association, including breach of contract, trespass, breach of fiduciary duty,

and fraud. The Association moved for summary judgment on these claims based on lack of

standing and the applicable statute of limitations.       On appeal, the Fallises contend the

Association failed to establish lack of standing or a limitations bar with respect to each of their



                                               -9-
                                                                                     04-09-00256-CV


claims as a matter of law, and as a result, the trial court erred in granting the amended motion for

partial summary judgment.

   1.   Limitations

           a. Applicable Statute of Limitations

        The Association argues the Fallises’ claims were brought more than four years after the

structure over the mailboxes was installed by the Association. As a result, the Association

contends the Fallises’ claims are barred by the applicable statute of limitations.

        A four-year statute of limitations controls actions to enforce restrictive covenants. Air

Park-Dallas Zoning Committee v. Crow Billingsley Airpark, Ltd., 109 S.W.3d 900, 911 (Tex.

App.—Dallas 2003, no pet.); Colton v. Silsbee State Bank, 952 S.W.2d 625, 630 (Tex. App.—

Beaumont 1997, no pet.); see also TEX. CIV. PRAC. & REM. CODE ANN. §16.051 (Vernon 2008).

“The statute accrues upon the breach of the covenant.” Colton, 952 S.W.2d at 630.

        Actions for trespass to real property claims are governed by a two-year statute of

limitations. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (Vernon 2002); Graham v. Pirkey,

212 S.W.3d 507, 512 (Tex. App.—Austin 2006, no pet.). When the two-year period begins to

accrue depends on whether the trespass was temporary or permanent in character. See Schneider

Nat’l Carriers, Inc. v. Gates, 147 S.W.3d 264, 274-75 (Tex. 2004) (stating accrual of limitations

is question of law). A trespass action for permanent injuries to land accrues upon discovery of

the injury. Id.; Waddy v. City of Houston, 834 S.W.2d 97, 102 (Tex. App.—Houston [1st Dist.]

1992, writ denied). In contrast, a trespass action may not be barred by limitations if the trespass

constitutes a continuing tort. Krohn v. Marcus Cable Assocs., L.P., 201 S.W.3d 876, 880 (Tex.




                                                - 10 -
                                                                                                  04-09-00256-CV


App.—Waco 2006, pet. denied). Under the continuing tort doctrine, a trespass is considered

ongoing, and a cause of action does not accrue until the defendant’s tortious conduct ceases. 2 Id.

        A four-year statute of limitations controls actions for breach of fiduciary duty and fraud.

TEX. CIV. PRAC. & REM. CODE ANN. §16.004 (Vernon Supp. 2009-2010); McGuire v. Kelley, 41

S.W.3d 679, 681-82 (Tex. App.—Texarkana 2001, no pet.) (noting appellate courts apply four-

year statute of limitations in cases where breach of fiduciary duty claims were coupled with

fraud claims). Similarly, a four-year statute of limitations governs actions for breach of contract.

TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a) (Vernon Supp. 2002); Rice v. Louis A. Williams

& Assocs., Inc., 86 S.W.3d 329, 333 (Tex. App.—Texarkana 2002, pet. denied).

             b. Section 16.069 of the Texas Civil Practice and Remedies Code

        The Fallises attempt to avoid the bar of limitations by asserting they filed their claims

timely pursuant to section 16.069 of the Texas Civil Practice and Remedies Code. Section

16.069 states:

        (a) If a counterclaim or cross claim arises out of the same transaction or
        occurrence that is the basis of the action, a party to the action may file the
        counterclaim or cross claim even though as a separate action it would be barred
        by limitation on the date of the party’s answer is required.
        (b) The counterclaim or cross claim must be filed not later than the 30th day after
        the date on which the party’s answer is required.

TEX. CIV. PRAC. & REM. CODE ANN. § 16.069 (Vernon 2008). It is undisputed that the Fallises

filed their counterclaim within thirty days of the date their answer to the Association’s suit was

required.

        Given the Fallises timely filed their claims, we must next determine whether each claim

arises out of the same transaction or occurrence that formed the basis of the Association’s

declaratory relief claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.069. The purpose of

2
 Here, neither party describes the trespass as a continuing tort, and should we assume the trespass is permanent in
nature, the two-year statute would apply.

                                                      - 11 -
                                                                                    04-09-00256-CV


section 16.069 is to prevent a plaintiff from waiting until an opposing party’s valid claim arising

from the same transaction is barred by limitations before asserting his own claim. Oliver v.

Oliver, 889 S.W.2d 271, 273 (Tex. 1994); Wells v. Dotson, 261 S.W.3d 275, 281 (Tex. App.—

Tyler 2008, no pet.). In other words, section 16.069 seeks to prevent a plaintiff, like the

Association, from waiting until any potential claims by the Fallises were barred by limitations

before it sought an interpretation of the easement. See id. We apply the logical relationship test

to determine what constitutes a same “transaction” by asking whether the essential facts on

which the claims are based are significantly and logically relevant to both claims. See Wells, 261

S.W.3d at 281.

       Here, the Association sought several declarations from the trial court regarding the

specific authority the Mailbox Easement granted in terms of construction, repairs, rebuilding,

replacements, and installation of the mailboxes. The essential facts on which the Association

based its declaratory relief action are as follows: (1) in 1998, the Association filed two

instruments in the Kendall County records entitled the Declaration of Covenants, Conditions, and

Restrictions and the Mailbox Easement from Properties of the Southwest, L.P. to River Mountain

Ranch Property Owners Association; (2) thereafter, that same year, the Association installed a

structure over the mailboxes located on the easement; (3) in 2004, the Fallises purchased

property in the River Mountain Ranch subdivision and now dispute the Association’s authority

to maintain, construct, repair, and replace any improvements on the easement.

       In response, the Fallises filed a counterclaim, in which they alleged several causes of

action, each based on the Association’s request for declaratory relief regarding the Mailbox

Easement.    Here, the facts underlying both the parties’ actions are closely related.         The

Association’s request for declaratory relief focuses on outlining the authority granted in the



                                               - 12 -
                                                                                        04-09-00256-CV


Mailbox Easement, and the Fallises’ claims stem from the Association’s alleged violation of the

easement, i.e. the building and maintaining of a structure over the mailboxes. Specifically, in

their breach of contract claim involving breach of restrictive covenants and unauthorized use of

an easement, the Fallises contend the Association breached the restrictive covenant and Mailbox

Easement by installing the structure over the mailboxes. Likewise, the Fallises asserted a claim

for trespass, arguing the Association’s installation and maintenance of the structure over the

mailbox constitutes a trespass on their property. Finally, the Fallises contend the Association

had a fiduciary duty to the Fallises which it breached by violating the restrictive covenants and

Mailbox Easement when it installed the structure over the mailboxes.

        Because we construe a “transaction” as flexible and involving a series of multiple

occurrences logically related to one another, we conclude the Fallises’ claims arise out of the

same transaction as the Association’s claim for declaratory relief. See Wells, 261 S.W.3d at 281.

Therefore, given the exception to the limitations bar contained in section 16.069, the Association

did not prove as a matter of law that the Fallises’ claims are barred by limitations.

   2.   Standing

           a. General Law

        Subject matter jurisdiction is an issue that may be raised for the first time on appeal by

the parties or the court. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351,

358 (Tex. 2004). Standing is a necessary component of subject matter jurisdiction. Anderson v.

New Prop. Owners’ Ass’n of Newport, Inc., 122 S.W.3d 378, 384 (Tex. App.—Texarkana 2003,

pet. denied). Whether a trial court has subject matter jurisdiction is a question of law that is

subject to de novo review; therefore, a trial court’s determination of standing is also subject to a




                                                - 13 -
                                                                                     04-09-00256-CV


de novo review. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.

2004); Denman v. Citgo Pipeline Co., 123 S.W.3d 728 (Tex. 2003).

       A plaintiff must have standing to bring a lawsuit. Austin Nursing Ctr., Inc. v. Lovato, 171

S.W.3d 845, 848 (Tex. 2005). Without standing, a court lacks subject matter jurisdiction to hear

the case. Id. “The issue of standing focuses on whether a party has a sufficient relationship with

the lawsuit so as to have a ‘justiciable interest’ in the lawsuit’s outcome.” Id. Further, the issue

of standing focuses on who may bring an action. M.D. Anderson Cancer Ctr. v. Novak, 52

S.W.3d 704, 708 (Tex. 2001). Unless standing is conferred by statute, the determination of

whether a plaintiff possesses standing to assert a particular claim depends on the facts pleaded

and the cause of action asserted. Id. at 707-08.

       Here, we must determine whether the Association proved as a matter of law that the

Fallises did not have standing to assert their claims. The Association contests the Fallises’

standing to assert their claims based on the principle that a subsequent purchaser cannot recover

for an injury committed before his purchase absent an express provision. See City of Dallas v.

Winans, 262 S.W.2d 256, 259 (Tex. Civ. App.—Dallas 1953, no writ). In its summary judgment

evidence, the Association established: (1) the structure over the mailboxes came into existence in

1998; and (2) the Fallises did not purchase the property until April 7, 2004. Accordingly, there is

no dispute that the Fallises’ purchase occurred six years after the structure over the mailboxes

came into existence. The Association asserts because the structure over the mailboxes was in

existence before the Fallises purchased the property, the Fallises cannot recover for an injury

prior to their purchase of the property, even if that injury arose from a breach of the restrictive

covenant, unauthorized use of easement, trespass, breach of fiduciary duty or fraud. See id.




                                               - 14 -
                                                                                      04-09-00256-CV


           b. Breach of Restrictive Covenants and Unauthorized Use of Easement

       With respect to the Fallises’ breach of restrictive covenants and unauthorized use of

easement claims, the Association’s reliance on the principle that a subsequent purchaser cannot

recover for an injury committed before his purchase absent an express provision is misplaced

because the principle applies to cases involving personal covenants. See Gleason v. Taub, 180

S.W.3d 711, 713 (Tex. App.—Fort Worth 2005, pet. denied); Senn v. Texaco, Inc., 55 S.W.3d

222, 226 (Tex. App.—Eastland 2001, pet. denied); Lay v. Aetna Ins. Co., 599 S.W.2d 684, 686

(Tex. Civ. App.—Austin 1980, writ. ref’d n.r.e.). In those cases a cause of action for injury to

real property is a personal right that accrues when the injury is committed, and “[w]ithout

express provision, the right does not pass to a subsequent purchaser of the property.” Gleason,

180 S.W.3d at 713; Lay, 599 S.W.2d at 686. As a result, “a mere subsequent purchaser cannot

recover for an injury committed before his purchase.” Lay, 599 S.W.2d at 686; see also Senn, 55

S.W.3d at 226.

       Unlike a personal covenant, however, real covenants run with the land, binding the heirs

and assigns of the covenanting parties. Inwood N. Homeowners’ Ass’n, Inc. v. Harris, 736

S.W.2d 632, 635 (Tex. 1987). A covenant is considered to run with the land if: (1) it touches and

concerns the land; (2) it relates to a thing in existence or specifically binds the parties and their

assigns; (3) it is intended by the original parties to run with the land; and (4) the successor to the

burden has notice. Id; see also Montford v. Trek Res., Inc., 198 S.W.3d 344, 355 (Tex. App.—

Eastland 2006, no pet.); Raman Chandler Props., L.C. v. Caldwell’s Creek Homeowners Ass’n,

Inc., 178 S.W.3d 384, 391 (Tex. App.—Fort Worth 2005, pet. denied).

       Here, the restrictive covenant, which restricts permissible uses of the property in the

subdivision, creates a covenant that runs with the land. See id. The restrictive covenant prevents



                                                - 15 -
                                                                                     04-09-00256-CV


“any five (5) acre or larger tract nearer than twenty-five (25) feet to the side property line or no

nearer than one hundred (100) feet to any public road or no nearer than fifty (50) feet to the rear

property line.” This creates a covenant that touches and concerns the land and evidences the

intent of the parties to prevent the above described building from being built upon the land. The

restrictive covenant specifically provides that the covenant binds the parties, their successors,

and assigns.     Additionally, because the property was conveyed as a fee simple estate, the

requirement of privity is satisfied. See Inwood N. Homeowners’ Ass’n, 736 S.W.2d at 635.

Lastly, the deed signed by the Fallises was subject to the restrictive covenants, and therefore, the

Fallises had notice of the restrictive covenants. See id; Montford, 198 S.W.3d at 335; Raman

Chandler Props., L.C, 178 S.W.3d at 391. Accordingly, the restrictive covenant creates a

covenant running with the land, and therefore, unlike a personal covenant, may be enforced by a

successor-in-interest. See Inwood North Homeowners’ Ass’n, 736 S.W.2d at 635.

       Like the restrictive covenant, the Mailbox Easement creates a covenant that runs with the

land, and therefore, may be enforced by a successor-in-interest. See id. The Mailbox Easement

expresses the intent of the original parties to provide the Association with the authority to

construct, repair, rebuild, and replace mailboxes. The covenant touches and concerns the land

and specifically binds the parties, their successors, and assigns. Similarly, because the property

was conveyed in a fee simple estate, the requirement of privity is satisfied, and the deed signed

by the Fallises was subject to the Mailbox Easement, giving the Fallises notice of the Mailbox

Easement. See id; Montford, 198 S.W.3d at 335; Raman Chandler Props., L.C, 178 S.W.3d at

391.   Accordingly, the Mailbox Easement creates a covenant running with the land, and

therefore, may be enforced by successors-in-interest. See Inwood N. Homeowners’ Ass’n, 736

S.W.2d at 635.



                                               - 16 -
                                                                                      04-09-00256-CV


       Because it is undisputed that the Fallises are successors-in-interest to the original grantor,

Properties of the Southwest, Inc., and the restrictive covenants and Mailbox Easement create a

covenant running with the land, the Fallises have standing to enforce the restrictive covenants

and Mailbox Easement as a matter of law. See id. Accordingly, the Association did not establish

the Fallises lacked standing with regard to their breach of restrictive covenant and easement

claims, and the trial court erred in granting the Association’s partial motion for summary

judgment with respect to those claims.

           c. Trespass

       The Association is, however, correct that the Fallises do not have standing to assert their

trespass claim. Unlike the above claims, this claim for injury to real property is a personal right,

which belongs to the person who owned the property at the time of the injury. See Gleason, 180

S.W.3d at 713. Absent an express provision, the right to sue for trespass does not pass to a

subsequent purchaser, i.e. the Fallises. Id. Accordingly, because the injury to the property

occurred prior to the Fallises’ purchase and the deed contains no express assignment of a trespass

claim, we hold the Fallises lacked standing to assert this claim as a matter of law. See id.

           d. Breach of Fiduciary Duty and Fraud

       We next consider the Association’s allegation that the Fallises lack standing to assert

their cause of action for breach of fiduciary duty. To recover for breach of fiduciary duty, a

plaintiff must establish that the defendant was his or her fiduciary. See Myer v. Cuevas, 119

S.W.3d 830, 836 (Tex. App.—San Antonio 2003, no pet.). Whether a fiduciary relationship

exists is typically a question of fact for the jury. Procom Energy, L.L.C. v. Roach, 16 S.W.3d

377, 382 (Tex. App.—Tyler 2000, pet. denied). A fiduciary relationship may arise in the context

of formal or informal relationships. See Crim Truck & Tractor Co. v. Navistar Int’l, 823 S.W.2d



                                               - 17 -
                                                                                      04-09-00256-CV


591, 594 (Tex. 1992). Formal fiduciary relationships arise as a matter of law between an

attorney and client, a principal and agent, a trustee and beneficiary, and partners in a partnership.

Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 439 (Tex. App.—

Houston [14th Dist.] 2000, pet. denied). Informal relationships may arise “from a moral, social,

domestic or purely personal relationship . . . called a confidential relationship.” Id. Regardless

of the formation, a fiduciary relationship is an extraordinary one and cannot be created lightly.

Myer, 119 S.W.3d at 836.

       In their counterclaim, the Fallises contend the Association acknowledged it owed them a

fiduciary duty when the Association sent them a letter advising them of its “fiduciary

responsibility . . . to protect the property rights of its members.” The Fallises next contend the

Association breached that fiduciary duty when it violated the restrictive covenant and Mailbox

Easement by installing the structure over the mailboxes. Accordingly, the Fallises specified in

their pleadings that a fiduciary duty was owed to them, and the Association breached that duty.

See id. (pointing out plaintiff lacked standing to sue for breach of fiduciary duty when he did not

amend pleadings to establish duty was owed to him personally by several defendants). Although

we do not decide whether the Association actually owed the Fallises a fiduciary duty, we do hold

the Fallises’ pleadings sufficiently established their standing to sue for breach of fiduciary duty;

therefore, the trial court improperly dismissed this claim.

   Additionally, breach of fiduciary duty is a form of constructive fraud. Redmon v. Griffith,

202 S.W.3d 225, 240 (Tex. App.—Tyler 2006, pet. denied). Therefore, because we have held

the Fallises have standing to raise a breach of fiduciary claim, we further hold they have standing

to proceed on a claim for constructive fraud. See id.




                                                - 18 -
                                                                                      04-09-00256-CV


   3. Conclusion

       We hold the Association failed to establish its affirmative defense of limitations with

respect to each of the Fallises’ claims as a matter of law. We also hold the Association failed to

establish its affirmative defense of lack of standing with respect to the Fallises’ breach of

restrictive covenants, unauthorized use of easement, breach of fiduciary duty, and fraud claims.

Therefore, with respect to those claims, the trial court erred in granting the Association’s motion

for partial summary judgment.

       However, with respect to the Fallises’ claim of trespass, we hold the Association

established the Fallises’ lacked standing to assert their trespass claim as a matter of law.

Therefore, the trial court did not err in granting the Association’s motion for partial summary

judgments as to the trespass claim.

                                           SEVERANCE

       Finally, in their second point of error, the Fallises contend the trial court erred in granting

the Association’s motion to sever, which in effect severed the Fallises’ claims from the

Association’s claim for declaratory relief. According to the Fallises, their claims should not have

been severed because they were compulsory counterclaims given that the facts necessary to

prove their claims were so intertwined with the facts necessary to prove the Association’s claim

for declaratory relief. As a result, the Association’s claim and the Fallises’ claims all arose out

of the same transaction.

       We review a trial court’s decision to grant or deny a party’s motion to sever under an

abuse of discretion. See Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996); In

re Allstate Tex. Lloyds, 202 S.W.3d 895, 897 (Tex. App.—Corpus Christi 2006, no pet.). Under

the Texas Rules of Civil Procedure, any claim against a party may be severed and continued with



                                                - 19 -
                                                                                          04-09-00256-CV


separately. TEX. R. CIV. P. 41; Allstate, 202. S.W.3d at 897. “A claim is properly severable if

(1) the controversy involves more than one cause of action, (2) the severed claim is one that

would be the proper subject of a lawsuit if independently asserted, and (3) the severed claim is

not so interwoven with the remaining action that they involve the same facts and issues.”

Allstate, 202. S.W.3d at 897. The controlling reasons for a severance are to do justice, avoid

prejudice, and further convenience. Id.

        We agree with the Fallises that their claims were compulsory counterclaims and could

not be severed from the Association’s requests for declaratory relief.               A counterclaim is

compulsory if “it arises out of the transaction or occurrence that is the subject matter of the

opposing party’s claim and does not require for its adjudication the presence of third parties of

whom the court cannot acquire jurisdiction.” TEX. R. CIV. P. 97(a). Here, the Association’s

request for declaratory relief arose out of its effort to clarify its authority to establish the structure

over the mailboxes. Similarly, the Fallises’ claims against the Association seek to establish the

Association was without any such authority.           Accordingly, the Fallises’ claims against the

Association arose out of the same transaction as the Association’s request for declaratory relief,

and therefore were compulsory counterclaims.               See TEX. R. CIV. P. 97(a).    Moreover, the

Fallises’ claims and the Association’s request for declaratory relief were “so interwoven with the

remaining action that they involve the same facts and issues.” See Allstate, 202. S.W.3d at 897.

Accordingly, the trial court abused its discretion in severing the Fallises’ claims from the

Association’s claim for declaratory relief.

                                              CONCLUSION

        Because the trial court’s order was overly broad, we reverse the portion of the trial

court’s order granting the Association’s motion for partial summary judgment with respect to the



                                                  - 20 -
                                                                                      04-09-00256-CV


Fallises’ claims seeking declaratory relief regarding the Mailbox Easement and the restrictive

covenants, and its request for an injunction in relation thereto. Those causes are remanded to the

trial court for further proceedings consistent with this court’s opinion. We affirm the trial court’s

order granting the Association’s motion for summary judgment as to the Water Well Easement.

With regard to the Fallises’ non-declaratory relief claims, we reverse the portion of the trial

court’s order granting the Association’s motion for partial summary judgment with respect to the

Fallises’ breach of restrictive covenants, unauthorized use of easement, breach of fiduciary duty,

and fraud claims.     However, we affirm the portion of the trial court’s order granting the

Association’s motion for partial summary judgment with regard to the Fallises’ trespass claim.

Lastly, we reverse the trial court’s order severing the Fallises’ claims from the Association’s

original claim for declaratory relief.



                                                   Marialyn Barnard, Justice




                                                - 21 -
