      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00690-CV



   Harbor Ventures, Inc., Rand Forest d/b/a Shoreline Development, and LTYH, LLC,
                                      Appellants

                                                v.

                Tim Dalton, Sandra McKenney, and Susan Brown, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
     NO. D-1-GN-05-002738, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This dispute involves the scope of two easements burdening a piece of lakefront

property (“the Harbor Ventures Property”) located on Graveyard Point, a peninsula on Lake Travis,

currently owned by appellant LTYH, LLC.1 The easements at issue are covenants running with

two tracts of land, one owned by appellees Tim Dalton and Sandra McKenney (“the

Dalton-McKenney Tract”) and the other owned by appellee Susan Brown (“the Brown Tract”). The

two tracts are adjacent pieces of landlocked property located directly south of the Harbor Ventures

Property and separated from it by a road. Also in dispute is whether, by application of the implied

reciprocal negative easement doctrine, the Harbor Ventures Property is encumbered by a restrictive


       1
          Through trial of the underlying cause, the Harbor Ventures Property was owned by Harbor
Ventures, Inc. In October 2010, LTYH, LLC acquired the property through foreclosure. After the
judgment had been signed, LTYH intervened in the action to appeal portions of the judgment that
relate to encumbrances on the property.
covenant prohibiting commercial activity. We will reverse the trial court’s judgment in part and

affirm it as modified in part.


                      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, A.K. and Annie Stewart—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 containing metes and bounds

descriptions.2 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,3 but also

include two lakefront tracts on the other side of Chipmonk Road, adjacent to the 2.525-acre Harbor

Ventures Property, and two tracts on the southwesternmost portion of the Stewart Ranch property.

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.4 The

Dalton-McKenney Tract and the Brown Tract are two of the landlocked lots conveyed by a deed

containing the commercial-use restriction.



       2
         Exhibits admitted at trial indicate that between 1943 and 1952, A.K. and Annie Stewart,
or Annie Stewart individually and as executrix of A.K. Stewart’s estate, conveyed 42 such tracts.
       3
          Evidence admitted at trial indicated that at its average level, the water’s edge of Lake
Travis follows the 670' contour line. In 1940 the Lower Colorado River Authority obtained an
easement from A.K. Stewart and Annie Stewart permitting it to inundate the property up to the 715'
contour line.
       4
       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.”

                                                  2
               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.5 The

deeds conveying these properties included metes and bounds descriptions of the property conveyed

but did not contain a restrictive covenant prohibiting commercial use.

               After Annie Stewart’s death, her son Arthur Stewart, individually and as executor of

her estate, partitioned fifteen lakefront tracts and conveyed them to third parties by deeds that

included metes and bounds descriptions of the tract and contained a restrictive covenant prohibiting

commercial use. These tracts were each approximately 0.1 to 0.2 acres in size. Thereafter, the

Estate of Annie Stewart recorded a subdivision plat for the Annie Stewart Subdivision that

subdivided most of the remainder of the Stewart Ranch property into lots. The subdivision plat

identifies these lots as Sections A through H of the Annie Stewart Subdivision. The property not

included in the subdivision consists of two tracts of lakefront property, one of which is the Harbor

Ventures Property. Ownership of the Harbor Ventures Property eventually passed to Annie

Stewart’s heirs, Dorothy Jean Stewart Uzzell and Betty Ann Stewart Hanson, who conveyed it in

1997 to Harbor Ventures. This conveyance does not contain a restrictive covenant prohibiting

commercial use of the Harbor Ventures Property.

               The original conveyances of the Dalton-McKenney Tract and the Brown Tract each

contain the following express easement:




       5
         The landlocked tracts ranged in size from 0.35 to 0.77 acres, whereas the lakefront tracts
ranged in size from 1.65 to 2.97 acres.

                                                 3
       [I]t is understood and agreed that the grantors herein hereby give and grant unto the
       grantee, his heirs and assigns, a perpetual easement on and across the land lying
       immediately North and adjacent to the tract herein conveyed and between
       prolongations of the East and West boundary lines of the tract herein conveyed and
       between said tract of land and the contour line which is 670 feet above mean sea
       level as established by the United States Geological Survey Bench Marks; said
       easement shall be for the purposes of ingress and egress from the tract of land herein
       conveyed to Lake Travis. The grantee, her heirs and assigns, shall have the right to
       construct roads and walkways, one or both or more of each, on and across said land
       and shall have the right to cut the underbrush and to trim the trees situated thereon,
       and to do any act or thing on said land which will in any wise beautify or improve the
       appearance of either the land across which said easement is granted or the tract of
       land above conveyed; and that the foregoing easement, restriction, covenant and
       agreements shall be deemed covenants running with the land and shall be binding
       upon the grantors herein, their heirs and assigns.


Disputes arose between Harbor Ventures and Dalton, McKenney, and Brown regarding the scope

of rights granted in the easements. In August 2005, Dalton and McKenney sued Harbor Ventures,

Flagship Marine Corporation (an entity that leased the Harbor Ventures Property), and Rand Forest

d/b/a Shoreline Development (Forest is president of Harbor Ventures) alleging that the defendants

had interfered with their lawful use and enjoyment of the easement in various ways, including

blocking the easement with a large log and dumping refuse—including glass, metal, concrete, and

oil—on the Harbor Ventures Property and in the water. Dalton and McKenney sought a declaration

that the easement was valid and that the defendants’ conduct was preventing them from exercising

their rights under the easement; they also requested injunctive relief to prevent the defendants from

hindering their use of the easement in the future and to require that they remediate the damage done

to the Harbor Ventures Property. Dalton and McKenney also claimed that the Harbor Ventures

Property was subject to a restrictive covenant prohibiting commercial activity, alleging that this



                                                 4
restriction was “part of the scheme of development in this area such that it applies to the Defendants’

actions” on the Harbor Ventures Property. Dalton and McKenney alleged that the defendants’

activities violated this restrictive covenant and sought monetary damages and injunctive relief.

Brown also sued Harbor Ventures, Flagship Marine, and Forest, and the two cases were consolidated

into one.

               After a bench trial, the trial court rendered judgment declaring the scope of the

Dalton-McKenney and Brown easements and declaring that, “by virtue of the negative reciprocal

easement doctrine, the Harbor Ventures Property is burdened with a restrictive covenant prohibiting

the operation of a commercial enterprise on the Harbor Ventures Property.” The judgment awarded

both Dalton and McKenney and Brown $31,999.99 as actual damages for their loss of use of the

easements and included attorneys’ fee awards of $83,000 to Dalton and McKenney and $42,000 to

Brown, for which Harbor Ventures, Forest, and Flagship Marine were held jointly and severally

liable. Thereafter, the trial court signed findings of fact and conclusions of law, and this appeal

followed. In five issues, appellants contend that the trial court erred in (1) concluding that the

Harbor Ventures Property is encumbered with a restriction against commercial use; and

(2) construing the scope of the Dalton-McKenney and Brown express easements. They also

challenge the sufficiency of the evidence supporting the damage awards and contest the award of

attorneys’ fees.




                                                  5
                                          DISCUSSION

Implied reciprocal negative easement

               The trial court found that the Harbor Ventures Property, which was retained by Annie

Stewart and ultimately conveyed by her heirs to Harbor Ventures in 1997, was encumbered by a

restrictive covenant prohibiting commercial use through application of the implied reciprocal

negative easement doctrine. The supreme court has adopted the following as a “reasonably accurate

general statement of the 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 the scheme 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,



                                                  6
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

retained initially by the grantor but subsequently sold to a third party, there must also be evidence

that the subsequent purchaser had actual or constructive notice of the existence of those 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 restrictions). 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, a practice 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); Southampton Civic

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

               We first consider whether there is evidence that A.K. and Annie Stewart or, after A.K.

Stewart’s death, Annie Stewart individually and as executrix of his estate, intended to “inaugurate

a general scheme or plan of development” that encompassed both the Harbor Ventures Property and

the tracts partitioned and conveyed, and intended that none of the property could be used for

commercial enterprise. As the basis for applying the implied restrictive negative easement doctrine,

the trial court judgment found:



                                                  7
       A.K. Stewart and Annie Stewart, and after the death of A.K. Stewart, Annie Stewart
       individually and as executrix of the Estate of A.K. Stewart, developed the Stewart
       Tract in a course of conduct which indicates that they intended to inaugurate a
       general scheme or plan of development for the benefit of themselves and the
       purchasers of the various subdivided portions of the Stewart Tract that would
       prohibit any portions of the Stewart Tract from being used for the operation of a
       commercial enterprise.


Appellants contend that there is legally and factually insufficient evidence to support this finding.

               In an appeal from a judgment rendered after a bench trial, the trial court’s findings

of fact have the same weight as a jury’s verdict, and we review the legal and factual sufficiency of

the evidence to support them as we would review a jury’s findings. See Catalina v. Blasdel,

881 S.W.2d 295, 297 (Tex. 1994). When, as here, a party challenges the legal sufficiency of the

evidence supporting an adverse finding, we will sustain the legal-sufficiency challenge if the record

reveals (1) the complete absence of evidence of a vital fact; (2) that the court is barred by rules of

law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) that the

evidence offered to prove a vital fact is no more than a mere scintilla; or (4) that the evidence

conclusively establishes the opposite of a vital fact. See City of Keller v. Wilson, 168 S.W.3d 802,

810 (Tex. 2005). More than a scintilla of evidence exists when the evidence supporting the finding,

as a whole, “rises to a level that would enable reasonable and fair-minded people to differ in their

conclusions.” Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If the evidence

supporting a vital fact is so weak as to do no more than create a mere surmise or suspicion

of its existence, it is no evidence of that fact. See Haynes & Boone v. Bowser Bouldin, Ltd.,

896 S.W.2d 179, 182 (Tex. 1995). Conversely, evidence conclusively establishes a vital fact when



                                                  8
the evidence is such that reasonable people could not disagree in their conclusions. City of Keller,

168 S.W.3d at 814-17.

               When conducting a legal-sufficiency review, we must view the evidence in the light

most favorable to the trial court’s findings, “crediting favorable evidence if reasonable jurors could,

and disregarding contrary evidence unless reasonable jurors could not.” Id. at 807. Moreover, we

must indulge every reasonable inference that would support the trial court’s findings. Id. at 822.

The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and

fair-minded people to reach the verdict under review. See id. at 827.

               In reviewing a factual-sufficiency challenge, we examine the entire record and

consider and weigh all the evidence, both in support of and contrary to the challenged finding. Ortiz

v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). When, as here, a party challenges the factual sufficiency

of the evidence supporting an adverse finding on which it did not have the burden of proof at trial,

we set aside the finding only if the evidence is so weak as to make the finding clearly wrong and

manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

               As evidence of the existence of a general scheme or plan of development, the trial

court found the following:


       The deeds of conveyance for all but one of the subdivided portions of the Stewart
       Tract conveyed by A.K. Stewart and/or Annie Stewart to third-parties, other than
       persons within the first degree of consanguinity or affinity of A.K. Stewart and Annie
       Stewart, included substantially uniform restrictive covenants prohibiting the
       operation of a commercial enterprise on such land conveyed.




                                                  9
There are no other findings of fact regarding a general scheme or plan of development. In her brief,

Brown similarly relies solely on evidence of the restrictions against commercial use that were placed

on all but one of the lots conveyed to third parties (i.e., non-family members) to establish a general

plan or scheme of development.6 This evidence, however, without more, is legally insufficient to

support the finding that the Stewarts intended to “inaugurate a general scheme or plan of

development.” The fact that the original grantor inserts substantially similar restrictions in deeds of

property conveyed, standing alone, is no evidence of a scheme or plan of development that could

justify imposing a similar implied restriction on property the grantor retained. See Saccommanno,

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 the existence of general scheme); see also 20 Am. Jur. 2d Covenants,

Conditions, and Restrictions § 168 (1965) (mere fact that grantor imposes restrictions on part of tract

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 lots

conveyed include 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 to restrict an entire

area, as part of a general scheme or plan of development, that includes the property retained. See


        6
            Dalton and McKenney did not file briefs in this appeal.

                                                  10
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 Harbor Ventures Property, that

prohibited commercial use. To the contrary, the record evidences that Annie Stewart conveyed most

of the larger lakefront lots, those similarly situated to the Harbor Ventures Property, without

restrictions on commercial use.7

                Our holding is consistent with the conclusions reached by other courts asked to

impose restrictive covenants by implication, all of which have required more than the mere existence

of substantially similar restrictions in a number of conveyances by the original grantor. For example,

in Evans v. Pollock, the original grantor owned a tract of land on a Lake Travis peninsula with a

configuration similar to Graveyard Point. The original grantor subdivided the lakefront property into

smaller lots and sold a number of them with restrictive covenants against commercial use. The

grantor retained four of the lakefront lots, as well as all of the landlocked hilltop portion of the tract,

which was not subdivided. The supreme court found that the four lakefront lots retained by the

original owner were subject to the restrictive covenants included in the deeds of the other similarly


        7
          Although the Stewarts’ heirs subsequently partially subdivided these large tracts and
conveyed many of them with restrictions on commercial use, such subsequent conveyances, without
more, are no evidence of the original grantor’s intent to create a common scheme or plan that
included all the property she owned. See Saccomanno v. Farb, 492 S.W.2d 709, 713 (Tex. Civ.
App.—Waco 1973, writ ref’d n.r.e.) (implied reciprocal easement cannot be applied retroactively).
The same is true of the fact that, after Annie Stewart’s death, the remainder of the landlocked
property was platted and subdivided as the Annie Stewart Subdivision.

                                                    11
situated lakefront lots when (1) the lakefront lots were part of a platted subdivision, and (2) the

property was marketed by a real estate agent as a “restricted subdivision.” Evans, 765 S.W.2d at

468-69. In addition, the court found it significant that the owners of the lakefront lots were given

voting rights proportionate to their “front footage holdings on the 715 contour line” of the lake.

Taken together, this evidence was sufficient to demonstrate the original grantor’s intent that all the

similarly situated lots (i.e., the lakefront lots), including those retained, were intended to be part of

a plan of development of residential use only. The supreme court concluded, therefore, that the

implied restrictive negative easement doctrine applied. Significantly, however, the supreme court

did not impose the restriction on the landlocked hilltop lot also retained by the original grantor, as

it was found not to be part of the plan of development that the evidence showed included only the

lakefront lots. Id.8

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

sort of general plan or scheme of noncommercial development, the record suggests that any such

plan encompassed only the landlocked properties bounded by Chipmonk Road and did not include


        8
         Other examples include Collum v. Neuhoff, 507 S.W.2d 920 (Tex. Civ. App.—Dallas 1974,
no writ) (recording of plat, restricting of certain areas for residences and others for parks, streets,
and common areas, and levying assessments against all lot owners for joint maintenance
evidenced general plan or common scheme for development), and Selected Lands Corp. v. Speich,
702 S.W.2d 197 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.) (duly filed covenants and
recorded plats showing residential lots and common areas evidenced general plan or common
scheme for residential use). We also note that requiring more than the insertion of restrictive
covenants into a number of individual deeds is consistent with the notion that the implied restrictive
negative easement doctrine only applies to a third party who purchases the retained property from
the original grantor with actual or constructive notice of the existence of those restrictions on the
other properties included in the scheme or plan of development. See Evans, 765 S.W.2d at 466. The
other evidence of a general scheme or plan is necessary to justify creating an exception to the
fundamental rule that a person takes property subject only to the restrictions in his chain of title.

                                                   12
lakefront tracts such as the Harbor Ventures Property. In contrast to the landlocked lots, most of the

conveyances of the lakefront tracts lacked restrictions on commercial use. It is also significant that

the Dalton and McKenney property and the Brown property, along with the rest of the smaller

landlocked lots conveyed by Annie Stewart prior to her death, lie above the 715' contour line of Lake

Travis, a line that roughly follows Chipmonk Road. When A.K. and Annie Stewart acquired their

land, it was subject to an inundation easement that gave the LCRA the right to overflow any portion

of the property lying below the 670' contour line. In 1940, however, the LCRA acquired additional

easements permitting them to inundate and overflow property lying below the 715' contour line.

Therefore, any property below the 715' contour line—i.e., on the opposite side of Chipmonk Road

from the landlocked properties—including the Harbor Ventures Property, could be inundated and

overflowed by the LCRA.9 We think it unlikely that A.K. and Annie Stewart would intend to

include as part of a residential development property that was subject to an inundation easement.

Such properties would seem better suited to uses that can accommodate fluctuating water levels and



       9
            The Harbor Ventures Property conveyance includes the following:


       RESERVATION FROM AND EXCEPTION TO CONVEYANCE AND WARRANTY:
       ....

       2.        Rights of the Lower Colorado River Authority to inundate and overflow any
                 portion of the subject property lying below the 670' Mean Sea Level Contour
                 Line and release of damages as set forth in instrument recorded in Vol. 608,
                 page 48, Deed Records of Travis County, Texas;

       3.        Rights of the Lower Colorado River Authority to inundate and overflow any
                 portion of the subject property lying below the 715' Mean Sea Level Contour
                 Line and release of damages as set forth in instrument recorded in Vol. 643,
                 page 24, Deed Records of Travis County, Texas; . . . .

                                                 13
occasional inundation—uses such as marinas and waterfront campgrounds or other businesses that

operate from floating docks.

                Applying the doctrine with the appropriate “extreme caution,” we conclude that the

evidence of similar restrictions in a number of conveyances is legally insufficient to support a finding

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

that included both the smaller landlocked properties and the larger lakefront properties. Even

assuming the existence of some evidence of a general scheme or plan of noncommercial

development, the evidence is legally insufficient to establish that A.K. Stewart and/or Annie Stewart

intended that the Harbor Ventures Property be included in such scheme or plan. Therefore, we

conclude that the trial court erred in determining that the Harbor Ventures Property is burdened by

a restrictive covenant against commercial use by virtue of the implied restrictive negative easement

doctrine. We sustain appellants’ first issue.


Scope of the easements

                In their second and third issues, appellants contend that the trial court erred in

construing the scope of the express easements over the Harbor Ventures Property. Specifically,

appellants challenge the following finding of fact and conclusion of law:


        FFCL 25:        Pursuant to the terms of the Dalton-McKenney Easement, Tim Dalton
                        and Sandra McKenney, and their heirs and assigns may:




                                                  14
                      A.     Construct one or more roads and/or walkways on and across
                             all or part of the Dalton-McKenney Easement Area.[10]

                      B.     Cut the underbrush and trim the trees situated in the Dalton-
                             McKenney Easement Area.

                      C.     Do any act or place any thing on the Dalton-McKenney
                             Easement Area that in any manner or way beautifies or
                             improves the appearance of the Dalton-McKenney Easement
                             Area, the Dalton-McKenney Property or the view of the
                             Dalton-McKenney Easement Area from the Dalton-
                             McKenney Property; such right includes the right to:

                             i.      Beautify and/or improve the appearance of the Dalton-
                                     McKenney Easement Area, the Dalton-McKenney
                                     Property or the view of the Dalton-McKenney
                                     Easement Area from the Dalton-McKenney Property
                                     by cutting down and removing dead, decaying,
                                     unsightly or rotting trees and vegetation and/or
                                     maintaining the natural vegetation on the Dalton-
                                     McKenney Easement Area.

                      D.     Use the Dalton-McKenney Easement Area for any
                             recreational purposes normally associated with the use and
                             enjoyment of lakefront property.


Appellants also challenge finding of fact and conclusion of law 29, which states that Susan Brown

and her heirs and assigns have identical rights with regard to the “Brown Easement Area” defined

similarly as the portion of the Harbor Ventures Property lying directly across Chipmonk Road from




       10
           Tracking the language of the easement, the trial court defined the “Dalton-McKenney
Easement Area” as “the land lying immediately North and adjacent to the Dalton-McKenney
Property and between the prolongations of the East and West boundary lines of the Dalton-
McKenney Property and between said tract of land and the contour line which is 670 feet above
mean sea level as established by the United States Geological Survey Bench Marks.” This describes
the portion of the Harbor Ventures Property lying directly across Chipmonk Road from the Dalton-
McKenney lot, between Chipmonk Road and Lake Travis.

                                               15
the Brown Tract, between Chipmonk Road and the lake. Appellants’ complaints regarding these

findings and conclusions are essentially that (1) construing the easements to permit Dalton and

McKenney and Brown to use the entirety of the Harbor Ventures Property between each of their

tracts and the lake imposes an undue burden on the servient estate and gives the easement holders

rights not necessary to their ingress and egress to Lake Travis, which is the purpose of the easement,

and (2) permitting Dalton and McKenney and Brown to use the entirety of the Harbor Ventures

Property between each of their tracts and the lake for “any recreational purposes normally associated

with the use and enjoyment of lakefront property” is beyond the scope of rights granted in the

easement, which, again, was intended only to provide owners of the Dalton-McKenney Tract and

the Brown Tract a means of ingress and egress to Lake Travis.

               An easement is a nonpossessory interest in land that authorizes its holder to use the

property for specified purposes only. Marcus Cable Assocs., LP v. Krohn, 90 S.W.3d 697, 700 (Tex.

2002) (citing Restatement (Third) of Property (Servitudes) § 1.2 cmt. d (2000)). Nothing passes by

implication “except what is reasonably necessary” to fairly enjoy the rights expressly granted.

Coleman v. Forister, 514 S.W.2d 899, 903 (Tex. 1974). Use of the easement to pursue a purpose

not provided for in the grant is not permitted. Marcus Cable, 90 S.W.3d at 701; Coleman,

514 S.W.2d at 903. An easement’s express terms, interpreted according to their generally accepted

meaning, delineate the purposes for which the easement holder may use the property. Marcus Cable,

90 S.W.3d at 701 (citing DeWitt Cnty. Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 103 (Tex. 1999)).

               The contracting parties’ intent, as expressed in the grant, determines the scope of the

interest conveyed. DeWitt Cnty., 1 S.W.3d at 103 (scope of easement holder’s rights must be



                                                 16
determined by reference to terms of grant). When the grant’s terms are not specifically defined, they

should be given their plain, ordinary, and generally accepted meaning. Marcus Cable, 90 S.W.3d

at 701; DeWitt Cnty., 1 S.W.3d at 101. “[T]hose who grant easements should be assured that their

conveyances will not be construed to undermine private-property rights—like the rights to ‘exclude

others’ or to ‘obtain a profit’—any more than what was intended in the grant.” Marcus Cable,

90 S.W.3d at 702.

                Basic principles of contract construction and interpretation apply when considering

the terms of an express easement. DeWitt Cnty., 1 S.W.3d at 100. In construing a written contract,

our primary concern is to ascertain the true intentions of the parties as expressed in the instrument.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Ordinarily, the writing alone

is sufficient to express the parties’ intentions because it is the objective, not subjective, intent that

controls. Matagorda Hosp. Dist. v. Burwell, 189 S.W.3d 738, 740 (Tex. 2006) (per curiam). We

construe contracts from a utilitarian standpoint, bearing in mind the particular activity sought to be

served. Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005). We will avoid,

when possible, a construction that is unreasonable, inequitable, or oppressive. Id.; see also Lane

v. Travelers Indem. Co., 391 S.W.2d 399, 402 (Tex. 1965) (unreasonable to conclude that parties

to insurance contract intended its provisions to lead to absurd results).

                Informed by these principles, we consider the terms of the easements at issue here.

First and foremost, the language of the Dalton-McKenney Easement plainly states that its purpose

is to provide “ingress and egress” from the Dalton-McKenney Tract to Lake Travis. The “ingress

and egress” is across the Harbor Ventures Property, which is the “land lying immediately North and



                                                   17
adjacent to” the Dalton-McKenney Tract. The easement’s location is described as “between

prolongations of the East and West boundary lines of [the Dalton-McKenney Tract] and between [the

Dalton-McKenney Tract] and the contour line which is 670 feet above mean sea level.”




                                               18
               The terms of the easement therefore provide its holder with the right to cross the

Harbor Ventures Property to access Lake Travis (“ingress and egress . . . to Lake Travis”) and to do

so at some place that is located “between the prolongations” of the east and west boundary lines of

the Dalton-McKenney Tract. The trial court, however, found that Dalton and McKenney could

construct roads on “all or part of” the portion of the Harbor Ventures Property lying directly north

and adjacent to the Dalton-McKenney Tract—i.e., over the entirety of that portion of the Harbor

Ventures Property—presumably because it read the easement as declaring the width of the right of

way granted to encompass the entire area from the prolongation of the west boundary line to the

prolongation of the east boundary line. The language of the express easement, however, simply

provides that the holder has a right of ingress and egress to the lake at an unspecified location

“between” these prolongations. Thus, they have the right to cross the Harbor Ventures Property to

Lake Travis using a path or roadway that lies somewhere between those prolongations, as opposed

to choosing some other route such as a less direct pathway that meanders onto portions of the Harbor

Ventures Property not directly north of the Dalton-McKenney Tract.11 The language of the easement

does not, in our view, permit Dalton and McKenney to use the entire portion of the Harbor Ventures

Property lying directly north of them and between the prolongations of their east and west boundary

lines for ingress and egress to the lake.

               The trial court’s judgment defines the “Dalton-McKenney Easement Area” as “the

land lying immediately North and adjacent to the Dalton-McKenney [Tract] and between




       11
        For example, the easement’s limits prevent the path from crossing over the portion of the
Harbor Ventures Property lying directly north of the Brown Tract.

                                                19
prolongations of the East and West boundary lines of the Dalton-McKenney [Tract] and between

said tract of land and the contour line which is 670 feet above mean sea level” and declares that the

Dalton-McKenney Easement “consists of all portions of the Dalton-McKenney Easement Area.”

While we agree that the trial court’s judgment accurately described the area within which the

easement may be located (the Dalton-McKenney Easement Area), we hold that the easement itself

is limited to that portion of the described property reasonably required to permit the holder to

accomplish the purpose of the easement—ingress and egress to the lake. See Lakeside Launches,

Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 871 (Tex. App.—Austin 1988, writ denied)

(“Where the grant does not state the width of the right-of-way created, the grantee is entitled to a

suitable and convenient way sufficient to afford ingress and egress to the owner of the dominant

estate.”). As in Lakeside Launches, we hold that the easement granted is no wider than reasonably

necessary to afford Dalton and McKenney ingress and egress to the 670' contour line of Lake Travis.

               Our holding comports with our practice of declining, when possible, to adopt a

construction that is unreasonable, inequitable, and oppressive. If the Dalton-McKenney Easement

were construed to encompass the entire portion of the Harbor Ventures Property north of the Dalton-

McKenney Tract, it would be impractical, if not impossible, for the owner of the servient estate to

use its property for any purpose other than as a waterfront park maintained for the benefit of the

owners of the dominant estate. If, for example, it were to build any structure or place any thing on

any part of this portion of the Harbor Ventures Property, it would risk being ordered to remove it as

an obstruction of the easement. Moreover, such a broad construction of the easement is not required




                                                 20
to accomplish its purpose—ingress and egress to the lake—and would serve only to undermine

private-property rights more than was intended in the grant.

                The remaining question, then, is what is the precise location of the Dalton-McKenney

Easement? The right to select the placement of an easement the precise location of which is not

identified in the easement document belongs initially to the owner of the servient estate at the time

the dominant estate is created. Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex. App.—El Paso

1993, no pet.) (citing Cozby v. Armstrong, 205 S.W.2d 403, 407 (Tex. Civ. App.—Fort Worth 1953,

writ ref’d n.r.e.)). If, as here, the servient owner fails to do so, then the owner of the dominant estate

may locate the easement with due regard for the convenience of the parties. See id. (citing Grobe

v. Ottmers, 224 S.W.2d 487, 489 (Tex. Civ. App.—San Antonio 1949, writ ref’d n.r.e.)).12 Once

established, the location of the easement cannot be changed by either the easement owner or the

servient owner without the consent of both parties, even when use of the easement where located

becomes detrimental to the use of the servient estate. Id. (citing Meredith v. Eddy, 616 S.W.2d 235,

240 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ); Cozby, 205 S.W.2d at 407). Dalton

testified at trial that he and his father cut a roadway across the Harbor Ventures Property in the

1940s, and the family has used that roadway to access Lake Travis ever since.13 This roadway,

therefore, is the location of the Dalton-McKenney Easement as established by the owners of the

dominant and servient estates, see id. (citing Grobe, 224 S.W.2d at 489) (location of easement may

        12
          Although the Samuelson court was considering the location of an “easement by necessity,”
the principles are equally applicable to the present case, in which the precise location of an express
easement is at issue.
        13
         The record contains a survey that identifies the location of this roadway and an aerial
photograph with the roadway highlighted.

                                                   21
be established by acquiescence of parties), and may not be changed without their mutual consent.

The width of the easement is limited to what is reasonably necessary and convenient for ingress and

egress to the 670' contour line of Lake Travis “and as little burdensome as possible to the servient

owner.” See Coleman, 514 S.W.2d at 903.

                The same analysis applies to the trial court’s declaration that the Brown Easement

“consists of all portions of the Brown Easement Area.”14 This declaration overstates the width of

the Brown Easement, which we conclude is likewise limited to that portion of the Brown Easement

Area no wider than reasonably necessary to afford Brown ingress and egress to the 670' contour line

of Lake Travis.

                With respect to the location of the Brown Easement, there was testimony at trial that,

when Brown purchased the property, there was a path leading from the Brown Tract, across the

portion of the Harbor Ventures Property constituting the Brown Easement Area, to the lake.15 We

hold that this path is the location of the Brown Easement as established by the owners of the

dominant and servient estates, see id. (citing Grobe, 224 S.W.2d at 489) (location of easement may

be established by acquiescence of parties), and may not be changed without their mutual consent.

The width of the easement is limited to what is reasonably necessary and convenient for ingress and




       14
           The Brown Easement Area is defined as “the land lying immediately North and adjacent
to the Brown Property and between the prolongations of the East and West boundary lines of the
Brown Property and between said tract of land and the 670' Contour Line.” This describes the
portion of the Harbor Ventures Property lying directly across Chipmonk Road from the Brown Tract,
between Chipmonk Road and Lake Travis.
       15
            The record contains a photograph of the path from the Brown Tract to the lake.

                                                 22
egress to the 670' contour line of Lake Travis “and as little burdensome as possible to the servient

owner.” See Coleman, 514 S.W.2d at 903.

               With the Dalton-McKenney Easement and the Brown Easement so defined, it follows

that the activities permitted in the easements—including constructing roads and pathways, cutting

underbrush, and doing any act or thing that beautifies or improves its appearance—may be conducted

only on those easements, not on the entirety of the Dalton-McKenney Easement Area or the Brown

Easement Area. The language of each easement provides:


       [T]he grantee, her heirs and assigns, shall have the right to construct roads and
       walkways, one or both or more of each, on and across said land and shall have the
       right to cut the underbrush and to trim the trees situated thereon, and to do any act
       or thing on said land which will in any wise beautify or improve the appearance of
       either the land across which said easement is granted or the tract of land above
       conveyed.


(Emphasis added.) The italicized terms above refer to the easement itself, i.e., the portions of the

Harbor Ventures Property in front of each of the Dalton-McKenney and Brown tracts used for

ingress and egress to the 670' contour line, not to the entire Dalton-McKenney Easement Area or the

entire Brown Easement Area. Again, this construction of the easement language is consistent with

construing the rights granted in the easement in the manner required to accomplish its purpose

without undermining private-property rights more than was intended in the grant. See Marcus Cable,

90 S.W.3d at 702.

               The trial court’s judgment and findings of fact and conclusions of law also state that

Dalton and McKenney and Brown have the right to beautify and improve “the view” of their

respective easements. Nothing in the easement language contemplates improving any “views,” and

                                                23
the trial court erred by construing the Dalton-McKenney Easement and the Brown Easement to

afford any such rights.

                Appellants also challenge those portions of the trial court’s judgment that enjoin them

from ordering Dalton and McKenney or Brown, and/or their invited guests, to leave their respective

easements. Appellants contend, and we agree, that the owner of the servient estate may prevent the

owner of the dominant estate from making an unauthorized use of the easement—for example

shooting guns or holding a bonfire. The owners of the easements may use them only for their

authorized purpose—ingress and egress to the lake and the permitted ancillary activities such as

cutting the underbrush or improving or beautifying the easement itself. The owners of the servient

estate are not prohibited from ordering people off the easement if necessary to stop an unauthorized

use. See Stout v. Christian, 593 S.W.2d 146, 151 (Tex. App.—Austin 1980, no writ) (affirming

injunction prohibiting easement owners from cutting fences, leaving gates open, and committing

other acts interfering with use of servient estate).

                Finally, we address appellants’ contention that the trial court erred in construing the

easements to permit their use for “any recreational purposes normally associated with the use and

enjoyment of lakefront property.” Appellants contend that the right of ingress and egress to lakefront

property does not entitle Dalton and McKenney and Brown to picnic, sunbathe, congregate, or install

a boat dock “or do any activity other than simply to travel to and from the water across the defined

portion of the Harbor Ventures Property above the 670' contour line.” As previously noted, the

easements’ express terms delineate the purpose for which the easement holder may use the property.

Marcus Cable, 90 S.W.3d at 702. “Nothing passes by implication ‘except what is reasonably



                                                  24
necessary’ to fairly enjoy the rights expressly granted.” Id. (quoting Coleman, 514 S.W.2d at 903).

Thus, if a particular purpose is provided for in the grant, a use pursuing a different purpose is not

permitted. Id. The easements at issue here unambiguously provide that the purpose of the easement

is “ingress and egress” from the tract of land conveyed in the deed containing the easement to Lake

Travis. Because the sole purpose stated in the deeds is for “ingress and egress,” we cannot conclude

that the express easements impliedly granted the right to use the property for general recreational

purposes “normally associated with the use and enjoyment of lakefront property.” See Coleman,

514 S.W.2d at 903 (easement for “ingress and egress” does not grant “right to linger for recreational

purposes, or to exercise waterfront privileges”); Cummins v. Travis Cnty. Water Control

& Improvement Dist. No. 17, 175 S.W.3d 34, 52 (Tex. App.—Austin 2005, pet. denied) (mooring

boat dock on land over which one has easement for purposes of ingress and egress to lake not

reasonably necessary to achieve rights expressly granted); Lakeside Launches, 750 S.W.2d at 869

(easement for purpose of ingress and egress does not convey right to anchor and float commercial

boat dock); Wall v. Lower Colo. River Auth., 536 SW.2d 688, 691 (Tex. Civ. App.—Austin 1976,

writ ref’d n.r.e.) (right of ingress and egress across land retained by grantor does not grant implied

right to build or maintain structures appropriate to lakefront property).16 Dalton and McKenney’s

and Brown’s use of their easements is therefore limited to activities reasonably necessary to enjoy


       16
            Relying on her contention that the language of the easement gives her the right to do
anything that beautifies the easement, Brown argues that she is entitled to engage in a very broad
array of activities, including anchoring a floating boat dock. The sole purpose of the grant, however,
is to provide “ingress and egress,” and Brown’s rights are limited to activities that reasonably further
that purpose. Thus, whether a particular activity is permitted depends not on whether it beautifies
the property, but on whether it is reasonably necessary to accomplish the purpose expressly
granted—ingress and egress.

                                                  25
their right of ingress and egress to the 670' contour line of Lake Travis. See Marcus Cable,

90 S.W.3d at 702.


Damages award

               In their fourth issue, appellants contend that the damages awards in favor of Dalton

and McKenney and Brown are not supported by legally or factually sufficient evidence. Relying on

Hall v. Robbins, Dalton and McKenney and Brown contended at trial that the proper measure of

damages for the loss of use of their easements was the reasonable lease or rental value of the Harbor

Ventures Property for the time period from June 2005 through trial. See Hall v. Robbins,

790 S.W.2d 417, 418 (Tex. App.—Houston [14th Dist.] 1990, no writ). The trial court awarded

Dalton and McKenney $31,999.99 as damages for their loss of use of the Dalton-McKenney

Easement and made an identical award to Brown for her loss of use of the Brown Easement. This

figure was arrived at by dividing the amount of money Flagship Marine paid to lease the entire

Harbor Ventures Property ($2,000 per month) by three (on the basis that each of the easements

correlates to one-third of the Harbor Ventures Property) and multiplying by 48 (the number of

months from June 2005 through trial). Appellants contend that this is not a proper measure of

damages for loss of use of an easement and that, because there was no other evidence of damages,

there was legally insufficient evidence presented at trial to support an award of damages.

               The court’s calculation of damages for temporary injuries to real estate should be

tailored to the circumstances of the specific case. See id. at 418 (identifying several methods of

calculating damages for temporary injuries). In Hall, the court considered the appropriate measure

of damages when a landowner was prevented from accessing a piece of his vacant land due to a

                                                 26
blocked easement. The Hall court held that the proper measure of damages was the monetary loss

to the owner caused by his inability to use the land that he could not access, which it determined was

the lease value of that land. Id. at 419-20. In the present case, however, the parties seeking damages

do not own the land they claim to have been prevented from using—the portion of the Harbor

Ventures Property subject to the easement. They have no right to receive rentals from either the

easement itself or the area they access using the easement (the 670' contour line of Lake Travis), nor

do they have any right to use any part of the Harbor Ventures Property for any purpose beyond their

ingress and egress to the 670' contour line of the lake. Awarding damages to Dalton and McKenney

and Brown based on a use to which they could never have put the property is inappropriate. See Etex

Tel. Coop., Inc. v. Sanders, 607 S.W.2d 278, 281 (Tex. Civ. App.—Texarkana 1980, no writ)

(observing that proper measure of damages is one that compensates owner for his losses resulting

from inability to use property for its normal purposes). Such an award would not compensate them

for an actual loss, nor would it return them to the position they were in before the injury. There is

no evidence in the record of the value to Dalton and McKenney and Brown of being able to access

the 670' contour line or of any damages they suffered as a result of not having such access. We

conclude that the awards of $31,999.99 in damages to Dalton and McKenney and to Brown are not

supported by legally sufficient evidence. We sustain the fourth appellate issue. We need not reach

appellants’ argument that there was no legal basis for holding Rand Forest liable, jointly and

severally with Harbor Ventures and Flagship Marine, for these damages.


Attorneys’ fees

               The trial court’s judgment includes the following attorneys’ fees awards:

                                                 27
       A.      Plaintiffs Tim Dalton, Sandra McKenney, and Susan Brown have requested
               the Court award them costs and reasonable and necessary attorney’s fees
               under Section 37.009 of the Texas Civil Practice and Remedies Code and
               Section 5.006(a) of the Texas Property Code.

       B.      The Court finds that Plaintiffs Tim Dalton and Sandra McKenney’s claims
               for declaratory judgment and for breach of restrictive covenant against
               Defendants are so interrelated that their prosecution or defense entails proof
               or denial of essentially the same set of facts.

       C.      The Court finds that Plaintiffs Tim Dalton and Sandra McKenney have
               incurred reasonable and necessary attorneys fees in the amount of $83,000.00
               related to the prosecution of the declaratory judgment claims.

       D.      The Court also finds that award of such amount is equitable and just and
               orders that Plaintiffs Tim Dalton and Sandra McKenney recover reasonable
               and necessary attorney’s fees in the amount of $83,000 from Defendants
               Harbor Ventures, Inc., Flagship Marine Corporation, and Rand K. Forest
               d/b/a Shoreline Development, jointly and severally.


The judgment includes similar provisions awarding attorneys’ fees in the amount of $42,000 to

Brown. In their fifth issue, appellants claim the attorneys’ fee awards were improper because neither

Brown nor Dalton and McKenney “allocated their attorneys [fees] attributed to defending Harbor

Ventures’ counterclaim for a declaration that the Easements’ northern boundary is the 670' contour

versus their other claims” and “were not the prevailing party on such claim.” Appellants also request

that in the event this Court reverses the judgment regarding the scope of the easements or the

imposition of an implied reciprocal negative easement, we also reverse the attorneys’ fee awards.

               The trial court awarded Dalton and McKenney and Brown attorneys’ fees for

prosecuting their declaratory judgment claims pursuant to section 37.009 of the Uniform Declaratory

Judgments Act (UDJA). See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2008). Section

37.009 provides: “In any proceeding under this chapter, the court may award costs and reasonable

                                                 28
and necessary attorney’s fees as are equitable and just.” Id. In a declaratory judgment action, the

trial court may award either side costs and reasonable attorneys’ fees. See Arthur M. Deck & Assocs.

v. Crispin, 888 S.W.2d 56, 62 (Tex. App.—Houston [1st Dist.] 1994, writ denied).

                When a declaratory judgment is reversed on appeal, however, the award of attorneys’

fees may no longer be equitable and just. See Sava Gumarska In Kemijska Industria D.D.

v. Advanced Polymer Sciences, Inc., 128 S.W.3d 304, 324 (Tex. App.—Dallas 2004, no pet.). While

we are not required to do so, when we reverse a declaratory judgment and the trial court awarded

attorneys’ fees to the party who prevailed at trial, we may remand the attorneys’ fee award for

reconsideration in light of our disposition on appeal. Id. In the present case, our substantial

modification of the trial court’s judgment may affect whether the award of attorneys’ fees is

equitable and just. See id.; see also Barshop v. Medina Cnty. Underground Water Conservation

Dist., 925 S.W.2d 618, 637 (Tex. 1996). Although the trial court’s award of attorneys’ fees may not

have been an abuse of its discretion, the court might exercise its discretion differently in light of our

opinion, which significantly alters the declaratory relief granted. Therefore, we reverse the award

of attorneys’ fees to Dalton and McKenney and Brown. We remand the issue of whether to award

attorneys’ fees under the declaratory judgments act, to whom any such fees may be awarded, and the

reasonable and necessary amount of any such attorneys’ fees, if awarded, to the trial court for further

proceedings. Tex. R. App. P. 44.1(b).


                                           CONCLUSION

                For the reasons set forth in this opinion, we reverse the trial court’s judgment that,

by application of the implied reciprocal negative easement doctrine, the Harbor Ventures Property

                                                   29
is burdened by a restrictive covenant prohibiting the operation of a commercial enterprise on the

property, and we render judgment that no such implied restrictive covenant applies to the Harbor

Ventures Property. We therefore set aside the portion of the trial court’s judgment enjoining the

operation of a commercial enterprise on the Harbor Ventures Property. We reverse the trial court’s

award of damages to Dalton and McKenney and Brown for loss of use of their easements and render

judgment that they take nothing by those claims. We reverse the trial court’s award of attorneys’

fees and remand that issue to the trial court for further proceedings. We modify the trial court’s

judgment as follows: (1) section II.B of the judgment is modified to state: “The Dalton-McKenney

Easement consists of that portion of the Dalton-McKenney Easement Area reasonably necessary to

provide ingress and egress from the Dalton-McKenney Property to the 670' contour line of Lake

Travis”; (2) section III.B is modified to state: “The Brown Easement consists of that portion of the

Brown Easement Area reasonably necessary to provide ingress and egress from the Brown Property

to the 670' contour line of Lake Travis”; (3) sections II.C.1-4 and sections II.E.1-6 are modified to

replace the words “Dalton-McKenney Easement Area” with the words “Dalton-McKenney

Easement”; (4) sections III.C.1-4 and sections III.E.1-6 are modified to replace the words “Brown

Easement Area” with the words “Brown Easement”; (5) sections II.C.3, II.E.4, and II.E.6 are

modified to delete the words “or the view of the Dalton-McKenney Easement Area from the

Dalton-McKenney Property”; (6) sections III.C.3, III.E.4, and III.E.6 are modified to delete the words

“or the view of the Brown Easement Area from the Brown Property”; (7) sections II.E.3. and III.E.3

are deleted in their entirety; and (8) sections II.C.4 and III.C.4 are deleted in their entirety.




                                                   30
                                           _____________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justices Jones, Justices Pemberton and Henson

Modified and, as Modified, Affirmed in Part; Reversed and Rendered in Part; and Reversed and
Remanded in Part

Filed: May 18, 2012




                                             31
