                                  MEMORANDUM OPINION
                                         No. 04-10-00395-CV

                                   Larry EDBERG and Julie Edberg,
                                            Appellants

                                                   v.

    THE LAUREL CANYON RANCH ARCHITECTURAL REVIEW COMMITTEE,
                             Appellee

                     From the 38th Judicial District Court, Medina County, Texas
                                  Trial Court No. 07-02-18317-CV
                           Honorable Camile G. DuBose, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: February 16, 2011

AFFIRMED

           Larry Edberg and Julie Edberg (the “Edbergs”) challenge the summary judgment granted

in favor of the Laurel Canyon Ranch Architectural Review Committee (the “ARC”). We affirm

the trial court’s judgment.

                              FACTUAL AND PROCEDURAL BACKGROUND

           On June 27, 2006, the Edbergs purchased Lot 121 of Unit 2 of the Laurel Canyon Ranch

subdivision and began constructing a home.              Laurel Canyon Ranch is governed by the
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Declaration of Covenants, Conditions and Restrictions for The Laurel Canyon Ranch, Unit 2 of

Medina County, Texas (the “Declaration”). On December 15, 2006, the ARC sent a letter to the

Edbergs alerting them that their home did not meet the Declaration’s design guidelines and

requesting that they submit construction plans for ARC approval. Thereafter, the Edbergs sued

the ARC and the individual members of the ARC, requesting declaratory relief. In response, the

ARC and the individual members of the ARC filed motions for summary judgment, which the

trial court granted.

         The Edbergs appealed that judgment, challenging the summary judgment on the ground

that the Declaration did not, by its express language, impose any covenants or restrictions on

their property. Edberg v. Laurel Canyon Ranch Architectural Review Comm., No. 04-08-00290-

CV, 2009 WL 1089432 (Tex. App.—San Antonio Apr. 22, 2009, no pet.) (mem. op., not

designated for publication) (“Edberg I”). We agreed, and held that the ARC did not prove as a

matter of law that the Declaration applied to the Edbergs’ property because the words “Unit 1”—

as opposed to “Unit 2”—appeared twice in the relevant portion of the Declaration, and because

we could not say that the references to “Unit 1” were “typographical errors as a matter of law on

this record.” 1 Id. at *4 (emphasis original). We remanded the cause to the trial court for further

proceedings.

         Upon remand, the ARC again moved for summary judgment on the Edbergs’ claims, 2

this time arguing that the Declaration’s references to “Unit 1” were typographical errors, and

therefore the Declaration did burden the Edbergs’ property as a matter of law. The ARC also


1
  Our opinion in Edberg I noted that neither party had argued that the references in the Declaration to “Unit 1” were
typographical errors. See Edberg I, 2009 WL 1089432, at *4.
2
  Subsequent to remand, the Edbergs filed their Fifth Amended Original Petition, asserting, in addition to their
request for declaratory judgment, claims for fraud, negligent misrepresentation, tortious interference with property
rights, and tortious interference with existing contract. Aside from the declaratory judgment request, the Edbergs
appeal only the denial of their claim for tortious interference with property.

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argued there was no evidence that it tortiously interfered with the Edbergs’ property rights. The

trial court granted summary judgment in favor of the ARC. The Edbergs timely appealed.

                                      STANDARD OF REVIEW

       We review both traditional and no-evidence summary judgments de novo. Joe v. Two

Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). We consider the evidence in the

light most favorable to the non-movant and indulge all reasonable inferences and resolve any

doubts in the non-movant’s favor. Id. at 157. We will affirm a traditional summary judgment

only if the movant established that there are no genuine issues of material fact and it is entitled to

judgment as a matter of law on a ground expressly set forth in the motion. Id. We will affirm a

no-evidence summary judgment only if the non-movant failed to produce more than a scintilla of

probative evidence raising a genuine issue of material fact on a challenged element of the cause

of action. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). When the trial court

does not specify the grounds for its summary judgment, we must affirm the judgment so long as

any one of the theories advanced in the motion is meritorious. Joe, 145 S.W.3d at 157.

                                              DISCUSSION

       The Edbergs bring two issues on appeal, arguing that the trial court erred in granting

summary judgment in favor of the ARC because the Declaration does not burden Unit 2 as a

matter of law and because it presented more than a scintilla of evidence to support its claim for

tortious interference with property rights.

Applicability of the Declaration to the Edbergs’ Property

       We review a trial court’s interpretation of a restrictive covenant de novo in accordance

with general rules of contract construction. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.

1998); Ski Masters of Tex., LLC v. Heinemeyer, 269 S.W.3d 662, 667 (Tex. App.—San Antonio



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2008, no pet.). Covenants are examined as a whole in light of the circumstances present when

the parties entered into the agreement. Pilarcik, 966 S.W.2d at 478. We give effect to every

sentence, clause, and word of a covenant, and avoid constructions that would render parts of the

covenant superfluous or inoperative. Owens v. Ousey, 241 S.W.3d 124, 129-30 (Tex. App.—

Austin 2007, pet. denied). Our primary intent is to ascertain and give effect to the true intention

of the parties as expressed in the instruments. Id. Restrictive covenants must be liberally

construed to effectuate their purposes and intent. See TEX. PROP. CODE ANN. § 202.003(a) (West

2007); Sonterra Capital Partners, Ltd. v. Sonterra Prop. Owners Ass’n, Inc., 216 S.W.3d 417,

420 (Tex. App.—San Antonio 2006, no pet.).

       The Edbergs contend the trial court erred in finding that Unit 2 of the Laurel Canyon

Ranch subdivision was burdened by the Declaration because it expressly provides that Unit 1

shall be burdened. The covenant at issue provides:

       Declarant [Laurel C Ranch LP] now desires, for its own best interest and for the
       interest of other persons who may purchase property within the confines of the
       Laurel Canyon Ranch, Unit 1, that there be established and maintained a uniform
       plan for improvement and development as a residential subdivision.

       NOW, THEREFORE, Declarant hereby declares, adopts, establishes, and imposes
       upon the Laurel Canyon Ranch, Unit 1, the following reservations, easements,
       restrictions, covenants, and conditions, applicable thereto, all of which are for the
       purpose of enhancing the value, desirability, and attractiveness of all of the
       properties in the Laurel Canyon Ranch, Unit 2. These easements, covenants,
       restrictions, and conditions shall run with the title to said real property and shall
       be binding upon all parties having or acquiring any right or title, or interest in any
       lot or lots in the Laurel Canyon Ranch, Unit 2, or any part thereof, and their
       respective heirs, successors, and assigns, and shall inure to the benefit of each
       Owner and holder thereof. Declarant also declares that, upon its creation and
       transfer of authority by Declarant to the Property Owners Association, as
       provided for hereinafter, all of the lots in Laurel Canyon Ranch, Unit 2, shall be
       subject to the jurisdiction of the Property Owner’s Association for the Laurel
       Canyon Ranch as provided for herein.

(emphasis added).



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The Edbergs contend that the two references to “Unit 1” preclude application of the Declaration

to their property, which is located in Unit 2. Their argument is supported, they maintain, by our

prior opinion, in which we stated that “the plain language of the Declaration imposes only upon

Unit 1 ‘the following reservations, easements, restrictions, covenants, and conditions,’ which it

states is for the purpose of ‘enhancing the value, desirability, and attractiveness of all the

properties in the Laurel Canyon Ranch, Unit 2.’” Edberg I, 2009 WL 1089432, at *4. We noted

that neither the Edbergs nor the ARC argued that the references to Unit 1 were typographical

errors. Id. (citing Doe v. Tex. Ass’n of Sch. Bds., Inc., 283 S.W.3d 451, 461 (Tex. App.—Fort

Worth 2009, pet. denied) (holding that the agreement was not ambiguous because the singular

term “incident” was nothing more than a typographical error); Ussery Invs. v. Canon &

Carpenter, Inc., 663 S.W.2d 591, 593 (Tex. App.—Houston [1st Dist.] 1983, writ dism’d)

(explaining that provision in restrictive covenant that provided restrictions, covenants, and

limitations were to expire on January 1, 1955, was typographical mistake as “the document in

which they were filed stated that they were to expire seventeen years before they were even

filed”). In sum, we held that based on the summary judgment record then before us, which did

not contain evidence of a typographical error, the express language of the Declaration did not

burden Unit 2, and therefore the Declaration did not impose any covenants or restrictions on the

Edbergs’ property. Edberg I, 2009 WL 1089432, at *4. We remanded the cause to the trial court

for further proceedings.

       Upon remand, the ARC moved for summary judgment on the basis that the Declaration

burdened Unit 2, including Lot 121, because the evidence established that the two references to

“Unit 1” were merely typographical errors and that the declarant’s intent was to burden lots

located in Unit 2. In support, the ARC attached evidence showing that the declarant, Laurel C



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Ranch, LP, and its managing partner and authorized agent and representative, Peter Serebrenik,

intended to burden Unit 2 when drafting the Declaration. In his affidavit, Serebrenik states that

he prepared and filed the Restrictions for Laurel Canyon Ranch, Unit 1. When he developed the

second phase of Laurel Canyon Ranch (Unit 2), he used Unit 1’s restrictions as a template for

preparing restrictions for Unit 2. Serebrenik states:

       I asked my assistant to create the template for the Unit 2 restrictions by copying
       the Declaration of Restrictions of Unit 1 and to substitute “Unit 2” for each
       reference to “Unit 1” in the Unit 1 restrictions. My assistant faithfully replaced
       each reference to Unit 1 except for two references: “Unit 1” was left unsubstituted
       in the second paragraph of Section I and in the first sentence of the third
       paragraph of Section I of the Declaration of Restrictions for Unit 2. Leaving the
       two references to Unit 1 in the Declaration of Restrictions for Laurel Canyon
       Ranch, Unit 2, was a mistake — a clerical error. My sole intention in preparing
       the Unit 2 Declaration of restrictions, as the authorized agent and representative
       for the Declarant, was to burden the Unit 2 lots with the covenants, conditions,
       and restrictions contained therein.

Serebrenik similarly testified by deposition that his intent in drafting the Declaration was to

burden the property in Unit 2 and that the two references to Unit 1 were obvious errors which

were likely the result of adapting other declarations for use for Unit 2.

       The ARC further argued that the declarant’s intent to burden Unit 2 was reflected in other

portions of the Declaration itself, including its title (“Declaration of Covenants, Conditions and

Restrictions for The Laurel Canyon Ranch, Unit 2 of Medina County, Texas”), its introductory

paragraph and definition of the premises (explicitly referring to Unit 2), and its definitions of the

terms “property” and “lot” (“‘property’ shall refer to the Laurel Canyon Ranch, Unit 2 of Medina

County, Texas”; “‘lot’ shall mean and refer to any of the numbered lots of land shown on the

recorded plat or map of the Laurel Canyon Ranch, Unit 2 on file among the Map and Plat

Records of Medina County, Texas”).




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       The ARC also maintained that the Edbergs knew or should have known that their lot was

burdened by the Declaration, as evidenced by their confirmed receipt of “recorded copy of the

Restrictions for the Laurel Canyon Ranch Unit 2.” Finally, the ARC alleged the Edbergs

admitted that the Declaration imposed restrictions on Unit 2 when Larry Edberg acknowledged

in his April 26, 2007 deposition that he had recently read the covenants and restrictions.

       The Edbergs do not dispute that the two references to Unit 1 are a mistake; rather, they

insist that when there is only one party to a declaration, a typographical mistake contained

therein should be categorized as a unilateral mistake, and that the unilaterally mistaken party

alone bears responsibility for the consequences of its error. See, e.g., May v. San Antonio & A.P.

Town Site Co., 83 Tex. 502, 505, 18 S.W.959, 960 (1892); F.D.I.C. v. Graham, 882 S.W.2d 890,

897 (Tex. App.—Houston [14th Dist.] 1994, no writ); Turberville v. Upper Valley Farms, Inc.,

616 S.W.2d 676, 678-79 (Tex. Civ. App.—Corpus Christi 1981, no writ); see also Wentwood

Woodside I, LP v. GMAC Commercial Mortg. Corp., 419 F.3d 310, 316 (5th Cir. 2005). We

disagree, however, that the unilateral mistake doctrine applies in this instance. It is undisputed

that at the time the Edbergs received the Restrictions for The Laurel Canyon Ranch, Unit 2, both

parties believed that the Declaration burdened Unit 2.         Moreover, both parties conducted

themselves as though the Declaration burdened Unit 2.           The fact that Serebrenik, as the

authorized agent and representative of Laurel C Ranch, LP, prepared the Declaration is

immaterial.

       Viewing the entire Declaration—which is 18 pages in length and includes eight

references to “Unit 2” and two to “Unit 1”—as well as the evidence of the drafter’s intent

presented by the ARC, we conclude that the references to “Unit 1” are typographical errors.

Typographical errors “must yield to the well-established doctrine that written contracts will be



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construed according to the intention of the parties, notwithstanding errors and omissions, by

perusing the entire document and to this end, words, names, and phrases obviously intended may

be supplied.”    Ussery, 663 S.W.2d at 593; see also Falk & Fish, L.L.P., v. Pinkston’s

Lawnmower & Equip., Inc., 317 S.W.3d 523, 527-28 (Tex. App.—Dallas 2010, no pet.); Doe,

283 S.W.3d at 461. We also reject the Edbergs’ contention presented at oral argument that, in

order for the “typographical error doctrine” to apply, the mistake must be verifiable from the

document itself. Although the error in Ussery was apparent from the face of the document, the

Ussery court did not restrict its holding to instances involving obvious mistakes. See Ussery,

663 S.W.2d at 593. Accordingly, we may substitute “Unit 2” for the two erroneous references to

“Unit 1.”   We hold that based on the summary judgment record currently before us, the

Declaration did burden the Edbergs’ property as a matter of law, and the trial court did not err in

granting summary judgment on that basis. We overrule the Edbergs’ first issue.

Tortious Interference with Property Rights

       The Edbergs next contend the trial court erred in dismissing their claim for tortious

interference with property rights. The parties agree that the elements of this cause of action are:

(1) that an interference with one’s property or property rights occurred; (2) such interference was

intentional and caused damage; and (3) the interference was conducted with neither just cause

nor legal excuse. See In re Estate of Price, No. 04-05-00438-CV, 2006 WL 3725542, at *4

(Tex. App.—San Antonio Dec. 20, 2006, pet. denied) (mem. op., not designated for publication)

(noting requirements for tortious interference action); see also King v. Acker, 725 S.W.2d 750,

754 (Tex. App.—Houston [1st Dist.] 1987, no writ) (holding that a cause of action for tortious

interference with inheritance rights exists in Texas).




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       The ARC moved for summary judgment on this claim on no-evidence grounds. In their

response, the only evidence of interference the Edbergs point to is an unsigned letter directed to

them on behalf of the ARC on December 15, 2006. (emphasis in original). The letter states in

relevant part as follows:

       This letter places you on further notice that the plans and color scheme of the
       home under construction on Lot 121 have not been approved by the Architectural
       Review Committee.

       Although neither of us expected or should be in the current state of affairs, a
       proactive attitude will bring us back on track. Towards that goal, we accelerate
       this process to benefit you and enhance the value of your property.

       The Architectural Review Committee (ARC) has no record of your construction
       document submission for ARC approval, nor any on-file documentation granting
       said approvals before starting construction. We find no documentation with the
       required ARC approvals for exterior materials, colors, etc. on file at the LCR
       office. The ARC directs your attention to the Declaration of Covenants,
       Conditions and Restrictions for The Laurel Canyon Ranch (LCR), specifically
       Section IV titled Architectural Review Committee and Design Guidelines.

       While stopping work on your property may cause an inconvenience, work cannot
       continue until the requirements of Section IV have been addressed and proper
       approvals are issued. These requirements are not subject to granting of a waiver
       regardless of construction already in place. These covenants, conditions, and
       restrictions are mandated and enforced for your protection as well as for
       protection of the Laurel Canyon Ranch Community.

       The ARC wants to resolve this delinquency and bring your home to compliance
       as quickly as possible and without legal recourse. Please submit the required
       documentation to the LCR on-site office. The ARC will quickly review and
       provide specific corrective direction for any item found not in compliance and/or
       approval. There may be in-place construction features which may require
       removal if not in compliance with Section IV or mandated by the ARC.

       The Laurel Canyon Ranch Architectural Review Committee looks forward to
       hearing from you.

The Edbergs go on to state in the summary judgment response that this interference caused them

damage, and allege that the halting of the construction caused them to default on their

construction loan, and their lender then foreclosed on their home. The Edbergs assert that the

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ARC had no right to interfere with the construction of their home because the Declaration does

not apply to Unit 2.

       Without deciding whether the December 15, 2006 letter constitutes an interference with

property or property rights, the Edbergs cannot prevail on their claim because there is no

evidence that the ARC lacked just cause or legal excuse in sending the letter. The ARC is a

legally constituted non-profit association. See Edberg I, 2009 WL 1089432, at *2-3. Further, as

discussed, supra, the Declaration burdens Unit 2, and therefore the ARC was justified in alerting

the Edbergs that their construction did not adhere to the design guidelines contained within the

Declaration. Because the Edbergs cannot establish at least one of the elements of their claim for

tortious interference with property, the trial court did not err in granting summary judgment on

this ground. Therefore, the Edbergs’ second issue is overruled, and the judgment of the trial

court is affirmed.


                                                 Phylis J. Speedlin, Justice




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