Dealer Computer Services, Inc. v. DCT Hollister Rd, LLC Staples, Inc., Northwest Crossing Association, Inc., First Service Residential Houston. Inc., Keith Grothaus, Victoria Brown and Jared Hothan , 574 S.W.3d 610 ( 2019 )

Affirmed in part, Reversed and Rendered in part, and Memorandum Opinion
filed April 16, 2019.
In the
Fourteenth Court of Appeals
NO. 14-17-00480-CV
DEALER COMPUTER SERVICES, INC., Appellant
v.
DCT HOLLISTER RD, LLC; STAPLES, INC.; NORTHWEST CROSSING
ASSOCIATION, INC.; FIRSTSERVICE RESIDENTIAL HOUSTON, INC.;
KEITH GROTHAUS; VICTORIA BROWN; AND JARED HOTHAN,
Appellees
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2016-17197
OPINION
This appeal largely turns on standing and appellant’s failure to address all
grounds for summary judgment on appeal. In the trial court, appellant Dealer
Computer Services, Inc. (“Dealer CS”) asserted two claims against its across-the-
street neighbor, DCT Hollister Rd, LLC (“DCT”), and DCT’s tenant, Staples, Inc.
(“Staples”). Dealer CS claimed DCT and Staples had violated deed restrictions and
created a nuisance. Dealer CS also asserted claims for negligence and gross
negligence against its community association (Northwest Crossing Association,
Inc.), community association directors (Keith Grothaus, Jared Hothan, and Victoria
Brown), and property management company (FirstService Residential Houston,
Inc.). The negligence claims were based on the alleged failure of these parties to
enforce deed restrictions. In three separate motions, all defendants moved for
summary judgment. The trial court granted each motion, dismissing Dealer CS’s
claims with prejudice. The trial court also awarded attorney’s fees to defendants’
attorneys.
In nine issues, Dealer CS appeals the dismissal of its claims on summary
judgment and the awards of attorney’s fees. We conclude Dealer CS lacks standing
to assert deed-restriction violations. Because the trial court’s award of attorney’s
fees was authorized by deed restrictions not enforceable by, or applicable to,
Dealer CS, we reverse the trial court’s award of attorney’s fees. With respect to
Dealer CS’s other causes of action, we affirm the judgment because Dealer CS
failed to address all grounds on which summary judgment may have been granted.
Accordingly, we affirm the dismissal of claims and reverse the award of attorney’s
fees.
I. BACKGROUND
Dealer CS owns an office building in the community known as Northwest
Crossing. In 2014, DCT acquired the property and warehouse across the street
from Dealer CS’s office building. DCT’s tenant, Staples, uses the warehouse as a
“fulfillment center.” In 2015, DCT and Staples expanded the warehouse.
Northwest Crossing contains four sections built in three different stages.
Sections 1 and 2 were established in 1975 under section 1 and 2 deed restrictions.
2
Section 3 was established in 1980 with its own set of restrictions. Section 4 was
established in 1981 with yet another set of restrictions. Although DCT’s warehouse
is across the street from Dealer CS’s office building, the warehouse and the office
building are in different sections of Northwest Crossing. DCT’s warehouse is in
section 3 while Dealer CS’s office building is in section 4. Section 3 is governed
by section 3 restrictions, and section 4 is governed by section 4 restrictions.
Northwest Crossing Association, Inc. (the “Association”) administers deed
restrictions in all sections of Northwest Crossing. The enforcement provision of
section 3 restrictions provides that the Association may enforce section 3
restrictions “individually and as representative of all Property Owners in
Northwest Crossing, Section 3.” The enforcement provision further provides that
any section 3 property owner may enforce the restrictions if the Association fails to
do so.
In 2016, weeks after the completion of the warehouse expansion, Dealer CS
filed suit against DCT and Staples, alleging the expansion violated section 3
restrictions and created a nuisance. According to Dealer CS, the expansion violated
the restrictions because: (1) construction of the building was not approved in
writing; (2) loading docks face the street and neighboring property; (3) loading
docks lack screening; (4) there is encroachment on setback lines; (5) there is
inadequate “green space”; and (6) there is inadequate parking. Dealer CS also
included as defendants the Association; its directors, Grothaus, Hothan and Brown;
and the property management company, FirstService Residential Houston, Inc.
(collectively, “Association Defendants”). Dealer CS alleged Association
Defendants were liable for negligence and gross negligence in failing to enforce
the deed restrictions.
DCT, Staples, and Association Defendants filed three separate motions for
3
traditional summary judgment, each of which the trial court granted in full. The
trial court rendered final judgment in favor of all defendants and awarded
attorney’s fees to defendants.
II. ANALYSIS
Dealer CS presents nine issues on appeal. Dealer CS argues that the trial
court erred by deciding the following issues in favor of DCT, Staples, and
Association Defendants on summary judgment: (1) standing; (2) amendment;
(3) duty; (4) nuisance; (5) limitations; (6) laches, waiver, and estoppel; and
(7) settlement and release. Dealer CS also argues that the trial court erred when it
(8) overruled Dealer CS’s objections to untimely filed evidence,1 and (9) awarded
attorney’s fees based on summary monthly totals.
A. Standard of review
We review a trial court’s granting of a summary judgment de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a
summary judgment, we take as true all evidence favorable to the nonmovant,
indulging every reasonable inference and resolving any doubts in the nonmovant’s
favor. Id. Where, as here, a trial court’s order granting summary judgment does not
specify the ground or grounds relied on for its ruling, we must affirm summary
judgment if any of the grounds advanced is meritorious. Carr v. Brasher, 776
S.W.2d 567, 569 (Tex. 1989). We must affirm if an appellant fails to challenge all
grounds on which summary judgment may have been granted. Malooly Bros., Inc.
v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).
1
We do not address this issue because it is not necessary to the disposition of this appeal.
See Tex. R. App. 47.1. The evidence at issue is not relevant to this court’s reasons for affirming
summary judgment.
4
Traditional. Courts properly render traditional summary judgment if the
motion and evidence show there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c);
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant
moving for summary judgment must conclusively disprove at least one element of
the plaintiff’s claim or prove every element of an affirmative defense.
Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996).
Once the movant facially establishes its right to summary judgment, the
burden shifts to the nonmovant to present a material fact issue that precludes
summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d
671, 678–79 (Tex. 1979). Evidence raises a genuine issue of fact if reasonable and
fair-minded jurors could differ in their conclusions considering all the summary-
judgment evidence. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754,
755–57 (Tex. 2007) (per curiam).
No evidence. A no-evidence motion for summary judgment is essentially a
motion for a pretrial directed verdict and is governed by the standards of Texas
Rule of Civil Procedure 166a(i). Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310
(Tex. 2009). After an adequate time for discovery, a party without the burden of
proof may, without presenting evidence, seek summary judgment on the ground
that there is no evidence to support one or more essential elements of the
nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i).
After the movant specifically states the elements for which there is no
evidence, the burden shifts to the nonmovant to produce more than a scintilla of
probative evidence raising a genuine issue of material fact on those elements. See
id.; Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). More than a
scintilla of evidence exists when reasonable and fair-minded persons could differ
5
in their conclusions. Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 625
(Tex. 2018). Less than a scintilla of evidence exists if the evidence creates no more
than a mere surmise or suspicion of fact regarding a challenged element. Forbes
Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003). Unless the
nonmovant produces summary-judgment evidence that raises a genuine issue of
material fact, the trial court must grant summary judgment. Tex. R. Civ. P. 166a(i).
If the nonmovant satisfies its burden of production on the no-evidence motion, then
the trial court cannot properly grant summary judgment. See Smith v. O’Donnell,
288 S.W.3d 417, 424 (Tex. 2009).
B. Standing
First, we address whether Dealer CS, who owns property in section 4, can
enforce deed restrictions applicable to section 3. On summary judgment, DCT and
Staples argued that Dealer CS lacked standing to assert claims based on violations
of section 3 deed restrictions because Dealer CS did not own property in section 3
and was not a party to section 3 deed restrictions. Dealer CS argues on appeal that
the trial court erred in granting summary judgment based on lack of standing.
Dealer CS concedes that it does not own property in section 3, but argues that it
nonetheless has standing to seek enforcement of section 3 deed restrictions. Dealer
CS contends that the four sections of Northwest Crossing were developed in
accordance with a common scheme or plan of development, and therefore, each
property owner in the development has standing to enforce section deed
restrictions against any other property owner in the development. Dealer CS
contends, therefore, that because it owns property in section 4, it has standing to
enforce section 3 restrictions against DCT and Staples.
Standing is implicit in the concept of subject-matter jurisdiction, and
subject-matter jurisdiction is essential to the authority of a court to decide a case.
6
Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).2 We
review standing under the same standard by which we review subject-matter
jurisdiction generally. Id. at 446. Whether the trial court has subject-matter
jurisdiction is a question of law that we review de novo. Tex. Dep’t of Transp. v.
A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 166 (Tex. 2013); Tex. Dep’t of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
A restrictive covenant such as a deed restriction “is a contractual agreement
between the seller and purchaser of real property.” Ski Masters of Tex., LLC v.
Heinemeyer, 269 S.W.3d 662, 668 (Tex. App.—San Antonio 2008, no pet.).
Ordinarily, only the contracting parties and those in direct privity with the
contracting parties have standing to enforce restrictive covenants. See, e.g., Davis
v. Skipper, 83 S.W.2d 318, 321–22 (Tex. 1935); Ski Masters, 269 S.W.3d at 668.
Dealer CS was not party to section 3 deed restrictions, and section 3 deed
restrictions do not list Dealer CS as a party who may enforce section 3 deed
restrictions. Dealer CS does not dispute that it lacks standing under the terms of the
deed restrictions themselves. The enforcement provision of section 3 deed
restrictions states that the Association or section 3 property owners may enforce
section 3 deed restrictions; they do not provide for enforcement by section 4
property owners or property owners in other sections. Dealer CS nonetheless
contends that it has standing to enforce the restrictions because the property is
operated under a common scheme or plan. DCT and Staples respond that sections
2
“Texas law traditionally has required a claimant to possess a common[-]law or a
statutory right of action or, in public rights cases, to have a personal interest in the enforcement
of the public right distinct from and more palpable than the general public’s interest before
commencing a civil action.” William V. Dorsaneo, III, The Enigma of Standing Doctrine in
Texas Courts, 28 REV. LITIG. 35, 35 (2008). In 1993, a majority of the Texas Supreme Court
“replaced these traditional ideas with federal standing doctrine and elevated the law of standing
to jurisdictional status.” Id. (citing 852 S.W.2d at 445–46).
7
3 and 4 are separate and distinct subdivisions, pointing out that they were created
in different stages, each with its own set of restrictions.
Under Texas law, “[a] property owner may subdivide property into lots and
create a subdivision in which all property owners agree to the same or similar
restrictive covenants designed to further the owner’s general plan or scheme of
development.” Jeansonne v. T-Mobile West Corp., No. 01-13-00069-CV, 2014 WL
4374118, *4 (Tex. App.—Houston [1st Dist.] Sept. 4, 2014, no pet.) (mem. op.).
When property has been developed under such a general plan or scheme of
development, each property owner in the development has standing to enforce
deed restrictions against other property owners within the development.3 Country
3
In appellate briefing, the parties argue about the application of the implied reciprocal
negative easement doctrine (IRNE). In its sur-reply, Dealer CS concedes that IRNE does not
apply to this case, but argues that the existence of a common plan or scheme is the touchstone
issue, not application of IRNE. Dealer CS asserts that IRNE is only one way of showing a
common plan or scheme. DCT asserts that IRNE is the same as the common plan or scheme
doctrine. Because it is not necessary to the disposition of our case, we do not address whether
IRNE is equivalent to or encompassed by the “general plan or scheme” doctrine. But see Evans
v. Pollock, 796 S.W.2d 465, 472 (Tex. 1990) (stating IRNE was addressed in Curlee v. Walker,
244 S.W. 497, 498 (Tex. 1922), as connected to the general plan of development concept
although Curlee involved whether owner of lot subject to restrictive covenant had standing to
assert restrictive covenant in another landowner’s deed and did not require application of IRNE);
Ski Masters, 269 S.W.3d at 669–70 (discussing difference between standing based on implied
mutuality of covenants and standing based on IRNE and explaining “the analysis of whether a
general plan or scheme of development exists is the same whether a party is attempting to
enforce” a restriction based on mutual covenants or IRNE). As discussed below, in this case, the
“general plan or scheme” doctrine does not apply for purposes of IRNE or otherwise.
We note, however, that although Dealer CS abandons IRNE in its sur-reply, Dealer CS
asserted the application of the doctrine in its petition. Dealer CS’s third amended petition states:
[T]he purported amendments would violate the implied negative reciprocal
easement that attached to the property when the deed restrictions were imposed
and the property was acquired and improved in reliance on those restrictions.
Evans v. Pollock, 796 S.W.2d 465, 466 (Tex. 1990); Ski Masters of Texas, LLC,
269 S.W.3d 622, 668–[69] (Tex. App.—San Antonio[] 2008, no pet[.]). The
implied negative reciprocal easement doctrine derives from the venerable and
long-standing authority first articulated by the Texas Supreme Court nearly a
century ago in Curlee v. Walker, 112 Tex. 40, 44 ([] 1922).
8
Cmty. Timberland Vill., L.P. v. HMW Special Util. Dist., 438 S.W.3d 661, 667–78
(Tex. App.—Houston [1st Dist.] 2014, pet. denied); Calvary Temple v. Taylor, 288
S.W.2d 868, 872–73 (Tex. App.—Galveston 1956, no writ). The leading case
outlining this doctrine is Hooper v. Lottman, 171 S.W. 270 (Tex. App.—El Paso
1914, no writ). Curlee v. Walker, 244 S.W. 497, 498 (Tex. 1922) (quoting Hooper
at length and describing the case as setting out the “correct rules”); Country Cmty.
Timberland Vill., 438 S.W.3d at 667 (describing Hooper as the “seminal case
regarding enforcement of restrictive covenants by persons who were not party to
the covenants”); Interstate Circuit, Inc. v. Pine Forest Country Club, 409 S.W.2d
922, 926 (Tex. App.—Houston 1967, writ ref’d n.r.e.) (describing Hooper as “the
leading case” and “generally cited as authoritative by the courts of Texas”).
Hooper explained that the application of the rule must be determined based on
consideration of the language of the deed and “circumstances existing at the time it
was executed.” 171 S.W. at 271–72.
The “general plan or scheme” doctrine does not authorize owners of lots in
previously or subsequently platted subdivisions to enforce the covenants of
property in other subdivisions. See Russell Realty Co. v. Hall, 233 S.W. 996, 999
(Tex. App.—Dallas 1921, writ dism’d w.o.j.) (when developer subdivides single
parcel of land by filing two plats, imposing deed restrictions on first section,
buyers of lots in second section had no standing to enforce deed restrictions on first
section). Courts have held that where the grantor’s entire tract of land is developed
in separate sections and not as a single unit, there is no general plan or scheme that
would permit owners in all the subdivisions to enforce restrictive covenants against
each other. See id.; see also Jobe v. Watkins, 458 S.W.2d 945, 948 (Tex. App.—
Fort Worth 1970, writ ref’d n.r.e.) (“The law is that property owners in one
subdivision of an addition have no standing to enforce deed restrictions imposed
9
on property located in a separate and distinct subdivision.”); Wald v. West
MacGregor Protective Assoc., 332 S.W.2d 338, 340 (Tex. App.—Houston 1960,
writ ref’d n.r.e.) (citing Russell Realty, 233 S.W. 996, and Moody v. City of Univ.
Park, 278 S.W.2d 912 (Tex. App.—Dallas 1955, writ ref’d n.r.e.)); Moody, 278
S.W.2d at 923 (“Property owners in another subdivision have no standing to
enforce deed restrictions imposed upon property in a separate and distinct
subdivision.”); RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 2.14 illus. 11
(2018).
Russell Realty Co. v. Hall is on point. In Russell Realty, the Dallas Court of
Civil Appeals held that property owners in one subdivision could not enforce
covenants against owners in another subdivision where the grantor had developed
the land progressively by filing separate plats. 233 S.W. at 999. The court
explained:
[P]urchasers’ rights under restrictive covenants relating to lots in this
first plat cannot be extended beyond its borders. They are
circumscribed and confined by the territorial limits of the plat with
reference to which the purchasers bought, and purchasers cannot be
granted relief against the construction of buildings of an obnoxious
kind in an adjoining section, even though such buildings are
constructed in violation of restrictive covenants, which apply to the
adjoining territory.
Id.
The Texas Supreme Court indicated approval of similar reasoning in Evans
v. Pollock, 796 S.W.2d 465, 472 (Tex. 1990). In Evans, while discussing the
application of the implied reciprocal negative easement doctrine,4 the court cited
Duvall v. Ford Leasing Development Corp., 255 S.E.2d 470 (Va. 1979), with
approval for the proposition that “when a larger tract is subdivided into sections
4
See supra note 3.
10
and lots in stages, for purposes of the implied reciprocal negative easement
doctrine, each separate recording created a separate and distinct subdivision with
its own set of restrictions benefiting and burdening only the land in that particular
subdivision.” Id.
In Duvall, the Supreme Court of Virginia held that sections of a community
developed in stages were not developed under a general plan or scheme of
development:
As has been noted, Belle Haven was developed in stages, the various
sections having been created from time to time over a period of years
by the recordation of a number of deeds of dedication and plats. We
believe that each of these recordings created a separate and distinct
subdivision, with its own set of restrictions benefiting and burdening
only the land in that particular subdivision. While the restrictions
imposed in each dedication were similar to those applicable to other
sections of the development, the course of conduct pursued by the
developer did not indicate an intention to establish, as among the
owners of lots in the different sections, reciprocal benefits and
obligations entitling the owner of the property in one section to
enforce a restriction against the owner of property in another section.
255 S.E.2d at 473; see also Evans, 796 S.W.2d at 472 n.2 (citing Bernui v.
Tantallon Control Comm., 488 A.2d 186 (Md. Ct. Spec. App. 1985), as “another
case following the Duvall rationale that each stage of development is a separate
and distinct subdivision with its own set of restrictions”).
Dealer CS contends that all four sections of Northwest Crossing are “one
subdivision” that was developed according to a general plan or scheme, but Dealer
CS does not dispute that Northwest Crossing was developed in stages. Dealer CS’s
characterization of Northwest Crossing as “one subdivision” is not supported by
the documents Dealer CS submitted on summary judgment. To its consolidated
response to the summary-judgment motions of DCT, Staples, and Association
11
Defendants, Dealer CS attached copies of the separate plats filed for each section
of Northwest Crossing. Dealer CS also attached copies of separate restrictions for
sections 1 and 2, section 3, and section 4, which showed that the restrictions were
filed in the county’s property records at different times. Restrictions for sections 1
and 2 were filed in 1975. Restrictions for section 3 were filed in 1980. Restrictions
for section 4 were filed in 1981.
Dealer CS points to the November 1980 amendment to the Articles of
Incorporation of the Association as evidence that all four sections were developed
according to a general plan or scheme. The amendment states that it is
“contemplated” that the “same Uniform Plan” which applied to sections 1 and 2
“may be adopted for . . . Section 3 . . . and for all future sections of Northwest
Crossing which may be subdivided out of the unplatted acreage.” However, the
factual recitals of the amendment itself show that Northwest Crossing was not
developed as a single contemporaneous subdivision. The amendment refers to
sections 1, 2, and 3 of Northwest Crossing as separate subdivisions. The
amendment also references the separate plats of sections 1, 2, and 3, noting that the
plat for section 1 is recorded in “Volume 216, Page 103, of the Map Records”; the
plat for section 2 is recorded in “Volume 218, Page 49, of the Map Records”; and
the plat for section 3 is recorded in “Volume 297, Page 48, of the Map Records.”
This evidence of plats and deed restrictions filed separately for different sections
shows that the development of the sections was done in stages. Section 3 was
created as a separate and distinct subdivision, with its own set of restrictions
applicable as a general scheme only in that subdivision; consequently, section 3
restrictions benefit and burden only the land in section 3. See Russell Realty Co.,
233 S.W. at 999; Duvall, 255 S.E.2d at 473; RESTATEMENT (THIRD) OF PROPERTY:
SERVITUDES § 2.14 illus. 11.
12
Because the undisputed evidence shows the sections of Northwest Crossing
were developed in stages, the “general plan or scheme” doctrine does not apply
and Dealer CS lacks standing to enforce section 3 restrictions. The trial court did
not err by dismissing Dealer CS’s claims against DCT and Staples for violations of
deed restrictions. Dealer CS’s first issue is overruled.
Having determined that Dealer CS lacks standing to enforce section 3 deed
restrictions, we need not address Dealer CS’s second issue concerning amendment
of the deed restrictions. See Tex. R. App. P. 47.1. Nor do we need to address
Dealer CS’s fifth, sixth, and seventh issues, addressing DCT’s and Staples’s
affirmative defenses to the claim for violation of deed restrictions: limitations;
laches, waiver,5 and estoppel; and settlement and release. See id.
Our determination that Dealer CS lacks standing also affects the trial court’s
award of attorney’s fees to DCT, Staples, and Association Defendants. A
prevailing party may not recover attorney’s fees unless such recovery is authorized
by contract or statute. Willacy Cty. Appraisal Dist. v. Sebastian Cotton & Grain,
Ltd., 555 S.W.3d 29, 52 (Tex. 2018). In this case, DCT, Staples, and Association
Defendants sought attorney’s fees pursuant to provisions of section 3 deed
restrictions. Because we have concluded the section 3 restrictions were created to
benefit and burden only section 3 property owners, section 3 restrictions
concerning attorney’s fees do not obligate Dealer CS to pay attorney’s fees to
DCT, Staples, or Association Defendants. See Arlington Home, Inc. v. Peak Envtl.
Consultants, Inc., 361 S.W.3d 773, 783 (Tex. App.—Houston [14 Dist.] 2012, pet.
denied) (“There is no evidence that the buyer and seller intended also to obligate
themselves unilaterally to pay attorney’s fees to persons who, because they were
5
DCT and Staples did not argue waiver as an affirmative defense to deed restriction
violations on summary judgment. Nonetheless, Dealer CS addresses it along with laches and
estoppel on appeal.
13
not parties to the contract, would not themselves be obligated under the
provision.”). Because DCT, Staples, and Association Defendants were not entitled
to recover attorney’s fees from Dealer CS under section 3 deed restrictions and no
other basis was identified to support the award of attorney’s fees, we reverse
attorney’s fee awards to DCT, Staples, and Association Defendants. Having
reversed the fee awards on this ground, we need not address Dealer CS’s ninth
issue concerning attorney’s fees.
C. Unchallenged ground for summary judgment
We turn to Dealer CS’s third issue, “Did the Association Defendants have
‘no duty’ to address a known violation of the restrictions?” Dealer CS asserted
causes of action against Association Defendants for negligence and gross
negligence, arguing they had a duty to enforce deed restrictions against DCT.
As an initial matter, we note that Association Defendants asserted two
arguments in support of summary judgment on Dealer CS’s negligence and gross
negligence claims. First, Association Defendants argued summary judgment was
proper because the Association had a right—not a duty—to enforce the restrictive
covenants.6 Second, Association Defendants argued that Dealer CS’s claims were
expressly barred by the restrictions themselves. Association Defendants pointed to
section 5.04 of section 3 restrictions, which provides that the neither the Board of
Trustees of the Association nor any of its agents shall be liable for any alleged
negligence in connection with the approval, disapproval, or failure to approve
building or improvement plans. Dealer CS did not respond to this argument on
summary judgment or address it in its opening brief.
Association Defendants argue on appeal that summary judgment should be
6
Association Defendants point out that the restrictions themselves say the Association
“may” enforce the restrictions.
14
upheld because Dealer CS failed to challenge Association Defendants’ argument
that Dealer CS’s claims were expressly barred by the restrictions, and this was an
independent ground for summary judgment. When, as in this case, the order
granting summary judgment does not specify the grounds upon which the trial
court relied, we must affirm if an appellant fails to challenge all grounds on which
summary judgment may have been granted. See Malooly Bros., 461 S.W.2d at 121
(“The judgment must stand, since it may have been based on a ground not
specifically challenged by the plaintiff.”).7 Although we now hold section 3
restrictions do not apply to Dealer CS, we must affirm even if summary judgment
may have been rendered improperly on the unchallenged ground. See McCrary v.
Hightower, 513 S.W.3d 1, 5 (Tex. App.—Houston [14th Dist.] 2016, no pet.)
(quoting Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex.
App.—Houston [1st Dist.] 2002, no pet.) (“If summary judgment may have been
rendered, properly or improperly, on a ground not challenged, the judgment must
be affirmed.”)).
In its reply brief, Dealer CS indirectly challenges the merits of Association
Defendants’ express-bar argument, asserting “[t]his is not a case where the
association exercised its discretionary authority in the approval process, nor is
[Dealer CS] bringing claims based upon the approval or disapproval of DCT’s
application.” However, we do not generally consider issues raised for the first time
in a reply brief and decline to do so here. See Tex. R. App. P. 38.3 (“The appellant
may file a reply brief addressing any matter in the appellee’s brief.”); Priddy v.
Rawson, 282 S.W.3d 588, 597 (Tex. App.—Houston [14th Dist.] 2009, pet.
7
In Malooly, the court also held that the “best approach” in appealing summary judgment
would be to assert a point of error “which simply complains, ‘THE TRIAL COURT ERRED IN
GRANTING THE MOTION FOR SUMMARY JUDGMENT.’” Id. Under this general point of
error, all grounds expressly raised in the trial court may be argued on appeal. Id. Dealer CS did
not assert such a general point of error in this case.
15
denied). Because Dealer CS presented no argument challenging the application of
section 5.04 in its original appellate brief, we overrule Dealer CS’s third issue and
affirm the summary judgment as to Dealer CS’s claims for negligence and gross
negligence.
D. No summary-judgment evidence
In its fourth issue, Dealer CS asserts that the summary-judgment evidence
raised a genuine issue of fact on the existence of a nuisance. Dealer CS alleges the
warehouse expansion constitutes a nuisance because of increased truck traffic on
surrounding streets, and because it is an “eyesore.” Dealer CS states that the
existence of nuisance is a fact issue and cites evidence of the “discomfort” and
“annoyance” caused by the expansion. Dealer CS cites an expert report that
describes “numerous safety hazards” including drainage issues from a detention
pond.
Although Dealer CS pleaded a “nuisance” cause of action and the parties
describe and discuss this cause of action as a “nuisance” claim, the Texas Supreme
Court held in Crosstex North Texas Pipeline, L.P. v. Gardiner, that nuisance is not
a cause of action. 505 S.W.3d 580, 594, 601, 604 (Tex. 2016). A nuisance does not
itself constitute wrongful conduct or cause of injury; rather, nuisance is a type of
injury. Id. at 588 (“Taking this opportunity to clarify the law, we hold that the term
‘nuisance’ refers not to a defendant’s conduct or to a legal claim or cause of action
but to a type of legal injury involving interference with the use and enjoyment of
real property.”).8 The court explained that three different causes of action may lead
to liability for a nuisance injury: (1) intentional conduct causing a nuisance,
referred to by the court as “intentional nuisance”; (2) negligence; and (3)
8
The court addressed private nuisance in Crosstex, recognizing public nuisance as a
“distinct condition[] with different requirements and limitations.” 505 S.W.3d at 591 n.3.
16
abnormally dangerous or ultra-hazardous activities causing a nuisance, referred to
by the court as “strict-liability nuisance.” Id. at 604–09.
Dealer CS has not alleged intentional conduct or negligence with respect to
its alleged nuisance injury. Dealer CS has alleged that “[t]he operation of a
substantial trucking facility . . . is clearly abnormal and out of place in its
surroundings.” As such, Dealer CS’s claim, if any, would be a claim for “strict-
liability nuisance.” See Crosstex, 505 S.W.3d at 607 (“The third category of
nuisance-based claims . . . includes those based on ‘other conduct, culpable
because abnormal and out of place in its surroundings.’”).
Staples contends that because of the type of nuisance alleged, Dealer CS
bore the burden of establishing that the activity at issue “arises only out of conduct
that constitutes an ‘abnormally dangerous activity’ or involves an abnormally
‘dangerous substance’ that creates a ‘high degree of risk’ of serious injury.”
Staples asserts that it moved for, and was granted, summary judgment on the basis
that Dealer CS could provide no evidence that the construction of the expansion or
Staples’s activities met this standard. Staples also contends it sought and received
summary judgment because Dealer CS did not respond to this argument.
Staples is correct that “to the extent that a claim exists in Texas based on
nuisance created by ‘abnormal and out of place’ conduct,” the conduct at issue
must be “abnormally dangerous activity” or involve an “abnormally ‘dangerous
substance.’” Id. at 609. (“[T]he abnormal and out of place conduct must be
abnormally ‘dangerous’ conduct that creates a high degree of risk of serious
injury.”). Staples is also correct that Dealer CS did not respond to its “no-
evidence” argument on summary judgment. What is less clear is that Staples
moved for no-evidence summary judgment.
Staples’s motion for summary judgment was not entitled “traditional” or
17
“no-evidence,” and it did not include the standard of review for either type of
summary judgment. Staples clearly and repeatedly asserted a no-evidence ground
attacking an essential element of Dealer CS’s strict-liability cause of action.
However, the first sentence of Staples’s motion states that the motion is filed
pursuant to Texas Rule of Procedure 166a(c) and there is no reference to Texas
Rule of Procedure 166a(i).
This court has followed the Texas Supreme Court holding that clear
headings outlining which summary-judgment arguments are traditional or no-
evidence are not required. See Chrismon v. Brown, 246 S.W.3d 102, 120–21 (Tex.
App.—Houston [14th Dist.] 2008, no pet.) (supp. op. on reh’g) (citing Binur v.
Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004)); see also Merriman v. XTO Energy,
Inc., 407 S.W.3d 244, 248 (Tex. 2013). “According to the Texas Supreme Court, if
the movant clearly sets forth its no-evidence grounds and meets Rule 166a(i)’s
requirements, then the movant has asserted these no evidence grounds.” Chrismon,
246 S.W.3d at 120–21; but see BP Oil Pipeline Co. v. Plains Pipeline, L.P., 472
S.W.3d 296, 315 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (“[I]t is
relevant and revealing that BP recited the legal standard for a traditional motion
but not the legal standard for a no-evidence motion.”).
Staples clearly set forth no-evidence grounds. Staples asserted, “Nowhere in
its Petition has Plaintiff alleged nor can it provide evidence that the construction of
the expanded Facility or Staples’s activities at the Facility are ‘abnormally
dangerous’ such that there is a ‘high degree of risk or serious injury.’” Staples
further asserted:
Plaintiff can present no evidence to suggest that there is any risk of
“serious injury” above and beyond the baseline level of risk which
already exists simply by driving on city streets. Moreover, Plaintiff
has presented no evidence to suggest the injuries complained of stem
18
from anything but routine activities regularly expected in that
community.
Staples’s arguments in this regard meet the requirements of 166a(i); Staples
asserted no evidence of an essential element of Dealer CS’s strict-liability nuisance
claim for which Dealer CS bore the burden of proof at trial: the conduct at issue
must be an “abnormally dangerous activity” or involve an “abnormally ‘dangerous
substance.’” See Tex. R. Civ. P. 166a(i); Crosstex, 505 S.W.3d at 609; Chrismon,
246 S.W.3d at 120–21.
In response to Staples’s summary-judgment motion, Dealer CS did not even
argue that Staples’s conduct was abnormally dangerous or involved an abnormally
dangerous substance. Instead, Dealer CS argued that “[t]he operation of Staples’s
warehousing operation in Northwest Crossing is abnormal and out of place in its
surroundings.” But see Crosstex, 505 S.W.3d at 609 (“[T]he mere fact that
defendant’s use of its land is ‘abnormal and out of place in its surroundings’ will
not support a claim alleging nuisance.”). Dealer CS argued that heavy truck traffic
“clogs the streets” and “has caused significant deterioration of the infrastructure in
the community.” Dealer CS also argued that truck traffic “poses a continual threat
to the electrical and communication networks that are critical to the operation of
Plaintiff’s business.” Dealer CS also argued that the additional paving
implemented “resulted in substantial flooding and drainage issues that burden”
DCT’s facility and the surrounding properties and community. None of these
arguments assert that Staples engaged in abnormally dangerous conduct that
created a high risk of serious injury.
More importantly, Dealer CS presented no evidence that Staples engaged in
abnormally dangerous conduct that created a high risk of serious injury. Dealer CS
did attach an expert report to its response which references various “hazards”
19
caused by the warehouse expansion and ongoing business operations, but with one
possible exception, the report does not state that any of these “hazards” are
abnormally dangerous or create a high risk of serious injury. The report states that
the absence of a protective barrier around a detention pond “presents a significant
drowning hazard to the local public.” While a “significant drowning hazard” may
constitute a high risk of serious injury, the report does not assert “abnormally
dangerous conduct” created the risk. See Crosstex, 505 S.W.3d at 617 (“As we
have confirmed today, . . . this strict-liability basis for a claim alleging nuisance
must be based on conduct that constitutes an ‘abnormally dangerous activity.’”).9
The trial court properly granted the motion with respect to Dealer CS’s “nuisance”
claim against Staples. See Tex. R. Civ. P. 166a(i); Town of Dish v. Atmos Energy
Corp., 519 S.W.3d 605, 608 (Tex. 2017) (“As the residents never responded to
[movant’s] no-evidence point, the trial court properly granted [movant’s]
summary-judgment motion”). Dealer CS’s fourth issue is overruled with respect to
Staples.
E. Judicial admission
DCT moved for summary judgment on Dealer CS’s nuisance claim, arguing
that the claim was barred by DCT’s affirmative defenses. DCT reiterates the
application of its affirmative defenses in its responsive appellate brief and also
raises several new arguments regarding Dealer CS’s nuisance claim. Because DCT
did not raise its new arguments in its summary-judgment motion, we do not
consider them on appeal. See Tex. R. Civ. P. 166a(c); G & H Towing Co. v.
Magee, 347 S.W.3d 293, 297 (Tex. 2011) (“Summary judgments . . . may only be
9
The nuisance or resulting hazard “refers to a legal injury that may support a cause of
action, but it is not itself the cause of action or the conduct that is necessary to support the cause
of action.” Crosstex, 505 S.W.3d at 600–01.
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granted upon grounds expressly asserted in the summary judgment motion.”);
Clear Creek, 589 S.W.2d at 677. We are limited to those grounds expressly set
forth in the motion to determine whether the summary judgment was properly
granted. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex.
1993).
DCT argued in its summary-judgment motion, and now argues in its
response, that the alleged nuisance issues existed long before the expansion, and
therefore, Dealer CS’s nuisance claims are barred by limitations, laches and
estoppel, and res judicata. In its fifth, sixth, and seventh issues, Dealer CS
addresses these defenses with respect to its claim for violation of deed restrictions.
Dealer CS did not assign error to the defenses of laches and estoppel or res judicata
with respect to its claim for nuisance. With respect to nuisance, Dealer CS
addresses only DCT’s limitations defense.
Dealer CS implicitly asserts that DCT judicially admitted it would no longer
pursue its laches and estoppel and res judicata defenses to nuisance, stating, “When
pressed by the trial court at the summary-judgment hearing, DCT conceded that its
only argument against the nuisance claim was limitations.” We do not agree that
DCT made such an admission.10
The statement Dealer CS points to as a concession was made in the context
of an exchange between the trial court and counsel for DCT and Staples. The trial
court indicated that he “[didn’t] see that laches or estoppel would have the same
impact or the same pertinency to the nuisance claim as it [did] to the other
claims.”11 DCT’s trial counsel McNiel responded, “I think laches and estoppel
10
See Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex. 1998) (equating stipulation, or
concession, to judicial admission).
11
In reviewing a summary judgment, we must base our review on the court’s written
21
would apply, Your Honor” and provided reasons to support his position. The trial
court went on to ask questions related to laches and estoppel in the context of the
alleged nuisance. Counsel for DCT and Staples continued to respond in support of
the defenses. Afterwards, the trial court stated to McNiel, “So nuisance is, for you,
is simply limitations, and they didn’t give you any evidence of it.” McNiel
responded, “Yes, sir. At this point in time we don’t think it’s a nuisance; but that’s
not for today’s argument.” Dealer CS contends this response was a concession that
DCT’s “only argument against the nuisance claim was limitations.”
McNiel’s “Yes, sir” response may have been an acknowledgment of the
court’s initial assessment of DCT’s laches and estoppel defenses. It was not a clear,
deliberate, and unequivocal concession of his laches and estoppel defense or his res
judicata defense such that it constitutes a judicial admission. See Regency
Advantage Ltd. P’ship v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex.
1996) (holding that statement was not clear, deliberate, and unequivocal so as to
constitute judicial admission).
Because DCT did not judicially admit or concede its defenses of laches and
estoppel or res judicata, and because Dealer CS failed to assign error to these
affirmative defenses, each of which constitutes an independent ground for
summary judgment, we must affirm summary judgment in favor of DCT on the
“nuisance” claim. See Malooly Bros., 461 S.W.2d at 121.
Dealer CS’s fourth issue is overruled with respect to DCT.
order, not on oral statements the trial court made during the summary-judgment hearing.
Jampole v. Touchy, 673 S.W.2d 569, 574 (Tex. 1984) (“It is the court’s order that counts, not the
stated reasons or oral qualifications.”), disapproved of on other grounds by Walker v. Packer,
827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding).
22
III. CONCLUSION
We affirm the portion of the trial court court’s judgment dismissing Dealer
CS’s claims against DCT, Staples, and Association Defendants. We reverse the
portion of the trial court’s judgment awarding attorney’s fees to DCT, Staples, and
Association Defendants and render judgment that DCT, Staples, and Association
Defendants take nothing on their claims for attorney’s fees.
/s/ Charles A. Spain
Justice
Panel consists of Justices Jewell, Zimmerer, and Spain.
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