      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00796-CV



                                 Diane Crumley Dee, Appellant

                                                v.

                             Crosswater Yacht Club, LP, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
        NO. D-1-GN-10-003781, HONORABLE JEFF L. ROSE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Diane Crumley Dee appeals from a summary judgment denying her claim that a piece

of lakefront property located on Graveyard Point, a peninsula on Lake Travis, and currently owned

by appellee Crosswater Yacht Club, LP (“Crosswater”) is burdened by a restrictive covenant

prohibiting commercial activity. We will affirm the trial court’s judgment.


                     FACTUAL AND PROCEDURAL BACKGROUND

               The land constituting Graveyard Point was part of the Stewart Ranch owned by A.K.

and Annie Stewart. Beginning in the 1940s, the Stewarts—and after A.K. Stewart’s death, Annie

Stewart individually and as executrix of his estate—partitioned a number of tracts from their

property and conveyed them to third parties by deeds that contained metes and bounds descriptions.1


       1
        The affidavit of David Jones, a title examiner, which was part of Dee’s summary judgment
evidence, indicates that between 1943 and 1952 A.K. and Annie Stewart, or Annie Stewart
These tracts are predominantly landlocked lots located within an area bounded by a roadway

(Chipmonk Road) that roughly follows the 715' contour line of Lake Travis,2 but also include two

tracts across Chipmonk Road closer to the 670' contour line, i.e., on the lake side of Chipmonk Road.

The deeds conveying each of these tracts, with the exception of one of the landlocked tracts, included

a restrictive covenant prohibiting use of the conveyed tract for a commercial enterprise.3 The

instruments conveying 16 of the tracts, including the tract of land now owned by Dee, also granted

an express easement over the property lying between the particular tract and the 670' contour line

of Lake Travis for the purpose of ingress and egress to the lake. Dee’s property is one of the tracts

on the lake side of Chipmonk Road and is bordered on the south, west, and north by the

Crosswater Tract.

               In addition to the tracts described above, Annie Stewart also conveyed several pieces

of property to each of her seven children. These included six adjacent landlocked tracts that were

bounded by Chipmonk Road and seven larger adjacent lakefront tracts that were located on the

northernmost portion of the peninsula.4 The deeds conveying these properties did not contain a

restrictive covenant prohibiting commercial use.




individually and as executrix of A.K. Stewart’s estate, conveyed 40 such tracts.
       2
         In 1940 A.K. and Annie Stewart granted the Lower Colorado River Authority an easement
to inundate their property up to the 715' contour line of Lake Travis.
       3
       Typically, the deeds included the following language: “It is agreed and understood that no
commercial enterprise shall ever be operated upon said land herein conveyed.”
       4
          The landlocked tracts ranged in size from 0.35 to 0.77 acres, whereas the lakefront lots
ranged in size from 1.65 to 2.97 acres.

                                                  2
               Crosswater purchased its property on Graveyard Point in November 2007.

Approximately 40 of the 111 acres Crosswater obtained were originally part of the Stewart Ranch.

Crosswater purchased the 111 acres from Dorothy Jean Stewart Uzell and Betty Ann Stewart

Hanson, who had inherited the property from Arthur L. Stewart, one of Annie Stewart’s sons. The

deed conveying the Crosswater Tract contained no restrictions on its use. Crosswater purchased the

land with the intention of building and operating a marina. Disputes arose between Crosswater

and Dee regarding the scope of Dee’s easement rights over portions of the Crosswater Tract. In

February 2009, Crosswater brought suit seeking to enjoin Dee from interfering with its construction

of the marina and to declare the scope of the easement rights. Dee answered and asserted, among

other things, a counterclaim seeking a declaration that the Crosswater Tract was, by application of

the implied reciprocal negative easement doctrine, burdened by a restrictive covenant prohibiting

commercial use. Crosswater filed a traditional and no-evidence motion for summary judgment on

Dee’s claim regarding the commercial-use restriction. The trial court granted the motion for

summary judgment and signed an order dismissing that claim with prejudice. Thereafter, the trial

court severed the implied-reciprocal-negative-easement claim into a new action with a new cause

number, thereby making its earlier order a final judgment. This appeal followed.


                                  STANDARD OF REVIEW

               We review the trial court’s summary-judgment rulings de novo. Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co v. Knott,

128 S.W.3d 211, 215 (Tex. 2003). Where, as here, the summary-judgment motion asserted multiple

grounds and the summary-judgment order did not specify a ground for the ruling, we will affirm the

                                                3
summary judgment if any ground presented is meritorious. See Pickett v. Texas Mut. Ins. Co.,

239 S.W.3d 826, 840 (Tex. App.—Austin 2007, no pet.).

               When, as here, a party moves for summary judgment under both rule 166a(c) and rule

166a(i), we first review the trial court’s summary judgment under the standards of rule 166a(i). Ford

Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Under rule 166a(i), a movant must assert

that, after adequate time for discovery, there is no evidence of one or more essential elements of a

claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P.

166a(i); see Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). To defeat

a rule 166a(i) summary-judgment motion, the nonmovant must produce summary-judgment evidence

raising a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Ford Motor Co., 135 S.W.3d at 600.

A genuine issue of material fact exists if the nonmovant produces more than a scintilla of evidence

establishing the existence of the challenged element. Ford Motor Co., 135 S.W.3d at 600. More

than a scintilla of evidence exists if the evidence would allow reasonable and fair-minded people to

differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); see also

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). “Less than a scintilla of

evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or

suspicion’ of a fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003) (quoting

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). Evidence that is so slight as to make

any inference a guess is in legal effect no evidence. Ford Motor Co., 135 S.W.3d at 601. If the

nonmovant fails to produce more than a scintilla of evidence under that burden, there is no need to

analyze whether the movant’s proof satisfied the rule 166a(c) burden. Id. at 600.



                                                  4
                                          DISCUSSION

               In her first issue, Dee contends that the trial court erred in granting the no-evidence

motion for summary judgment because there are fact issues regarding whether the implied reciprocal

negative easement doctrine applies and imposes on the Crosswater Tract a restrictive covenant

against commercial use. In order to defeat Crosswater’s no-evidence motion for summary judgment,

Dee was required to produce evidence raising a fact issue with respect to each of the challenged

elements of her implied-reciprocal-negative-easement claim.

               The supreme court has adopted the following as a “reasonably accurate general

statement” of the implied reciprocal negative easement doctrine:


       [W]here a common grantor develops a tract of land for sale in lots and pursues a
       course of conduct which indicates that he intends to inaugurate a general scheme or
       plan of development for the benefit of himself and the purchasers of the various lots,
       and by numerous conveyances inserts in the deeds substantially uniform restrictions,
       conditions and covenants against the use of the property, the grantees acquire by
       implication an equitable right, variously referred to as an implied reciprocal negative
       easement or an equitable servitude, to enforce similar restrictions against that part of
       the tract retained by the grantor or subsequently sold without the restrictions to a
       purchaser with actual or constructive notice of the restrictions and covenants.


Evans v. Pollock, 765 S.W.2d 465, 466 (Tex. 1990) (quoting Minner v. City of Lynchburg,

129 S.W.2d 673, 679 (Va. 1963)) (citations omitted). In order to impose a restrictive covenant by

implication on property retained by the original grantor, there must be evidence that (1) the grantor

intended to adopt a scheme or plan of development that encompassed both the property conveyed

and the property retained; and (2) the grantor subdivided the property into lots and included in the

deeds of the properties conveyed substantially uniform restrictions designed to further such scheme



                                                  5
or plan. Id. Under these circumstances, the burden the grantor has placed on the land conveyed

is, by operation of law, reciprocally placed on the land he retained. Saccomanno v. Farb,

492 S.W.2d 709, 713 (Tex. Civ. App.—Waco 1973, writ ref’d n.r.e.) (citing 20 Am. Jur. 2d

Covenants, Conditions and Restrictions § 733 (1965)). When seeking to impose the restrictive

covenant on property later sold by the grantor without restrictions, there must also be evidence that

the purchaser had actual or constructive notice of the existence of the restrictions on the other

properties included in the scheme or plan of development. See Evans, 792 S.W.2d at 466 (lots sold

by owner from development without express restrictions to grantee with notice of restrictions in

other deeds are burdened with implied reciprocal negative easement and may not be used in violation

of restrictive covenants burdening lots sold with express easements). The Saccomanno court

observed that “the doctrine should be used and applied with extreme caution, for it ‘involves

difficulty’ and lodges discretionary power in a court of equity to deprive a man of his property, to

a degree, by imposing a servitude by implication.” Id. at 713. This practice is consistent with “the

settled rule in Texas that alleged restrictive clauses in instruments concerning real estate must be

construed strictly, and all doubts . . . resolved in favor of the free and unrestricted use of the

property.” Id. (citing Baker v. Henderson, 153 S.W.2d 465, 470 (Tex. 1941), and Southampton Civic

Club v. Couch, 322 S.W.2d 516, 518 (Tex. 1959)).

               In its no-evidence motion for summary judgment, Crosswater asserted that there was

no evidence (1) that the original grantors, A.K. Stewart and Annie Stewart (and after his death Annie

Stewart individually and as executrix of his estate), intended to “inaugurate a general scheme or plan

of development” that encompassed both the Crosswater Tract and the tracts they partitioned and



                                                  6
conveyed, and (2) that they intended to prohibit the property from being used for commercial

enterprise. Dee was therefore required to produce evidence creating a fact issue, i.e., more than a

scintilla of evidence, as to whether the grantors did in fact intend a general scheme of development

that encompassed both the property sold later—the Crosswater Tract—and the tracts they partitioned

and conveyed and contemplated that none of that property would be used for commercial enterprise.

                Dee’s summary-judgment evidence in this regard consisted of the affidavit of David

Jones, a title examiner, who averred as follows:


       All but one conveyance by Annie Stewart during her lifetime, other than conveyances
       to her children, contained a restriction prohibiting commercial uses of the property.
       In addition, in conveying several of the tracts in the northwest part and southeast part
       of Graveyard Point, A.K. and Annie Stewart granted broad easement rights across
       land lying to the north of the tracts conveyed in the north western part of Graveyard
       Point and to the east of the tracts conveyed in the south eastern part. As a title
       examiner the scope of the easement rights in those deeds [] across the servient estate
       are significant because they significantly limit the uses to which the servient estate
       may be put.5


The Jones affidavit also referenced three other trial-court judgments in cases addressing similar

issues with respect to other pieces of property located on Graveyard Point.




       5
           Jones also averred that

       [a]s a title examiner, the terms of the conveyances by A.K. Stewart and Annie
       Stewart in Exhibits 1 through 53, taken as a whole, reflect an intended general
       scheme or plan of development by A.K. Stewart and Annie Stewart that would
       prohibit [the Crosswater Tract] from being used for the operation of a commercial
       or business enterprise.

The trial court sustained Crosswater’s objection to this paragraph of the affidavit, and Dee does not
challenge this ruling on appeal.

                                                   7
                Dee’s summary-judgment evidence does not create a fact issue with respect to

whether the original grantors intended to inaugurate a general scheme or plan of development that

included both the Crosswater Tract and the property they partitioned and conveyed and that restricted

the commercial use of that property. The fact that the original grantor inserts substantially similar

restrictions in deeds of property conveyed, standing alone, is not evidence of a scheme or plan of

development that can justify imposing a similar restriction on property the grantor retained. See

Saccomanno, 492 S.W.2d at 713 (“[T]he fact that in the deed of conveyance a grantor imposes

restrictions on a part of a tract which he sells and declares that the restrictions are to run with the

land does not, by itself, raise any legal or factual presumption that he means thereby to so restrict the

retained portion of the tract.”); Cambridge Shores Homeowners Ass’n v. Spring Valley Lodge Co.,

422 S.W.2d 10, 13 (Tex. Civ. App.—Dallas 1967, no writ) (mere fact that deeds contain identical

restrictions is not alone sufficient to establish existence of general scheme); see also 144 A.L.R. 916

(1943) (“[T]he mere fact that a grantor imposes restrictions upon a lot conveyed raises no inferences

or implication that the remainder of his property not covered by the conveyances will be similarly

restricted.”); 20 Am. Jur. 2d Covenants, Conditions and Restrictions § 168 (1965) (mere fact that

grantor imposes restrictions on part of land he is selling does not necessarily lead to conclusion that

he intended thereby to have restrictions apply to his remaining land). Although all but one of the

deeds for the smaller, landlocked lots conveyed to nonfamily members included restrictions on

commercial use, an intent to restrict the land retained by the grantor may not be inferred unless there

is additional evidence that the grantor intended, as part of a general scheme or plan of development,

to restrict not merely the property sold but also a larger area that included the property retained. See



                                                   8
Cambridge Shores, 422 S.W.2d at 13; see also Green v. Gerner, 289 S.W. 999 (Tex. Comm’n App.

1927, judgm’t adopted) (“Such fact construed in the light of the surrounding circumstances may or

may not be sufficient to support a finding of a general scheme.”). In the present case, the

surrounding circumstances do not support an inference that Annie Stewart intended a general plan

or scheme of development for the entire Stewart Ranch, including the Crosswater Tract, that

prohibited commercial use.     To the contrary, the surrounding circumstances, especially the

conveyances of large tracts of lakefront property without restrictions, suggest that she intended

that the lakefront properties were to be treated differently, i.e., that they could be used for

commercial enterprises.

               Thus, even if it could be inferred that A.K. Stewart and Annie Stewart did have a

general plan or scheme of noncommercial development, the summary-judgment evidence implies

that any such plan encompassed only the landlocked properties bounded by Chipmonk Road and did

not include lakefront tracts such as the Crosswater Tract. The landlocked properties lie above the

715' contour line of Lake Travis, a line that roughly follows Chipmonk Road. The properties below

that line are subject to an inundation easement the Stewarts granted the Lower Colorado River

Authority in 1940. We think it unlikely that A.K. and Annie Stewart would have intended to

include, as part of a development restricted to residential only, property that was subject to an

inundation easement. Such properties would appear to be better suited to uses that can accommodate

fluctuating water levels and occasional inundation—uses such as marinas and waterfront

campgrounds or other businesses that operate from floating docks.




                                                9
                The evidence that 16 of the landlocked tracts were conveyed with easements over land

lying between them and the 670' contour line of Lake Travis does not serve to create a fact issue with

regard to a scheme of noncommercial development for the tracts across which the easements are

granted. Although Jones averred that the language of the easements confers “broad easement rights”

that “significantly limit the uses to which the servient estate may be put,” these legal conclusions do

not constitute competent summary-judgment evidence. See Tex. R. Civ. P. 166a(f) (supporting

affidavits shall set forth facts as would be admissible in evidence). Jones’s statements of his

subjective belief about the scope of the easements are no more than legal conclusions and do not

create a fact issue. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (holding that

statement in affidavit that “his contractual obligation had been modified” was nothing more than

legal conclusion). We note that the scope of Dee’s easement is one of the issues in dispute between

Dee and Crosswater in the underlying cause from which the present claim was severed. We further

note that this Court has construed the scope of two of the easements referenced in Jones’s affidavit

to grant much more limited rights than would be granted under Jones’s interpretation—rights that

should not significantly limit the uses of the servient estates. See Harbor Ventures, Inc. v. Dalton,

No. 03-10-00690-CV, 2012 WL 1810205, at *9 (Tex. App.—Austin May 18, 2012, no pet. h.)

(mem. op.).

                Dee also attached as summary-judgment evidence the decisions of other trial courts

that have considered whether different pieces of property on Graveyard Point are subject to

restrictive covenants prohibiting commercial use through application of the doctrine of implied

reciprocal negative easement. As an initial matter, we note that the decisions of other trial courts are



                                                  10
not legally binding precedent on the trial court in this matter, nor on this Court. See Schook v. State,

344 S.W.2d 220, 221 (Tex. Crim. App. 1951). Moreover, findings in cases to which neither

Crosswater nor Dee was a party are not binding under either the doctrine of res judicata or collateral

estoppel. See Cisco Food Servs. Inc. v. Trapnell, 890 S.W.2d 796, 802 (Tex. 1995); W. S. Willy

v. McCain, 374 S.W.2d 871, 874 (Tex. 1964). The findings, conclusions, and judgments of other

trial courts relating to different property and involving different parties, facts, and arguments are

irrelevant and do not serve to create a fact issue with respect to the elements of Dee’s claim in the

present case.

                Because Dee failed to produce more than a scintilla of evidence of a general scheme

or plan of development of noncommercial use that included the Crosswater Tract, the trial court

properly granted Crosswater’s no-evidence motion for summary judgment on her claim that a

commercial-use restriction should be imposed on the Crosswater Tract through application of the

implied reciprocal negative easement doctrine. We overrule Dee’s first appellate issue.

                In her second issue, Dee appears to contend that the trial court improperly refused to

grant her cross-motion for summary judgment that restrictions on the Crosswater Tract restrict its

commercial use. The record does not include such a cross-motion for summary judgment. The

second appellate issue is overruled.

                In her third issue, Dee contends that the summary judgment violated her constitutional

rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution because

(1) the trial court did not enter findings of fact or conclusions of law; (2) the hearing on the motion

for summary judgment was not transcribed; and (3) her “right to object” was taken away. First,



                                                  11
Dee has no right, constitutional or otherwise, to findings of fact and conclusions of law in a

summary-judgment proceeding. See Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994)

(findings of fact and conclusions of law have no place in summary-judgment proceeding); see also

IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997) (if summary judgment is proper,

there are no facts to find and legal conclusions have already been stated in motion and response;

therefore “[t]he trial court should not make, and an appellate court cannot consider, findings of fact

in connection with a summary judgment”). Likewise, Dee has no right, constitutional or otherwise,

to a record of the non-evidentiary summary-judgment hearing. Moreover, Dee’s counsel could have,

but apparently did not, request that the hearing be transcribed. Finally, Dee does not explain how

her “right to object” was taken away. Dee filed a response to the motion for summary judgment and

objections to Crosswater’s summary-judgment evidence, some of which were sustained. She filed

a post-judgment motion for new trial and request for findings of fact and conclusions of law. Dee

does not identify, and we are unable to discern, any manner in which her right to object, either to the

evidence submitted or arguments made by Crosswater or to the trial court’s rulings, was taken away.

Dee also asserts in her third appellate issue that the trial court was not impartial based on comments

she claims were made during the hearing on the motion for summary judgment. Because there is no

reporter’s record, any such comments are not part of the appellate record. Accordingly, no error or

abuse of discretion is shown. See Enterprise Leasing of Houston v. Barrios, 156 S.W.3d 547, 549

(Tex. 2004) (per curiam) (appellant bears burden to bring forward appellate record that enables

appellate court to determine whether appellant’s complaints constitute reversible error); Christiansen

v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (burden is on appellant to present sufficient record



                                                  12
to show error requiring reversal). Similarly, her contention that the trial court was biased due to

social associations with counsel for Crosswater is unsupported by any evidence in the record. We

overrule Dee’s third appellate issue.


                                        CONCLUSION

               Having overruled Dee’s three appellate issues, we affirm the trial court’s judgment.



                                             _____________________________________________

                                             J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Affirmed

Filed: May 18, 2012




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