                              NUMBER 13-09-248-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JOSEPH TATE, TRUSTEE OF THE JOSEPH                                            Appellant,
TATE REVOCABLE TRUST,

                                            v.

VIRGINIA E. LIPE AKA VIRGINIA E. ALFORD,                                       Appellee.


                   On appeal from the 197th District Court
                        of Cameron County, Texas.


                          MEMORANDUM OPINION

                 Before Justices Yañez, Benavides, and Vela
                   Memorandum Opinion by Justice Vela

       This is an appeal from an order granting summary judgment in favor of Virginia E.

Lipe a/k/a Virginia E. Alford (“Alford”) and against Joseph Tate, trustee of the Joseph Tate

revocable trust (“Tate”). By three issues, Tate contends fact issues exist which preclude
the granting of summary judgment. We affirm.

                                     I. BACKGROUND

       Alford acquired property described as Texas lot 843 Phase IV-B, Outdoor Resorts/

South Padre Subdivision (now Long Island Village), by warranty deed, in December 2000.

Tate owns lot 844 in the same subdivision. Alford’s lot adjoins Tate’s lot on the east side.

Alford constructed a brick walkway to her property, which she admits encroaches on to

Tate’s property. Tate sued Alford pursuant to section 22.001 of the Texas Property Code

to determine who owned a 200 square foot area of Tate’s lot. See TEX . PROP. CODE ANN .

§22.001 (Vernon 2000). Alford counterclaimed, requesting a judgment declaring that the

existing encroachment “be subject to an easement in her favor under the terms of the

declaration of covenants, conditions and restrictions for Outdoor Resorts/South Padre, a

condominium recorded in Volume 14, Page 674 in the Condominium Records of Cameron

County, Texas.”

       Alford moved for a traditional motion for summary judgment on her counterclaim.

She claimed that the declaration of covenants, conditions, and restrictions for Outdoor

Resorts/South Padre, and the language set forth in section 82.064 of the Texas Property

Code allowed her an easement for the encroachment. See TEX . PROP. CODE ANN . §

82.064 (Vernon 2007).

       Tate responded, urging that the 1999 Building Codes Handbook, which was in effect

when Alford made the improvements, provided that if she chose to proceed with

construction without conducting a survey, it was with the understanding that she was solely

responsible for the cost of removing or modifying any construction which may later “be

determined to be built on common property, property belonging to another lot owner, or in

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an easement-set back area.” He also argued that Alford’s husband had obtained a

building permit for construction that made him liable for the encroachment. The trial court

found that there were no material fact issues, declared that an easement existed for the

encroachment, and awarded Alford $3,600.00 in attorney’s fees.

                                  II. STANDARD OF REVIEW

       We review a trial court's granting of a traditional motion for summary judgment

under a de novo standard of review. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816

n. 7 (Tex. 2005) (citing Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 290 n. 137

(Tex. 2004)); Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex. App.–Corpus Christi 2003, no

pet.). To obtain relief via a traditional motion for summary judgment, the movant must

establish that no material fact issue exists and that it is entitled to judgment as a matter of

law. TEX . R. CIV. P. 166a(c); see Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 475 n. 10

(Tex. 2005) (“[A] defendant moving for summary judgment on an affirmative defense must

prove each element of its defense as a matter of law, leaving no issues of material fact.”);

Mowbray v. Avery, 76 S.W.3d 663, 690 (Tex. App.–Corpus Christi 2002, pet. denied).

After the movant produces evidence sufficient to show it is entitled to summary judgment,

the non-movant must then present evidence raising a fact issue. See Walker v. Harris, 924

S.W.2d 375, 377 (Tex. 1996).

       In deciding whether there is a disputed fact issue that precludes summary judgment,

evidence favorable to the non-movant will be taken as true. Am. Tobacco Co. v. Grinnell,

951 S.W.2d 420, 425 (Tex. 1997) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

548-49 (Tex. 1985)). Evidence favorable to the movant, however, will not be considered



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unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply

Co., 391 S.W.2d 41, 47 (Tex. 1965). Moreover, every reasonable inference will be

indulged in favor of the non-movant and any doubts resolved in its favor. Grinnell, 951

S.W.2d at 425 (citing Nixon, 690 S.W.2d at 549).

                                       III. ANALYSIS

       By three issues, which we address together, Tate urges that the declarations and

the later amendments to the building rules and regulations are not in conflict, that there

was a genuine issue of material fact under section 82.064 of the property code as to

whether the encroachment was the result of willful misconduct, and that the trial court did

not follow the rules of contract construction to justify the easement based on the

encroachment. See TEX . PROP. CODE ANN . § 82.064 (Vernon 2007).

       The declarations, covenants, and restrictions were filed of record on March 3, 1982.

Although the accompanying by-laws have been amended, the record does not reflect that

the declarations have been amended. Restrictions in dedicatory instruments are treated

as contracts between the parties. See Herbert v. Polly Ranch Homeowners Ass'n., 943

S.W.2d 906, 907-08 (Tex. App.–Houston [1st Dist.] 1996, no writ). A written contract that

can be given a definite or certain legal meaning is not ambiguous. Nat’l Union Fire Ins. Co.

v. CBI Indus., 907 S.W.2d 517, 520 (Tex. 1995); Coker v. Coker, 650 S.W.2d 391, 393

(Tex. 1983). If a written instrument is so worded that it can be given a certain or definite

legal meaning or interpretation, then it is not ambiguous and the court will construe the

contract as a matter of law. Coker, 650 S.W.2d at 393. We may determine the parties'

rights and obligations under an unambiguous contract as a matter of law. ACS Investors,



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Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).

       Alford’s motion for summary judgment urges that she is entitled to an easement for

the encroachment under both the declaration of covenants, conditions, and restrictions as

well as under section 82.064 of the property code. See TEX . PROP. CODE ANN . § 82.064.

The declaration of covenants, conditions, and restrictions provides, in part, as follows:

              The owners of the respective condominium units agree that if any
       portion of a condominium unit or common element or limited common
       element encroaches upon another, a valid easement for the encroachment
       and maintenance of same, so long as it stands, shall and does exist.

       Section 82.064 of the property code states:

               To the extent that a unit or common element encroaches on another
       unit or common element, a valid easement for the encroachment exists. The
       easement does not relieve a unit owner of liability in case of the owner’s
       willful misconduct nor relieve a declarant or any other person of liability for
       failure to adhere to the plats and plans.

Id.

       Tate argues that the building code rules and regulations, amended in 1999, and

language set forth in a building permit that Alford’s husband obtained to do some

reconstruction on the property prohibited Alford from building anything that encroaches on

common property or property belonging to another lot owner, and that these “trump” the

earlier-enacted declaration of covenants, conditions, and restrictions where the owners

agreed to a valid easement for an encroachment. Tate’s summary judgment evidence

contained a building permit showing that Alford’s husband had obtained permission to do

work on the property in question. The permit states that it was for “reconstruction”, and

was dated October 25, 2001. It did not reflect that it was for the construction of the brick

walkway made the basis of this suit. The building code rules and regulations state:


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    UNDER NO CIRCUMSTANCES DOES THE ISSUANCE OF A BUILDING PERMIT
GRANT A LOT OWNER PERMISSION TO:

       1. Build anything which encroaches on common property belonging to another lot
       owner.

A. Section 82.064

       Alford urges that section 82.064 of the property code allows her to have a valid

easement. Section 82.064, however, is part of the Uniform Condominium Act that applies

to all “commercial, industrial, residential and other types of condominiums in this state for

which the declaration is recorded on or after January 1, 1994.” TEX . PROP. CODE ANN . §

82.002(a). The Uniform Condominium Act also may govern condominiums for which the

declaration was recorded before January 1, 1994, if the owners of units vote to amend the

declaration to have the chapter apply and the amendment is filed for record in the

condominium records in each county in which the condominium is located; or a declaration

was recorded before January 1, 1994 and the declaration or amendment states that the

chapter will apply in its entirety on January 1, 1994. Id.

       The declaration of covenants, conditions, and restrictions and accompanying by-

laws, dated March 3, 1982, is attached to Alford’s summary judgment motion as evidence.

Because the declaration was recorded prior to January 1, 1994, we find that section 82.064

is inapplicable unless the record reflects that the owners voted to amend the declaration

to have the chapter apply or the declaration was recorded before January 1, 1994 and the

declaration or amendment states that the chapter will apply in its entirety on January 1,

1994. There is nothing in the record which reflects that the owners voted to amend the

declaration to have the chapter apply. Based on the record before us, then, section 82.064

may not be utilized to support Alford’s motion for summary judgment.

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B. The Declaration of Covenants, Conditions, and Restrictions

       The declaration of covenants, conditions and restrictions, however, does support

Alford’s argument that a valid easement exists (stating that “if any portion of a

condominium unit or common element or limited common element encroaches upon

another, a valid easement for the encroachment and maintenance of same, so long as it

stands shall and does exist.”). The declaration also provides that “if any irreconcilable

conflict should exist, or hereafter arise, with respect to the interpretation of these By-laws

and the Declaration, the provisions of the Declaration shall prevail.”

       We find that the declarations are unambiguous and support Alford’s argument with

respect to the easement under the specific circumstances presented here. The declaration

also states that its provisions prevail over the by-laws when in conflict. The declaration

states that the condominium owners agree that if any portion of a condominium unit or

common element or limited common element encroaches upon another, a valid easement

for the encroachment and maintenance of the same exists. There is nothing before this

Court to reflect that the condominium owners attempted to abolish the provision allowing

easements for an encroachment. The record here does not reflect that the declaration of

covenants, conditions, and restrictions have ever been changed. The trial court did not err

in granting summary judgment. We overrule each of Tate’s issues and affirm the trial

court’s judgment.




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                                   IV. CONCLUSION

      The judgment of the trial court is affirmed.




                                                     ROSE VELA
                                                     Justice

Memorandum Opinion delivered and
filed this 29th day of October, 2009.




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