                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 S & G ASSOCIATED DEVELOPERS,                    §
 LLC, AND STEFANYK                                               No. 08-10-00192-CV
 DEVELOPMENT, INC.,                              §
                                                                    Appeal from the
                              Appellants,        §
                                                             285th Judicial District Court
 v.                                              §
                                                                of Bexar County, Texas
 COVINGTON OAKS CONDOMINIUM                      §
 OWNERS ASSOCIATION, INC.,                                       (TC# 2003-CI-03593)
                                                 §
                              Appellee.



                                            OPINION

       This appeal concerns the Covington Oaks Condominiums, a four-phase residential

development in Bexar County, Texas. Phases I, II, and III are under the governance of the

Covington Oaks Condominium Owners Association, known as “COHOA.” For many years,

COHOA has been in litigation with the owners of Phase IV regarding whether the entrance and

private road used by the residents of Phases I, II, and III can also be used to access Phase IV. The

trial court ultimately granted summary judgment in favor of COHOA. We affirm in part and

reverse and remand in part.

                              Factual and Procedural Background

       Although the record spans over two-thousand pages, the facts are poorly developed. It is

clear, however, that land encompassing all four phases was deeded to the original developer in

1981. The original developer planned four phases of condominiums that would be served by a

common gated entrance. Three phases of condominium buildings have been completed. These
condominiums are connected to Brandeis Road, which fronts the development, by a common

entrance and private road that circles through the development.

       The original developer lost title to the Phase IV land, resulting in its severance from the

remaining property. Phase IV apparently has no frontage to Brandeis Road, or any other public

road, because COHOA owns a narrow strip of land separating it from Brandeis. Stefanyk

Development, Inc. purchased the Phase IV property in 1993. In 1994, Don Stefanyk and John

Garza formed S&G Associated Developers, L.L.C. to construct a condominium building on the

Phase IV land.

       A dispute subsequently arose as to whether Stefanyk Development and S&G have the right

to use the entrance and road that serve Phases I, II, and III. In 1995, the parties entered into a

compromise settlement agreement, whereby Stefanyk Development would build up to six

condominium buildings, meeting certain specifications, on Phase IV. This agreement required

Stefanyk Development to put up a temporary fence to separate Phase IV from the other phases

during construction of the buildings. Once the temporary fence was completed, the agreement

provided that Stefanyk Development could “open the gate in the iron perimeter fence located on

the western boundary of the Covington Oaks Condominium Property along Brandeis Road.”

When construction was complete, Stefanyk Development was required to “weld the temporary

construction gate permanently closed, at which time Stefanyk Development and third-party

residents of Phase IV shall enter the condominium regime through the existing security gates on

Brandeis Road.” COHOA agreed to recommend to its members that Phase IV be annexed into

their association and to present the issue for a vote on or before its 1996 annual meeting. Stefanyk

Development and S&G subsequently built one six-unit building on Phase IV.

                                                 2
         The record does not reflect what happened between 1996 and 2001.1 In August 2001,

Stefanyk Development deeded a portion of the Phase IV land to Dan and Jean Villareal, but

retained the portion upon which the condominium building had been constructed.

         In December 2001, COHOA’s attorney sent Don Stefanyk and Dan Villareal a letter

stating that the previous “proposed” settlement agreement was never consummated, that it had

“been quite some time since the obligations under that agreement should have been performed,”

and that COHOA therefore considered the agreement no longer valid. The letter demanded that

an alternative entrance be constructed for Phase IV.

         In March 2003, COHOA advised Stefanyk Development and the Villareals by letter that it

intended to build a fence separating Phase IV from the rest of Covington Oaks. The letter stated

that “there will be an entrance to Phase IV provided from Brandeis to Phase IV, along the northern

edge of The Covington Oaks’ property. Once the access easement for Phase IV is completed,

[COHOA] will deactivate the gate codes provided to people associated with Phase IV.” The letter

further stated that COHOA would provide the new entrance on Brandeis and would permit the

Phase IV owners to pave a driveway if they wished to do so. Three days later, S&G commenced

this suit against COHOA, and later that month, the Villareals filed a plea in intervention.

         On March 11, 2005, the parties entered into a mediated settlement agreement. This

agreement required Stefanyk Development to pay COHOA $15,000 by March 21, 2005. The

agreement further provided that the parties would dismiss all claims and the Villareals would

undertake certain actions, “[i]f Phase IV is annexed by the members of Covington Oaks


1
 COHOA asserted in its summary judgment motion and in its appellate brief that the annexation vote did not occur in
1996 and that it notified Stefanyk’s counsel that year that it considered Stefanyk to be in breach of the 1995 agreement.
COHOA has not cited any evidence in the record to support these assertions.
                                                           3
Condominium Owners Association on before [sic] 90 days from the date of this agreement.”

Shortly after entering into this agreement, Stefanyk Development deeded its portion of Phase IV to

its attorney as “trustee.”2 In November 2005, COHOA informed Stefanyk Development, S&G,

and the Villareals that, after three rounds of balloting, the proposed annexation of Phase IV failed.

         In February 2007, COHOA filed a motion for summary judgment. The trial court

conducted a hearing on the motion, but deferred consideration of it and instead allowed the petition

to be amended to substitute the attorney for Stefanyk Development and S&G as plaintiff because

the property had been transferred to him.

         Subsequently, the sixth amended petition was filed, naming the attorney as plaintiff in his

capacity as trustee. COHOA filed special exceptions to this petition, arguing that the attorney had

no capacity to appear in place of Stefanyk Development and S&G. COHOA also filed an

amended motion for summary judgment.

         The trial court attempted to conduct a second summary judgment hearing. After hearing

arguments regarding the attorney’s capacity to sue, the court abated the case so the attorney could

transfer ownership of Phase IV back to Stefanyk Development, which would then be substituted as

plaintiff.

         The seventh amended petition was filed on August 3, 2007. It names only Stefanyk

Development and S&G as plaintiffs. On September 4, 2007, the court heard argument on the

amended motion for summary judgment, and on September 10, 2007, it signed an order granting

the motion in all respects. This order was not a final judgment because it did not adjudicate the



2
 The attorney later explained to the trial court that this was done because Don Stefanyk lives in Canada and did not
wish to travel back and forth to sign documents that he might be required to sign after the case was dismissed.
                                                         4
claims between the Villareals and Plaintiffs. Those claims were subsequently tried to the court,

which entered a final take nothing judgment in June 2010. Plaintiffs then brought this appeal of

the summary judgment.

                                                  Discussion

        When the summary judgment was granted, Plaintiffs’ live pleading was the seventh

amended original petition, which included several claims. First, Plaintiffs sought specific

performance of the 2005 settlement agreement. They alleged that the agreement required

COHOA to attempt to have Phase IV annexed. According to Plaintiffs, COHOA intentionally

refused to solicit the necessary votes to accomplish this. They further alleged that they had an

easement over COHOA’s property implied from existing use, implied from necessity, and by

estoppel.3

        On appeal, Plaintiffs raise three issues: (1) that the trial court erred in granting a

no-evidence summary judgment on the easement claims; (2) that the court erred in granting

summary judgment on the breach of contract claim; and (3) that the court erred in granting a

traditional summary judgment. Within the second issue, Plaintiffs attack the no-evidence

grounds pertaining to their contract claim, and within the third issue, they attack the traditional

grounds pertaining to the easement and contract claims.

                                           Standard and Scope of Review

        Because the trial court did not specify the grounds that it relied upon for its ruling, the


3
  The seventh amended original petition also alleged that COHOA violated the 2005 agreement in additional ways and
violated the condominium declaration for Covington Oaks, that COHOA tortuously interfered with their easement,
and that COHOA is estopped from denying that Phase IV is a member of COHOA. The prayer for relief sought
specific performance of the 1995 compromise settlement agreement. None of these issues have been brought forward
on appeal; therefore, we will not discuss them further.
                                                        5
summary judgment must be affirmed if any of the theories advanced is meritorious. See Viasana

v. Ward County, 296 S.W.3d 652, 653-54 (Tex.App.--El Paso 2009, no pet.). To obtain a

no-evidence summary judgment, a defendant must only specify which elements of the plaintiffs’

claim lack evidentiary support. Arellano v. Americanos USA, LLC, 334 S.W.3d 326, 330

(Tex.App.--El Paso 2010, no pet.). The burden then shifts to the plaintiffs to produce evidence

raising a genuine issue of material fact regarding each challenged element. Id. To meet this

burden, they must produce more than a scintilla of evidence regarding the challenged elements.

Id. For a traditional summary judgment, the defendant has the burden of showing that there is no

genuine issue of material fact by conclusively disproving at least one element of the plaintiffs’

claims or by conclusively proving all of the elements of an affirmative defense. Id. On appeal,

we view the evidence de novo and in the light most favorable to the nonmoving plaintiffs,

considering all evidence favorable to them as true and indulging every reasonable inference and

resolving any doubts in their favor. See id.

       In this case, COHOA filed objections to Plaintiffs’ summary judgment evidence, but it

failed to obtain a ruling on the objections. It does not argue on appeal that any of the evidence

should be excluded from our review. Therefore, we will consider all of the summary judgment

evidence submitted by Plaintiffs. See id. at 329-30.

                                        Easement Claims

       “It is ‘universally recognized’ that--‘without aid of language in the deed, and indeed

sometimes in spite of such language’--the circumstances surrounding an owner’s conveyance of

part of a previously unified tract of land may cause an easement to arise between the two new

parcels.” Seber v. Union Pac. R.R. Co., 350 S.W.3d 640, 647 (Tex.App.--Houston [14th Dist.]

                                                 6
2011, no pet.), quoting Mitchell v. Castellaw, 246 S.W.2d 163, 167 (1952). There are two types

of implied easements in Texas: easements implied by necessity and easements implied by prior

use. See Seber, 350 S.W.3d at 648. The elements for an easement by necessity are: (1) unity of

ownership at severance; and (2) necessity at the time of severance. See Ingham v. O’Block, 351

S.W.3d 96, 101 (Tex.App.--San Antonio 2011, pet. denied). The elements for an easement by

prior use are: (1) unity of ownership at severance; (2) apparent and continuous use of the

easement at severance; and (3) necessity. See id. at 103.

       Easements may also be created by estoppel. The elements for an easement by estoppel

are: (1) a representation communicated, either by word or action, to the promisee; (2) the

communication was believed; and (3) the promisee relied on the communication. Id. at 100.

                                      No-Evidence Grounds

       Although Plaintiffs’ petition alleged an easement by necessity, by prior use, and by

estoppel, the no-evidence portion of the summary judgment motion lumps all of these theories

together under the heading “Easement.” The motion does not list the generic elements of each

easement claim as to which there is no evidence. Instead, it asserts that Plaintiffs have no

evidence regarding ten issues, without explaining how these issues pertain to the elements of the

easement claims.

       First, the motion asserts that there is no evidence that there was unity of ownership when

Stefanyk Development acquired Phase IV in 1993. This is not an element of any of Plaintiffs’

easement claims. As can be seen by the list of elements above, no unity of ownership is required

for an easement by estoppel. Although unity of ownership is required for easements by necessity

and by implied grant, the relevant time to determine unity of ownership is when the easement was

                                                7
allegedly created, i.e., at severance. See Ingham, 351 S.W.3d at 101; Holden v. Weidenfeller, 929

S.W.2d 124, 129 (Tex.App.--San Antonio 1996, writ denied).4

         Second, the motion asserts that there is no evidence that a road was in use or apparent when

Stefanyk Development acquired Phase IV. Again, this is not an element of Plaintiffs’ claims. It

does not relate to any element of an easement by estoppel or by necessity. Although apparent use

is required for an easement by prior use, the relevant point for determining this element is at

severance. See Holden, 929 S.W.2d at 129.5

         Third, the motion asserts that there is no evidence that it was necessary to use COHOA’s

entrance road to access Phase IV when Stefanyk Development acquired Phase IV. This assertion

does not relate to any element of an easement by estoppel. Necessity is, however, an element for

easements by prior use and by necessity. Necessity is initially determined at the time of

severance. See Ingham, 351 S.W.3d at 101; Holden, 929 S.W.2d at 129. Regarding easements

by prior use, there is no requirement that the necessity continue after severance. Seber, 350

S.W.3d at 649-50.

         The rule is different for easements by necessity. These easements are temporary and

continue only so long as the necessity exists. Seber, 350 S.W.3d at 649. Plaintiffs offered more

than a scintilla of evidence that it was necessary to use COHOA’s entrance road when Stefanyk

Development acquired Phase IV. John Garza submitted an affidavit, which states that since the



4
  In its appellate brief, COHOA states that the original developer deeded Phase IV to the lender in lieu of foreclosure
in 1982. Thus, 1982 would be the time of severance.
5
  In its appellate brief, COHOA states that three phases had become part of COHOA by 1987 and that the residents of
these phases “entered and traveled through the property on a private drive that intersected with the adjacent public
street known as Brandeis.” Since it is undisputed that Stefanyk Development acquired Phase IV in 1993, this
statement strongly suggests that the road was in use and apparent at that time.
                                                          8
time Phase IV was purchased, the only connection from Brandeis Road to Phase IV has been

through COHOA’s entrance and the private road that connects all four phases of Covington Oaks.

       Fourth, the motion asserts that there is no evidence that there is no way to access Phase IV

except by an easement over COHOA’s property. Garza’s affidavit explicitly avers that there is

“no access to Phase IV from any public street, including Brandeis, that does not require travel

across land owned by Covington Oaks.” This is sufficient to create a fact issue that the necessity

continues to the present day.

       Fifth, the motion asserts that there is no evidence that Plaintiffs suffered damages that

could not have been mitigated by building their own driveway. Although not argued by

Plaintiffs, we note that damage is not included in the elements discussed above and that

mitigation of damages is an affirmative defense, making it an inappropriate basis for a no-evidence

summary judgment. See Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex.App.--Houston

[14th Dist.] 2003, no pet.); Taylor Foundry Co. v. Wichita Falls Grain Co., 51 S.W.3d 766, 774

(Tex.App.--Fort Worth 2001, no pet.).

       COHOA contends that Plaintiffs failed to challenge this ground in their response to the

summary judgment motion and in their appellate brief. Our review of the summary judgment

response shows that Plaintiffs unambiguously addressed this ground. Their arguments regarding

this ground were virtually identical to their arguments regarding the previous two grounds.

Specifically, they relied on Garza’s affidavit to establish that they cannot build any alternative

driveway that does not require travel across COHOA’s property. Their appellate brief includes a

general issue framed as follows: “Did the trial court err in granting appellee’s motion for

no-evidence summary judgment as to appellants’ claims for implied easement?” Although the

                                                  9
brief does not contain a separate sub-heading for this ground, the substance of their argument

about their inability to access Phase IV without traveling across COHOA’s property is addressed

throughout the brief. We therefore conclude that Plaintiffs have challenged this ground on

appeal. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).

       However, it is difficult to analyze this ground because it does not relate to any actual

element of Plaintiff’s easement claims, yet Plaintiffs have not challenged the ground on this basis.

Under the circumstances, we construe this ground as merely a rewording of the previous two

grounds and we conclude that Garza’s affidavit was sufficient to defeat summary judgment.

       In two related arguments, the motion asserts that there is no evidence that a plat or

marketing map showed any easement or that a plat or marketing map was a promise given to

Plaintiffs on which they relied. On appeal, COHOA contends that these assertions relate to

Plaintiffs’ easement-by-estoppel claim. A representation on a plat may satisfy the first element of

easement by estoppel. See, e.g., Halsell v. Ferguson, 202 S.W. 317, 322 (Tex. 1918). But a plat

is only one method of satisfying this element; it is not a required element itself. Plaintiffs

disclaim any reliance on this method of proof. Therefore, the absence of an easement on a plat or

marketing map is irrelevant.

       The motion also asserts that there is no evidence that Plaintiffs took any action to develop

Phase IV in reliance on any promise of an easement. This assertion concerns two elements of

easement by estoppel--representation and reliance. The 1995 settlement agreement provided that

Stefanyk Development was to construct up to six buildings on Phase IV and that when

construction was complete, Stefanyk Development and Phase IV residents could “enter the

condominium regime through the existing security gates on Brandeis Road.” In his affidavit,

                                                 10
Garza claims that because Plaintiffs used COHOA’s entrance road since 1993, he believed that

they had a right to use it. In reliance on this right, they constructed a condominium building on

Phase IV. COHOA did not formally indicate an unwillingness to allow Plaintiffs and their

tenants to use the common entrance until December 2001. This evidence is sufficient to raise a

fact issue on the elements of representation and reliance. See Holden, 929 S.W.2d at 131 (holding

that verbal representation is not required); see also Goodenberger v. Ellis, 343 S.W.3d 536, 541-42

(Tex.App.--Dallas 2011, pet. denied)(finding a fact issue regarding whether a property developer

made a representation by its action of designing lots so that they used an easement over the

disputed tract).

        Next, the motion asserts that there is no evidence that Stefanyk Development’s deed

granted an easement. Because Plaintiffs are not alleging an express easement, it does not matter

whether there was any express mention of the easement in the deed. If an easement was created

by necessity or prior use at the time of severance, it passed to subsequent purchasers regardless of

the deed’s language. See Holmstrom v. Lee, 26 S.W.3d 526, 531-32 (Tex.App.--Austin 2000, no

pet.); Rushin v. Humphrey, 778 S.W.2d 95, 97 (Tex.App.--Houston [1st Dist.] 1989, writ denied).

        Tenth, and finally, the motion asserts that there is no evidence that any person with legal

ownership and legal capacity brought this suit. This assertion apparently relates to COHOA’s

contention that Plaintiffs’ attorney did not actually own Phase IV, but was acting merely as a

placeholder for Stefanyk Development and S&G. As Plaintiffs suggest, when a plaintiff is

misnamed, the proper solution is to abate the case so that the pleading deficiency can be corrected.

See 1 Tex.Jur.3d Actions § 151. The trial court followed this approach, and allowed the filing of

the seventh amended petition, which named Stefanyk Development and S&G as plaintiffs and

                                                 11
removed the attorney as plaintiff. Because the seventh amended petition was on file at the time of

the summary judgment hearing, any issue created by the attorney serving as plaintiff is moot.

        As for Stefanyk Development and S&G, we believe that Garza’s affidavit is sufficient to

avoid a no-evidence summary judgment on the question of their ownership and capacity to bring

suit. The affidavit states that S&G owns the condominium building “and the combined building

and land upon which said building sits is the result of a joint venture agreement between Stefanyk

[Development] and S&G.”6

        Plaintiffs’ first issue, concerning the no-evidence grounds supporting their easement

claims, is sustained.

                                             Traditional Grounds

        COHOA’s motion asserts several grounds for a traditional summary judgment on the

easement claims. First, it asserts that Weber lacked standing. As we have just discussed, this

assertion is moot.

        Next, the summary judgment motion asserts res judicata or claim preclusion. A party

relying on the affirmative defense of res judicata must prove: (1) a prior final determination on

the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them;

and (3) a second action based on the same claims as were or could have been raised in the first

action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).

        To satisfy the first element of res judicata, COHOA relies on the 2005 settlement

agreement, which purported to resolve all of the claims raised in this suit. COHOA notes that



6
  In its appellate brief, COHOA states that “Stefanyk Development, Inc. . . . owns the land on which S&G’s building
is located.”
                                                        12
“[a]n agreed judgment of dismissal in settlement of a controversy is a judgment on the merits.”

This is an accurate statement of law, but it does not apply here because the 2005 agreement did not

result in an agreed judgment of dismissal. Rather, the case proceeded to summary judgment.

See Essman v. Gen. Accident Ins. Co. of America, 961 S.W.2d 572, 574 (Tex.App.--San Antonio

1997, no pet.)(“A judgment of dismissal entered by agreement of the parties in pursuance of a

compromise or settlement of a controversy becomes a judgment on the merits.” [Emphasis

added]).7

         COHOA also relies on the trial court’s denial of a temporary injunction in 2003. It argues

that in denying injunctive relief, the court necessarily found that no easement exists. The denial

of a temporary injunction is not a final determination on the merits. See Glattly v. Air Starter

Components, Inc., 332 S.W.3d 620, 637 (Tex.App.--Houston [1st Dist.] 2010, pet. denied)(“Texas

law is clear that, generally, a trial court’s ruling on a temporary injunction (or other interlocutory

judgment) does not support the defense of res judicata.”).

         Next, the summary judgment motion asserts that an element of each of Plaintiffs’ easement

claims is necessity and, as a matter of law, there is no necessity. As noted above, necessity is not

required for an easement by estoppel, but it is required for Plaintiffs’ other two easement theories.

         The motion states that a “curb cut was . . . placed to allow a driveway to be built connecting

[Plaintiffs’] building . . . with Brandeis Road,” that “Stefanyk land locked himself when he deeded

the property on three sides of his building to the Villareals, thereby creating an implied easement


7
  COHOA suggests that the 2005 agreement required Plaintiffs to dismiss this suit. The agreement is set forth in a
pre-printed, fill-in-the-blanks form provided by the mediator. The pre-printed statement that the parties would
“execute and file an Agreed Order dismissing all claims” is crossed out. The handwritten portion of the agreement
states that if Phase IV was annexed within ninety days, certain obligations would arise, including, “[t]he parties will
dismiss all claims against each other and enter into mutual releases.”
                                                          13
across the Villareals’ land,” that Plaintiffs have “another way off [their] property through

neighboring property to the east and a railroad easement to the south,” and that plaintiffs “do not

have any need to drive onto the vacant land as there has been no construction in ten years.”8 None

of COHOA’s summary judgment evidence specifically supports these assertions, but two items of

evidence are arguably related to the assertions.

        The first is a letter from COHOA’s attorney, advising Plaintiffs that COHOA “recognizes

the implied easement held by the owners of Phase IV over that narrow strip of land owned by

[COHOA] separating Phase IV from Brandeis.” The second is the affidavit of Matthew Lynch,

who has been COHOA’s property manager since 2003. The affidavit states:

                The COHOA has granted an easement across the narrow strip of land
        between the Villareals’ property and Brandeis which is owned by the COHOA.
        The COHOA has continually advised [the parties] of the grant to use that easement
        by letters from our attorney. In fact, before any necessity to use the adjacent land
        arose that entrance was chosen as the way in which Stefanyk should access his
        property unless and until the COHOA voted in favor of annexation of his property.

        On appeal, COHOA argues that Lynch’s affidavit demonstrates that it is not necessary for

Plaintiffs to use the common entrance and road that serve Phases I, II, and III, because it has

granted Plaintiffs an alternative easement. COHOA states, “Assuming arguendo that Appellants

ever had a necessity to use COHOA’s private gate and drive, the record establishes that the

necessity was extinguished upon creation of the alternate entrance.” As we have already

explained, necessity is initially determined at the time of severance and there is no requirement

that the necessity continue after severance for an easement by prior use. See Seber, 350 S.W.3d at

649-50; Ingham, 351 S.W.3d at 101; Holden, 929 S.W.2d at 129. Although an easement by


8
 The portion of the motion concerning necessity focuses more on the Villareals’ claims than those of Plaintiffs. We
will not address any argument directed only to the Villareals.
                                                        14
necessity terminates when the necessity ceases, Seber, 350 S.W.3d at 649, this does not mean that

the grantor has the authority to pick and choose which route the grantee can use. Once the

location of an easement by necessity is established, it cannot be changed without the consent of

both parties. Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex.App.--El Paso 1993, no writ);

Sisco v. Hereford, 694 S.W.2d 3, 7-8 (Tex.App.--San Antonio 1984, writ ref’d n.r.e.); Meredith v.

Eddy, 616 S.W.2d 235, 240 (Tex.Civ.App.--Houston [1st Dist.] 1981, no writ). Accordingly,

COHOA’s offer of an alternative easement does not negate Plaintiffs’ right to any existing implied

easement.9

         Last, the summary judgment motion asserts that Plaintiffs cannot prevail on their

easement-by-estoppel claim. The motion states that Plaintiffs cannot show that they “took any

action in reliance on a promise from Covington Oaks.” To obtain a traditional summary

judgment, COHOA was required to negate the elements of representation and reliance as a matter

of law; it cannot shift the burden to Plaintiffs. See Arellano, 334 S.W.3d at 330.

         The motion also states, “Any improvements were done as a condition to contractual

obligation of the parties because COHOA always disputed Stefanyk and S&G’s right to an

easement.” The motion does not cite any evidence of this, but on appeal, COHOA relies on

Lynch’s affidavit. Indeed, Lynch did aver that “COHOA has always disputed the right of owners

of the adjacent property to use the private road, private gate and amenities of the COHOA.” This

averment does not conclusively disprove an easement by estoppel in light of the 1995 agreement



9
  COHOA also argues on appeal that Lynch’s affidavit conclusively negated the element of continuous use, which is
required for an easement by prior use. However, COHOA did not include this ground in the summary judgment
motion, and even if it had been included, Lynch’s affidavit does not refer to the relevant time period, which was the
time of severance.
                                                         15
and Garza’s affidavit. The 1995 settlement agreement contemplated that Stefanyk Development

would build on Phase IV and that when construction was complete, Stefanyk Development and

Phase IV residents could use the common entrance. The affidavit states that a building was

constructed in reliance on the right to use the common entrance and that COHOA did not formally

indicate an unwillingness to allow Plaintiffs and their tenants to use the common entrance until

December 2001.

         Plaintiffs’ third issue is sustained to the extent that it challenges the granting of a traditional

summary judgment on the easement claims.

                                                 Contract Claim

         Plaintiffs contend that the 2005 settlement agreement obligated COHOA to attempt to have

Phase IV annexed by its members. They allege that COHOA breached this obligation by

intentionally refusing to solicit the required votes. COHOA sought a traditional summary

judgment on the ground that the agreement was performed.10

         The 2005 agreement states that Stefanyk Development would pay COHOA $15,000 within

ten days. It then states, “If Phase IV is annexed by the members of Covington Oaks

Condominium Owners Association on [or] before 90 days from the date of this agreement then”

Villareal would undertake various actions and the case would be dismissed. By its express terms,

this language did not require COHOA to recommend Phase IV’s annexation or even to submit the

annexation for a vote. Nevertheless, COHOA has conceded that the agreement “requires . . . that

COHOA submit the annexation of Phase IV to a vote of the homeowners.” COHOA established



10
   COHOA also asserted several no-evidence grounds pertaining to this allegation, but we find it easier to dispose of
the issue by reference to traditional summary judgment principles.
                                                         16
that it met this requirement through its attorney’s letter to Plaintiffs and the Villareals. That letter

states that “three rounds of balloting for the proposed annexation of Phase IV have failed to attain

the required percentage of approval of the membership. The annexation vote has failed.”

Moreover, Lynch’s affidavit states that the vote was conducted in accordance with COHOA’s

restrictive covenants and that COHOA “acted in good faith to obtain a vote from every

homeowner.” Specifically, COHOA sent information to all of the homeowners concerning the

annexation and recommended that they vote in favor of annexation. Balloting occurred at a June

2005 meeting. Ballots were also sent on two other occasions to ensure that every homeowner

received a ballot and had the opportunity to vote.

        In an attempt to counter this evidence, Plaintiffs rely on the minutes of a July 26, 2005

meeting of COHOA’s board of managers. The minutes state:

        The Board reviewed the results of the current votes in regards to the annexation of
        Phase IV. With only 42 of 68 homeowners, or 62%, having cast their votes, the
        results are 36 homeowners, or 53%, voting in favor of annexation while the
        remaining 47% have either not voted or voted to not annex Phase IV. The
        requirement to annex Phase IV is 67%. The Board’s frustration with the owners of
        Phase IV for not addressing repairing the fence, not providing a building
        inspection, as well as other items, has prompted them to not proceed any further
        with the annexation of Phase IV. The Board approved to pursue further legal
        recourse in order to isolate Phase IV from the rest of the complex. The Board
        approved the gates be closed as soon as possible, an agreement in regards to future
        utility easement be written, and all ties wit [sic] the owners of Phase IV be
        eliminated.

        The minutes show that COHOA decided not to proceed further when 36 out of 42 (or 85%)

of the voting members voted in favor of annexation. Plaintiff contends that this creates a fact

issue as to whether COHOA performed its obligation to obtain a vote. We disagree. Nothing in

the agreement suggests that COHOA had a duty to continue balloting ad infinitum. Rather, the


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vote was supposed to be accomplished within ninety days.

         Plaintiffs’ third issue is overruled to the extent that it challenges the granting of a

traditional summary judgment on the contract claim. Because COHOA established its

entitlement to summary judgment on a traditional ground, we find it unnecessary to address

Plaintiffs’ second issue, which challenges the no-evidence summary judgment on the contract

claim.

                                                  Conclusion

         For the reasons stated above, the summary judgment is reversed as to Plaintiffs’ easement

claims, and the cause is remanded to the trial court for further proceedings concerning those

claims. In all other respects, the summary judgment is affirmed.




February 1, 2012
                                                 CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.




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