




 
 



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
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
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,
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: 
	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.
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.  



IV. Conclusion  
 The judgment of the trial court is affirmed.	
 
 								ROSE VELA
								Justice
Memorandum Opinion delivered and 
filed this 29th day of October, 2009.







 
