Lockhill Ventures, LLC v. Ard Mor, Inc., Texas Ardmor Properties, LP, and Texas Ardmore Management, LLC ( 2015 )

ACCEPTED
04-14-00796-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/6/2015 12:26:43 PM
NO. 04-14-00796-CV KEITH HOTTLE
CLERK
IN THE COURT OF APPEALS
FOR THE FOURTH JUDICIAL DISTRICT
SAN ANTONIO, TEXAS
LOCKHILL VENTURES, LLC,
Defendant-Appellant
v.
ARD MOR, INC.; TEXAS ARDMOR PROPERTIES, LP;
AND TEXAS ARDMOR MANAGEMENT, LLC,
Plaintiffs-Appellees
From the District Court of Bexar County
407th Judicial District of Texas
No. 2014-CI-10796
BRIEF OF APPELLEES
KAREN L. LANDINGER
State Bar No. 00787873
klandinger@cbylaw.com
JAY K. FARWELL
State Bar No. 00784038
jfarwell@cbylaw.com
Co-Counsel COKINOS, BOSIEN & YOUNG
David L. Earl 10999 West IH-10, Suite 800
State Bar No. 06343030 San Antonio, Texas 78230
dearl@earl-law.com (210) 293-8700 (Office)
EARL & ASSOCIATES, P.C. (210) 293-8733 (Fax)
Pyramid Building
601 NW Loop 410, Suite 390 ATTORNEYS FOR APPELLEES,
San Antonio, Texas 78216 ARD MOR, INC., TEXAS ARDMOR
(210) 222-1500 (Office) PROPERTIES, LP AND TEXAS
(210) 222-9100 (Fax) ARDMOR MANAGEMENT, LLC
ORAL ARGUMENT REQUESTED ONLY IF APPELLANT’S
REQUEST FOR ARGUMENT IS GRANTED
IDENTITY OF PARTIES AND COUNSEL
The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case. These representations are made in order
that the judges of this court may evaluate possible disqualification or recusal.
1. Defendant / Appellant
Lockhill Ventures, LLC
2. Counsel for Defendant / Appellant
Lance H. “Luke” Beshara
Randall A. Pulman
Brandon L. Grubbs
PULMAN, CAPPUCCIO, PULLEN,
BENSON & JONES, LLP
2161 N.W. Military Highway, Suite 400
San Antonio, Texas 78213
(210) 222-9494 (Office)
(210) 892-1610 (Fax)
lbeshara@pulmanlaw.com
rpulman@pulmanlaw.com
bgrubbs@pulmanlaw.com
3. Plaintiffs / Appellees
ARD MOR, Inc.
Texas ARDMOR Properties, LP
Texas ARDMOR Management, LLC
ii
4. Counsel for Plaintiffs / Appellees
Karen L. Landinger
Jay K. Farwell
COKINOS, BOSIEN & YOUNG
10999 West IH-10, Suite 800
San Antonio, Texas 78230
klandinger@cbylaw.com
jfarwell@cbylaw.com
5. Co-Counsel for Plaintiffs /Appellees
David L. Earl
EARL & ASSOCIATES, P.C.
Pyramid Building
601 NW Loop 410, Suite 390
San Antonio, Texas 78216
(210) 222-1500 (Office)
(210) 222-9100 (Fax)
dearl@earl-law.com
6. Interested Party at Trial Court
City of Shavano Park (“Shavano”)
iii
7. Counsel for Interested Party at Trial Court
Patrick C. Bernal
Elizabeth M. Provencio
DENTON NAVARRO ROCHA BERNAL HYDE & ZECH
A Professional Corporation
2517 N. Main Avenue
San Antonio, Texas 78212
(210) 227-3243 (Office)
(210) 225-4481 (Fax)
patrick.bernal@rampage-sa.com
elizabeth.provencio@rampage-sa.com
/s/ Karen L. Landinger
KAREN L. LANDINGER
JAY K. FARWELL
ATTORNEYS FOR APPELLEES,
ARD MOR, INC., TEXAS ARDMOR
PROPERTIES, LP AND TEXAS
ARDMOR MANAGEMENT, LLC
iv
STATEMENT REGARDING ORAL ARGUMENT
Appellees believe that the issues before the Court involve simple questions of
law that are well settled and simple questions of fact that are readily answered by the
appellate record. However, because Appellant has requested oral argument, Appellees
request the opportunity to argue, but only if Appellant’s request for argument is
granted.
v
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . v
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. Ard Mor Purchased Property in Shavano Park
Subd Ut-16-A-1 That Was Bound by the Restrictive
Covenants of Shavano Creek Commercial Properties. . . . . . . . . . . . . 1
II. Lockhill Purchased Property in Shavano Park
Subd Ut-16-A-1 That Was Bound by the Restrictive
Covenants of Shavano Creek Commercial Properties. . . . . . . . . . . . . 2
III. The Storage and Use of Explosives Is Prohibited by
the Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
IV. Lockhill Plans to Build a Shell Gasoline Station on the
Restricted Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
V. Ard Mor Sought Injunctive Relief to Enforce the Covenants. . . . . . . 4
VI. Ard Mor Presented Evidence Demonstrating its Right
to Injunctive Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
vi
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
I. A Reviewing Court May Not Review the Merits of the
Applicant’s Case in an Interlocutory Appeal from
a Temporary Injunction Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
II. The Appellate Record Demonstrates That Ample
Evidence Was Presented to Support the Trial Court’s
Factual Findings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A. Lockhill argued that it was undisputed that Lockhill
and Ard Mor were neighbors and that evidence proving
that point was not relevant. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1. Allegation on appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2. Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. The evidence established that the terms gasohol and
gasoline are interchangeable in the United States and
the evidence presented was specific to the product
Lockhill intends to sell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
1. Allegation on Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2. Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
C. Appellant stipulated that it intended to build and
operate a gas station and expert testimony
established that explosive gas vapors are released
during the operation of a gas station. . . . . . . . . . . . . . . . . . . . 17
1. Allegation on Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2. Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
vii
D. Gasoline is a judicially recognized explosive and
significant evidence was presented establishing the
explosive nature of gasoline vapors released during
the operation of a gas station. . . . . . . . . . . . . . . . . . . . . . . . . . 20
1. Allegation on Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2. Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
III. The Covenants of the Shavano Commercial Property
Partnership, Unit I Expressed a Clear Intent and Purpose
to Benefit the Adjacent Landowners Through its Restrictions. . . . . 24
A. Evidence in the record tends to prove standing. . . . . . . . . . . . 27
B. Ard Mor’s objections to the evidence of standing
are matters reserved for the full trial on the merits. . . . . . . . . 28
C. Lockhill waived or invited any error regarding
the lack of admission of sufficient evidence of
standing by objecting to evidence of standing
on relevancy grounds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
D. The court was entitled to take judicial notice of
public records attached to pleadings. . . . . . . . . . . . . . . . . . . . 34
E. The harm to Lockhill, which is the preservation of the
status quo pending trial, has been prolonged by Lockhill. . . . 37
IV. The Phrase, “Storage, handling or use of explosive material”
Is Not Ambiguous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
V. The Temporary Injunction Is Not a Prior Restraint. . . . . . . . . . . . . . 41
CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
viii
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
APPENDIX
Declaration of Protective Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . Tab A
ix
INDEX OF AUTHORITIES
CASES:
Al-Saady v. State,
No. 02-13-00186-CR, 2014 WL 3536806
(Tex. App.—Fort Worth July 17, 2014, no pet.) (mem. op.). . . . . . . . . . . . 21
Amalgamated Acme Affiliates, Inc. v. Minton,
33 S.W.3d 387 (Tex. App.—Austin 2000, no pet.). . . . . . . . . . . . . . . . . . . 11
Anderson v. New Prop. Owners’ Ass’n of Newport, Inc.,
122 S.W.3d 378 (Tex. App.—Texarkana 2003, pet. denied).. . . . . . . . . . . 25
Antonov v. Walters,
168 S.W.3d 901 (Tex. App.—Fort Worth 2005, pet. denied). . . . . . . . . . . 25
Atkins v. Fine,
508 S.W.2d 131 (Tex. Civ. App.—Austin 1974, no writ). . . . . . . . . . . . . . 41
Berry v. Segall,
315 S.W.3d 141 (Tex. App.—El Paso 2010, no pet.) . . . . . . . . . . . . . . . . . 32
Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547 (Tex. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Bluestar Energy, Inc. v. Murphy,
205 S.W.3d 96 (Tex. App.—Eastland 2006, pet. denied). . . . . . . . . . . . . . 30
Breof BNK Texas, L.P. v. D. H. Advisors, Inc.,
370 S.W.3d 58 (Tex. App.—Houston [14th Dist.] 2012, no pet.). . . . . . . . 33
Burbage v. Burbage,
447 S.W.3d 249 (Tex. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Butnaru v. Ford Motor Co.,
84 S.W.3d 198 (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
x
City of El Paso v. Fox,
No. 08-12-00264-CV, 2014 WL 5023089
(Tex. App.—El Paso Oct. 8, 2014, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . 36
City of San Antonio v. Humble Oil & Ref. Co.,
27 S.W.2d 868 (Tex. Civ. App.—San Antonio 1930, writ dism’d).. . . . . . 21
City of Shavano v. Ard Mor, Inc.; Texas ArdMor Properties, LP,
and Texas ArdMor Management, LLC,
Case No. 04-14-00781-CV.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Couch v. Southern Methodist University,
10 S.W.2d 973 (Tex. Comm’n. App. 1928, opinion adopted). . . . . . . . . . . 41
Curlee v. Walker,
244 S.W. 497 (Tex. 1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26
Davis v. Huey,
571 S.W.2d 859, 862 (Tex. 1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Davis v. State,
227 S.W.3d 766 (Tex. App.—Tyler 2005),
aff’d, 227 S.W.3d 733 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . 21, 24
Escamilla v. Estate of Escamilla,
921 S.W.2d 723 (Tex. App.—Corpus Christi 1996, writ denied). . . . . . . . 35
Estate of York,
934 S.W.2d 848 (Tex. App.—Corpus Christi 1996, writ denied) .. . . . 33, 36
Fairfield v. Stonehenge Ass’n Co.,
678 S.W.2d 608 (Tex. App.—Houston [14th Dist.] 1984, no writ) . . . . . . 29
Gigowski v. Russell,
718 S.W.2d 16 (Tex. App.—Tyler 1986, writ ref’d n.r.e.).. . . . . . . . . . . . . 39
xi
Giles v. Cardenas,
697 S.W.2d 422 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.).. . . 25, 26
Hendee v. Dewhurst,
228 S.W.3d 354 (Tex. App.—Austin 2007, pet. denied). . . . . . . . . . . . . . . 40
Henderson v. KRTS, Inc.,
822 S.W.2d 769 (Tex. App.—Houston [1st Dist.] 1992, no writ) . . . . . . . 42
Hooper v. Lottman,
171 S.W. 270 (Tex. Civ. App.—El Paso 1914, no writ). . . . . . . . . . . . . . . 26
Houston v. Southwestern Bell Tel. Co.,
263 S.W.2d 169 (Tex. Civ. App.—Galveston 1953, writ ref’d). . . . . . . . . 24
In re Department of Family and Protective Services,
273 S.W.3d 637 (Tex. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
In re Estate of Hemsley,
No. 08-12-00368-CV, 2014 WL 5854220
(Tex. App.—El Paso Nov. 12, 2014, no pet.).. . . . . . . . . . . . . . . . . . . . . . . 36
Jim Rutherford Invs., Inc. v. Terramar Beach Comty. Ass’n,
25 S.W.3d 845 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) . . . . 39
Johnson v. Johnson,
No. 03-02-00427-CVC, 2005 WL 3440773
(Tex. App.—Austin Dec. 16, 2005, no pet.).. . . . . . . . . . . . . . . . . . . . . 33, 37
Kinney v. Barnes,
443 S.W.3d 87 (Tex. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Knopf v. Standard Fixtures Co.,
581 S.W.2d 504 (Tex. Civ. App.—Dallas 1979, no writ). . . . . . . . . . . . . . 41
Lacy v. First Nat’l Bank,
809 S.W.2d 362 (Tex. App.—Beaumont 1991, no writ). . . . . . . . . . . . . . . 36
xii
Landry’s Seafood Inn & Oyster Bar-Kemah, Inc. v. Wiggins,
919 S.W.2d 924 (Tex. App.—Houston [14th Dist.] 1996, no writ).. . . . . . 11
Langdale v. Villamil,
813 S.W.2d 187 (Tex. App.¯Houston [14th Dist.] 1991, no writ).. . . 36, 37
Lehmann v. Wallace,
510 S.W.2d 675 (Tex. Civ. App.—San Antonio 1974, writ ref’d n.r.e.). . . 26
Liverpool & London & Globe Ins. Co. v. Currie,
234 S.W. 232 (Tex. Civ. App.—El Paso 1921, writ ref’d). . . . . . . . . . . . . 21
Lombardo v. City of Dallas,
47 S.W.2d 495 (Tex. Civ. App.—Dallas 1932, writ granted),
aff’d, 73 S.W.2d 475 (Tex. 1934). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Matuszak v. Houston Oilers, Inc.,
515 S.W.2d 725 (Tex. Civ. App.—Houston [14th Dist.] 1974,
no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 24
McCulloch v. State,
740 S.W.2d 74 (Tex. App.—Fort Worth 1987, pet. ref’d) . . . . . . . . . . . . . 20
Menna v. Romero,
48 S.W.3d 247 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.). . . 42, 43
Merchant v. Houston Gas & Fuel Co.,
78 S.W.2d 656 (Tex. Civ. App.—Galveston 1935, writ dism’d) . . . . . . . . 21
Millwrights Local Union No. 2484 v. Rust Eng’g Co.,
433 S.W.2d 683 (Tex. 1968).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Nelkin v. Young,
397 S.W.2d 956 (Tex. App.—Texarkana 1965, writ ref’d n.r.e.). . . . . 19, 23
Nesmith v. Magnolia Petroleum Co.,
82 S.W.2d 721 (Tex. Civ. App.—Austin 1935, no writ) .. . . . . . . . . . . . . . 20
xiii
Northeast Tex. Motor Lines v. Hodges,
158 S.W.2d 487 (Tex. 1942).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Pirtle v. Gregory,
629 S.W.2d 919 (Tex. 1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Ramirez v. State,
973 S.W.2d 388 (Tex. App.—El Paso 1998, no pet.). .. . . . . . . . . . . . . . . . 30
RP&R, Inc. v. Territo,
32 S.W.3d 396 (Tex. App.—Houston [14th Dist.] 2000, no pet.). . . . . . . . 23
Scarbrough v. Metro. Transit Auth. of Harris County,
326 S.W.3d 324 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). . . . . 39
Scott v. Champion Bldg. Co.,
28 S.W.2d 178 (Tex. Civ. App.—Dallas 1930, no writ) . . . . . . . . . . . . . . . 21
Scott v. Rheudasil,
614 S.W.2d 626 (Tex. Civ. App.—Fort Worth 1981, no writ). . . . . . . . . . 29
Settegast v. Foley Bros. Dry Goods Co.,
270 S.W. 1014 (Tex. 1925).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Shamrock Fuel & Oil Sales Co. v. Tunks,
406 S.W.2d 483 (Tex. Civ. App.—Houston 1966, no writ).. . . . . . . . . . . . 21
Sheehan v. Levy,
215 S.W. 229 (Tex. Civ. App.—Dallas 1919, writ granted),
aff’d, 238 S.W. 900 (Tex. Comm’n App. 1922, opinion adopted).. . . . . . . 24
Tel. Equip. Network, Inc. v. TA/Westchase Place, Ltd.,
80 S.W.3d 601 (Tex. App.—Houston [1st Dist.] 2002, no pet.). . . . . . 10, 11
Texas Real Estate Comm’n v. Nagle,
767 S.W.2d 691 (Tex. 1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
xiv
Texas State Bd. of Educ. v. Guffy,
718 S.W.2d 48 (Tex. App.—Dallas 1986, no writ). . . . . . . . . . . . . . . . . . . 36
Thomas v. Beaumont Heritage Soc’y,
296 S.W.3d 350 (Tex. App.—Beaumont 2009, no pet.). . . . . . . . . . . . . . . 15
Tigua Gen. Hosp., Inc. v. Feuerberg,
645 S.W.2d 575 (Tex. App.—El Paso 1982, no writ) . . . . . . . . . . . . . . . . . 36
Tittizer v. Union Gas Corp.,
171 S.W.3d 857 (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc.,
965 S.W.2d 18 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d).. . . . . 19
Transport Company of Texas v. Robertson Transports, Inc.,
261 S.W.2d 549 (1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Venus v. State,
282 S.W.3d 70 (Tex. Crim. App. 2009) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Winfield v. Lamoyne,
No. 05-94-01851-CV, 1995 WL 634161
(Tex. App.—Dallas Oct.16, 1995, writ dism’d) (mem.op.) . . . . . . . . . . . . 39
STATUTES AND RULES:
29 CFR 1910.106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Tex. R. App. P. 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Tex. R. App. P. 44.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Tex. R. Evid. 201.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
xv
NO. 04-14-00796-CV
IN THE COURT OF APPEALS
FOR THE FOURTH JUDICIAL DISTRICT
SAN ANTONIO, TEXAS
LOCKHILL VENTURES, LLC,
Defendant-Appellant
v.
ARD MOR, INC.; TEXAS ARDMOR PROPERTIES, LP;
AND TEXAS ARDMOR MANAGEMENT, LLC,
Plaintiffs-Appellees
From the District Court of Bexar County
407th Judicial District of Texas
No. 2014-CI-10796
BRIEF OF APPELLEES
TO THE FOURTH COURT OF APPEALS:
ARD MOR, INC.; TEXAS ARDMOR PROPERTIES, LP; AND TEXAS
ARDMOR MANAGEMENT, LLC (collectively “Ard Mor” or “Appellees”), file this
Brief of Appellees.
xvi
ISSUES PRESENTED
The issues presented for review are as follows:
(1) Whether or not the trial court abused its discretion by granting temporary
injunctive relief to preserve the status quo of the parties pending a full trial on
the merits?
(2) Whether or not a trial court abuses its discretion by finding facts in favor of
injunctive relief when conflicting evidence is presented?
(3) Whether or not Lockhill’s admission that Ard Mor is an adjoining property
owner is some evidence that Ard Mor owns property in proximity to Lockhill?
(4) Whether or not gasoline is a judicially recognized explosive?
(5) Whether or not a trial court abuses its discretion by taking judicial notice of
public records?
(6) Whether a trial court abuses its discretion by taking notice of the documents
contained in its own file?
(7) Whether an appellant can complain about the sufficiency of evidence when it
objected to the allegedly missing evidence as being irrelevant?
(8) Whether standing to enforce covenant restrictions is a factual question that
must be established during the trial of the merits?
(9) Whether or not Lockhill established that it was harmed by the trial court’s
finding that Ard Mor has standing when public records contained in the court’s
own file establish standing?
(10) Whether or not a temporary injunction to enforce an agreed upon covenant
constitutes a prior restraint?
xvii
STATEMENT OF FACTS
I. Ard Mor Purchased Property in Shavano Park Subd Ut-16-A-1 That Was
Bound by the Restrictive Covenants of Shavano Creek Commercial
Properties.
Ard Mor is the owner and operator of the Luv-N-Care Child Development
Center located at 13211 Huebner Rd., San Antonio, Texas, and legally described as
CB 5938 Lot 1814 Shavano Park, Subd Ut-16-A-1, Bexar County, Texas. CR.I:2, 10;
CR.II:115-121; RR.VI:PX3. Ard Mor purchased the property from Shavano Creek
Commercial Properties for the express purpose of building the child development
center in 2001. CR.I:2, 10; CR.II:115-121. The property was encumbered by the
restrictive covenants of Shavano Creek Commercial Partnership Unit 1, Ltd.
CR.II:88-113. (Tab A).
In its covenants, Shavano Creek Commercial Properties expressed its desire for
the systematic and orderly development and use of the property in a manner beneficial
to the adjoining residential area. CR.II:88. In that regard, the covenants expressly
require that the portion of the property purchased by Cooke that runs closest to
Huebner Road be used for a driveway to service the property and the remaining
Shavano Creek Commercial Properties. CR.II:93. The covenants further prohibit
certain activities such as the sale of certain motor vehicles, any activity deemed to be
1
offensive by virtue of omitting odors and fumes, and the storage or use of explosive
material. CR.II:93.
Luv-N-Care opened its doors at its current location in July, 2002. RR.II:25-26.
Since that time, it has operated continuously and currently services approximately
250 children between the hours of 6:30 a.m. and 6:30 p.m., Monday through Friday.
Supp.RR.II:25. The age of the children range from newborn to 13 years. RR.II:25.
II. Lockhill Purchased Property in Shavano Park Subd Ut-16-A-1 That Was
Bound by the Restrictive Covenants of Shavano Creek Commercial
Properties.
In 2014, Lockhill Ventures, LLC., Appellant in this matter, purchased two
properties adjacent to the Luv-N-Care Child Development Center, which are also
located in Shavano Park, Subdivision 16-A-1. CR.I:77, 96-98; RR.VII:PX2. The
properties are also encumbered by the restrictive covenants of Shavano Creek
Commercial Partnership Unit 1, Ltd. CR.I:102; RR.VII:PX1. The express intent and
purpose of the covenants is to “ensure that the use and development of the Property
and the improvements constructed thereon are not incompatible with any adjoining
commercial properties and the residential neighborhoods.” CR.I:102; RR.VII:PX1.
The same stated purpose of the covenants is integrated within its requirement that all
development plans be approved. CR.II:67; RR.VII:PX1.
2
III. The Storage and Use of Explosives Is Prohibited by the Covenants.
The covenants provide examples of permitted uses of the property, which
include multi-family units, schools, churches, and health care facilities. CR.I:105;
RR.VII:PX1. The covenants also expressly prohibit uses of the property that are
prohibited by zoning laws or governmental regulations. CR.I:105; RR.VII:PX1.
Specifically, the covenants limit development of the disputed property to uses
permitted by Shavano’s B-2 zoning classification. CR.I:110; RR.VII:PX1. The
covenants also prohibit a number of enumerated activities, such as the sales of certain
motor vehicles, the “[s]torage, handling or use of explosive material,” and any use
that is offensive because of the discharge of fumes. CR.I:105; RR.VII:PX1.
IV. Lockhill Plans to Build a Shell Gasoline Station on the Restricted
Property.
Despite the express language contained in the restrictive covenants, Lockhill
purchased the property with the intent to build a Shell gas station. RR.IV:25. Sean
Nooner, the President of Lockhill, was undeterred by the fact that a gas station is not
listed as a permitted use by Shavano’s B-2 zoning classification, which is specified
by the covenants as the applicable zoning law. CR.I:105, 109; RR.VII:PX10-11.
Nooner was also undeterred by the fact that gasoline vapors are explosive and are
created in the operation of a gas station, thereby rendering a gas filling station
3
specifically prohibited by the covenants. CR.I:105; RR.VII:PX7-8. Despite his
knowledge of the restrictions, Nooner expressed that he could do anything he wanted
with the property once he purchased it. RR.VI:13-14.
V. Ard Mor Sought Injunctive Relief to Enforce the Covenants.
Ard Mor sought injunctive relief to halt development and enforce the
restrictions on the Lockhill property. CR.I:1, 206. In its pleadings, Ard Mor requested
a declaratory judgment pursuant to Chapter 37 of the Texas Civil Practice &
Remedies Code, seeking a declaration that the use of the Lockhill property as a gas
filling station would violate both the restrictive covenants and Shavano’s ordinances.
CR.I:209-212. Relative to this appeal, Ard Mor asked the trial court to declare that
Lockhill’s intended use of the property to dispense gasoline was prohibited because:
a. Use of the premises for storage, handling or use of gasoline is
prohibited by paragraph 4(b)(ii) of the covenants because
gasoline is or can be an explosive material;
b. Use of the premises as a gasoline station is prohibited by the
covenants because the risk of the emission or discharge of fumes
and odorous matter;
c. Use of the premises as a gasoline station will involve business
activities, except for outside dining, that are not completely
contained within an enclosed structure or court in violation of
City of Shavano Ordinance 36-39(6) and (7); and
d. Use of the property as a gas station is not a permitted use under
any zoning category in the City of Shavano Park.
4
CR.I.210.1 Ard Mor’s request for relief included a request for the cessation of the
development, planning, and construction of a gas station on the properties adjoining
the Luv-N-Care Child Development Center. CR.I:212-213; CR.II:5-9.
VI. Ard Mor Presented Evidence Demonstrating its Right to Injunctive Relief.
On July 9, 2014, the trial court granted a temporary restraining order against
Lockhill that prohibited the commencement or continuation of development or
construction on the Lockhill property. CR I:91. The trial court heard testimony and
considered evidence on the temporary injunction over a four day period. RR.II:1;
RR.III:1; RR.IV:1; RR.V:1. During the four days of testimony, Ard Mor presented
evidence of the following:
• Ard Mor and Lockhill are adjacent landowners bound by nearly identical
covenants of Shavano Creek Commercial Partnership Unit 1, Ltd.
CR.I:44, 248, 262, 264, 319-324, 265, 337; CR.II:45, 88-113, 115-212;
RR.II:25, 28, 43, 50, 101; RR.IV:55; RR.VII:Exhibit 13.
• Lockhill purchased its property subject to binding restrictive covenants.
CR.I:102-105, 291-318; RR.VII:Exhibit 1.
1
Ard Mor also sought declarations that: (i) Shavano’s ordinances are void due to their
admitted ambiguity; (ii) the Development Agreement and the ordinance annexing the disputed
property are void contract zoning; (iii) the Development Agreement violates existing ordinances; (iv)
Shavano inconsistently applies its ordinances in violation of equal protection; and (v) the actions of
the City of Shavano Park and its officials in contracting with Lockhill were ultra vires. CR.II:5-6.
Those issues are central to a parallel, but separate, appeal brought by the City of Shavano Park from
the trial court’s order denying Shavano’s plea to the jurisdiction. See City of Shavano v. Ard Mor,
Inc.; Texas ArdMor Properties, LP, and Texas ArdMor Management, LLC, Case No. 04-14-00781-
CV.
5
• The covenants restrict the use of the property to those permitted by B-2
zoning. CR.I:110; RR.VII:PX.1.
• Gas stations are not listed in Shavano’s B-2 zoning tables. CR.I:105,
109; RR.VII:PX.9-10.
• The covenants expressly prevent the use or storage of explosive material
on the property. CR.I:105; RR.VII:PX.1.
• Lockhill planned to build a Shell gas station on the restricted property
which necessarily included gasoline tanks. CR.I:121, 127; RR.II:16, 17,
24, 58, 66; RR.III:40; RR.IV:76, 78; RR.V:15; RR.VII:DX5, CX3.
• Shell gas is also known as gasohol. RR.II:66, 79.
• All gas stations in the United States sell gasohol. RR.II:79;
RR.VII:PX.7.
• The terms gas, gasoline, and gasohol are interchangeable. RR.II:79;
RR.VII:PX.7.
• The operation of all gas stations results in the release of gas fumes and
vapors. RR.II:83, 86, 98.
• Gasoline or gasohol fumes are explosive. RR.II:41, 57, 64, 66-67, 77-79,
83, 86, 88, 89, 95-97, 98, 105; RR.III:44; RR.V:23, 65-68;
RR.VII:Exhibits 6-8.
After hearing the evidence and argument of counsel, the trial court issued an
Order for Temporary Injunction. CR.II:128, 136-139. In its order, the trial court found
that Lockhill was planning the construction of a gas station and that such use of the
property was prohibited by applicable zoning laws or other governmental regulations.
CR.II:137. The trial court also found that gasoline would be stored or handled on the
6
property if development continued and that such use would violate the applicable
declaration of protective covenants. CR.II:137. Further, the trial court found that Ard
Mor had standing to enforce the restrictive covenants. CR.II:137.
Lockhill was ordered to cease and desist from commencing or continuing the
development of the property, including seeking or applying for approval from
Shavano, or any other governmental authority, to use its property to store or sell
gasoline. CR.II:138. Lockhill did not secure findings of fact or conclusions of law
with respect to the trial court’s order.
SUMMARY OF THE ARGUMENT
In this interlocutory appeal, the sole issue before this Court is whether or not
the trial court abused its discretion in granting a temporary injunction to maintain
status quo pending a final trial. The central focus of Lockhill’s complaint concerns
the sufficiency of the evidence to support the trial court’s ruling. Lockhill concedes
that there is evidence to support the trial court’s findings that gasoline vapors are
explosive under some conditions and that Lockhill intends to store gasoline on its
property. However, Lockhill contends that such evidence does not support the grant
of a temporary injunction because those findings were insufficiently specific to
Lockhill’s intended use of the gasoline.
7
Even a brief review of the record reveals that significant evidence was
presented on all of the challenged grounds. In fact, Lockhill stipulated and testified
through its representative that it intended to construct a Shell gasoline station and sell
Shell gasoline on its property. Ard Mor offered significant testimony, both
documentary and in the form of expert testimony, to establish that the mere operation
of a Shell gas station – or any gas station – would necessarily result in the release of
gasoline or gasohol vapors which are a known explosive. Although Lockhill disputed
that gasoline vapors are an explosive, a conflict in the evidence does not provide
grounds for the dissolution of an injunction.
Lockhill also challenges the sufficiency of the evidence to support the trial
court’s finding of Ard Mor’s standing to enforce the restrictive covenants. However,
Lockhill’s complaint regarding standing is premature. Lockhill barely referenced the
issue of standing during the four days of hearings. Instead, and oddly enough,
Lockhill vigorously objected any time that Ard Mor offered evidence establishing its
right to enforce the covenants. In fact, as to evidence of ownership of property,
counsel for Lockhill argued that it was undisputed that Lockhill and Ard Mor were
adjoining commercial properties, but that such fact was irrelevant to the issue before
the court. By objecting to relevant evidence obscuring its standing objection, this
issue should be deemed waived.
8
Moreover, it is undisputed that there is significant evidence in the appellate
record that establishes Ard Mor’s standing. Lockhill does not dispute the existence
or veracity of that evidence. Instead, Lockhill’s complaints are narrowly crafted to
assert that insufficient documentation of undisputed facts was formally admitted
during the temporary injunction hearing. However, the trial court had the
documentary evidence, which consisted of public records, in its own file, which were
argued and considered by all parties. Ard Mor requested that the court take judicial
notice of such documents, which both the trial court and this Court can do.
Lockhill also raises a constitutional argument, which likewise was not
developed during the temporary injunction hearing. Specifically, Lockhill suggests
that the restrictive covenants amount to a restraint on its freedom of speech. However,
the law is well established that a party cannot be deprived through the enforcement
of its own agreements — in this case, a restrictive covenant. Lockhill’s constitutional
arguments, even if before this Court, lack merit.
What Lockhill seemingly fails to recognize is that the only relief that Lockhill
can obtain through this appeal is either the dissolving of the injunction or a remand
to the trial court for further proceedings. Considering that the date set for trial on the
merits has passed as a result of this appeal and Lockhill’s multiple requests for
extensions, Lockhill’s procedural objections have done nothing more than extend the
9
status quo far beyond the date set by the court. Further, considering that Lockhill has
not shown that Ard Mor will not prevail at trial, Lockhill has not shown how it would
have benefitted by being allowed to proceed towards constructing improvements that
would have to be removed, resulting in waste. Lockhill has shown no error and
demonstrates no harm beyond the harm that it has inflicted upon itself.
ARGUMENT AND AUTHORITIES
I. A Reviewing Court May Not Review the Merits of the Applicant’s Case in
an Interlocutory Appeal from a Temporary Injunction Order.
In a hearing on an application for a temporary injunction, the only question
before the court is the right of the applicant to preserve the status quo of the subject
matter of the suit pending a final trial of the case on its merits. Butnaru v. Ford Motor
Co., 84 S.W.3d 198, 204 (Tex. 2002). To warrant the issuance of the writ, the
applicant need only show a probable right and a probable injury. He is not required
to establish that he will finally prevail in the litigation. Transport Company of Texas
v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953). For that reason,
a reviewing court may not review the merits of the applicant’s case in an interlocutory
appeal from a temporary injunction order. Tel. Equip. Network, Inc. v. TA/Westchase
Place, Ltd., 80 S.W.3d 601, 607 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
10
Whether to grant a temporary injunction lies within the trial court’s sound
discretion. Tel. Equip. Network, 80 S.W.3d at 607. A reviewing court will not reverse
the trial court’s order unless the trial court’s action was “so arbitrary that it exceeded
the bounds of reasonable discretion.” Id. Evidence is to be viewed in the light most
favorable to the trial court’s order, indulging every reasonable inference in favor of
affirming the trial court’s decision. Amalgamated Acme Affiliates, Inc. v. Minton, 33
S.W.3d 387, 392 (Tex. App.—Austin 2000, no pet.); Tel. Equip. Network, 80 S.W.3d
at 607. A reviewing court may not substitute its judgment for that of the trial court by
vacating or modifying an injunction simply because it would have decided the issue
differently. Landry’s Seafood Inn & Oyster Bar-Kemah, Inc. v. Wiggins, 919 S.W.2d
924, 926 (Tex. App.—Houston [14th Dist.] 1996, no writ).
II. The Appellate Record Demonstrates That Ample Evidence Was Presented
to Support the Trial Court’s Factual Findings.
Lockhill’s underlying theme throughout its brief concerns sufficiency of the
evidence. However, assertions of insufficient evidence are improper in an appeal from
an order granting or denying a temporary injunction. See Matuszak v. Houston Oilers,
Inc., 515 S.W.2d 725, 728 (Tex. Civ. App.—Houston [14th Dist.] 1974, no writ). The
only evidentiary challenge appropriate in an appeal from a temporary injunction is a
no evidence challenge. Id. To the extent that Lockhill is asserting a no evidence
11
challenge, even a brief review of evidence presented during the four-day hearing
demonstrates that the trial court had ample evidence before it to support its factual
findings. Given the abundance of evidence in the record, Ard Mor presents some of
the evidence refuting Lockhill’s no evidence challenges as succinctly as possible
below.
A. Lockhill argued that it was undisputed that Lockhill and Ard Mor
were neighbors and that evidence proving that point was not
relevant.
1. Allegation on appeal.
“There is no evidence in the record that any of Appellees own any real
property, much less: (1) property near the LV Property (referenced in the
proceeding as being a childcare center).”
Appellant’s Brief at 1, and
“Appellees presented no evidence of what real property they allege to
own.”
Appellant’s Brief at 5.
2. Evidence.
Ard Mor’s verified petition and application for a restraining order alleges that
Ard Mor is the owner and operator of the Luv-N-Care Child Development Center
located at 13211 Huebner Rd., San Antonio, Texas, and legally described as CB 5938
Lot 1814 Shavano Park, Subd Ut-16-A-1, Bexar County, Texas. CR.I:2, 10;
12
CR.II:115-121. The petition is supported by the affidavit of Paul M. Cooke, which
provides:
“Lockhill Ventures, LLC took the property located adjacent to the Luv-
N-Care Child Development Center subject to the Declaration of
Protective Covenants as attached to Plaintiff’s Original Petition as
Exhibit D. The adjoining land owners have taken property with similar,
if not identical covenants.”
CR.I:10. The affidavit also confirmed the factual statements contained in the petition
which included the averment of the location of Ard Mor’s property. CR.I:2, 10;
CR.II:115-121. Lot 1814, which is Lockhill’s lot and which is identified throughout
the pleadings and papers, appears on the land title surveys attached to the
Development Agreement at issue. CR.I:44, 248, 262, 264, 265, 337; CR.II:45;
RR.VII:PX3.
A copy of the restrictive covenants applicable to Ard Mor was also filed and
is a part of the appellate record. CR.I:291-318. The covenants are supported by a
number of exhibits, including field notes that describe Ard Mor’s property and the
Cooke plans for the Luv-N-Care Child Development Center. CR.I:319-321;
CR.II:116-118. Drawings and the plats and plans are also attached as exhibits.
CR.I:322-324; CR.II:119-120.
In addition to the documentary evidence, Lockhill confirmed the location of
Ard Mor’s property. RR.II:43. Witnesses for Ard Mor testified to the location of Ard
13
Mor’s day care facility. RR.II:25, 50, 101. The witnesses also testified that the day
care facility was an adjoining property that was connected to the site of the proposed
gas station. RR.II:25-26, 41, 50-51, 56.
Sean Nooner, the President of Lockhill, testified that Ard Mor is an adjoining
commercial property. RR.IV:15. Nooner even pointed to the location of the Ard Mor
property on a map, indicating its location as an adjacent property. RR.IV:55.
Counsel’s arguments and questioning during the hearing confirmed the location of
Ard Mor’s property. RR.II:13, 27, 36, 43.
Significantly, during the presentation of evidence, counsel for Lockhill
repeatedly and consistently objected to evidence of “how the adjoining property is
used” and that Ard Mor was “an adjoining property” and part of “three adjoining
tracts of land that are subject to the declarations of covenant,” asserting that such
evidence was irrelevant to the proof necessary to establish Ard Mor’s right to a
temporary injunction. RR.II:28-35.
Indeed, counsel for Appellant argued, “[w]e know that there’s a day care center
in proximity, and the Court doesn’t need to know anything more. And, quite frankly,
the Court doesn’t even need to know that.” RR.II:34, 35. Counsel for Lockhill
continued, “[i]t has nothing to do with the neighbors.” RR.II:35.
14
When, as here, the trial court has not entered findings of fact or conclusions of
law, the evidence is viewed in the light most favorable to the trial court’s order and
indulges every reasonable inference in its favor. See Thomas v. Beaumont Heritage
Soc’y, 296 S.W.3d 350, 352 (Tex. App.—Beaumont 2009, no pet.). All findings
necessary to support the trial court’s judgment are presumed. Lockhill does not
dispute that Ard Mor is an adjoining business owner, nor did Lockhill present any
evidence to indicate that Ard Mor is not an adjoining landowner in Shavano Park,
Subd Ut-16-A-1. For purposes of the temporary injunction, the above-cited and
unchallenged evidence is sufficient to show that, upon a trial on the merits, Ard Mor
will be able to fully establish standing to enforce the covenants.
B. The evidence established that the terms gasohol and gasoline are
interchangeable in the United States and the evidence presented was
specific to the product Lockhill intends to sell.
1. Allegation on Appeal.
“There was no evidence: (1) that gasoline (as opposed to gasohol and
diesel) or gasoline vapors would be stored, handled or used on the LV
Property.”
Appellant’s Brief at 8.
2. Evidence.
Nooner confirmed that he intends to build a Shell gas station on the property
next to Ard Mor’s. RR.II:16, 17, 24, 58, 66. Lockhill introduced its request for
15
approval of plans during the hearing. RR.VII:Exhibit 5. The plans specifically
reference Nooner’s intent to place a Shell sign on the proposed building.
RR.VII:Exhibit 5, A-1-1, A-1-2, A-1-7, A-1-8. Nooner also confirmed his intent to
build gasoline tanks on the property. RR.IV:76. Nooner testified that the tanks would
contain gasoline and diesel. RR.IV:78.
The Material Safety Data Sheet (MSDS) for Shell gasoline was admitted into
evidence. RR.VII:Exhibit 7, p. 1. The product code includes all forms of gasohol.
RR.VII:Exhibit 7, p. 1. The MSDS warns of the explosive nature of gasoline (or
gasohol). RR.VII:Exhibit 7, p. 4.
Ard Mor’s expert, Dennis Caputo, reviewed the MSDS regarding Shell
Corporation’s products. RR.II:66. The MSDS covers several grades of gasoline,
including premium gasohol, midgrade gasohol, and regular gasohol. RR.II:78. Caputo
explained that gasohol is what is sold as gasoline within the United States and that
the name gasoline was commonly used to describe the gasohol products utilized in
the market. RR.II:79. The MSDS and Caputo’s testimony were specific as to gasohol,
and even more specific as to the gasohol sold by Shell. RR.II:79.
Lockhill’s attempts to claim that there is a difference between the gasohol that
would be stored and used on the property and gasoline is firmly refuted by the
evidence. The argument’s disingenuous nature is apparent given the fact that
16
Lockhill’s own counsel framed the issue before the court as whether or not gasoline
(as opposed to gasohol) is an explosive material, and whether or not a store that sells
gasoline is prohibited by the covenants. See, e.g., RR.II:6, 15, 27, 32, 33, 52, 53, 68,
71, 72, 73, 74, 75, 107; RR.III:10-35, 48, 49, 135, 151, 184; R.IV:130. Ard Mor
offered significant evidence that confirmed Lockhill planned to sell and use Shell
gasoline, also known as Shell gasohol, on the disputed property, and Lockhill never
disputed or discredited such evidence.
C. Appellant stipulated that it intended to build and operate a gas
station and expert testimony established that explosive gas vapors
are released during the operation of a gas station.
1. Allegation on Appeal.
“There is no evidence in the record regarding the conditions under
which Appellant would store gasohol.”
Appellant’s Brief at 2, and
“There is no evidence in the record that the vapors of gasohol are
explosive under the conditions under which Appellant proposes to store
gasohol.”
Appellant’s Brief at 3.
2. Evidence.
Lockhill stipulated that it intended to build a Shell gas station. RR.III:40.
Nooner also characterized his existing and proposed businesses as gasoline stations.
17
RR.IV:8, 16, 17, 25, 28, 39. One out of every twenty-three gas stations experiences
a fire or explosion associated with its operation. RR.II:67.
It is undisputed that gasoline stations have gasoline tanks to store the gasoline,
or gasohol and diesel. RR.II:96. As the liquid is disbursed through normal usage, it
is replaced by gas vapors. RR.II:97. Ard Mor’s expert, Dennis Caputo, testified about
the ability of gasoline vapors to leak and the explosive threat involved in such cases.
RR.II:64. Caputo has been personally involved in hundreds of cases involving such
leaks. RR.II:64.
Caputo also testified that the operation of a gasoline station releases vapors that
are explosive. RR.II:83. Indeed, gas stations cannot operate without generating gas
vapors. RR.II:86. Caputo testified that gas vapors are explosive under many
circumstances, including flames, sparks, heat, and static discharge. RR.II:83.
Gasoline vapors are released any time that someone places gasoline into their
vehicles. RR.II:98. This release of vapors creates a risk of explosion. RR.II:98.
One of the several ways in which gasoline vapors can be ignited is through
static electricity which can ignite or cause vapors to explode. RR.II:88-89. Caputo
further explained that gasoline can even explode spontaneously under certain
conditions. RR.II:105. The product information sheet for the Shell product to be sold
by Nooner warns that:
18
“All it takes to create a violent explosion is fuel vapors, enough oxygen
and a source of ignition, hyphen, like a spark from a cigarette, comma,
a hot exhaust pipe, comma, faulty wiring, comma, or a wisp of vapor
reaching the open flame of a pilot light or a match.”
“Even something as seemingly innocuous as a spark from a static
electricity discharge can cause gasoline vapors to explode if it happens
near an atmosphere source. Remember that when you move around in
your vehicle you can build up a static electricity charge in your body.”
RR.III:44.
Although Lockhill’s expert claimed that gasoline and gasoline vapors were
actually stable, the trial court functions as the fact finder in a temporary injunction
hearing and an abuse of discretion does not exist where the trial court bases its
decision on conflicting evidence. Nelkin v. Young, 397 S.W.2d 956, 958 (Tex.
App.—Texarkana 1965, writ ref’d n.r.e.). A reviewing court must draw all legitimate
inferences from the evidence in the light most favorable to the trial court’s order
granting a temporary injunction. T-N-T Motorsports, Inc. v. Hennessey Motorsports,
Inc., 965 S.W.2d 18, 21 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d). There
was ample evidence submitted to support the trial court’s findings that gas or gas
vapors would be used on the disputed property in a manner that could lead to an
explosion.
19
D. Gasoline is a judicially recognized explosive and significant evidence
was presented establishing the explosive nature of gasoline vapors
released during the operation of a gas station.
1. Allegation on Appeal.
“There was no evidence: . . . (2) that the vapors of gasohol or diesel can
explode under any circumstances; (3) of the actual conditions under
which gasoline vapors are actually explosive; or (4) of the conditions
which Appellant proposed to store, handle or use gasohol or diesel were
conditions such as to render gasoline vapors explosive.”
Appellant’s Brief at 8-9.
2. Evidence.
Gasoline is designed to explode. RR.II:95. It is the very explosive nature of
gasoline that makes is a useful substance for our vehicles. RR.II:95. Indeed, the
explosive property of gasoline is so well known that it has been judicially noticed for
nearly 100 years. See McCulloch v. State, 740 S.W.2d 74, 76 (Tex. App.—Fort Worth
1987, pet. ref’d) (“A court of appeals may take judicial notice of facts which are
notorious, well known or easily ascertainable. Therefore, we take judicial notice of
the explosive nature of gasoline.”) (internal citation omitted); Nesmith v. Magnolia
Petroleum Co., 82 S.W.2d 721, 723 (Tex. Civ. App.—Austin 1935, no writ) (“The
volatile, inflammable, and explosive properties of gasoline are matters of most
general common knowledge. It is but stating the obvious to aver that every normal
person of high-school age or over, of average mentality and ordinary experience, is
20
presumed to have a general practical knowledge of these properties.”); Merchant v.
Houston Gas & Fuel Co., 78 S.W.2d 656, 658 (Tex. Civ. App.—Galveston 1935, writ
dism’d) (“[T]he explosion may have been caused by vapor or gas emanating from
gasoline which is, as a matter of common knowledge, a highly explosive and
inflammable substance.”); Scott v. Champion Bldg. Co., 28 S.W.2d 178, 180 (Tex.
Civ. App.—Dallas 1930, no writ) (“Courts judicially know that gasoline and other
inflammable petroleum products are explosive and constantly menace the safety of
persons and property, wherever stored or kept for sale.”).2
Ample evidence regarding the explosive nature of gasoline vapors, under the
conditions of use proposed by Lockhill, supports the trial court’s findings. In addition
to the evidence outlined in sections II.B. and II.C., Lockhill’s expert confirmed that
“Shell gasoline” was the product that would be sold at Lockhill’s proposed gas
station. RR.V:15. The warning signs displayed at Nooner’s existing gasoline and
Shell stations warn of the risk of explosion. RR.III:37, 44, 46; RR.IV:28, 49.
2
See also Al-Saady v. State, No. 02-13-00186-CR, 2014 WL 3536806, at *4 (Tex.
App.—Fort Worth July 17, 2014, no pet.) (mem. op.); Davis v. State, 227 S.W.3d 766, 769 (Tex.
App.—Tyler 2005), aff’d, 227 S.W.3d 733 (Tex. Crim. App. 2007); Shamrock Fuel & Oil Sales Co.
v. Tunks, 406 S.W.2d 483, 488 (Tex. Civ. App.—Houston 1966, no writ); Lombardo v. City of
Dallas, 47 S.W.2d 495, 498 (Tex. Civ. App.—Dallas 1932, writ granted), aff’d, 73 S.W.2d 475 (Tex.
1934); City of San Antonio v. Humble Oil & Ref. Co., 27 S.W.2d 868, 869 (Tex. Civ. App.—San
Antonio 1930, writ dism’d); Liverpool & London & Globe Ins. Co. v. Currie, 234 S.W. 232 (Tex.
Civ. App.—El Paso 1921, writ ref’d).
21
A Shell gasoline pamphlet regarding its gasoline products was admitted into
evidence. RR.VII:Exhibit 8, pp. 2, 4. The pamphlet acknowledges that accidents have
happened and warns of the potential for a violent explosion. RR.VII:Exhibit 8, pp. 2,
4. The pamphlet further admonishes that, “[a] simple gasoline splash or spill could
lead to an explosion, fire and possible serious injury.” RR.VII:Exhibit 8, p. 6.
Plaintiff’s Exhibit 6, a warning notice from a shell gasoline station that advises that
gasoline vapors may explode, was also admitted into evidence. RR.VII:6.
The MSDS for Shell gasoline was also admitted into evidence. RR.VII:Exhibit
7, p. 1. The product code includes all forms of gasohol. RR.VII:Exhibit 7. p. 1. The
MSDS expressly warns of the explosive nature of gasoline (or gasohol).
RR.VII:Exhibit 7, p. 4.
In addition to the documentary evidence, Ard Mor presented expert testimony
regarding the explosive nature of gasoline vapors. RR.II:77. Lockhill’s expert could
not negate the possibility of explosion as outlined in the Shell product information
documents. RR.V:21, 23. Specifically, Lockhill’s expert could not dispute that Shell
gasoline has explosive properties. RR.V:23. Even lay witnesses testified about their
personal knowledge of explosions at gas stations and the explosive nature of gasoline.
RR.II:41, 57.
22
Lockhill argues that the trial court abused its discretion in finding that gasoline
is an explosive material because it is not listed as an explosive material in ATF
guidelines, and is listed as a flammable by some regulations. Even if this position had
merit, the existence of controverting evidence does not demonstrate that the trial court
abused its discretion. Nelkin v. Young, 397 S.W.2d at 958. Moreover, Lockhill’s
representations of the guidelines and regulations is not complete.
The ATF guidelines upon which Lockhill’s expert relied to exclude gasoline
from the definition of explosive materials specifically state that the list is not all
inclusive of explosive materials. RR.V:71. The fact that a substance is not listed does
not mean that it is not an explosive.
Likewise, the characterization of gasoline as a flammable substance does not
mean that it is not explosive. 29 CFR 1910.106 specifically provides that the
flammable range is also known as the explosive range. See also RR.VII:Exhibit 18,
p. 3. Lockhill’s own expert could not dispute that official OSHA regulations indicate
that the terms flammable range and explosive range are interchangeable. RR.V:65-68.
The trial court does not abuse its discretion if the applicant pleads a cause of
action and presents some evidence tending to sustain that cause of action. RP&R, Inc.
v. Territo, 32 S.W.3d 396, 402 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
Significantly, a reviewing court is not to assume the evidence taken at a preliminary
23
hearing will be the same as the evidence developed at a full trial on the merits. Davis
v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). If there is some evidence of substantive
and probative character, a reviewing court may not find that the trial court abused its
discretion. Houston v. Southwestern Bell Tel. Co., 263 S.W.2d 169 (Tex. Civ.
App.—Galveston 1953, writ ref’d).
In this case, the trial court was presented with four days of testimony, including
the testimony of two experts. Ard Mor presented significant evidence of all elements
of Ard Mor’s probable right of recovery. To the extent that Lockhill claims to have
discredited such evidence, a conflict in the evidence does not demonstrate an abuse
of discretion. Matuszak v. Houston Oilers, Inc., 515 S.W.2d 725, 728 (Tex.
App.—Houston [14th Dist.] 1974) (“It is also settled that fact findings on conflicting
evidence will not be disturbed.”); see Sheehan v. Levy, 215 S.W. 229 (Tex. Civ.
App.—Dallas 1919, writ granted), aff’d, 238 S.W. 900 (Tex. Comm’n App. 1922,
opinion adopted). The trial court did not abuse its discretion in rendering its findings
or conclusions.
III. The Covenants of the Shavano Commercial Property Partnership, Unit I
Expressed a Clear Intent and Purpose to Benefit the Adjacent
Landowners Through its Restrictions.
Although Lockhill acknowledges that restrictive covenants may be enforced
by someone other than the grantor or grantee, Lockhill raises another sufficiency of
24
the evidence challenge with respect to Ard Mor’s right to do so. Specifically, Lockhill
claims that Ard Mor failed to present evidence that it is entitled to benefit from the
restrictive covenants. Appellant’s Brief at 10.
The test for standing is whether there is “(1) a real controversy between the
parties (2) that will be actually determined by the judicial declaration sought.”
Antonov v. Walters, 168 S.W.3d 901, 904 (Tex. App.—Fort Worth 2005, pet. denied).
Ordinarily, any person entitled to benefit under a restrictive covenant is entitled to
enforce it. Anderson v. New Prop. Owners’ Ass’n of Newport, Inc., 122 S.W.3d 378,
384 (Tex. App.—Texarkana 2003, pet. denied). Where many property owners are
interested in a restrictive covenant, any one of them can enforce it. Giles v. Cardenas,
697 S.W.2d 422, 427 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.).
Although a restrictive covenant is a contractual agreement between the seller
and the purchaser of real property, circumstances exist in which a restrictive covenant
may be enforced by someone other than the grantor or grantee. For example, 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. Under these
circumstances, each purchaser within the subdivision is assumed to benefit from the
restrictions and each has the right to enforce the restrictions. See, e.g., Curlee v.
25
Walker, 244 S.W. 497, 498 (Tex. 1922) (“It is perfectly clear that it is lawful for
districts with restrictions [designed to benefit all property owners] to be created, and
also that each purchaser has the right to rely on and to enforce those restrictions.”).
If the deed of the property owner against whom enforcement of the restriction is
sought contains the restriction, standing is based on an implied mutuality of
covenants among the various purchasers within the subdivision. See, e.g., id.; Giles,
697 S.W.2d at 427 (holding that where many property owners are interested in a
restrictive covenant, any one of them can sue to enforce it); Hooper v. Lottman, 171
S.W. 270, 272 (Tex. Civ. App.—El Paso 1914, no writ) (standing is predicated on
mutuality of covenant between original owner and each purchaser).
In other words, where an owner of a tract subdivides and sells the subdivided
parcels to separate grantees, with restrictions on the use of each parcel pursuant to a
general plan or scheme of development, each grantee may enforce the restrictions
against each other. Lehmann v. Wallace, 510 S.W.2d 675, 680–81 (Tex. Civ.
App.—San Antonio 1974, writ ref’d n.r.e.). “Such a plan may be established in
various ways, such as by express covenant, by implication from a filed map, or by
parol representations made in sales brochures, maps, advertising, and oral statements
on which the purchaser relied in making his purchase.” Id. at 680.
26
A. Evidence in the record tends to prove standing.
The appellate record demonstrates that Ard Mor does have standing to enforce
the restrictive covenants. Lockhill does not suggest that Ard Mor is not an adjacent
property owner or that Ard Mor lacks standing. Instead, Lockhill argues that for
purposes of the injunction hearing, (1) there was no document introduced into
evidence proving that Ard Mor owns property in the vicinity of the Lockhill property;
(2) there was no document introduced into evidence of common source of the
property; and (3) there was no document introduced into evidence that any of the
Appellees were parties to the restrictive covenants. Appellant’s Brief at 10.
In addition to the evidence recited in the statement of facts and arguments
above, the record reflects that Ard Mor is the owner of the Luv-N-Care Child
Development Center located at 13211 Huebner Rd., San Antonio, Texas, and legally
described as CB 5938 Lot 1814 Shavano Park, Subd Ut-16-A-1, Bexar County,
Texas. CR.I:2, 10, 44, 248, 262, 264, 265, 321, 322-324, 337; CR.II:45, 115-121;
RR.II:25, 28, 43, 50, 101; RR.IV:15, 55. Ard Mor purchased the property from
Shavano Creek Commercial Properties. CR.I:2, 10; CRII:115-121. The record also
reflects that Lockhill Ventures, LLC purchased two properties adjacent to the Luv-N-
Care Child Development Center, which are also located in Shavano Park, Subdivision
27
16-A-1. CR.I:77, 96-98. Therefore, the appellate record demonstrates that Ard Mor
and Lockhill are not only adjacent landowners, but own land in the same subdivision.
Both properties are encumbered by nearly identical covenants of Shavano
Creek Commercial Partnership Unit 1, Ltd. CR.I:102, 291-318; CR.II:88;
RR.VII:PX0-1. Both covenants’ stated purpose is to ensure compatibility with the
residential neighborhood in which the properties are located. CR.I:105; CR.II:67, 88;
RR.VII:PX0-1. Both covenants prohibit certain activities, such as the sale of certain
motor vehicles, activity deemed by be offensive by means emitting odors and fumes,
and the storage or use of explosive material. CR.I:105; CR.II:93; RR.VII:PX0-1. The
appellate record clearly demonstrates Ard Mor’s standing to enforce the restrictive
covenants.
B. Ard Mor’s objections to the evidence of standing are matters
reserved for the full trial on the merits.
Lockhill does not dispute that Ard Mor is an adjacent landowner in the same
subdivision, or that both parties are bound by nearly identical covenants of Shavano
Creek Commercial Properties. Lockhill’s complaint seems to be that the public
records already contained in the court’s file, argued by the parties, and reviewed by
the court, were not formally admitted into evidence during the injunction hearing. The
problem with Lockhill’s argument is that Lockhill repeatedly objected to the
28
admission of evidence of standing on relevancy grounds during the injunctive
hearing.
At the outset, Appellant’s argument is facially improper because matters
regarding issues of common source and beneficiary status under the covenants are
matters reserved for trial on the merits. Scott v. Rheudasil, 614 S.W.2d 626 (Tex. Civ.
App.—Fort Worth 1981, no writ). In Scott v. Rheudasil, on an appeal from a
temporary injunction, the appellant made similar objections regarding whether or not
the plaintiffs had standing given that the development entity was defunct. There the
court found that “[t]he posture of this case being in the nature of temporary injunction
the equities appear to be on the side of holding, pending a trial on the merits, that the
Plaintiffs have standing to enforce the protective covenant.” Id. at 639. The court
admonished however, that “[u]pon a trial on the merits the burden will be on the
Plaintiffs to show that the covenant was intended to inure to their benefit . . . .” Id.
When counsel for Ard Mor attempted to introduce evidence and discuss the
three parcels of land subject to the covenants, counsel for Lockhill asserted, “[t]hey
might want to be able to do that in a damage lawsuit, but they don’t get that in a
temporary injunction . . . .” RR.II:36. Lockhill’s argument regarding standing is
premature. Fairfield v. Stonehenge Ass’n Co., 678 S.W.2d 608, 612 (Tex.
29
App.—Houston [14th Dist.] 1984, no writ) (the merits of the underlying case are not
presented for appellate review on appeal from a grant of a temporary injunction).
C. Lockhill waived or invited any error regarding the lack of admission
of sufficient evidence of standing by objecting to evidence of
standing on relevancy grounds.
Without waiving the forgoing, and in the alternative, this Court should hold
that Lockhill waived or invited any error with respect to the sufficiency or admission
of Ard Mor’s evidence regarding standing at the temporary injunction phase of the
proceedings. The doctrine of invited error provides that a party may not complain of
an error which he has invited. In re Department of Family and Protective Services,
273 S.W.3d 637, 646 (Tex. 2009); Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862
(Tex. 2005); Ramirez v. State, 973 S.W.2d 388, 392 (Tex. App.—El Paso 1998, no
pet.). Nor may a party ask something of the trial court and then complain that the
court erred in granting the relief sought. Northeast Tex. Motor Lines v. Hodges, 158
S.W.2d 487, 488 (Tex. 1942); Bluestar Energy, Inc. v. Murphy, 205 S.W.3d 96, 101
(Tex. App.—Eastland 2006, pet. denied).
Lockhill did not mention standing or raise any objections to the proceedings
during opening statement or presentation of evidence. RR.II:14-17. At all times
during the four-day hearing, Lockhill’s counsel framed the relevant issue before the
30
court as whether or not gasoline is explosive. In fact, Lockhill’s counsel objected to
testimony from Ard Mor employees regarding the location and use of Ard Mor’s
property and “about what is happening on these three adjoining tracts of land that are
subject to the declarations of covenant” — asserting that such testimony was
undisputed and irrelevant, and that the only issue before the trial court was whether
there was a breach of covenant or zoning. RR.II:28-29, 32-34. For example, during
the presentation of one of Ard Mor’s witnesses regarding Ard Mor’s use of the
property, counsel for Appellant objected and framed the issue before the court as
follows:
“The question is: On the parcel of land in which the Nooners are trying
to construct a convenience store, retail space, and gas retail pumps,
whether or not that is permissible under the covenants and whether or
not it’s permissible under zoning? It has nothing to do with the
neighbors.”
RR.II:35. After Lockhill vigorously argued to narrow the issues before the court,
counsel for Ard Mor specifically asserted that, “Your Honor, the Luv-N-Care clearly
has a right to enforcement of the declaration of covenant.” RR.II:35. Although this
statement was a clear assertion of standing, Lockhill continued its attempt to narrow
the issues before the court by asserting that, “the focus of proof necessary to–for this
Court to extend or dissolve the TRO, which has six pronounced elements.” RR.II:35.
Undeterred, Ard Mor attempted to discuss the three parcels of land subject to the
31
covenants, but Lockhill again asserted, “[t]hey might want to be able to do that in a
damage lawsuit, but they don’t get that in a temporary injunction . . . .” RR.II:36. A
thorough review of the exchange almost makes it appear as if Lockhill was trying
desperately to steer the court away from the issue of standing and keep evidence
related to standing out of the record. The few minor references that Lockhill made to
standing were vague and were couched in terms of questions of law.
When Lockhill finally mentioned standing, during closing argument, it was a
brief assertion that Ard Mor was not a party to the same declaration of covenants as
Lockhill. RR.V:112. But, even at closing arguments, Lockhill attempted to steer the
court away from a full discussion of the standing issue, objecting to the submission
of a trial brief that Ard Mor offered in anticipation that Lockhill might finally
expound upon the standing issue recited in its pleading . RR.V:138-139.
If Lockhill wanted to test the sufficiency of Ard Mor’s evidence establishing
standing at the injunctive stage of the proceedings, it should not have objected to the
admission of the evidence as being irrelevant for purposes of the injunction hearing.
Tex. R. App. P. 33.1(a); see Venus v. State, 282 S.W.3d 70, 73-74 (Tex. Crim. App.
2009) (doctrine of invited error precluded appellant from challenging sufficiency of
evidence when appellant’s own objections kept the evidence from being developed
at the trial court); Berry v. Segall, 315 S.W.3d 141, 144 (Tex. App.—El Paso 2010,
32
no pet.) (holding that doctrine of invited error precluded appellant’s complaint that
trial court should have submitted issue of offset for insurance payments to the jury
when appellant characterized the issue of offset as one of law to be determined by the
court, and posited that the jury should not hear any evidence of insurance or offset
issues); see also, e.g., Breof BNK Texas, L.P. v. D. H. Advisors, Inc., 370 S.W.3d 58,
68 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding that “general language
does nothing to make the trial court aware” of the appellant’s beliefs and arguments).
Indeed, if evidence of standing was an issue, Lockhill should have mentioned
standing before the parties spent four days putting on argument and evidence
regarding the nature of gasoline. Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex.
2014) (“Preservation of error reflects important prudential considerations recognizing
that the judicial process benefits greatly when the trial courts have the opportunity to
first consider and rule on error.”).
In the present matter, Lockhill did not simply fail to bring the issue of standing
evidence to the trial court’s attention, Lockhill continually objected to the relevance
and the importance of evidence establishing standing. As such, Lockhill failed to
preserve for appellate review the issue of the sufficiency of the evidence to support
standing. See Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (“The reason for
the requirement that a litigant preserve a trial predicate for complaint on appeal is that
33
one should not be permitted to waive, consent to, or neglect to complain about an
error and then surprise his opponent on appeal by stating his complaint for the first
time.”). Lockhill’s current objections to standing — as to the injunctive proceedings
— should be deemed waived or estopped as invited error.
D. The court was entitled to take judicial notice of public records
attached to pleadings.
In the alternative, and without waving the foregoing, even if the issue of
standing evidence was before the trial court, it is clear that the trial court determined,
based on its own file and on public records, that Ard Mor would be able to establish
standing at trial. During the initial stages of the hearing, when the court surveyed
counsel regarding the admission of documents attached to pleadings, counsel for Ard
Mor stated that he had no objection to the admission of such things as the
declarations, deeds, and ordinances. CR.II:21-22. This statement was not
contradicted. In fact, during the proceedings, documents were handed to the court
upon the court’s request. CR.II:21. However, a review of the record makes it appear
as if Lockhill was intentionally negating the issue it now raises to ensure that Ard
Mor would not formally introduce the documents being discussed by all partes.
When Lockhill, for the first time during closing argument, asserted that the
documents attached to Ard Mor’s pleadings were not formally introduced into
34
evidence, counsel for Ard Mor asserted that the documents were public record and
that the trial court could take judicial notice of them. RR.V:139; see Johnson v.
Johnson, No. 03-02-00427-CVC, 2005 WL 3440773, *6 (Tex. App.—Austin Dec.
16, 2005, no pet.) (property deeds meet the requirements of Rule 201). Indeed, Rule
201 specifically allows a court to take notice of facts that can be accurately and
readily determined from “sources whose accuracy cannot reasonably be questioned.”
Tex. R. Evid. 201(b)(2). Moreover, a court may take judicial notice on its own, at any
stage of the proceeding, and a court must take judicial notice if it is requested and the
court is provided with the necessary information. Tex. R. Evid. 201(c); see Estate of
York, 934 S.W.2d 848, 851 (Tex. App.—Corpus Christi 1996, writ denied) (“A court
may take judicial notice of its own records in a case involving the same subject matter
between the same, or practically the same, parties.”); Escamilla v. Estate of
Escamilla, 921 S.W.2d 723, 726 (Tex. App.—Corpus Christi 1996, writ denied); see
also Texas Real Estate Comm’n v. Nagle, 767 S.W.2d 691, 694 (Tex. 1989).
The covenants of Ard Mor are not just public records, but were attached to the
pleadings and were provided to the trial court. Pursuant to Texas Rule of Evidence
201(c), the trial court was required to take notice of the documents. Consequently,
even if preserved, Lockhill’s sufficiency arguments regarding standing lack merit
because the trial court was required to judicially notice the documents attached to the
35
pleadings. Given the trial court’s ruling, it appears that the trial court followed this
rule of law.3 See also Estate of York, 934 S.W.2d at 851 (“The trial court can take
judicial notice in the absence of a request from a party, and may be presumed to have
taken notice of its own files.”) (internal citation omitted); Lacy v. First Nat’l Bank,
809 S.W.2d 362, 367 (Tex. App.—Beaumont 1991, no writ).
Furthermore, appellate courts can and do “take judicial notice of matters of
public record, whether requested by a party or on its own motion, for the first time on
appeal.” City of El Paso v. Fox, No. 08-12-00264-CV, 2014 WL 5023089, *4 (Tex.
App.—El Paso Oct. 8, 2014, no pet.) (citing Langdale v. Villamil, 813 S.W.2d 187,
190 (Tex. App.¯Houston [14th Dist.] 1991, no writ)); see, e.g., In re Estate of
3
Lockhill argued during the hearing that documents attached to the pleadings, but not
introduced into evidence, could not be considered by the trial court. The cases so holding stand for
the proposition that a temporary injunction cannot stand on pleadings and affidavits alone, but must
be supported by the introduction of evidence at a hearing. See Millwrights Local Union No. 2484 v.
Rust Eng’g Co., 433 S.W.2d 683 (Tex. 1968); Texas State Bd. of Educ. v. Guffy, 718 S.W.2d 48
(Tex. App.—Dallas 1986, no writ). Those cases, however, acknowledge the right of the opposing
party to test evidence such as an affidavit. In this case, the evidence attached to the pleading were
public records and as such were self-authenticating. Moreover, and significantly, Lockhill never
objected to the documents or suggested that the documents were untrue or misleading. See Tigua
Gen. Hosp., Inc. v. Feuerberg, 645 S.W.2d 575, 576 (Tex. App.—El Paso 1982, no writ) (treating
affidavits as sufficient temporary injunction proof, despite lack of parties’ agreement to do so below,
when opposing party did not complain of deficiency of affidavits on appeal). Lockhill’s argument
is inapplicable in light of the facts that the court conducted a four-day hearing with extensive
testimony and evidence and that Lockhill never challenged the fact that Ard Mor was an adjacent
landowner in the same subdivision burdened by covenants of the same developer.
36
Hemsley, No. 08-12-00368-CV, 2014 WL 5854220, *7-8 (Tex. App.—El Paso Nov.
12, 2014, no pet.); Johnson v. Johnson, 03-02-00427-CVC, 2005 WL 3440773, *5-6
(Tex. App.—Austin Dec. 16, 2005, no pet.); Langdale, 813 S.W.2d at 190. In the
event that this Court determines that the issue of standing is before it, this Court can
also take judicial notice of the covenants and public records attached to Ard Mor’s
pleadings to confirm Ard Mor’s standing to enforce the covenants against Lockhill.
If necessary, Ard Mor requests that this Court do so. (Tab A).
E. The harm to Lockhill, which is the preservation of the status quo
pending trial, has been prolonged by Lockhill.
Even if the trial court erred as Lockhill alleges — by relying on the public
records attached to Ard Mor’s pleadings and the testimony provided at the evidentiary
hearing — Lockhill’s own actions have dwarfed any harm caused by the trial court’s
error. The only issue before the trial court was the propriety of a temporary
injunction, i.e. whether the trial court should preserve the status quo pending a full
trial. Prior to Lockhill’s appeal, this matter was set for trial on February 17, 2015.
CR.II:138. As a result of Lockhill’s appeal and requests for extension, that date has
long since passed.
Even if the trial court erred in granting a temporary injunction, the only harm
caused by the error was a delay in Lockhill’s construction and development until
37
February 17, 2015. But for Lockhill’s own actions of working in concert with the City
to appeal the trial court’s ruling, the injunctive relief would have already concluded.
Not only did Lockhill file an appeal, it also requested two lengthy extensions of time
to file its brief. Therefore, any harm caused by the decision of the trial court to
preserve status quo was negated by Lockhill’s decision to file an appeal based on an
alleged hyper-technicality that in no way demonstrates that Ard Mor will not prevail
upon full trial. As such, any error committed by the trial court was harmless and is not
reversible. See Tex. R. App. P. 44.1 (“No judgment may be reversed on appeal on the
ground that the trial court made an error of law unless the court of appeal concludes
that the error complained of . . . probably caused the rendition of an improper
judgment.”).
Restated, Lockhill’s appeal is not based on an assertion that Ard Mor will not
prevail in proving its case on trial, nor that Ard Mor will not be able to establish its
standing to enforce the restrictive covenants during a full trial. Lockhill’s appeal is
based on the allegation that the trial court should not have granted injunctive relief
because some of the documents contained in the court’s file, which conclusively
establish standing, were not formally introduced into evidence. Yet, if the trial court
did not grant injunctive relief and Lockhill continued to develop its property despite
the pending litigation, Lockhill would likely face the additional cost and burden of
38
removing any improvidently placed improvements. See Jim Rutherford Invs., Inc. v.
Terramar Beach Comty. Ass’n, 25 S.W.3d 845, 850 (Tex. App.—Houston [14th
Dist.] 2000, pet. denied) (holding that equities did not favor builder who refused to
halt construction after being informed of deed restrictions); Gigowski v. Russell, 718
S.W.2d 16, 22 (Tex. App.—Tyler 1986, writ ref’d n.r.e.) (ordering appellants to
remove mobile home despite “considerable expense” when they had actual and
constructive notice of deed restrictions); Winfield v. Lamoyne, No. 05-94-01851-CV,
1995 WL 634161, *15 (Tex. App.—Dallas Oct.16, 1995, writ dism’d) (mem.op.)
(ordering removal of exterior stairway and other improvements when builder had
actual and constructive knowledge of deed restrictions prior to construction). Under
the facts of this case, the harm Lockhill alleges the trial court caused is actually self-
inflicted.
Finally, if this Court finds that Lockhill’s challenge to the sufficiency of
evidence supporting standing has merit, the appropriate remedy is to remand the
cause for factual development (in this case, remand for the mechanical exercise of
officially admitting into evidence documents already in the record). An appellate
court should only render judgment that a plaintiff lacks standing when the defendant
affirmatively negates the possibility that the plaintiff has standing. See Scarbrough
v. Metro. Transit Auth. of Harris County, 326 S.W.3d 324, 339 (Tex. App.—Houston
39
[1st Dist.] 2010, pet. denied). When, as here, the defendant’s challenge to the
plaintiff’s standing depends on disputed evidentiary matters, the appropriate remedy
is to remand. See Hendee v. Dewhurst, 228 S.W.3d 354, 376 (Tex. App.—Austin
2007, pet. denied) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.
2000)). This is especially true in the present case, since Lockhill attempted to keep
evidence supporting standing out of the record.
IV. The Phrase, “Storage, handling or use of explosive material” Is Not
Ambiguous.
Despite abundant evidence that gasoline — or gasoline vapors — are
explosives, Lockhill revisits its argument that gasoline is not an explosive material
by repackaging it as an issue of interpreting a restrictive covenant, likely in an
attempt to obtain a more favorable standard of review. Under this argument, Lockhill
asserts that the covenant should be interpreted in its favor. However, Lockhill’s
argument does not seek to interpret the meaning of the restrictive covenant. Indeed,
Lockhill does not even cite to the specific language of the covenant which requires
interpretation. Instead, Lockhill’s argument seeks to re-interpret whether or not
gasoline is explosive. Notably, Lockhill does not suggest that the term “explosive”
is ambiguous.
40
As in other written instruments, the end sought in the construction of restrictive
covenants is the ascertainment of the intent of the parties as revealed by the language
used in the covenant. Couch v. Southern Methodist University, 10 S.W.2d 973 (Tex.
Comm’n. App. 1928, opinion adopted). Words and phrases used in a restrictive
covenant will be accorded their ordinary and commonly accepted meaning. Settegast
v. Foley Bros. Dry Goods Co., 270 S.W. 1014 (Tex. 1925). The rule that restrictive
covenants must be strictly construed, favoring the grantee against the grantor and
resolving all doubts in favor of the free and unfettered use of the premises, applies
only when the intent of the parties is not ascertainable from the terms of the covenant.
Atkins v. Fine, 508 S.W.2d 131 (Tex. Civ. App.—Austin 1974, no writ); Knopf v.
Standard Fixtures Co., 581 S.W.2d 504, 505 (Tex. Civ. App.—Dallas 1979, no writ).
The intent of the covenant — to ban the storage and use of explosives — is clear, and
is also reasonable, given that Lockhill’s property is located within a residential area.
V. The Temporary Injunction Is Not a Prior Restraint.
As an alternative argument, Lockhill asserts that the temporary injunction
should be modified to remove the portion that prohibits Lockhill from:
“Commencing or continuing with any applications for approval by the
City of Shavano Park or any other governmental authority to use the
above described real property for storage or sale of gasoline or other
explosive material.”
41
Appellant’s Brief at 15 (citing CR.II:138). Lockhill claims that this portion of the
temporary injunction infringes upon Lockhill’s rights under the First Amendment of
the United States Constitution and Article 1, Section 8 and 27 of the Texas
Constitution because the temporary injunction is a prior restraint on speech. In
support of this argument Lockhill cites to Kinney v. Barnes, but does not
acknowledge that Kinney dealt with the issue of defamatory statements. See Kinney
v. Barnes, 443 S.W.3d 87, 89 (Tex. 2014).
Lockhill also fails to acknowledge the Texas case law dealing with the issue
before this Court — whether a temporary injunction is a prior restraint when it
prohibits only that speech which the speaker has already agreed to abstain from. That
issue has been previously and consistently resolved in Ard Mor’s favor. See
Henderson v. KRTS, Inc., 822 S.W.2d 769, 775-76 (Tex. App.—Houston [1st Dist.]
1992, no writ) (temporary injunction that prohibited appellant from petitioning the
F.C.C. was not a prior restraint because appellant had agreed not to oppose appellee’s
application with F.C.C.).
In fact, this Court has already encountered and rejected the same prior restraint
argument forwarded by Lockhill. In Menna v. Romero, the appellant argued that the
temporary injunction was an unconstitutional prior restraint. 48 S.W.3d 247, 251
(Tex. App.—San Antonio 2001, pet. dism’d w.o.j.). However, because the appellant
42
had already covenanted to refrain from the speech that the temporary injunction
prohibited, this Court rejected the constitutional claim and upheld the temporary
injunction. See id. at 249, 253.
The portion of the temporary injunction cited above is neither an impermissible
prior restraint nor overly broad. The temporary injunction only prohibits Lockhill
from petitioning the government for permission “to use the above described real
property for storage or sale of gasoline or other explosive material.” CR.II:138.
Lockhill already covenanted to abstain from using the property in this manner.
CR.I:105. Therefore, the temporary injunction is merely enforcing the covenant
Lockhill already made and is not restraining Lockhill from doing anything that
Lockhill is legally entitled to do.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellees pray that this Court
affirm the trial court’s order for temporary injunction. In the alternative, Appellees
pray that this Court remand this matter to the trial court for determination of standing.
Appellees request any further relief, in law and equity, to which Appellees may justly
be entitled.
43
Respectfully submitted,
COKINOS, BOSIEN & YOUNG
By: /s/ Karen L. Landinger
KAREN L. LANDINGER
State Bar No. 00787873
klandinger@cbylaw.com
JAY K. FARWELL
State Bar No. 00784038
jfarwell@cbylaw.com
10999 West IH-10, Suite 800
San Antonio, Texas 78230
(210) 293-8700 (Office)
(210) 293-8733 (Fax)
ATTORNEYS FOR APPELLEES,
ARD MOR, INC., TEXAS ARDMOR
PROPERTIES, LP AND TEXAS
ARDMOR MANAGEMENT, LLC
Co-Counsel
David L. Earl
State Bar No. 06343030
dearl@earl-law.com
EARL & ASSOCIATES, P.C.
Pyramid Building
601 NW Loop 410, Suite 390
San Antonio, Texas 78216
(210) 222-1500 (Office)
(210) 222-9100 (Fax)
44
CERTIFICATE OF SERVICE
I certify that on the 6th day of March, 2015, a true and correct copy of the
foregoing BRIEF OF APPELLEES was served on the following counsel of record by
electronic service through MyFileRunner.com; and the BRIEF OF APPELLEES was
duly filed with the Clerk of the Fourth Court of Appeals through MyFileRunner.com,
together with this proof of service:
Lance H. “Luke” Beshara
Randall A. Pulman
Brandon L. Grubbs
PULMAN, CAPPUCCIO, PULLEN,
BENSON & JONES, LLP
2161 N.W. Military Highway, Suite 400
San Antonio, Texas 78213
(210) 222-9494 (Office)
(210) 892-1610 (Fax)
lbeshara@pulmanlaw.com
rpulman@pulmanlaw.com
bgrubbs@pulmanlaw.com
Patrick C. Bernal
Elizabeth M. Provencio
DENTON NAVARRO ROCHA BERNAL HYDE & ZECH
A Professional Corporation
2517 N. Main Avenue
San Antonio, Texas 78212
(210) 227-3243 (Office)
(210) 225-4481 (Fax)
patrick.bernal@rampage-sa.com
elizabeth.provencio@rampage-sa.com
/s/ Karen L. Landinger
KAREN L. LANDINGER
JAY K. FARWELL
45
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned certifies this Brief
complies with the type-volume limitations of Tex. R. App. P. 9.4(i)(2)(B).
1. Exclusive of the exempted portions in Tex. R. App. P. 9.4(i)(2)(B), the Brief
contains 9,994 words.
2. The Brief has been prepared in proportionally spaced typeface using
WordPerfect Version X5.
3. If the Court so requests, the undersigned will provide an electronic version of
the Brief and/or a copy of the word or line printout.
4. The undersigned understands a material misrepresentation in completing this
Certificate, or circumvention of the typevolume limits in Tex. R. App. P. 9.4,
may result in the Court’s striking the Brief and imposing sanctions against the
person signing the Brief.
/s/ Karen L. Landinger
KAREN L. LANDINGER
JAY K. FARWELL
46
Tab A
'5oo030t7 1111~
DocB 2m0101B8420
DECLARATION OF PROTECTIVE COVENANTS
This Declaration of Protective Covenants ("Declaration") Is made to be effective
as of October 22, 2001, by Shavano Creek Commercial Partnership Unit 1, Ltd., a
Texas limited ·partnership ("Declarant").
WITNESSETH
WHEREAS, Declarant Is the owner of the real property in the· City of Shavano
Park, Bexar County, Texas, described In Exhibit A attached hereto and Incorporated
herein (the "Property");
WHEREAS, Declarant intends to market and develop the Property and certain
surrounding properties owned by Declarant described In Exhibit B attached hereto and
incorporated herein (collectively, the "Shavano Creek Commercial Propertiesu) for
commercial purposes and Declarant desires to provide for the systematic, orderly
development and use of the·Property for the benefit of the Property and the Shavano
Creek Commercial Properties, and to enhance the compatibility of the use and
development of the Property and the Improvements constructed thereon with the
adjoining residential neighborhood; and
NOW THEREFORE, Declarant declares that the Property shall hereinafter be
held, transferred, sold, conveyed, occupied and used subject to the covenants,
requirements, conditions, restrictions, easements and charges hereinafter set forth, it
being expressly acknowledged and agreed that the covenants, restrictions, easements
and coriditfons herein set forth shall run with the land and be binding on all parties
having all rlg'ht, title or Interest in the Property, and their respectrve heirs, successors
and assigns.
1. DEFINITIONS.
(a) "Architectural Design Guidelines" and "ADG" shall mean the architectural
standards, guidelines, obJectives and procedures for the design, placement .. and
.-iS
1:\D.,!
;~-··
construction of Improvements within the Property. Declarant shall have the right to
revlse, amend and update the_ ADG. A copy of the current ADG is available from
Declarant upon request.
.....
0
(b) "City" shall mean the City of Shavano Park, Texas and/or the City of San
Antonio, Texas, and their applicable agencies, departments, and commissions.
(c) "'DBH" and "Diameter at Breast Height" shall mean the diameter of a tree
measured approximately forty-two (42") lnches·from the ground or top of the root ball.
(d) "Declarant" shall mean Shavano Creek Commercial Partnership Unit 1, Ltd., a
Texas limited partnership, and its successOrs or assigns who are designated by
CERTIF1CATE
The page to which this certlncntc Is affixed may have been nUe~·ed to rednct conndcntlnl pCI'sonal informntion but
is othenvise a full, t1·ue and corn•ct copy of the original on nle ami ofreco1·d in my office.
ATTESTED:===;;;--
GERARD C. RICKHOFF
COUNTY CLERK
BEXAR COUNTY, TEXAS
BY:~
Deputy Date
Declarant as such In writing, and who consent in writing to assume the duties and
obligations of the Declarant with respect to the Property.
(e) "Declaration" shall mean this instrument and any amendment or supplement
hereto duly approved in accordance with the tenns hereof and recorded In the Official
Public Records of Real Property of Bexar County, Texas.
(f) "Governmental Authority.. shall mean all federal, state and local authorities,
agencies, commissions and regulatory bodies having jurisdiction over the Property, or
any portion thereof, or over the Declarant or any Owner.
(g) "Governmental Regulations" shall mean all statutes, rules, codes, ordinances,
regulations, permits, licenses and other requirements of any Governmental Authority.
(h) "Improvements" shall mean every structure on the Property and all
appurtenances thereto, including, but not limited to, buildings, outbuildings, roads.
driveways, sidewalks, walkways, paved areas, parking areas, fences, screening walls,
retaining walls, loading areas and facilities, signs, utilities, lawns, hedges, mass
plantings, landscaping, water lines, sanitary and storm sewers, electrical and gas
distributions facilities, street lights, and all exterior HVAC or other exterior fixtures or
equipment, pumps, tanks, lines, antennas, satelllte dishes, towers, metering equipment
and other utility ol' Infrastructure facilities.
(i) "Owner'' shall mean and refer to each owner of record, whether one or more
persons· or entitles, of fee simple title to all or any part of the Property, including
contract sellers, but. excluding those having such interest merely as security for the
performance of an obligation.
(k) "Property" shall mean and refer to the real property described in E~hibit A
attached hereto and incorporated herein, and/or any portion thereof.
(I) "Required Plans" shall mean complete architectural and engineering plans, .
including site plans, grading plans, exterior elevations, typical floor plans, light spillage
:=
~
pi!
plans, landscape and irrigation plans, and any other plans or inf6rmatlon deemed
necessary Jn the reasonable judgment of the Declarant In accordance with Section 3
herein.
..,...
0
(m) "Shavano Creek Commercial Properties" shall mean and refer to the real ~
property described in Exhibit 8 attached hereto and incorporated herein, and/or any
portion thereof.
2. PROPERTY SUBJI;CT TO THIS DECLARATION. The real property which Is
and shall" be held, trahsfe_rred, sold, conveyed, developed and occupied subject to this
Declaration is the Property described In Exhibit A attached hereto and Incorporated
herein.
2
CERTIFICATE
Thr pngr to which this cettlncate Is affixed mny hnw brcu altered to redact conndentlnl prt"SOIHtllnforumtion but
Is othenvlsc a full, true and cot·rect copy of the ol'iglnal on file and ofrecm·d In my office.
ATTESTED:====c--
GERARD C. RICKIIOFF
COUNTY CLERK
BEXAR COUNTY, TEXAS
BY: ,__,.. fJ.Ib·lt\
Date
Deputy
3. ARCHITECTURAL CONTROL.
(a) Plan Review. No Improvement shall be erected, constructed, placed, altered
(either by addition or deletion), maintained or permitted to remain on any portion of the
Property until the Required Plans, In such form and detail as the Declarant may deem
reasonably necessary, shall have been submitted to and approved in writing by the
Declarant. The Required Plans shall Include the location of and accommodate all
easements affecting the Property, Including the reserved easements described in
Section 7 herein. The Declarant may employ professional consultants to assist It in
such review, and impose reasonable fees for processing of applications. The decision
of the Declarant shall be final, conclusive, and binding upon the applicant and the
Declarant, entitling the applicant to rely on such decision. Declarant has promulgated
the Architectural Design Guidelines to more fully describe the design and aesthetic
requirements for the Property and other matters In connection with the plan submission
and review required herein.
(b) Limitation of Liability. Declarant and its representatives shall not be liable to
any person subject to ·or possessing or claiming the benefits of this Declaration for any
damage or Injury to property or for damage or loss arising out of their acts hereunder.
Declarant's evaluation of the Required Plans Is solely to determine compliance with the
terms of this Declaration. Declarant expressly disclaims any responsibility to .determine
compliance of the plans with any applicable Governmental Regulations, building code
or other standard for construction. Declarant shall not be responsible for reviewing any
plans or specifications from the standpoint of structural safety, engineering soundness,
or conformance with bulldlng or other codes, or other Governmental Regulations, nor
shall Declarant's approval be deemed a verification of the structural safety, engineering
soundness, or conformance of the Improvements to building or other codes, or other
Governmental Regulations. Neither the Declarant, nor any of the partners, employees
or agents thereof, shall be liable In damages or otherwise to anyone submitting plans
and specifications for approval or to any Owner affected by this Declaration by reason
of mistake of judgment, negligence, or nonfeasance arising Out of or in connection with
the approval or disapproval or failure tO approve or to disapprove any plans and
specifications or requests for variance.
(c) Procedures. The Required Plans submittals are more fuHy described in the
ADG and may he revised by Declarant from time io time effective upon written notice to
the owners. Declarant shall notffy Owner in writing whether any Required Plans are
approved or disapproved (specifying reasons for disapproval) within thirty (30) days
after Declarant has received the Required Plans and written notice that the Owner
desires to obtain Declarant approval thereof. If plans submitted by any Owner are not
sufficiently complete or are otherwise Inadequate, Declarant may reject them as being
inadequate or may approve or disapprove them In part,·condltionally or unconditionally,
and reject the balance, or may notify the Owner that additional documents or
Information are required. If the_ submitted plans are deemed to be Inadequate or
3
CERTIFICATE
The page to which this cr111flcatc Is affiud may han bern altered to •·edact coufldcntial prrsonal information but
Is otherwise a full, t1·ue and corrut copy of the original on me and ofrtcord in my offict.
ATTESTED:====,.--
GERARD C. RICKHOFF
COUNTY CLERK
BEXAR COUNTY, TEXAS
llY: _ _..,"'-c==-----
Deputy
Incomplete and wfitten notice of su6h ·~etertnrn·iit.Jon Is given to Owner within thirty (30)
days of .submission of such plans. the- thirty (30) ·day··reJVISY.i period shall not commence
until Declarant has received a complete set of the Required Plans. If Declarant fails to
reject or approve sUbmitted plans within the review period, such plans shall be deemed
approved as submitted by the Owner.
{d) Variances. Declarant may, but shall not be obligated to, grant variances and
waivers relative to deviations from this Declaration and/or the ADG, or to correct or
avoid hardships to any Owner. Upon submission of a written request for variance,
Declarant may, from time to time, In its reasonable discretion, pennit an Owner to
construct, erect or Install an Improvement which Is in variance from the covenants,
restrictions or architectural standards which are provided In this Declaration or the ADG.
In any case, however, the Improvement with such variances must, in Declarant's
reasonable discretion, blend effectively With the general architectural style and design
of existing Improvements on the Property and must not detrimentally affect the Integrity
of the Property and the Shavano Creek Commercial Properties as a first class suburban
commercial and retail center. All requests for variances shall be In writing, shall be
specifically indicated to be a request for variance, and shall indicate with specificity the
particular standard sought to be varied and the nature of the variance requested. All
requests for variances shall be deemed to be disapproved If Declarant has not
expressly approved such request In writing within fifteen (15) days of the submission of
such request. Declarant shall not be liable to Owner or any other person for any claims,
causes of action or damages arising out of the grant of any variance to an Owner. Each
request for a variance submitted hereunder shall be reviewed independently, and the
grant of a variance to any one Owner shall not constitute a waiver of Declarant's right to
deny a variance to another Owner. The decisions of Declarant with rGspect to
variances shall be final and mutually binding upon the applicant and Declarant. All
variances, to be effective, must be in writing. Owners are advised that certain
variances may require the separate approval of the Board of Adjustments of the City or
other applicable Governmental Authority.
(e) Approval Letter. Upon approval of the final Required Plan submittals, an
Approval Letter wlll be Issued by Declarant. The Approval Letter must be signed by the
Owner and returned to Declarant before construction of the Improvements specified'
~
l 'U)~
therein may begin. By execution and delivery to Declarant of the Approval letter, the
Owner covenants and agrees as follows: ·~
"""" '
(I) Construction of the Improvements will be completed within twelve (12)
consecutive months from start of construction.
(ii) Construction will be in substantial accordance with the approved Required
Plans.
4
CERTIFICATE
Th~:' page to which this certificate Is affixed may have been nltt~•ed to reduct confidential personnllnfornmtlon but
is ofhenvlse a full, true und correct copy of the oa·iglnnl on Hie mad ofrecm·d In myofficr.
A'ITESTED:====--
GERAilD C, IUCKHOH
COUNTY CLERK
BEXAR COUNTY, TEXAS
BY: -~~;c;--=----­
Deputy
(llf) Any exterior changes after final approval of the Required Plans by
D6clarant must be approved In writing by Declarant prior to construction of
those changes.
(lv) Declarant may, upon advance notice to Owner, make regular inspections
of the Improvements and construction site at times reasonably acceptable
to Owner and accompanied by a representative of Owner If required by
Owner.
If any of these conditions are not met and such failure continues for thirty (30) days
after written notice thereof to Owner detailing the nature of such failure, the Approval
Letter shall terminate and be of no further force or effect, and Owner shall be subject to
the plan review process and all other requirements set forth herein with respect to the
construction of any Improvements on the Property.
(f) Failure of Declarant to Act. If Declarant falls to provide Owner wHh written
notice of Its approval or disapproval of any plans within thirty (30) days after submission
by Owner of the Required Plans (subject to Declarant's rejection thereof and/or request
for additional documents or Information pursuant to subsection (c) above), It shall be
conclusively presumed that Declarant has approved such plans; provided, however,
that a deemed approval of any plan submHtal shall not permit a violation of any of the
terms of this Declaration, nor extend to any deviation from or alteration to the plans
actually submitted, nor to any matter requiring a written variance,
(g) Decisions Final. All decisions of Declarant shall be final and binding, and there
shall not be revisions of any action of Declarant except by appropriate legal
proceedings. In the event of construction of Improvements or threatened construction
of Improvement& In violation of this Declaration, any Owner or Declarant may seek to
enjoin such construction or seek other relief against the Owner and/or builder
responsible therefor, provided that Owner sheill first be given written notice of the
perceived violatlqn and a reasonable period of time to remedy the violation prior to the
filing of suit as prOVIded herein.
(h) Compliance Inspection and Enforcement. Declarant, may, but Is not required,
to police or enforce compliance with such considerations as setbacks or other specific, .
objective construction requirements. Declarant's agent may inspect those Items
reviewed by Declarant, Including Inspection for cohforfnance to the site plan (grading
and drainage), building plan, landscaping pl~m. and exterior design, colors and
materials. In the event Declarant reasonably determines that significant field
discrepancies exist, Declarant may .notify Owner of the nature and extent of the
discrepancy. Written clarification must be supplied by Owner to Declarant within ten
(1 0) business days of receipt of such notification. In the event clarification by the
Owner Is not forthcoming or is determined to be Inadequate. by Declarant in its
reasonable discretion, Declarant may at it's sole discretion retain a private consultant
tor the purpose of obtaining an outside opinion. All reasonable professional fees: and
5
CEUTIFICATE
The page to which this ctt11ncnte is nffixed may ha\'t' been nltered to 1·edact COilfidentlal pt'l-sonnl infornmtlon but
Is othenvist a full, fl•ue and COI"l"t'Ct copy oft he original on flle and of1·ecord In my offict>.
ATTESTED:'-;,;===;;--
GEUARD C. niCKIIOFF
COUNTY CLERK
llEXAH. COUNTY, TEXAS
BY: -cJO:::::::::_,;::--;------
rl·U.~-1q
Deputy Dntt
expenses associated with the retention of a private consultant up to $750 may be
assessed by Declarant against the Owner.
(I) . Cooke Plans. Declarant has approved the building and grading plans submitted
by Paul M. Cooke for the propoSed children's day care center and related facilities
described In Exhibit C attached hereto and incorporated herein ("Cooke Plans"), and
has granted a variance and/or waiver with respect to any specifications herein or In the
ADG, which conflict or are Inconsistent with the Cooke Plans, subject to the submission
and approval of the slgnage, lighting and landscape and other required plans for the
project and the requirements and limitations set forth In Section 3(e)(l), (II), (ill) and (iv)
and in Section 7 herein. Any material change In the Cooke Plans. or any material
modification or addition to the Improvements after Initial construction in accordance with
the Cooke Plans, shall be subject to the plan submission, review and approval process
and all other terms and conditions set forth In this Section 3.
4. USES OF PROPERTY.
(a) Permitted Uses. The Property and Improvements shall· be developed,
constructed and used only for retail and/or commercial uses permitted by applicable
Governmental Authority and Govemmontal Regulations to operate on the Property,
Including but not limited to a children's day·care center, except those uses which are
prohibited pursuant to subsection (b) below. Notwithstanding anything herein to the
contrary, that portion of the Property fronting on Huebner Road and described in Exhibit
Q attached hereto and lncorpofated herein ("Restricted Area") shall be used only for the
pufposes of a driveway to service the Property and the Shavano Creek Gommerclal
Pro'perties and attendant lighting, landscaping and slgnage In accordance with the
standards and requirements for such Improvements set forth herein and fn the ADG.
(b) Prohibited Uses. No portion of the Property shall be used for purposes
prohibited by the zoning and other ordinances of the City of San Antonio or City of
Shavano Park or for any of the following:
(I) Adult entertainment, Including, but not limited to: adult bookstore, adult·
booths, adult dancing establishments, adult motel, adult theater, or other
activity or use (which terms Include anything capable of being discerned
by the hum'an senses) which Is pornographic, obscene, lewd, or
lascivious, as such terms are defined from time to time by the Supreme
Court of the United States.
(ii) Trailer, mobile home, or recreational vehicle park.
(fll) Commercial storage facility, or commercial storage or sales of motor
vehicles, new or used automobile parts, mobile homes, portable buildings
or other temporary buildings.
6
CEUTIFICATE
The page to which this cr 111flcnte Is affixed may ha\'C been altered to redact conndentinl personnllnformatlon but
is otherwise a full, true and correct copy of the original on file and ofrec01·d In my office.
ATTESTED: 7
GERAIID C.~RI C=KI=IO"'F=F,....---
COUNTY CLERK
BEXAH COUNTY, TEXAS
BY: -C:.-~--;;:--:::------­
1, Ht- 1~ \
Deputy Date
(iv) Yards for Junk, wrecking, parts reclamation, or salvage.
'
(v) Sale of used appliances or equipment.
(vi) Feeding pens for animals, animal slaughtering, confinement of animals,
stockyards, or uses related to the preparation of animals for slaughter.
(vii) Asphalt manufacturing or refining; petroleum or petrochemical refining or
manufacturing; asphalt or concrete paving, mixing, or batching plant;
corrosive acid manufacturer or bulk storage, including but not limited to
hydrochloric, nitric, sulfuric, and similar acids; bone distillation or the
reduction, rendering, Incineration or storage of garbage, offal, animal parts
or animal waste, fats, fish, or similar materials or products.
(viii) Manufacture of cement, limes, gypsum or plaster of paris.
(lx) Manufacture, refining, or. open storage of raw materials or finished
products related to the manufacture or refining of, glue, size, gelatin, aloe,
grease, lard, or vegetable oil.
(x) Biomedical waste, storage or transfer.
(xi) Wholesale meat and produce distribution.
(xll) Welding, bottling and distribution plants.
(xiii) Machine or trade shop.
(xiv) Heavy equipment rental or sales.
(xv) Manufacture or stripping or refinishing of furniture.
(xvi) Manufacture of garments.
(xvii) Contractor storage and equipment yards.
'rn
~·
(xviii) Manufacture of confectionery. 1!10
··.;:;:-.
'N;:)
(xix) Repair, storage, or terminals for buses, cabs or trucks.
(XX) Bulk paint mixing.
(xxi) Manufacture of billboards.
(xxll) Auction house or other business devoted primarily to holding auctions.
7
CERTIFICATE
The page to which this cel11flcate Is affixed may haw been alte1·ed to redact confidential pN-sonallnformatlon but
Is ofhcnvlse a full, true and correct copy oft he original on nle and of rcc01·d in my office.
ATTESTED:====--
GERARD C. RICKHOFF
COUNTY CLERK
BEXAR COUNTY, TEXAS
BY: J__.. 1'ilt'l'l
Deputy Date
(XXIII) Any use or activity reasonably deemed by Declarant to be offensive,
unpleasant, unsightly, or Illegal by reason of the light emissions,
vibrations, odor, fumes, gas, dust, airborne dirt ash, smoke, noise,· sound
frequency or shrillness, or pollution or which Declarant reasonably
determines to present excess hazards by reason of excessive danger of
fire or explosion.
(xxiv) Exploration, mining, or quarrying or drilling for oil, gas, phosphate, or other
minerals of any type or kind.
(xxv) Use, manufacture, transportation, storage, disposal, handling, generation,
or treatment of "toxic waste," "hazardous waste," "hazardous substance,''
or "hazardous material" as those terms are defined In or pursuant to any
Governmental Regulations.
(xxvi) Storage, handling or use of explosive material.
(xxvll) Commercial landfill, dump, junkyard or other similar operation.
(xxvili) Raising, maintenance, housing or treatment of livestock or other animals
overnight; provided, however, that a veterinary clinic with no outdoor
kennels, dog runs or other outside animal housing facilities Is permitted, if
the facility Is given the approval of TNRCC and other applicable
Governmental Authority.
(xxix) Outdoor storage or display of equipment, material or merchandise except
where not visible from any pub/lc street; provided, however, that outside
restaurant tables and bank teller equipment is permitted.
(xxx) Nightclubs, taverns, massage parlors, play parks. or dance halls, except
as such use Is wholly contained within a bona fide restaurant or 8!? is
oth6rwlse considered an amenity by the Owner's or Property clientele,
such as a health club, tennis club or racquetball club.
(XXXI) Outdoor theater. =·
(xxxil) Institutional establishments which by nature of operation or character are
Incompatible with the Owner's or Property environment, including but not
limited to, mortuaries, funeral homes, and cemeteries.
(xxxili) Temporary buildings, trailers and mobile homes In the open, except as a
construction- office for a project on the Property and only for the period of
such construction.
6
CERTIFIC,nE
The page to which this cc11incnte Is affixed mny hnve bfeH altered to redact c.onfidcntlal personal information but
Is othenrlse a full,htle and c01·rect copy of the original on file and of record Ill my office.
ATTESTED:====~­
GERARD C. RICKHOFF
COUi\"TY CLERK
UEXAR COUNTY, TEXAS
BY: ~
~,I~- tl !
Deputy Date
(c) E:"dwards Aquifer. Owners will be sensitive to the fact that the Property lies over
the Edwards Aquifer Recharge Zone. Owners will abide by and compfy with all City and
State laws, rules, and regulations relating to construction over the Edwards Aquifer
Recharge Zone.
5. CONSTRUCTION AND DEVE:LOPMENT STANDARDS.
(a} Structural Requirements.
(J} Exterior Walls: Each exterior wall shall be not less than ninety percent
(90%} masonry, inclusive of brick, brick veneer, stucco, masonry,
limestone, or such other exterior building materials as may hereafter be in
use for construction of first class buildings, In each case of a design and
color approved by Declarant. No corrugated metal may be used unless
approved by Declarant for use as architectural elements. No concrete
block or tilt wall construction may be used unless the wall is completely
covered with stucco or a similar material or painted (textured paint} to
resemble masonry or stucco. All tilt wall construction must have
architectural reveals as approved by Declarant. No product regardless of
composition which is manufactured to have a wood or non-masonry
appearance will be considered masonry. All design, colors, coursing, and
pattern will be subject to approval by Declarant and In accordance with
the standards set forth in the ADG.
(il) Roof Design: Roof design shall be gable, Dutch gable, hlp, shed, or other
such design as Declarant may deem appropriate. Flat roofs with parapets
may be approved on a case by case basis by Declarant.
(Ill) Roofing Material: Standing seam metal, Tennessee v-crlmp, and
concrete tile are acceptable roofing materials, Declarant may approve ~
other materials In Jts sole discretion. :~
co·
(iv) Roof Structure: All obJects mounted on tho roof of any building, Including,
but not limited to, air-conditioning units, exhaust fans, and chillers, must
be screened by parapets or other screening approved by Declarant. The
"'"
•cf copy of the original on me mtd of J'ccord in my office.
ATTFBTED'====--
GERARD C. RICKHOFF
COUNTY CLERK
BEXAR COUNTY, TEXAS
BY: .J..-"
Deputy
(2) All landscaping shall be maintained In a neat and orderly condition.
The location of plant material and its design shall conform to the
landscape requirements set forth herein and in the ADG.
(3) Landscape plans for parking lots shall be submitted to Declarant for
review along with building plans.
(iv) There shall be no on-street parking permitted within the Property.
0) Landscape Requirements and Guidelines.
(I) In connection with the preliminary design of a building or project, Owner
will furnish Declarant two (2) copies of a detailed landscaping plan which
shall comply with the requirements from time to time promulgated by
Declarant. Such plans shall be drawn to scale and shall Include
delineation of existing or proposed structures, pavement and other site
features, and shall designate by name, size, spacing and location the
plant material to be Installed. The approximate location, size and type of
all existing trees, six Inches (6n) In diameter (DBH) or greater, or
significant matts (groupings) of smaller trees shall also be cleariy shown.
After a landscaping plan has been approved and Instituted, Owner is
required to submit to Declarant a written request for any change in the
plan. Owner shall at all times maintain the minimum required vegetation
as shown In the original plans. Owner shall make every effort to preserve
slgnlficant natural vegetation. Revised landscape plans shall Incorporate
all commercially reasonable changes suggested by Declarant and shall be
resubmitted for final approval by Declarant.
(ii) Landscaping shall consist of a combination of undisturbed areas, and
deslgn9d and enhanced areas of native plants includinQ, grasses, trees,
shrubs, flowers, and ground cover as listed in the ADG. Landscapes will
consist of plants and trees that are drought tolerant, Indigenous to the
area and require minimum amounts of water to survive and prosper. Low
flow, water efficient systems will be used to irrigate the landscaping
material that requires periodic supplemental watering. Installation of all
l~ndscaplng and Irrigation systems must be completed within ninety (90)
days following the cor:npletlon of the Initial building and parking areas on
the Property. Owner shall be responsible for watering and maintaining the
landscaping on the Property owned by It, Including landscape buffers and
easementt. and pedestrian easements.
(Ill) The reasonable cost of any watering or maintenance of vegetation or
landscaping by the Declarant on the Property as a result of Owner's
failure .to do so for more than five (6) business dayS after receipt from
Declarant of written notk.a detailing such failure shall be billed to Owner
15
CERTIFICATE
The page to which this certlncate Is affixed may haYc been altel'<·d to redact confidential pCI"SOJl!ll information but
Is othenl'lsc a full, true and correct copy of the ol'iglnnl on file nnd of record In my office.
ATTESTED:
GERAilD C. "'RI~C"'KH=o=FF"'•- -
COUNTY CLERK
BEXAH COUNTY, TEXAS
BY:--'"--,----,------ J.l~l'l
Deputy Date
and paid by Owner to Declarant within ten (1 0) days after receipt of such
invoice.
(lv) Non-Developed Areas:
(1) Non-developed areas, including drains, drainage areas, creeks,
greenbelts and buffers, sh~:~ll be left In a relatively natural state
and shall not be cleared, mowed or otherwise disturbed except as
designated and approved by Declarant or required by applicable
Governmental Authority.
(2) Each Owner shall selectively and minimally clear a continuous area
twelve feet (12') In depth from the curb line of all publicly used
streets and maintain and clean this area regularly.
{3) Each Owner will be responsible for cleaning and removing trash
from the undeveloped areas.
(v) All landscape plans and mate rials lists shall be reviewed and approved by
Declarant prior to Installation.
(vi) owner shall be responsible for the Installation, maintenance, and upkeep
of the landscaping and a water efficient !rrigatlon system. All such items
must be constructed and Installed concurrently with the development of a
project on such portion of the Property.
(vii) Should any Owner neglect, damage, or In any way destroy, or allow to be
destroyed any vegetation or landscaping upon the Property, such Owner
shall ·be solely responsible for the repair or replacement thereof, and, In
absence of timely repair or replacement thereof by the Owner, within thirty
.-,:
(30) days after notice thereof from Declarant, the Declarant may perform ?i!
such repair or replacement on behalf of the Owner. Owner shall then ·~\;£)
reimburse Declarant for the reasonable costs thereof within five (5) ·~
business days after demand therefor together with reasonable supporting .a
evidence of such expenses. ··.~
'a5
(k) Sidewalks.
(I) Required Sidewalks: Each Owner of the Property will construct and
continuously maintain all sidewalks required by Governmental Authority.
All required sidewalks-will be constructed of broom finish concrete or other
material acceptable to the City and Declarant, and shall be constructed
concurrently with the development of a project on such portion of the
Property. Declarant may requ ire the preservation of significant trees
within. the area otherwise designated for tho required sidewalks, In which
16
CEIU'.IFICATE
The pngr to which this crJ11flcntr Is nffixed mny hnw been nltrrr~J to rrdnct conOdrntial personnllnformntlon but
Is otherwise n full, true nnd cmTrct copy ofthr orlglnnl on nrr nnd ofrrcord In my office.
ATTESTED:
GERARD c.'=ru""c""KH:.-=-0-F_F_ _
COUNTY CLERK
BEXAR COUNTY, TEXAS
BY: _ __.._'--~--:------­
r--
D rputy Date
event the Owner will be required to vary the location of the sidewalk to
accommodate such tree{s).
(il} Optional Sidewalks: All other sidewalks shall be optional but shall require
the approval of Declarant and shall be shown on plans submitted to
Declarant. Optional sidewalks may be either broom finished concrete or
pebble finish concrete.
(I) Building Haight Restrictions. All buildings on the Property Will be limited to
forty-five feet {45') in height, as measured from the average finished ground level
to the highest point of the roofs surface If a flat surface, or to the deck line of
mansard roofs, or to the mean height level between eaves and ridge for hip and
gable roofs (excluding chimneys, cooling towers, ornamental cupolas, domos or
spires, parapet walls not exceeding four feet {4') In height, and basements).
(m) Maintenance.
{I) Construction Sites: Each Owner shall maintain construction sites in a
clean condition, removing accumulation of scrap and rubbiSh regularly
and storing construction materials and equipment in a neat, orderly
manner. On-site burning or disposal of trash shall be prohibited. Each
Owner shall, during construction, provide adequate dumpsters and port-a-
potties on site and be responsible for having these receptacles emptied
and reset on a regular basis.
{II) Developed Property: Outdoor storage of trash, materials, equipment and
vehicles must be screened as set forth In Section 5(d) hereof. All trash
must be removed on a regular basis, and in no event less frequently than
once weekly.
6. GOVERNMENTAL REQUIREMENTS.
{a) Compliance. Ali Improvements located, erected, constructed and installed upon
the Property and all activities of each Owner, their tenants, invitees, agents, employees
and contractors on or about the Property, shall conform to and ·comply with all
applicable Governmental Regulations.
(b) Precedence Over Less Stringent Governmental Regulations. If the
covenants, conditions and restrictions set forth In this Declaration set or establish
rnfnfmUm standards or limitations or restrictions on use in excess of any Governmental
Regulations, the covenants, conditions and restrictions set forth In this Declaration shall
take precedence and prevail over any less stringent Governmental Regulations.
Similarly, when any Governmental Regulations are more stringent than those set forth
In this Declaration, the more stringent Governmental Regulations shall control.
17
CERTIFICATE
Thr pngr to which this ce1iiflcnte Is nffixed mny han been altned to reduct confldentinl personnllnformatlon but
is othenYlse n full, true nnd corn•ct copy of the orighml on file nnd of record In my office.
ATTESTED:
GERARD C. "RI"-C"'KI=Io"'F"'•F;---
COUl\'TY CLERK
BEXAR COUNTY, TEXAS
BY: _,....,..,.-.
Deputy Date
(c) Remedies of the Declarant. ~y acceptance of a deed to all Or any part of the
Property, each Owner agrees that Declarant shall have the right to enter upon the
Property if one or more conditions or activities prohibited by applicable Governmental
Authority or this Declaration is maintained, or on which there has been a failure to
perform any act required by applicable Governmental Authority or this Declaration, for
the purpose of curing any such violation, provided that Owner has been given five (5)
business days prior written notice and has failed to remedy the violation within such
time, or If such violation cannot be remedied within such period, has failed to
commence such remedy within such period and pursue the same diligently to
completion. EACH OWNER INDEMNIFIES AND HOLDS HARMLESS DECLARANT
FROM ALL COST AND EXPENSE OF ANY SUCH CURATIVE ACTION AND ANY
COST OR EXPENSE OR PENALTIES OR FINES LEVIED BY ANY
GOVERNMENTAL AUTHORITY AS A RESULT OF THE ACT OR FAILURE TO ACT
OF THE OWNER WITH RESPECT TO THE PROPERTY. THE FOREGOING
REMEDY SHALL BE CUMULATIVE OF ALL OTHER REMEDIES FOR VIOLATIONS
OF PROVISIONS OF THIS DECLARATION.
(d) Water Pollution Abatement Plan. The Property lies within the area classified as
the Edwards Aquifer Recharge Zone and as such Is subject to the rules and regulations
of agencies of the State of Texas, Including the Texas Natural Resources Conservation
Commission {TNRCC), governing the use of said land, in addition to the Govemmenta~
Regulations of the City of San Antonio, the City of Shavano Park, and other
Governmental Authority. Each Owner is advised that such requirements and
prohibitions may relate to the types of pesticides and fertilizers which may be used,
minimum topsoil requirements, Inspection of sewer laterals prior to covering, and
criteria standards for sewer pipe, among other matters. Each Owner is responsible for
ascertaining all such requirements and prohibitions with respect to the Property and, by
acceptance of. a deed to all or any part of the Property, agrees to abide by the same.
No statement herein, nor action by the Declarant shall act to relieve any Owner from
such duty of compliance. Each Owner Is advised to obtain, read and use What's
Buqging You? A Practical Guide to Pest Control, available from the Edwards Aquifer
Authority (210/222-2204), or equivalent Information produced by recognized authorities
such as the Soli Conservation Service, Texas Department of Agriculture, U.S. Dept. of
Agriculture, S.A.W.S., etc.
In addition to the foregoing, each Owner Is required to abide by and comply with
all of the terms of the Water Pollution Abatement Plan (WPAP) approved by TNRCC
applicable to the Property and certain other properties. EACH OWNER IS ADVISED
THAT THE WPAP CONTAINS RESTRICTIONS APPLICABLE TO THE PROPERTY. A
copy of the WPAP may be obtained from Declarant.
(e) Additional Obligations. By acGeptance of a deed to the Property, or by
lnltlatin·g conStruction of Improvements to the Property, each Owner assumes
responsibiliW for complying with all certifications, permitting, reporting, construction, and
procedures required under all applicable Governmental Regulations, including, but not
18
CEHTIFICATE
The page to which this ce11incate Is affixed may luwe been altered to rednct confidential personallnfonnation but
is otltCI'\Vise a full, true and correct copy of the orlglnnl on file nnd of record Jn my office.
ATTESTED:n;c===:--
GEHAHD C. HICKHOFF
COUNTY CLERK
BEXAH. COUNTY, TEXAS
BY:---"'-"'-;~-;------­
Deputy
1-I(Q- I \1
Date
limited to those promulgated or issued by the Environmental Protection Agency and
related to Storm Water Discharges from Construction Sites (see Federal Register,
Volume 57, No. 175, Pages 41176 et seq.), and with the reSponsibility of ascertaining
and complying with all regulations, rules, rulings, and determinations of the Texas
Natural Resources Conservation Commission (TNRCC), related to the Property,
Including, without limitation, the provisions of Chapters 325 and 331, Texas
Administrative Code, and any specific rulings made pursuant to the terrns thereof. The
foregoing references are made for the benefit of each Owner and do not In any way
limit the terms and requirements of this covenant and the requirement that Owners and
contractors comply with all Governmental Regulations, and any plan required by such
Governmental Regulations, such as a Storm Water Pollution Plan, affecting the
Property and construction site with which they are associated, Including delivery to
Declarant of a certification of understanding relating to any applicable NPDES permit
prior to the start of construction. EACH OWNER, BY ACCEPTANCE OF A DEED TO
ALL OR ANY PART OF THE PROPERTY OR UNDERTAKING THE MAKING OF
IMPROVEMENTS TO THE PROPERTY, AGREES TO HOLD HARMLESS, DEFEND
AND INDEMNIFY DECLARANT FROM AND AGAINST ALL COST (INCLUDING
REASONABLE ATTORNEYS FEES AND COURT AND OTHER COSTS), LOSS,
LIABILITIES, FINES, PENALTIES OR DAMAGE OCCASIONED BY OWNER'S
FAILURE TO ABIDE BY ANY APPLICABLE GOVERNMENTAL REGULATIONS
RELATED TO THE PROPERTY.
(f) Annexation. The Property lies within the extraterritorial jurisdiction of the City of
Shavano Park ("CSP") and Declarant has requested the Property be annexed by CSP.
It is anticipated that CSP will or may impose use or development requirements or
standards on 1he. Property or portions of the Property as a condition of approval of plats
for one or more lots or In conn~ctlon with such platting process. Each Owner is hereby
advised that it.Js Declarant's Intent that this Property be annexed Into the city limits of
the City of Shavano Park. All Owners shall comply with all conditions or restrictions
imposed in connection with such annexation, No Owner will withdraw the request for
annexation submitted to CSP without Declarant's prior written approval.
(a) Reserved Easements. All dedications, limitations, restrictions and reservations
shown on a plat of the Property or any part thereof or in any other instrument heretofore
or to be recorded In the Dead and Plat Records and/or Real Property Records of Bexar
County, Texas, and the easements, rightswofwway, restrictions, and related rights ·~
referenced therein are Incorporated herein by reference an'd made a part of _this
Declaration for all purposes, as is fully set forth herein, and shall be constru.ed as being
adopted In each and (;)Very contract, deed or conveyance executed or to be executed.
by or on behalf of Declarant conveying any Part of the Property.
(b) Drainage Easements. Declarant hereby creates, declares, grants and reserves
for the· benefit of oeclarant, Bexar County, the City, and each owner of all or any part of
19
CERTIFICATE
The page to which this ccrtlflcatc is nfllnd mny hnve been alfut>d to l'Cdnct confidential pcrsonnl information but
Is olhe1·wisc a full, true and correct copy of the original on file and of record In my office,
ATTF.STED'====--
GERARD C. RICKHOFF
COUNTY CLERK
BEXAR COUNTY, TEXAS
BY: ,/____....,.
Deputy
the Shavano Creek Commercial Properties, and any public or private .Providers of utility
services to the Property and/or the Shavano Creek Commercial Properties, and their
respective successors and assigns. nonexclusive easements for drainage on, over,
under and across (I) all areas within ten (10) feet of the center line of all natural
drainage courses on the Property, and (il) the Property for the acceptance of
stormwater drainage from the Property and the Shavano Creek Commercial Properties,
before and after development thereof (collectively, the "Drainage Easements"). Each
Owner shall, upon request by Declarant or other easement holder, or their respective
successors or assfgi'Js, execute and deliver to the requesting party such Instruments In
recordable form necessary or desirable to further evidence and/or more specifically
Identify the as-built or designated location of the Drainage Easements. No Owner may
perform or cause to be performed any act Which would alter or change the course of the
Drainage Easements In a manner that would divert, Increase, accelerate or Impede the
flow of water over and across the Drainage Easements. More specifically, and without
limitation, no Owner may:
(I) Alter, change or modify the existing natural vegetation or design of the
Drainage Easements in a manner that changes the character of the
design or original environment of such Drainage Easements; or
(il) Alter, change or modify the existing configuration of the Drainage
Easements, or fill, excavate or terrace such easements or remove trees or
other vegetation therefrom without the prior written approval of Declarant;
or
(iii) Construct, erect or Install a fence or other structure of any type or nature
within or upon the Drainage Easements; provided, however, that fences
may be permitted in the event the proper openings are incorporated
therein to accommodate the flow o{ water over the affected Drainage
Easement as detennined by a qualified engineer and the applicable
Governmental Authority authorizes the construction; or
(lv) Permit storage, either temporary or permanent, of any type upon or within
the Drainage Easements; or
(V) Piac'e, store or permit to accumulate trash, garbage, leaves, limbs or other
debris within ·or upon the Drainage Easements, either on a temporary or
pennanent basis.
Declarant may, from time to time, prepare or require the preparation of a grading
plan for the Property. A copy of the grading pfan shalf be maintained by the Declarant.
By acceptance of a deed to· all or any part of the Property, each Owner covenants and
agrees to ensure compliance that the Property Is graded and maintained In accordance
with the grading plan to the extent that compliance can be achieved without materially
damaging or compromising the Integrity of Improvements on the Property, and that the
20
CERTIFICATE d booJJ nltoJ-ed to redact conndentlal personal Information but
I iin tc is affixe may 1taW
The page to which t It s CCI ca ftl ·iginal on file and ofn•cord lnnty office.
Is othenvisc a full, h·ue and con·ect copy o te Ol '
ATTESTED'====:----
GERARD C. RICKHOFF
COUNTY CLERK
BEXAR COUNTY, TEXAS
BY' ~
Deputy
· - • • • -· . ....... . . . . . . . . . . -. -- ~· ·· --- --- --·.- _ _ _..,._ 4 0 • - -~=-.-----.- ·...___· - · · .. .--.. . . . . . . . . . -·-·-- . ~ · --·
drainage of the Property Is maintained in accordance with a grading plan prepared by a
professional engineer in connection with the construction of any Improvements on the
Property.
(c) Utility Easements. Easements for Installation and maintenance of utilities,
cable television, and other utility facilities to service the Property ·and the Shavano
Creek Commercial Properties have been reserved as shown on the plats and/or as
provided by Instruments of record. Declarant hereby creates, declares, grants and
reserves for the benefit of Declarant, Bexa r County, the City, and each owner of all or
any part of the Shavano Creek Commercial Properties, and any public or private
providers of utility services to the Property and/or the Shavano Creek Commercial
Prope rties and their respective successors and assigns, nonexclusive easements for
utility purposes over, und er, within and upon the Property for the purposes of
constructing, installing, inspecting, maintaining, repairing and replar.lng from time to
time any and all utility lines, systems and facilities (including, without limitation, sanitary
sewer, electric, gas, water, cable telev ision and other utility services) from time to time
deemed reasonably necessary or appropriate by Declara nt for development of the
Property and/or the Shavano Creek Commercial Properties. Each Owner shall upon
request by Declarant or other easement holder, or their respective successors or
assigns, execute a nd deliver to the requesting party such instruments In recordable
form necessary or desirable to further evidence and/or more specifically Identify the as-
built or designated location of the easements reserved herein. All utility facilities on the
Property shall be underground, except for necessary above-ground appurtenances to
such facilities required by applicable Governmental Authority. The surface of easement
a reas for unde rground utility services may be used for planting of shrubbery, trees,
lawns or flowers and for paving of driveways, unless otherwise specifically prohibited by
the plat or any other record ed easement. The easement area of the Property, if any,
and a il improvements In such easement area shall be maintain ed continuously by the
Owner, except for those Improvements for which Governmental Authority or any utility
or private company Is responsible.
(d) Certain Otl:ler Easements. There is hereby created In favor of the easement
holders, the Declarant, and their respective successors and assigns, a right of ingress
or egress across, over, and under the Property for the purpose of installing, replacing,
repairing, and m aintai ning a ll facilities for utilities, Including, but not limited to, water,
sewer, telephone, electricity, gas, and appurtenances thereto, and to construct,
==-:::: ••
reconstruct, repair, correct, replace. or maintain a ny wall, fixture, light, or other structure
or Item required to be constructe d or maintained unde r the terms hereof or to corroct or
remove any condition prohibited to be maintained under the terms hereof; provided,
however that all such activities s hall be conducted In such a way as to minimize any
Impact on the business operated on the servient property and that once s uch activities
are completed all Improvements Including landscaping within the affected portion of the
easement shall be restored at the sole cost and expense of the easement owner.
21
CERTIFICATE
Thr pngr to which this crrtlflcntc Is affixed mny hnw hcrn nltercd to redact confldrntlnl personnl information but
Is othcnrisc n full, true nnd correct copy of the ol'iginnl on fil e nnd of record in my office.
ATTESTED:
GERARD C.-::RI::-C::::KH=::-0:::-::
F-::
F--
COUNTY C LERK
B EXAR COUNTY, TEXAS
BY: .,r-
Deputy Dnte
(e) Maintenance of Easements. By acceptance of a deed to all or any part of the
Property, eaCh Owner covenants and agrees to keep and maintain, in a neat and clean
condition, any easement which may traverse any portion of the Property, Including,
without limitation, removing weeds, mowing grass and trimming shrubbery and trees, if
any, within such easement area.
(f) Damages. Declarant shall not be liable for any damages done by any utility
company or their assigns, agents, employees or servants, using any easements now or
hereafter in existence, whether located on, in, under or through the Property, to persons
or to property, Including, without limitation, fences, shrubbery, trees or flowers or other
property now or hereinafter situated on, in, under, or through the Property. No
provision hereof related to placement or the nature of structures or conditions on the
Property, nor the approval thereof, express or Implied, by the Declarant shall affect the
rights of easement owners nor enlarge the rights of Owner with regard to the
construction or maintenance of Improvements or conditions within the easement area.
8. ENFORCEMENT.
(a) General. Declarant and each Owner shall have the right, but not the obligation,
to enforce all restrictions and covenants imposed by this DeClaration. Failure to enforce
any covenant or restriction shall not be deemed a Waiver of the right. The reservation
of the right of enforcement shall not create an obligation of any kind to enforce same.
Any court action brought to enforce any obligation or restriction hereunder shall, if
successful, entitle the prevailing party In such action to the award of costs and
attorney's fees.
(b) Declarant's Remedies. If any Owner falls to construct, landscape or maintain
its Property, as specified herein, Declarant l3ha11 have· the right, but not the obligation, to
proceed as follows:
(I) Give the Owner written notice of such failure whereupon the Owner must
stop work Immediately, submit a plan for remedy within thirty (30) days,
and perform the required remedy in a reasonable time as Identified by
Declarant.
(II) Should the Owner fail to fulfill his duty within thirty (30) days, then
Declarant- shall have the right, but not the obligation, to perform such
remedy without any liability for damages or wrongful entry .or trespassing.
=·

..d:!
0.:-.,J
(Iii) The defaulting Owner or occupants (Including lessees) of any part of the
Property In which such work Is performed shall jointly and severally be
liable for the cost of such work and shall promptly reimburse Declarant for
such cost.
22
CERTIFICATE
The page to which this cc11iflcnte Is affixed IliA)' haw beE-n altt'red to redact conndentlal personal information but
is ofherwln a full, true and COITcct copy of the ol'iginal on file mul oft('tord in my office.
ATTESTED:
GERARD C.-rRI;;cC;;;KI=!O~F"•F""•- -
COUNTY CLERK
BEXAU COUNT\', TEXAS
DY: --{'~'--~---,----­
Deputy
1-IL~f1
Daf('
(lv) Should the Owner or occupant fail to reimburse Declarant within thirty (30)
days after receipt of Its statement, then the debt shall be a debt of all such
persons, Jointly and severally, and shall constitute a lien against that
portion of the Property on which the work was performed.
(v) "The liens created shall· be subordinate and inferior to any and all
mortgages and/or deeds of trust filed of record prior to filing of the lien
affidavit by Declarant.
(vi) Failure to pay on time will result In the over-due amount bearing interest at
the highest, per annual, legal rate of interest pennitted and the Owner
shall additionally be obligated to pay reasonable attorney's fees Incurred
by Declarant and such sums shall be subject to the liens of Declarant.
(vii) Declarant shall have the right to enter the grounds of any lot or tract within
the Property, at any time for the purposes of Inspecting the Property and
determining the adequacy at the Owner's maintenance without any liability
for damage, wrongful entry or trespassing.
(c) Easement Holders. Declarant, the owners of all or any part of the Shavano
Creek Commercial Properties, and all other holders of the easements referenced in
Section 7 herein shall have the right to enforce all restrictions, cOvenants and
provisions with respect to the easements as set forth in Section 7 herein. Failure to
enforce any such provision shall not be deemed a waiver of the right of enforcement.
Any court action brought to enforce any obligation or restriction pursuant to Section 7
shall, If successful, entitle the prevailing party In such action to the award of costs and
attorney's fees.
9. PROPERTY CONDITION.
(a) Proximity to Quarries. The Property is located approximately one-half (1/2)
mile southeast of the Vulcan Materials stone quarry and approximately two and one-
half (2Yz) to three (3) miles southwest of the Martin Marrietta (Beckman Quarry East
and Beckman Quarry West) stone quarry, as depicted on Exhibit E attached hereto and
Incorporated herein (collectively, the "Quarries"). ·~
=
EACH PROSPECTIVE PURCHASI'R IS ADVISED THAT DIVERSE. MATERIAL
EXTRACTION AND PROCESSING HAVE AND WILL OCCUR ON THE QUARRY
PROPERTIES, AND MAY INCLUDE, WITHOUT LIMITATION, MINING, BLASTING,
EXTRACTION, PROCESSING, HANDLING, CRUSHING, WASHING, SCREENING,
SORTING, STOCKPILING, AND/OR THE PRODUCTION, PACKAGING,
DISTRIBUTION AND TRANSPORTATION OF AGGREGATI', CONCRETE AND
CONCRETE PRODUCTS, INCLUDING ACTIVITIES REQUIRED FOR THE SUPPORT
OF SUCH OPI'RATIONS, SUCH AS VEHICLE MAINTENANCE AND REPAIR
FACILITIES, OFFICE AND DISPATCH FACILITIES, OUTSIDE STORAGE OF
23
CERTIFICATE
The page to which this Cfliificate Is affixed may haw been nltered to •·edact confidential pwsonnllnformatlon but
Is olhcnvisc n full, fi"Ue and corn•ct copy of the orighml on nte and of1·ecord in my office.•.
ATTESTED:
GERARD C."'ru"'Co;;KH=o"'F"'F,-----
COUNTY CLERK
BEXAR COUNTY, TEXAS
BY: --..'"'---;o;---,,--------- ~ -ltdli
Deputy Date
MATE~IALS, AND OTHER OPERATION$ INCIDENTAL TO QUARRY
OPERATIONS. COMPLETE INFORMATION ON THE QUARRY OPERATIONS,
INCLUDING BLAST LEVELS AND SCHEDULES, OPERATING HOURS AND OTHER
INFORMATION SHOULD BE OBTAINED FROM THE QUARRY OPERATORS,
MARTIN MARIETTA MATERIALS SOUTHWEST, INC., 17910 IH-10 WEST, SAN
ANTONIO, TEXAS 78257, TELEPHONE 210-696-8500, AND VULCAN MATERIALS
COMPANY, BOO ISOM ROAD, SAN ANTONIO, TEXAS 78216, TELEPHONE 210-524-
3500.
Declarant makes no warranties, representations or covenants with respect to the
effect on the Property or the value thereof of the blasting or other quarry operations at
the Quarries. By completing the purchase of all or any part of the Property, each
Owner acknowledges and agrees that It has been afforded full access to, and has fully
and completely Inspected and Investigated all aspects of the Property to its satisfaction,
including the proximity of the Property to the Quarries and the operations at the
Quarries, and has made an independent determination of the suitability of the Property
for Owne(s Intended use. BY PURCHASING ALL OR ANY PART OF THE
PROPERTY, EACH OWNER AGREES (I) TO WAIVE, ACQUIT AND RELEASE
DECLARANT, AND (li) NOT TO INSTITUTE SUIT AGAINST DECLARANT WITH
RESPECT TO THE PROPERTY ARISING OUT OF THE PROXIMITY OF THE
PROPERTY TO THE QUARRIES AND THE OPERATIONS OF THE QUARRIES.
(b) Indemnification and Release. EACH PROSPECTIVE PURCHASER IS
RESPONSIBLE FOR THOROUGHLY INSPECTING AND EXAMINING THE
PROPERTY AND FOR CONDUCTING SUCH INVESTIGATIONS OF THE PROPERTY
AS IT DEEMS NECESSARY TO EVALUATE ITS PURCHASE. BY COMPLETING
THE PURCHASE OF ALL OR ANY PART OF THE PROPERTY, EACH
PROSPECTIVE PURCHASER IS ACKNOWLEDGING THAT IT IS PURCHASING
THE PROPERTY ON AN "AS IS", "WHERE IS" AND "WITH ALL FAULTS" BASIS.
BY PURCHASING ALL OR ANY PART OF THE PROPERTY, EACH OWNER
AGREES TO INDEMNIFY AND HOLD HARMLESS AND TO UNCONDITIONALLY
RELEASE DECLARANT, ITS PARTNERS, OFFICERS, DIRECTORS,
CONTRACTORS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY CLAIMS,
COSTS, FEES, EXPENSES, DAMAGES OR LIABILITIES THAT AN OWNER, HIS
FAMILY, EMPLOYEES, GUESTS, TENANTS, CONTRACTORS AND ANY OTHER
INVITEES MAY SUFFER OR INCUR AS A RESULT OF, ARISING OUT OF, OR
RELATED TO ANY CONDITION ON, IN OR UNDER ALL OR ANY PART OF THE ."=:; '
PROPERTY, INCLUDING; BUT· NOT LIMITE!;) TO, CAVES, SINKHOLES, STREETS, 00
TREES WITHIN OR NEAR THE STREET RIGHTS·OF-WAY, DRAINAGE FACILITIES,
·u.
-~
AND OTHER DANGE~OUS OBJECTS OR CONDITIOI'jS OF WHICH DECLARANT
HAS NO ACTUAL KNOWLEDGE AS OF THE DATE OF RECORDING OF THIS
INSTRUMENT OR AS TO WHICH DECLARANT HAS MADE A WRITTEN
DISCLOSURE TO OWNER.
24
CERTIFICATE
The page to which this ce~11flcatc Is affixed may haw bccnaltcl·cd to redact confidential personal information but
is othr~·wlse a full, trur and con·ect copy of the original on fllc mul of rcconl in my office.
ATTESTED''-~==~­
GERARD C. RICKHOFF
COUNTY CLERK
BEXAU COUNTY, TEXAS
BY,_L._ _ _ _ _ _ _ __ ~ 'll~·ltj
,
' Deputy Date
10. GENERAL PROVISIONS.
(a) Severability. Invalidation of any one of the provisions, covenants or restrictions
set forth In this Declaration by judgment or court order shall In no wise affect any other
provisions which shall remain in full force and effect.
(b) Term. The foregoing covenants are_ made and adopted to run with the land, and
shall be binding upon the undersigned and all parties and persons claiming through and
under the undersigned until December 31, 2026, at which time said covenants will be
automatically extended for successive periods of twenty-five (25) years, unless an
instrument signed by Declarant and the then record Owners In the aggregate of 2/3rds
or more of the gross land area of the Property has been recorded agreeing to terminate
or change said covenants In whole or In part.
(c) Assignment by Declarant. Notwithstanding any provision in this Declaration to
the contrary, Declarant may in writing filed of record expressly assign, In whole or In
part, any of the privileges, exemptions, rights and duties under this Dec/afatlon to any
other person or entity and may permit the participation, in whole or In part, by any other
person or entity in any of its privileges, exemptions, rights and duties hereunder. Upon
assignment by Declarant of any or all of such rights, such Declarant shall no longer be
liable for performance Of such assigned rights provided that the assignee expressly
assumes In the recorded assignment the obligations of Declaiant that are assigned.
(d) Amendment. This Declaration may be amended by written Instrument executed
bY the then Owners In the aggregate of 2/3rds or more of the gross land area of the
Property and the Declarant, upon recording of such written Instrument In the Real
Property Records of Bexar County, Texas. Notwithstanding the foregoing, Declarant
shall have the right to file an amendment to this Declaration, without the necessity of
joinder by Owner, for the limited purposes of correcting a clerical error.
(e) Singular Includes Plural. Unless the context requires a contrary construction,
the singular shall include the plural and the plural the singular, and the masculine,
fBminlne or neuter shall each include the masculine, feminine and neuter.
(f) Captions. All captions and titles used In this Declaration are intended solely for
convenience of reference and shall not enlarge, limit or otherwise affect that which is
set forth in any of the paragraphs or sections hereof.
(g) Notice. Whenever written notice to an Owner Is permitted or req!Jir€d
hereunder, such notice shall be given by mailing such notice to the address of such
Owner appearing.on the records of the Declarant, unless such Owner has given written
notice to the Deciarant of a different address, In which event such notice shall be sent
to the Owner at the address so designated. Such notice shall conclusively be deemed
to have been given as of the date such notice Is deposited In the United States Mall,
25
CEH.TIFICATE
The page to which this ce11iflcate Is affixed may ha\'C been altered to redact confldwtial pe~·sonal tnrormatlon but
Is othe•·wlse a ru11, tl'uc nnd co1·rect copy or the original on file and or record In my office.
ATTF-STED:====:--
GERARD C. RICKHOFF
COUNTY CLERK
BEXAR COUi\'TY, TEXAS
BY: --'<='<---:o"",-p-uc-tJ-'- - - - - -
/
certified mall, return receipt requested, properly addressed, whether actually received
by the addresSee or not.
(h) Governfng Law. This Declaration shall be governed by and construed in
accordance wlth the laws of the State of Texas and shall be performable in Bexar
County, Texas.
(I) Counterparts. This Declaration may be executed In one or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one
and the same. Instrument.
26
~~rR:.~:~~~~ch this crliiflcnte Is affixed may have breu altered to redact confldrntlal prrsonnllnformatlon but
is othn·wlsc a full, t1·ue nnd c01·rrct copy of the ol'lginal on file and ofrrcord in my officr.
ATTESTED:'-;c==~;;-­
GERARD C. RICKHOFF
COUNTY CLERK
BEXAR COUNTY, TEXAS
BY: _ _L~;;-~----­
lll~ 1\\
Drputy D;lte
DECLARANT:
SHAVANO CREEK COMMERCIAL
PARTNERSHIP UNIT 1, LTD., a
Texas limited partnership
By Its General Parther:
BITTERBLriU~~~{
orp tto Texas
By: " J--< ~
Wm. E. ewell
Chief Executlve Officer
STATE OF TEXAS §
§
COUNTY OF BEXAR §
This Instrument was acknowledged before me on OcmfltL.J..t, , 2001, by
Wffi. Eu'gene Powell, Chief Executive Officer of Bltterblue, Inc., a Texas corporation, as .
the_ General Partner of Shavano Creek Commercial PartnershiP Unit 1, Ltd., a Texas
llinlted partnership, on behalf of said corporatlo d · · ership.
I
/jJ1ii~V-~~;;_;:,~ .MElANIE L KENWORTHEY
(g h: NOTARY PUBLIC
-..~.Clo-~/ STATEOFTEXAS
••• .,_.,.... MyComm. fll'p,02·13-2005
AFTER RECORDING, RETURN TO:
Ms. Jamie M. Wilson
Kerr, WilsOn & Negr6n, P.C.
750 E. Mulberry, Suite 510
Sah Antonio, Texas 78212
27
CERTIFICATE
The page to wltlth this ce111flcutc Is affixed may haw been nlh·red to redact confidential personnllnformntlon hut
me
Is othe1·wlse n full, true and correct copy orthe o1·ighml 011 mul of recOI·d in my office.
ATTESTED,
GERARD C••'ru=c:-:KH=o"'F"F"•- -
COUNTY CLERK
BEXAR COUNTY, TEXAS
------ ~--~-~~-------- ---~~-
Exhibits:
Exhibit A- Property
Exhibit B -Shavano Creek Commercial Properties
Exhibit C - Cooke Plans
Exhibit D - Restricted Area
Exhibit E - Location of Quarries
M:\data\Jmw\denloo\c00ke\pmloova3.doo
~-·
28
CERTIFICATE
The page to which this cct1iflcate Is affixed may have beNt altered to redact confidential pct·sotHlllnformntion but
Is othct·wlse a full, true and correct copy of the original on me and of record In my office.
ATTESTED:====--
GERARD C. RICKHOFl'
COUNTY CLERK
BEXAR COUNTY, TEXAS
BY: .,----
Deputy Dntc
I EXHIBIT A
Fl6l.. D 'NOTES
fOR
A 1.838 ·ay line ofL()CkhiiJ.Selm.a
Road, tbc- Southeast comer.ofthe :>aid Lot 1400; · ·
THBNCE: N 41 c$0'46 1'£, o.long a~d with the northwest ri)!ht·of-w~y \lne of sa!cl Huebner Road and
\h~ southeast line nf said Lot 1400, a dislance of 410.00 fe~t to a set W' iroll rod with.
y~lloW cil.p nutrked "Papc:-.Oawson'' ,!lt the l)OJN"T OF BEGINNING;
1'1-{f;NCE: N 48"09'14"W, departing the nortbV::est right·of-way lino of said Huebner Road, a
distanc.~.of204.?.l'fect ton ~t:t 1.4" iron rod -..vith yellow cap mark~d "Papc·Da\\'SOn~ for
an lnt~ri~r an,S!i within said L~t 1400;
11-fEN~f.:: S 4l "50'46~w, n distanco;; of2l4.67 teet to a. point;
THENCE: N 48° 16'11"\V, a distam;e of160.73 feet to a point on the northwest line Qf said Lot 1400,
being in· th<.~ southeaslline ot Lot 1404 of thoa a.forem«:ntioned ShiloV-'l\0 Park Unit 16A
subd.ivision;
·N re".~t,
.
,'l/
;.9V/.-It--
1.. ~:P. * ....(,.~. ~:f.
I DOC.! D.: n.,~urvey01\I-9600\9S56-0l\l''note~ doe I·
"
~~.f!P,i:i~NiCHQU:S
,;;._~.m2···:r·
PM1~•DAWSOH'W/01HEJIRS, ~'1f5'1'siW•q:';-.";>
I 5;JO F.~" Rs.rr::;<;;y 1 S: 2t0,3l6.WJO I r~· .210.37!.;.0010 I
t:
lfllc.:P;.vf):l'.S FQU.'IIDTO 6E INADEQUATE
~OR lriE ~ PHOTOGFW'HIC m:PHOOUCTlON
tHE CAUSE OF lUEO!BIUlY, CAA..~N OR
~o;;HO'fO COPY. OISCOLOREO PAPER, ETC.
i$i
Docft .20010:1.88420 -·~-.
' '· ..
" pta~esr2aat ll2=~a=26 Pff
fil!XI S R~tCUrdid in
Offieia:l ReMfds of I=
8£XAR COtJ!H'J' .=
GERRY RICKHOFF --:a.:,'
-
COUI!TY ClERl(
f(>e-5 $75.69 <»
""'
CERTIFICATE
The page to which this cc1110cate Is affixed may han been altered to redact confidential personal infornmtlon but
Is othe1·wlse a full, t.-ue nnd con·ect copy of the original on me and of record in my offict'.
ATTESTED:
GERARD C. ""R'"'IC"'KH="o"'FF"'•- -
COUNTY CLERK
BEXAR COUNTY, TEXAS
BY: _.-
Deputy
' I
Gerard Rickhoff
COUNTY CLERK BEXAR COUNTY
BEXAR COUNTY COURTHOUSE
100 DOLOROSA, SU ITE 104
SAN ANTONIO , TEXAS 78205
CERTIFICATE
STATE OF TEXAS§
COUNTY OF BEXAR§
I, GERARD RICKHOFF, COUNTY CLERK OF BEXAR COUNTY, TEXAS, DO HEREBY
CERTIFY THAT THE FOREGOING IS A TRUE AND CORRECT COPY OF THE OFFICIAL
PUBLIC RECORDS OF REAL PROPERTY OF BEXAR COUNTY, TEXAS, NOW TN MY
LAWFUL CUSTODY AND POSSESSION AS SAME APPEARS OF RECORD FILED TN :
VOLUME q J N t.-f
THIS COPY MAY HAVE BEEN ALTERED TO REDACT CONFIDENTIAL PERSONAL
INFORMATION AS REQUIRED BY TEXAS GOVERNMENT CODE 552.147.
IN TESTIMONY WHEREOF, WITNESS MY HAND AND OFFICIAL SEAL OF OFFICE
GIVEN IN THE CITY OF SAN ANTONIO, BEXAR COUNTY, TEXAS, ON THIS .L~-k_
DAY OF :Ji~ A.D., 20 _..i_'-1
_,:.....___
GERARD RICKHOFF
COUNTY CLERK
BEXAR COUNTY, TEXAS
.- .,.~
\
... .
I \,
.. {
i
. ' ''•
ANY PROVISION HEREIN WHICH RESTRICTS THE SAL E, RENTAL, OR USE OF THE
DESCRIBED REAL PROPERTY BECAUSE OF RACE, COLOR, RELIGION, SEX, HANDICAP,
FAMI LIAL STATUS OR NATIONAL ORIGIN IS INVALID AND UNENFORCEABLE UNDER
FEDERAL LAW.