## In the Court of Appeals Second Appel late District of Texas

at Fort Worth

___________________________ No. 02

- 19

- 00375

- CV

___________________________

On Appeal from the 141st District Court Tarrant County, Texas Trial Court No. 141

- 299063

- 18

Before Gabriel, Kerr, and Bassel , JJ. Me morandu m Op i nion by Justice Kerr 

### S ERENE 

### C OUNTRY 

### H OMES 

### , LLC , Appellant

V


### . N ORTHSTAR 

### R

ANCH 

### , LLC , Appellee2 M EMORANDUM OPIN ION
I. Introduction Appel lant Serene Country Homes , LLC agreed to pay $24 million to Appelle e Northstar Ran c h L

LC 1 for 733 acres of unim proved property in Fort Worth ’ s extraterritorial jurisdicti on that Ser ene p la nned to d evelop into a residential
subdivisio n . Northstar pr omised under Section 6(b) (v) of the parties ’ contract that it
would use good

- faith and commercially rea sonable efforts to ent er into an acc es s

a greement wit h the Texas Depart men t of Transpor tat io n (TxDOT) to connect the property to State Highway 28 7 ( SH 287), which bordered the property ; the ac cess agreement would by necessity require an extension of an access road to connect an

entrance t o the property
. During the bench trial that en sued when Ser ene did not close on the

tran sac tion , Northstar clai me d that it could retain Serene ’ s earn est money because , among other things, it had satisfied Section 6(b)(v)

. T he trial court agree d, signed a take

- nothing judgment against Serene , and enter ed 135 findin gs of fa ct and 65
conclusi ons of law. Serene com plains that t he evidence is legally and fa ctually
insufficient to support the trial court ’ s finding that Northstar had entered into a TxDOT access agre ement
. 2 We af firm.

1 Northstar i s t h e successor to the original seller

.
2 Northstar also argued at trial that Serene had repudiated or anti cipatorily breached the contract and that Serene ’ s bre ach

- of

- cont ract cl aim was barre d by3 II. B ackground
T he trial c ourt heard two days of live testimon y from Se rene ’ s C hief Executive
Officer Jos eph Att ru x ; from Ron R amirez, a lic ensed profession al engi nee r who had
b een Serene ’ s executive vice president of en gineering and development; from Mark
Schluter , a f

ormer

- TxDOT

- engineer

- tu rned

- consult an t hired by Northstar; and from
Nor ths ta r p rincipal Kim Gill

. By agreement, t he trial court also admit ted into
evidence o ver 150 exhi bits , as we ll as depositi on excerpts from TxD O T A rea
E ngin eer Edrean Cheng , who had bee n trained by Schluter; from real estate b r oker
Matt Bilardi ; from Ser ene ’ s Chief Operating Officer Allan Lind ; an d from Rober t S n elus, Serene ’ s exec u tive vice pres i dent of operations for home b uilding an d sales

. We be gin by reviewing pertinent con tract provisio ns and a mendments an d
some of the trial court ’ s unchallenged fact findings for c ontext , 3 and we then r eview

some key documentary evidence and additional unchalleng ed fact findings

.
estoppel, quasi

- esto pp el, waiver, or deficient notice. The trial court found in Northstar ’ s favor on these arguments , and in this appeal, Serene challenges those findings and raises a contract

- const r u ct ion is sue . B ecause we find the TxDO T

- access

agreement issue dispositive, w e do not reach the se remaining issues. See Tex. R. App. P. 47. 1.

3 Un challenged fact

- findings are entitled to the same weight as a jury’s verdict and bind an appellate court unless ei ther t he contrary is e stablishe d as a matter of law or no evide nce s upport s the finding. McGalliard v. Ku hlmann , 722 S.W.2d 694, 696 (Tex. 1986); Inimitable Grp., L.P. v. Westwood G rp. Dev. II, Ltd. , 264 S.W.3d 892, 902 & n.4 (Tex. App.

— Fort Worth 2008, no pe t.)

. In other w ords , we defe r to u nchallenged fact findings that some e vi dence supports
. Tenas ka Energy, Inc. v. Ponderos a Pine Energy, LLC , 437 S.W.3d 518, 523 (Tex. 201 4).4

A
. The Parties ’ Cont ract and Contract Amendments
Section 6 of the p arti es ’ October 28 , 20 16 contract set out Serene ’ s review period, how Sere n e could terminate the contract an d get its earnest money back , and
the items th at Northstar had t o obtain befor e Serene was required t o close.
Section 6 (b), “ App rovals, Consen t s and Agree ments Contingency, ” requir ed the following of Northstar : Sel ler shall use good faith and commercially reasonable effo r ts to o btain t he following ( collect

ively, the “ Appr ovals , Co nsents and A greem ents ” [A CAs] ): (i) T he app roval of a preliminar y plat of the Land by the City [ of Fort Worth] ; [

4 ] (ii) The approval of a [Municipal Utility District ]

. . . for the Land by the Texas Commission on En viron m e nta l Qu ality ( the “ TCEQ ” ) and the establishm ent of the M U D; (i ii) Enter into a De velopment an d U ti lity Agreeme nt(s) wit h the Ci t y of Fort Worth; (iv) Enter into sur f

ace use agreement [s ] wit h the various e nergy companies; (v) Enter into an access a gre ement wit h th e Texas Depart men t of Transportati on ( “ TxDOT ” ) a ll owing the tie

- in of Northstar B oulevard to SH 287; and (v i) Receipt of w ritten consent from the applica bl e ra ilroad company [BNSF] tha t No rthstar Boulevard can cross the railroad at

- grade.

4 A p r elim inar y pla t is essen tial to subdivide a nd devel op land

. S ee genera lly Tex. Loc. Gov ’ t Co de Ann. § § 212.001 , 232.001

.5

Se ller shall k ee p Purchaser appr ise d of its progr es s i n obtainin g the [ACAs] and , upon Pur chase r ’ s writ t en request, fu rnish Purchaser wi th any s ubmissi on made to the Cit y , the TC EQ or TxDOT and any pro posed [ACAs]

. Seller shall adv ise Purchaser in wr iting of the date
w hen Sel ler has obtained al l of the [A CAs] ( the “ AC A Date ” ). If Seller is
un a ble to obtain the [ACAs] on or before May 20 , 20 1 7, then Purchase r may elect t o te rmi nate this Cont ract
. . . w h e r e u p o n t h e E a r n e s t M o n e y ( l e s s t h e I n d e p e n d e n t C o n s i d e r a ti on) shal l be ret urne d to Purchaser [.]
The contrac t stated that closi ng w ould be on the fi rst business d ay to occur 30
da y s “ imm ediately followi ng the A C A Date, but in no event later t han May 30, 2017 , ”
and declared that “ T ime is of the essence , ” notwithst anding two later amen dments
that changed both the ACA deadline and closing da te
. The parties ’ March 2 , 2017 amen dmen t changed the ACA deadline to September 20 and deleted “ but i n no event later than Ma y 30, 2017 ” from the clos i ng deadli ne . The amendment also m odi fied how and when Serene would depos it the $7 50,000 ear nest money , made the e arnest mon ey directly payabl e t o Northstar , and

ma de the earnest money nonre funda ble “ under a ny and all circumstanc es other t han as provided in Secti on 6(

b ) of the Contract , re garding the [ACAs], and Sect io n 12(b), regarding Selle r ’ s d efau lt or breach. ” The parties ’ second amendment pushed the
ACA deadline to November 20 and ad ded that the clo sin g date wou l d oc cur “ in no

eve nt prior to Novemb er 20, 20 1 7 , ” but changed nothing about the earnest

- money provision s.6

The trial cour t assessed c onflicting testimony and fo und that Serene had asked
for both a mendments s o that it cou ld come up with the funds or financin g to close. 5
Snelus said that after the f irst amendment , Serene knew that th e only way it would get
its earnes t money back was if Northsta r did not satisfy one of the Section 6(b ) items

. B
. Unc o n tested Fact Findings
— Background
Serene ha d never b efore acquired a raw tract of land that re quired acc ess to a state highway , a nd it w as inexperienced in develop ing residential subdivisions and in obtaining lo ans to do so from institutional len ders

. Gi l l, on the other hand, was experienced i n both

. Such was Gill ’ s experien ce that several months before the parties entered into t he Northstar contract, Ser ene ’ s

owners had as ked him to co nsider becoming the fee develo p er for other lots that a Serene affilia t e owned

. Northstar , thro ugh Gill, had originated the Section 6(b) language becau se Gill had anticipated what an i nstitutional lender would want to see before making a development loan

. With regard to Sec tion 6(b)(v), TxDOT does not pro mulgat e or use a ny

s pecific form of “ a ccess agreement. ” Rather, if TxDOT ’ s agent agre es to allow

access
— orally or in writing

— T xDOT late r will issue a “ P ermit to Construct Access Driveway Fa cilities , ” following which the access

- construction project can be put out
for bids aft e r all environmental studies, traff ic studies, final sch ematics , a nd final plans

5 The trial c our t found that at no time did Serene acquire sufficient funds or fina ncing to close.7

have b een completed. When a dev eloper buys raw la nd , a develop ment loan usually
finances the cost s of the final plans necessary to obt a in a TxDOT permit

. To obtain

an a ccess a g reeme nt for the tie

- in, Northsta r did not have to acquire a TxDOT p ermit by No vember 20, 2017

. Under Section 6(a) , Serene had a separate 120

- day review pe riod from
October 28, 2016, d uring which it could d etermine the feasibility of the tie

- in ’ s loca tion and satisf

y itself that developing the p roperty was financial ly feasible. Se rene

r eceived the p rope r ty ’ s prelim inary pla t showing the precise access point for the tie

- in
of Nort hst ar Boulevard to SH 287 , 6 as wel l as t he tie

- in ’ s est imated cost

. Because th e

cos ts to build the tie

- in we re reimbursable from the MU D , 7 Serene was no t concerned
wit h that cost , and it a llowed the 12 0

- day review period to expire on February 2 4,
2017 , without term ina ting the contract

. 8
C
. The November 1, 20 17 TxDOT Letter
On No vem b er 1, 2017, Cheng, the TxDOT area engineer , issue d a letter
drafted by S chluter and ad dr essing Northstar ’ s requeste d tie

- in :

6 The final C ity approval necessary for the prel iminary plat occur red on November 14, 2017.

7 The order granting the petiti on to create Nor thstar’ s MUD w as i ssued on January 12, 2017.

8 Attrux and Ramirez agreed that Serene had received a bud get showing $2.4
m illion for the tie

- in connectio n ( Pha se 1 of the SH 287 plans )

.8

T xDOT is in agre eme nt that acce ss to t he Nort hstar Development will be permitted v

i a a tie

- in of No rthstar B oulevard to US 287

. Th e exact location, dimen sio ns and other aspects s ha ll be determined following T xDOT ’ s r e view of t he plans and sp ecificat ions

. [ 9 ] This a greement is provided w

ith the understa nding that preliminar y studies , incl u ding traffic an d environm ental, are still ongoi n g in determining the d esi rable alternative for sc hematic along the US 81/287 co rridor

. There may be adj ustments and ref

inement s durin g this p roc ess . [ 10 ]
T xDOT is s u p portive of the developer pu rsuing the exte nsion of the
ex isting two

- way frontage road from the current terminus at Santa Fe Court to the ent ra nce of the proposed Northstar dev el opment wit h a n ex it ramp fro m northb ound US 81/ 287 to the fro ntage r oad for a c c ess to t he development.
In addition, TxDO T is plannin g t o construct a grade

- separated int e rchan ge at Ram Horn H ill Road , north of your deve lo pment. This work is currently pla nn ed in FY 2 020

. On ce this pro ject is complet ed o r in conjun cti on with this pro p o sed work , the northbound fr ontage road can be extended an d converted to one

- way operation

. D
. Northstar ’ s Nove mber 17, 2017 Let ter and Serene ’ s R esponse On November 17, Ti m Fleet , one of Northstar ’ s principals, sent Attrux a le tter

on whic h Northstar’s and Sere ne’s r espective counsel were copied, stating,
Plea se be advised that all [ACAs] re q uired under Sec tion 6(b) of the Contr a ct have been obtained and the “ACA Da te” thereunder is November 17, 2017

. Seller ha s kept Purchaser advised of Sel ler’s

9 Cheng said that “ plans an d specifications ” referred to Nor thstar’s fi nal con stru ction plans, which she exp ect e d to b e included in Northstar ’ s per mit application.

10 Cheng s aid that the in ten t b ehind th is paragraph ’ s last two sente nce s was to let the developer know T xDOT had not finalized i ts sche matic, s o under th e worst

case s cena rio, grade adjustments could occur

. T raf fic and environmental st udies were stil l ongoing as of Nov e mber 1, 201 7

.9

progress in ob tainin g the [ACAs] , [ 11 ] b ut should you need anything further in that regard, please l et us know.
Pl ease also note that t he “Closing Date” under the Contract shall be on or before December 18, 2017. Serene’s lawyer responde d by ema il the same day, asking F leet to sen d Attrux copies
of the Sect

ion 6(b) documents

. Three days later, Bilar d i email ed t o A ttrux all the ACA documents, c opying Fleet, Gill, and the partie s ’ counsel. Included was the TxDOT
Letter.
E. Serene ’ s No vember 22 , 2017 Letter On November 22, Ser ene ’ s lawyer wrote Northst ar ; the memo line r ead

“ Not ice of Default of Paragra p h 6 b of Co ntract for Sale a nd Purchas e of Unimp r oved Real Pro perty ( ‘ Contract ’ )

. ” I n the lett er, Serene di spu ted that the
Tx DOT access a greement had been obtained

. 12 Sere ne asserted that the TxDOT
Lette r w as “ not an access agr eement ” becau se “ [i] t leav es o p en the question of
locati on , di men sions and ‘ oth er aspect s ’ ” and was “ s ubject to ongoing pre lim inar y studie s, including tr a ffic and env ironme ntal (both of which can stop a deal)

. ” Ser ene

wa r ned t hat if North star fa iled to cure the defaults within 15 d ays
— b y December 7 , 20 17

— i t wo uld elect to terminate th e contract and seek the return of i ts e arnest

mone y.

11 Attrux said th at Northstar had kept Serene appr ised of its ACA progress th rough Peloton Land Solu tions , the engineering fir m that Northstar h ad hired.

12 S erene disputed in the same letter that the B NSF consent had been obtai ned

.10

F
. Northsta r ’ s December 6, 2017 Letter an d A ttac hments On December 6, Northstar ’ s cou n sel responde d , raising an ticipatory breach and rep udiation involvi n g som e comments Serene ’ s agents had made earlier

. To th is
lette r, No rthst ar ’ s counsel atta ched a December 5 lette r fr om BNSF an d a De cem ber
4 l etter from Schluter t o Gill (t h e Sc hlute r Lett er) about the T xDOT a ccess
agreemen t , in addition to ano ther copy o f the TxD OT Le tter
. The Schlute r Lette r stated that Schluter ’ s engineering firm had b ee n “ working diligentl y w

ith t he TxDOT to set t he align ment and ramp locati on s for the permit plans ” and anticipat ed a permit “ around th e middle o f February 2018 ” ; tha t t he
TxDOT Letter confirmed the agreement to allow the ti e

- in “ by wa y of the frontage
road ex tens i on and northbound exit r amp ” ; and th at “ [t]here is n o issue as t o whether
the tie

- in will be allowed, but some of the detai ls concerning the grades an d desig n
p arameters are stil l being discussed with TxD OT. ”
The Schl uter Letter re f

er enced a J a nuary 20 16 mee ting wi th TxDOT Distric t Engi neer B ri an Ba rth t o discuss co nfirm ation of the access, and a February 2017 meeting with Cheng and John Cordary , an other TxDOT e ngineer, to disc uss de tail s that included providing the access r equested with the fr o nt age road an d exit ramp.
C oncerning Northstar ’ s ability to rely on the TxDOT Lett er, the Schluter Lette r stated, [W] e are confident that the confir mation we have been pr o v ided thu s far is as good or better t h an we have seen TxDOT com mit to. T he letter r efer enced is rarely pr ovid ed by T xDOT, however, in this ca se, it has11

been give n. I worked at Tx DOT in the Fort Worth Distri ct for 28 years. Duri ng th at period, I served as A rea En gi neer for both Wise and Tar r an t Counties , D irector of T ransport ati o n Ope ra tions, and on the Ac ce ss P e rmi t R eview Committee. Y ou wil l never see a more f irm[]
co mmitment from TxDOT th an yo u will see in the attached letter.
Sch luter ’ s accompanying cr e dentials show e d that he had started wo rkin g for TxDOT in 1978, b ecame a licensed professional enginee r in 1 983, and had retired from
TxDOT in 2006 as the D irector of T ransportati on for the nine counties in the Fort
Worth D istrict, which included Wise a nd T arrant Counti es . 13 At trial, Attr ux sa id that Serene had previously determi ned that the Tx DOT
Le tter failed to satisfy Section 6(b)

. Attrux al so said that he had read the S chluter
Lett er and did not be l

ieve Sc hluter ’ s assertion that the TxDOT Let ter was a n access
agr eem ent , notw

ith standing Schluter ’ s exper ienc e o r the fact t hat S chl uter ha d hired

a nd trained Che ng d uring his time a t TxDOT

. G
. Se rene ’ s December 7, 2017 Letter and Nor th star ’ s Response
Serene to ld N orthstar to r eturn the ear nes t money within ten days o r be sued
fo r its return

. Northstar replied twelve days later , disputi ng Serene’s contract

13 Schluter ’ s curriculum vita e reflected that as TxDOT A rea E ngineer, he had

“ [w]orked clos ely and col laboratively with City, County, State [,] and Fede ral elected offici al s to develop mutually a ben e ficia l tra nsp ortation system ” w hile managing a div erse 100

- person work force that “ was r espon sible for design, construction, maintenance[ ,] and opera tions in North Tarrant County , including the City of Fort Wo rth

. ” He lis ted th e $233 million interchange of I nt erstate 30 and S t ate Highway 3 6 0, the $100 mi llion Northeast Mall intercha nge, and the $30 million reconstruction of S tate Highway 114 through Southlake as notable pro jects during his TxDOT career .12

interpretat

io n and fact ual recitation and stating that Northstar would not return the

e arnest money
. When Serene did not close, Norths tar pu t the p roperty back on the

mar ket

. H
. Ad ditional Uncon tested Fact Fi ndin gs In satisf action of Secti on 6(b) , Northsta r had kept Serene apprised of its progress in obtaining the TxDOT access agreement , and the November 17 , 2017

e mail from Serene ’ s attorney to Fleet was S e rene ’ s only Sec tion 6(b) w ritten reque st for in formation

. The trial court found that b ecause of Ser ene ’ s inexperience , it had relie d on
Ramirez to determi ne whether Northstar had obtained the access agreement
. But
Ramir ez had never obtained a TxD OT permi t or access agreeme nt to connect a residential development to a state highway , and th e trial co urt found th at Ramirez

“ did not know what an access agr eement was at any time prior to or d uring trial. ”
Fur ther, Ram irez di d not know the difference betwe en a p e rmit and an access
agreement , did n ot know whet her S ection 6(b)( v ) required something other than a permit, had never asked anyone at Northstar what a n access agreement was , and had

n ever contacted Schluter

. The trial cou rt found th at Serene ’ s claim that t h e TxDOT
Lett er did not constitute an access agreement was a pretext for Serene ’ s inabili t y to close so that Serene could re claim its earnest money.13

I
. The TxDOT Permit On January 17, 2019, Schluter put his professio nal en gineer’s sta mp on the final pla n s for th e tie

- in , and TxD OT issued the permit the n e xt day. The permit s ta ted
that “ [a]ny changes to the work s hown on the plans will need to be reviewed and approved by TxDOT ” ; that “ [t]he State reserves the righ t to require any changes,
mainten ance or re p airs as may be necessary to provi de pr otectio n of life or property

on or adja cent to the highway prior to fina l accepta nce ” ; and that “ [t]he State reserves
the r ight to requir e a ne w access driv eway permit in the event of a mate rial change in
la nd use or c hange in driveway traffic volume or ve hicle types. ”
I II. Di scus sion
Serene challen ges the eviden tiary sufficiency to support the trial court ’ s f inding
that Nort hstar ha d entered into an access agre ement wit h TxD OT

. A. St an dards of Re view
A trial c o urt’ s fact findings h ave t h e same for ce and dig nit y as a ju ry’s a nswers

to jury questions. See A nder s on v . Ci ty of Seven Points , 806 S.W.2d 79 1, 79 4 (Tex. 1991).
As with jury findings, a tria l court’ s fact f i ndi ngs on disputed issues are not conclusiv e, and wh e n the app ell ate re c ord contains a repor ter ’s re cord , an app ellant m ay challenge those findings for evi dentiary sufficiency. Catalina v . Bla sdel , 881 S.W.2d 2 95, 297 (Te x. 1994); Super Ventures, Inc. v . C h audhry , 501 S.W.3d 121, 126 (Tex. App.

— F ort Wo rth
2 0 16, no p et. ). W e review the suf ficien cy of th e ev

idence sup porti n g challenged14

findings using th e sam e standards that we apply to jury find ings. Catalina , 881 S.W.2d

a t 297.
W e ma y sustain a lega l

- suffici ency challenge

— that i s, a no

- eviden ce challe n ge
— only when (1) the re c o rd bear s no ev idence o f a v

ital fact, (2) the rule s of
law or of evidence bar the court fro m giv ing weight to the only eviden ce offered to
p rove a v ital fac t , (3 ) the evidence o ffered to prove a vital fact i s no more than a mere

s c intilla , or (4) the evi d e nce est ablishe s conclu s ivel y the opposite of a vit al f act. Shields
v. Ltd. P’s hip v. Bradb erry , 526 S.W.3d 471, 480 (Tex. 20 17); see also Fo rd Motor Co. v.
Cast illo , 444 S.W.3d 616, 620 (Tex. 2014) (o p. on reh’g); Uniroy al Goodri ch Tire C o . v. Martin ez , 9 77 S.W. 2d 328, 334 (Te x . 19 98) (op. on reh’ g). In det ermi ning whether legally s ufficient e viden ce supports a finding , we must consider evide n ce f avorable to the finding if a reas onable factfi nder could and mu st dis reg ard contrary evide nce

u nless a reasona b le fac t find er could not. Cent. Re ady Mix Co ncrete Co. v. Islas , 228 S.W.3d 649, 651 (Tex. 2007); City of Kel ler v. Wilson , 168 S.W.3d 802, 8 0 7, 827 (Tex. 2005). We indulge “every reas onable i nference ded uci ble fr om th e evidence” in

s upp o r t of th e challeng e d fi n ding

. Gunn v. McCoy , 554 S .W.3 d 64 5, 6 58 (Tex. 2018).
When reviewin g a fin ding for factual sufficiency , we set it aside only if, a ft er

c onsideri ng and we ighing all the perti n ent r ecord e vidence, we det e rmin e that the
credible evi denc e su pporting the finding is so weak, or so contrary to the

ov erwhelming weight of all the evidenc e , tha t th e finding should be set aside and a

new trial or dere d. Pool v. Ford Motor C o. , 715 S.W.2d 62 9 , 635 (T ex. 1986) (op

. o n15

re h’g); Cain v. Bain , 709 S.W .2 d 175, 176 (Tex. 1986) ; Garza v. Al viar , 395 S.W.2d 821,
823 (Tex. 19 65). The factfinder is the s ole judge of the witnesses’ credibility and the weight to be given to their testimon y. Golden Eag le Archery, Inc. v. Jacks on , 116 S.W.3d 757, 761 (Tex. 2003).
B
. TxDOT Acces s Agreement
Serene ackn owledges that “ acce ss agreemen t ” is not defined in the par ties ’

contract and does not “ appear i n the statutes or regu lations governing T xDOT or on TxDOT ’ s website , ” and it admits

— as it did at trial

— t h at the parties ’ co n tract did no t

r equire a Tx DOT permit. 14 Our first task, th en, before even reaching evidentiary
suffi cien cy , is to determ ine what the pa rties ’ cont ract meant by “ a ccess agreement
. ”
1. Contract Interpretation Our primary objectiv e in construing a contract i s to give e ffect to the written
express ion of the p a rties ’ intent , and we interpret a contract ’ s language accordin g to its plain, ordin ary, and general ly ac cepted meaning unless th e instrument dir ects otherwise

. Pathfinder Oil & Gas, Inc. v. Great W. Drill i ng, Ltd. , 574 S .W.3d 882, 88 8 (Tex. 2019). We m u st consi der the entire writing in an effort to harmonize and g ive
effect to all its provis ions so t hat none will b e rendered meaningless. Id. at 889 ;

14 Seren e al so asserts tha t it ne eded the TxDOT acc ess agreement s o that it could assess the p ro perty ’ s economic feasi bility , but it does not conte st t he trial court’s finding that it used the 120

- day review period to satisfy itself th at developin g the p roperty

— an d the tie

- in

— was f in ancially feasible. Attr ux agree d durin g cros s

examination that Serene was n ot claiming that the lack o f cost information mad e the TxDOT Letter insufficient to meet Section 6(b)( v).16

Arlington Surgicare Partne rs, Ltd. v. CFLS Inv s . , LLC , No

. 02

- 15

- 00090

- CV, 2015 WL
57 66928, at *2 (Tex. Ap p.

— Fort Worth Oct. 1, 20 15, no pet.) (mem. op.) ( “ A

contract cannot be int erpreted in a way that renders any words or phrases meaningless or in a way that leads to an a bsurd result. ” ). F u rther, we may not r e ly on evidence of surrounding circumsta nces to ma ke t he contract ’ s language say w hat it unambigu ously does not say o r to cr eate an ambiguity. Pathfinder Oil & Gas, Inc. , 574 S.W.3d at 889

. But w e may consider ob jecti vely determinable facts and c ircumstan ce s th at contextualize the parties ’ tran saction and inform the meaning of the languag e used as long as we do not use surroun ding cir cum stances to alter or contra dict an unambiguou s contract ’ s terms. Murphy Expl. & Prod . Co.

- USA v. Adams , 560 S.W.3d
105 , 10 9 (Tex . 2018) ; see URI, Inc. v. K leberg Cty. , 543 S .W.3d 755, 75 7

– 58 (Tex. 2018 ) ( “ Co ntract language is thus construe d in it s lexical environment , which m ay include objectively determinable facts and circumstances that context ua lize the parties ’

transa ctio n. ” ). Evidence of surrounding facts and circum stanc es may include evidence
of industr y custom and usage where appropr iate

. B arrow
- Shaver Res. Co. v. Carri zo Oil & Gas, Inc. , 590 S.W.3d 471, 485 (Tex. 2019 ) ( “ When consi deration o f evidence as to industry cu st om a nd usage is appropriate, it is a q u estion o f fact for the [factfinder ],
and it is the province of the [factfi nd er] to weigh witness credi bility. ” ).17

2. T he Cont ract ’ s Languag e Section 6(b) ’ s ACA list encompassed three agreements , two approvals, and a

w ritt en consent . In our quest to discern what “ acce ss agreement ” mean t , we will first
consider the contract ’ s use s o f the word “ agreement
. ”

a. “ Ag reemen t ”
As Northstar point s out , while a contract is always an agreement, an agre ement is not always a cont ra ct. That is, alt hough t he terms are sometimes used interchangeably, they are not syn onymous . Ferachi v. Cady , No. 2

- 07

- 355

- CV, 2009 WL 1506899, at *1 n .2 (Tex. App.

— Fort Worth May 28, 2009, pet. denied) (mem. o p.).

“ Agreement , ” as Se ren e ackno wledge s , refe rs to a manifestation of mutual assent by

two or more persons while “ c ontract ” refers to a legally enforc ea ble pr omise. Id. (citin g Restatement ( Second ) of Contr acts §§ 1, 3 (1981)) ; see R achal v. Reitz

, 403 S.W.3 d 840, 845 (Te x . 2013) ( n oting that Black ’ s Law Dictionary defines

“ agreement ” as “ a manifestation of mutual asse n t by two or more persons ” )

. P arties

t o a contract are presumed to know the law and are li kewise pre sumed to intend tha t their contract will hav e legal effec t
. Phila

. I ndem

. Ins. v . Whit

e , 490 S.W.3d 468, 4 83 (Tex. 2016 ).
U nder Section 6 (b), in addition to the TxDOT “ access agreement, ” Nor thstar

was required to “ [e] nter into a Development and Utilit y Agreemen t(s) with the City of
Fort Wor th ” and to “ [e]nte r into surface use agreement [s ] w ith th e various en ergy companies. ”18

A “ Development and Utili ty Agree ment ” between a mu nicipality and the
owner of land located in the municipality ’ s extra territorial jurisdictio n i s specifically

aut horized by Local G overnment Code Sectio n 212.172 , whic h re quires the
ag reement to be in writing. S e e Tex. Loc

. Gov ’ t C ode Ann. § 212.17 2(b) , (c)

. 15 The
agre ement “ is binding on the municipality and the landowner a nd on their respective
successors and ass ign s f

or the term of the agreement ” but no t on a ny end bu yer of a fully de veloped and improved lot within the develop ment ( subjec t to other applicable
land

- us e and development regulations )

. I d. § 212.17 2 (f). The Dev elopment and Ut ility Agr eement “ constitu tes a permit under Ch ap ter 245. ” 16 Id. § 212

. 17 2 (g).

15 City Secreta r y Con tract No. 49783 , t he “ D evelopment A greement Betwee n t he City of Fort Wo rth, Texas and Northst ar Ranch, LLC f or the Far North Fort Worth Municipal Utility District No. 1 of Tarrant and Wise Counties , ” stated that Northstar, the MUD, and the City had en tered into a utility and in frastructur e agreement setti ng out the ter ms unde r which Northstar and the MUD would b uil d roads and water, wastewater, and drainage infras tructure to serv e the Pro perty and the City would provide ret ail water and waste water serv i ce to the Property

. City Secretar y Cont ra ct No. 49784, “U tility and Inf rast ructure Agreement , ” wa s the util ity a nd infrastr ucture agreement referred to in the development ag reement. See Tex. Loc

. Gov ’t Code Ann. § 212.172.

16 Local Governme nt Code Ch apter 2 45 governs the issua nce of local permit s within the conte xt of land

- use regula tion s. See generall y Tex. Loc . Gov ’ t Code Ann. §§ 211.001

– 25 0 .009

. Section 24 5. 001 defines a “ permit ” under Chapte r 2 45 as “ a license, certifi cate , approval , regis tration , consent , permit , contract , or other agreement ” for construction related to “ a w ater or wastewa ter utili ty o wn ed, operated, or controlled by a re g

ulatory agency, or other form of aut horization requir ed by law , rule, regulation, order, or ordinance that a person must obtain to perfor m an action or init ia te, continue, or complete a project f or which the permit is so ught. ” Id

. § 245.001 (1)

.19

Sect io n 6( b) (iii) thus required a statut orily compliant written contra ct between the City
of Fort Worth and Northstar

. See Phila

. Indem

. Ins. , 490 S.W.3d at 4 83

. With regard to the only surface

- use agreem e nt required under Sec tion 6 (b)(iv),
Norths t ar and Devon E nerg y Productio n Co mpany executed their agreement on November 16, 2017. In it , the energy company (a pri vate entity) and Northstar agreed to specifi c t erms , including the grant ing of a su bsurface eas em ent, whic h required a written agreement f

or enforceab ility

. See Tex. Bus. & Com. Code Ann. § 26.01 ; Tex. Prop. Code Ann. § 5.021; Pi ck v. Bartel

, 659 S.W.2d 636, 637 (Tex. 1983) ( “ An

e asement is an interest in land which is subject t o the Statute of Frauds. ” ) ; Phila

. Indem

. I ns. , 490 S.W.3d at 4 8 3

. But the final “ agre ement ” in Se c tion 6(b)

— the one at issue in t his case

— was with a state agen cy, TxDOT. T o determi ne whether “ agre ement ” in this context required more than the manifestation of mutual a ssent, we must consider this
agreem ent wi th in the c ontext of the word “ access. ”

b. “ Access ” Through TxDOT , the State has the a uthority to create and m aintain public
roads and to regulate traffic on the m under its police power

. See B razoria Cty. v. Basin
Credit Consultants, Inc

. , No. 07

- 01

- 0030 4

- CV, 2002 W L 3 108 4700, at *1 (Tex. App.

— Amarillo Sept. 18, 2002, no pe t.) ( not designated for publication )

. As explained by

va rious witnesses and i n various docume nts during the trial, TxDOT controls acc e ss to highways , and i f property is lan dlocked, TxDOT is legally obligated to allo w acces s20

for ingress and egress. But TxDOT will not allow a private

- property owner to connect

to a regionally sig nificant highway w ithout its per mission

. To understand ho w TxDOT grants su ch permission, w e must consult the regulations g o ve rn ing TxDOT ’ s

exer cise of its police power

. Although t he Texas Ad ministrative Code does not d efine “ ac cess agreement , ”
withi n the context o f “ a ccess management ” it sp ecifically address es t he process
involv ed in obtaining a proposed ti e

- in 17 to a sta te high w ay . See 43 Tex. Ad min . Co de § 1 1.50

. “ A ccess management ” i s “ an en gineering and pla nning method of bala ncin g the needs of mobility and safety on a highway system with the needs of access to adj acent land u ses ” to promote a c oordi nated intergovernmental lon g

- term approa ch

to land

- u se and tran sportation decisions within t he context of pub lic safety, quality of
l ife, and eco n o mic development. Id

. § 1 1.50 (a).

17 The Texas A d ministrative Code does not define “ tie

- in ” either, but it does define “ access connection ” : a “ [f]aci lity for entry and/or e xit such as a driveway, street, r oad, or highway that connects to a hi g hway on the state highway system. ” See 43 Tex. Admin . Code § 11.51 (1)

. The Code also defines “ [p]latted access po int , ” stating that it is an “ access connection id entified in a plat or replat of a s ubdivision of real pr opert

y p roperly recorded in the count y clerk ’ s office in a ccor dance with Pro perty Code , § 12.002

. ” Id. § 11.51(1 9). Under Property Code S ection 12.002, a plat may not be recorded unless it ha s been ap proved “ as provided by law by the
a pp r opriate authorit y . ” Tex. Prop . Cod e Ann. § 12.002(a), ( b). T o be recorded, a mong other things a plat must describe the subdiv ision by metes and bounds and state its dime nsions , as well as the dimensions of each street, alley, square, park, or other part of the t ract inten de d to be dedicate d for pu blic use. Tex . Loc . Gov ’ t Code A n n. § 212.004(b)(1), (3). Because S ection 6( b)(i) referred to t he “ ap proval ”

— but not the recording

— o f Northstar ’ s preliminary plat, we conclude that “ tie

- in ” as u sed in Section 6( b)( v ) did not requi re a metes

- and

- bou nds or other specific d escription

.21

W ith that purpose in mind, Subc hapter C , “ Acce ss Co nnecti ons to State Highw ays, ” is applied “ to all ne w access conne ctio ns cons tructed on h ighways on the state highway system , ” i

d. § 1 1.50 (b) , including to t he i ssuance of a permit prov iding

“ for a definite understanding as to the locati on and manner in whi ch the a ccess

connect ion wi l l be constructed and m a intaine d ” before a n acce s s connection m ay be
built

. Id. § 11.52(a)( 1 ), (2 )

. Such a pe rmit is not a contra ct , though ; rather, it is a gran t of authority from a governmental entity , regulating co nduct throug h its police power , to do t hat which wo uld o ther wis e be un lawful

. Bra zoria C ty. , 2002 WL 3108 4700, at
*1

– 2 (noting that police powers cannot be boun d by contract)

. That is, as several
witn esses explai ned a t trial, although a de veloper cannot build onto a s tate hig hway
without TxDOT ’ s permis sion , TxD OT does not enter into co ntra cts with private developers to do so

. TxDOT’s Acc ess Management M anual (AAM), which sets out design criteria
and which was admitted into eviden ce , is used by deve lopers tha t w ant to build access to the state highway system and by TxD OT’s engineers to evaluat e such requests
. 18
Factors that TxDOT consi ders in determining an access connection ’ s precis e location
incl ude design sp e ed , traffic volume, truck

- traffic vo lume , sight distance, and interval spacing between existi ng access points

. Ac cording to the A AM, the number, location,

18 The A AM states, “Proper access management assists in protecting the substantial public investment in transportation by prese rving roadway efficiency and enh anc ing traffic safety, thus reduc ing the need fo r expensive impr ovements. Furthermor e, access management can significantly reduce traffic accidents, personal injury, and property damage.”22

spacing, de sign, and construction of access connections “ have a direct and often signific an t ef

fect on the safety and operation of [ a] highway. ” Thus, TxDOT ’ s standards “ are necessary to enable the highway to con tinue to function effecti vely and safely in t he fu ture, while at the same time providing reasonable ac cess to development. ”
The final expre ssion of access management is the i ssuance of a written permit
to allow construction. See 43 Tex . Admin. Code § 1 1.52 (a)

– (b). Here, b o t h par ties
agree d tha t Section 6(b)(v) did not require the issuance of a permit. Accordingly,

“ a cce ss agreeme nt , ” as used in Se ction 6(b)(v), m ean s something less tha n or preli minary to the issuance of a T xDOT permit ; otherwise, the co ntra ct would have

stat ed “ p ermit ” i ns tead of “ access agreement , ” and “ agreement ” in this cont ext is thus
different fr om the other two usages of “ agr eement ” in Sec ti on 6(b) , both of which
requ ired a writing b y law

.

c. Section 6( b) ’ s Other Provisions
— “ C onsent ” a nd “ Ap proval ”
T he fina l subsection of S ect ion 6( b) , requir ing “ [r

]e c eipt of written cons ent ”
from BNSF so that Northstar B ou l evard could cross th e railroad a t grad e , supports the trial court ’ s interpretation that the TxDOT “ access agreement ” did not have to be in writing

. That is, b as ed on the contract ’ s language , the parties must have intended
the TxDOT “ access agr e ement ” to mean something other than a “ wri tten consent ” or

t hey would have put “ written consent ” in b oth places.23

S ection 6(b) also requir ed t wo “ approvals ”

— one by t he City of Fort Worth

w ith regard to the prel iminary plat and one by TCEQ to e stablish the MUD

. Because
TxDOT ’ s approv al of Northsta r ’ s tie

- in plans would have resulted in the issuance of a permit, which the contract did not re qu ire, the “ access agree ment ” was al so n ot an

“ approval ” as that word was used elsewhere in S ection 6(b )

. C f. Barrow

- Sh aver Res. Co. , 590 S.W.3d at 480 (defining “ consent ” as “ approval ” based on its “ plain, ordinary, and generally accepted meaning ” ).
3. Surround ing Circumstances
Based on th e above, b ecause the T xDOT “ access agree ment ” was substantially
differ en t from the o ther items in Section 6(b), w e must next consider the ob jectively
determinable facts and circumst ances s urrounding the parties ’ transa ction to identify
what the y mean t by req uir ing North star to “ enter[ ] into ” an access agreemen t. See Murphy E x

pl

. , 560 S.W.3d at 109

. The access here was not for “ a simple driveway permit.” Rather, it i nclude d building an off ramp a nd extending a two

- way frontage road in a corridor th a t TxDOT had long be en p lanning f rom I

- 35 to SH 114

. 19 How long it takes from

o btaining TxDOT’s initial agreemen t to all ow access to finally re ceivin g a permit for

19 Because freeway main la nes involve the “highest level o f m obility” in terms of spee d, they provide no d irect acc ess to property; i nstead, ac cess is provided onl y at inter changes and ramps. Ch eng said that there w ould be “quite a bit” of detail for the connection sought by Northstar and that i ts permit

- ap plic ation packet might b e 100 t o 200 pages, con taining construc tion drawings, sch ematics, engineering plan s, and studies.24

construct ion is related to the project’s complexity , 20 and Cheng sai d th a t the No rthstar
pr oject was an “8” on a complexity scale of 1 to 10, 10 being the most complex.
The AA M reco mmends that developers meet wit h TxDO T staff and any governing municipality “[a]s early as possible in the developm e nt process” to disc uss the spec ific requirements assoc iated with obtaining access to the state highway system
and to define the requirements for any needed engineering stu dy or traffic

- impact analysis. Accor dingly, in early 2015 and with the goal of obtaining a TxDOT permit , Gill h ired Schluter to be No r thsta r’s project manager and point of contact with
TxDOT

. Schlut er began dis cussions wit h TxDO T about the tie

- in access in February 201 5. By Oct ober 201 5, Schluter an d Tx DOT enginee r Cordary were discussing
environmental schematics for U S 81/287 , and TxDO T ’s c onsultant s were examining
addi ng one

- way frontage roads on ea ch sid e of the corridor a nd pr eparing prel iminary
schematics a nd traff

ic forecasts. 21 At that po int, TxDOT estimated that the preliminary engineering stu dy would take until around October 201 7.

20 Depending on the type of traffic that a development might generate, in deciding to issue a permit TxD OT might req uire a traffi c
- engineering study, an d it
w ould consider the layout of the highway system and propose d access, as well as t he impact on drain age onto the state highway system o r the right

- of

- way, as well as utilities (proposed or in place), and environmenta l issues.

21 Schluter had ori ginall

y sought to in clude Northstar’s proposed section i n TxD OT’s overal l co rrido r

- improvement plan , which cover ed a 15

- mile span from I

35 to S H 114 , instead of pulling out “ a one mile section. ”25

A round the time Bilardi was in troducing Attrux to Gill as someone who could help Serene d evelop the raw land it had been buying , Northstar was alread y present ing concept drawings to TxDOT with the ac cess connection ’ s proposed loc ation

. I n July 2016, Tx DOT m o ved forward with a tr affic study on the project

. S chlut er contin ued to work between TxDOT and Peloton , Northstar ’ s engineering firm , and in Septe mber 2016

— a month before North star an d Ser ene signed the ir contract

— TxDOT ’ s C ordary se nt a letter to For t Wor th ’ s Transportati o n and P ublic Works Department to inform th e City that TxDOT officials had met with Northstar represen tatives “ to e valuate access from the proposed development to the
US 81 /2 87 co rridor. ” Cordary ’ s letter stated that the discussion ha d cov ered

ex tending the existin g two

- way frontage road from its ending point at Santa Fe Court
to the p roperty ’ s entrance and building an exi t ramp to the proposed front age road ( wh ich beca me P hase 1 of the p roject ) , and converting the ex isting tw o

- way fro ntage road to a one

- way configu ration and extending the frontage road from Santa Fe Court to the propo sed Ramhorn Hill interc hange ( which beca m e known as P hase 2)

. A 42

- pag e traffic

- impact analysis was completed Oct obe r 5 , 2016, and t he fi rst prel iminary pla t was prepared Oc tober 7, 2016, at which time TxDOT had begun

re viewing the access connection ’ s placement. Some three weeks later, t he parties signed the ir contract on October 28, 2016.26

B y that time , Nor th star was already well underwa y to achieving mut ual a ssent wit h TxDOT fo r a tie

- in of Northstar Boulevar d to S H 287

. 22 S ee Ferachi , 2009 W L 1506899, at *1 n . 2

. Based on the surrounding cir cumstances , as well as the above

d iscussed c ontract ual language and the poli cy purposes underlying th at language, we

const rue Section 6(b)(v) ’ s “ enter into ” requirement to mean no thing more than some manife station of Northstar ’ s and TxDOT ’ s mutual assent to the ti e

- in connection

. And as we discuss later, the record amply m anifests that mutual assent.
4. Serene ’ s Argument s Ser ene argues th at Section 6 (b)(v) requi red Northst ar to “ enter into a written

acc ess agre em ent in w hich North star and Tx DOT agreed to the precise location of the entry and e xi t point where TxDOT would all ow the fin al connection of N ort hstar
Boulevard to SH 28 7. ” But Serene ’ s interpreta tion adds w ords to the contrac t ’ s pla i n

22 In con tras t, Northsta r began talking wi th BNSF in November 201 6, and BNSF ’ s Jan uar

y 6, 2017 letter stated that B NS F would “ support the project , ” which included the perm an ent elimination and closure of two adjacent crossings identified by location and D epartme nt of T ranspo rtation id entification num ber. Whe n Se rene later to ld Northstar that th is letter was insu fficien t to s atisfy Secti on 6(b) (vi) and gave Northstar until Dec ember 7 to cure it , Northstar obtained a nother letter from BNSF

. In th at D ecember 2017 letter , BN SF s tated that i t “ ha [d] approved the cre ation of a n at

- grade crossing for th e proposed Northstar Par kway subject only to the satisf action of the fol lowing con ditions, each of which is customarily required for new at

- grade crossings

. ” The letter set o ut a s conditio ns the same eliminatio n of the adja cent crossi ngs, in addition to “ BNSF ’ s approval o f final design whi ch meets [its ] standard criteria , ” the purchase from BNSF of a permanent street easement and a temporary construction lic ense , and reimbursement to BNSF “ of actu al cost of all railroad wo rk necessary ” for the installation. Attr ux and Ram i rez both agreed at trial t hat BNSF ’ s supplemental letter met Secti on 6(b )( vi) ’ s “ wr itten consent ” requirement

. See Barrow

Shaver Res. Co. , 590 S. W.3d at 480 ( eq uating consent with appr oval).27

lan g uage , w hich says nothing about whether the agreement may be oral or must be

wr it ten

— and Serene conc eded at trial that the Sect ion 6(b)( v ) agreement “ didn ’ t have

t o b e in writing. ”
Sere ne also contends t hat what TxDOT gav e Northst ar amounte d to an oral
license that failed to satisfy the st atute of frauds and that we should consider f actors

se t out by the supreme c ourt in determini ng whether the TxDOT Letter constit u ted
the final exp re ssi o n of an access agreemen t between Northstar and TxDOT

. But this would require us to ignore how t he Texas Administrative C ode treats access

ma nagement , the final expression of whi ch is the iss uance of a permit allow ing
construction. S ee 43 Tex. Admin. Cod e § 11 .52(a)

– (b)

. Although not defin ing “ access
agre ement , ” the Code does specifically add ress the process invol ved in ob taining a proposed ti e

- in to a state high wa y within the context of “ access management
. ” See id. § 1 1.50

. And TxDOT was not granting Nor thst ar a statute

- of

- frauds

- covered interest in real property

. Cf. Tex. Bus. & Co m. Code An n. § 26.01 (a), (b)(4)

– (5).
To the contrary, No rthstar ’ s ultimate goal upon secu ring T xDOT ’ s agreem ent

was to get a construction permit, which is not a real

- proper ty conve y ance

–– Sect ion
11.52 specif

ically provides t hat “ [n

]o te rm o r condition of a permit will be construed

to gran t, conv ey, or extinguish an interes t in real property hel d by either the state or a permitte e. ” 43 Tex. Admin. Code § 11. 52(a)(3) ; cf. Tex. Pr o p. Code Ann

. § 5.021 (stating that a conveyance of a n e state in land for more than one year must be in writing); Tex. Tr ansp. Code Ann. § 20 2.021(a) (noting t hat Texas Tr ansportation28

Commission can recommend s ale or transfer of real p roperty determine d “ n o longer
neede d for a state highway purpose ” )

. Furth er, although Serene notes that the statute of frauds requires a writing for

“ an agreement wh ich is not to be p erformed within one year of making the
agreement, ” Tex. Bus. & Com. Code Ann. § 26.01(b)(6 ), it does so in the cont ext of arguing that a TxDOT agreement is like a perpetual license. But Serene cites no authority suggesti ng that we must or should con sider state

- agency action in that light. Moreover, n o on e disput ed that working with T xDOT could tak e a long time , in part
due to the evolving nature of the public ’ s transportation needs, as well as TxDOT ’ s budgetary constra ints

—

indeed, P hase 2 , the Ramhor n Hill interchange, had been on
Tx DOT ’ s books for the last 30 or 40 years

. The ultimatel y issued per mit cont ain ed
TxDOT ’ s reservation of rights to req uire fu ture changes “ to provide pro tection o f life
or property on or adjacent to the high way ” and to require a n ew permit if a “ material change ” oc curred in land use or traffic vo lume o r vehicle types. B eca use o f the very nature of TxDOT ’ s work , then, we conclude that the “ ac cess agreem ent ” here was simply not th e type of agreement to which the statute of frauds applies.
Fin ally, Serene argues that t he c ontractual “ access agr eement ” was to be
unconditiona l (

notwit hstanding the lack of any language in Section 6(b)( v) to make it so) and th at the trial court thereby erred by concluding that it coul d have been a n oral
agreement th at was subject to finalizing such underly i ng details as th e acc ess point ’ s precis e l ocation

. Adopting Serene ’ s interpretation would requ ire us to ignore that t he29

TxDOT permit itself was conditiona l with regard to TxDOT ’ s “ review[ ] and approv[al] ” a nd was subject to amendment for any materia l changes affect ing public safety , something und ou btedly true of all such TxDOT permits.
Becau se the ultimate permit is conditional , the trial court d id not err by concluding that the pre

- permit access agr eement must of necessity a lso have been

con ditio nal. And althou gh Serene argue s that the access ag r eement had to specifically identify the tie

- in ’ s access point to be valid , nothing in Section 6( b) (v ) requires this specificit y because neither the access a greement nor the permit co ns tituted a

c onveyance . C

f. Savering v. City of Ma nsf

ield , 505 S.W.3d 3 3, 47 (Tex. App.

— Fort Wort h 2016, pet. deni ed) (op. on en banc reconsideration) ( “ An instrument that conveys land

must con tain a su fficient legal description, or it is void under the statute of frauds. ” ).
5. Conclusio n W o rds must be const rued with in the ir context s bec ause “ a single word can
carry sub tle

— and signif

icant

— differences in meaning when applied to different
situati ons. ” URI, Inc. , 543 S.W.3d at 764

. I n Section 6(b), “ agreement ” wa s used three
differ ent ways
. Given the facts and c ircumstances surro unding the contract ’ s

ex ecution, as a mat ter of law Section 6(b)(v) required nothing more than an oral
agre ement by TxDOT , as a state agency, t o allow Northstar to tie in the p roperty to SH 2 87 based on t he continu ing work on the project among Nort hstar, T xDOT , and the City of Fort Wo rth , an d subject to conditions imposed by TxDOT so that it could30

exercis e its police powe r regarding public safety

. Cf. Tex. Bus. & Com. Code Ann. § 26.01 (a), (b ) ( 6).
We now turn to whether the evidence suffi ced to sup por t the trial court ’ s finding that N ort hsta r had in fact entered i nto an access agreement with TxDOT
allowi n g the tie

- in of Northstar Boulevard to SH 287.
C. Sufficiency
I n addition to the unc hall enged fact fin dings t hat support the tr ial court ’ s conclu sion that Northstar used goo d

- faith a nd comme rci ally reasonable effo r ts to enter into an ac cess agreement w ith T xDOT , the record re flects the following
ch ronology of TxDOT ’ s asse nt to the tie

- in be tween October 2016, when the parties
entered into the contract, and the November 201 7 TxDOT L e tter, w hic h North star put forth a s a written manifesta tion of TxDOT ’ s ag reement to th e access ti e

- in

. 1. Chro nology
As noted , for a year before the parties signed th e contract , Schluter had been
work ing closely w

ith TxDOT to figu r e out how the proposed ti e

- in wou ld fit with
TxDO T ’ s existi ng plans , traffic forecasts , and traffic

- i mpact analyse s for the 15

- mil e corridor so that, among other things, the tie

- in ( Phase 1) could be included in the preliminary plat that req uired City app r oval

.31

By February 2017, Peloton eng ineers had told Ram irez that Northstar had “ a commitment from TxDOT to be a ble to provide the access as requested ” 23 and that “it’s just the lo g

istic s of how it wil l happen. Curren tly, TxDOT is looking a t lumping
i n some of the E nvironmental S t udy work in t heir overall plan for the region to speed things up. ” A few days later, another Peloton employe e sent Ramirez a c op y of Cordary ’ s Septe mber 22, 2016 l etter to the City that h ad been provided with the
pr eliminary pl at app lication. 24 A week after Peloton t old Ramirez about TxDOT ’ s

ac cess commitment, Schluter and Gill met with Cheng and Cordary to discuss the
construction timeline , but momentum sl owed as f rom April to July 2017 TxDOT

wa ited to see if it woul d get fundi ng for the entire corridor project

. 25 Even t hough
TxDOT ’ s timeline for construct ion bid

- letting for Phase 2 ended up slipping from
2019 to 2020 , by July 13, 2017 , according to Sc hluter , Tx DOT had agreed that
Northstar could “ just do the ramp and extension from San ta Fe Cour t to Northstar
Blvd ” (Phas e 1).

23 Ramirez said that he had fou nd this information encouraging “but a l ong way from what [Se rene] needed to satisfy the conditions o f the contract.”

24 Ramirez stated, “I thought it w as useful info rma tion for the pr oject and necessary info rmation, but it did not meet the requ irements of paragra ph 6(b)(5) of the contract ” becaus e he wanted to see a prec ise location , in writing, with out q ualifications, li mitations, or condition s.

25 During her 2018 deposition, Cheng observed that with regard to the I

- 35

- to

SH

- 114 s chemati c , “it’s been over three years and we still don’t have a schema tic in place.”32

After Schluter repeatedly s ought TxDOT confi rmation about the Santa Fe
Court

– Nort hstar Boulevard connection and exit ram p as part of what the Cit y required N orthstar to show , a TxDOT project mana ger contacted him ask ing to whom at the City Northstar wanted its “ Northstar access ” letter sen t and what the
letter shoul d say. On July 21, 2017, Schluter s et out the following t o include in
TxDOT ’ s letter to the City: After reviewing multiple o ptions reg a rding the p ropose d intersection of the new Northst ar Par kway with US Hwy 81/2 87, TxDOT h as determined that this in tersec tion should be designed and imp lemented in two phases.

• Th e initial phase will function as an interim condition until the Ram horn Hill R oad interch ange i s built. The initial phase will
c ons ist of extending the exi sting 2

- way frontage road north to th e Nort hstar [Boulevard] intersection and construction of the nor thbound exit ramp from NB US 81/287 to Northstar [Boulevard]

. The devel oper i s committed to fun ding these initial improvements.

• P has e 2 will be construct ed in conjuncti on with the Ram H orn H ill in terchange project. This will in clude the extension of the northbound frontage road from Northstar [Boulevard] to the interchange. Once t he Ramhorn Hill R oad interchange and frontage road ar e b uilt, the frontage ro ad will [be] co nverted to
one

- way ope ration . This will be funded as part o f the interchange project b y TxDOT. Three days later, Schluter ’ s TxDOT contact emailed that informa tio n to one of
the Pe loton engineers and tol d him that Tx DOT had n ot yet approved Phase 1

— the
ramp ’ s lo cation was still s ubject t o rel ocation “ after review of topo[gra phy] in area , ”33

and Northstar Boulevard ’ s location was still appro ximate

— a nd that TxDOT w as n ot yet o n board wi th TxDOT ’ s funding the p roposed Phas e 2. 26 On August 9, 2017, Chen g ema il ed Schluter and Gill : With the unders tan ding that prelim inary studies, including traffic and envir onmental, are still ongoing in determini ng the desirable alternativ e fo r schematic al ong the US81 /287 corridor and adjust ments/refinements should be ex pecte d risks of the developer , TxDOT is supp ort

ive of the devel oper pursuing the extension of the existin g two

- way frontage road from the current termi nus at Santa Fe Cour t to the entrance of the proposed Northstar deve lopment with an exit ramp from northb ound US81 /287 to the frontage road for acces s t o the developmen t. A coupl e of weeks later, Gi ll t old Attrux, Snelus, Lind, and Bilard i at t heir August 24 meeting th at N orthstar had recei ved TxDOT ’ s “ ver bal ” approval for acce ss . 27
I n O ctober, Schluter started drafting the TxDOT Letter using some of the language from Cheng’s August 9 ema il. Northstar ’s lawyer tried to add “ agreement ”
l anguage and signature lines to th e le tter draft , and o n October 20, Schluter sent the
addit io nal lang uage to Cheng

. Cheng told him, “I’ m okay with the language in the
let ter except [] for the last sentence, ‘please execute this agreement

. ’ ” Cheng sa id at her
de position that she had not been “ o kay ” with the “ agr eement ” language because at

26 B ecause all Northstar had to show was mut ual assent to a tie

- in of Norths tar Boulevard t o SH 287, the trial court c ould have reasonably fou nd that Phase 2 discuss ions were irrelevant

.

27 Attrux testified that he did not recall Gill ’ s tellin g him about TxDOT ’ s oral agreement to a llow ac cess and sai d th at the subject di d not come up at all during the meeting

.34

that point it was “ not an ag reement .” Cheng and Schluter apparently did not have the
same idea of what “ agreement ” connote d: Cheng testified that a permit was in writing
because it was an “ agreement ” b etween Tx DOT and a develope r while Schluter defined “agreement” a s “ mu tual consen t by two p arties and agreeing to terms and
conditions th at are very similar to wh at are listed on a [ permit] .” Cheng sa id th at the TxDO T Letter ’ s i ntent had been to advise the develop er that TxDOT supp orted its p ursuing a tie

- in conn ection

. On November 1, Gill told
Schluter he co uld take out the sentence that Cheng f ound ob jectionable.
On Novem ber 5 , a TxDOT en gineer ema iled Schluter to let him know that
ther e would still be uncertai nty regarding “ the final direction in the u ltimate
schem atic ” because the “ sta keholders and public ” had not yet “ been presented the alternatives, ” including reasonable a ccess to adja cent property owners. Two days later, Ramirez contacted Peloton for an up da t e on the Sectio n 6(b ) items, but he denied at trial t hat when he asked for this information he had been looking for a way for Serene to get out of the con tract
. Wh en G i ll learned about
Ramirez ’ s inquiry, he replied, “ I take it as a good sign but we have all the contractu al obligations but the surface agreeme nt so I’m not worried about t hem gett ing out [ of the contract]

. ” Flee t suggested asking Sere ne i f it wanted a 30

- da y extension to get financing and “ to make s ure [Northstar ha d ] the surface use agreem ent signed

. ”
Afte r Serene sent its November 22 notice

- o f

- default letter disputing
No rthstar ’ s com pli ance wi th Section 6 (b)(v) , o n November 28, Northstar’s attorney35

emailed Gill and copie d Fleet , asking wh ether they could get TxDOT to write a nother
letter. Northstar ’ s attor ney recommend ed tha t a new letter refe rence or attach th e TxDOT Lette r and stat e that “ [t] h e attached letter evidences TxDOT’s agreement to
allow the tie

- in of Northstar Bouleva rd to US 287 in our custo mary for mat. There is
no iss ue as to whether the tie

- i n will be allowed, but s ome of the par ameters pertaining to same have yet to be determined, pending completion of the referenced
studies.”
Th is message was sent to Schluter, who forw arded i t to Cheng and told h er to feel free to refus e, stating, “These cr azy a ttorneys are always asking for so met hing. I
am fo rwarding a request

. . . to write another letter to state the obvious of the first
letter. You have b een ver y gracious in accommo dating them thus far and I wouldn’t blame you if y ou ju st said no.” In he r de position, Cheng said that she did n o t t hink
that she and Sch luter ever came to any resolution on this r equest
. Northstar ended up
attachin g the Schluter Letter to its De ce mber 6 letter to Serene.
2. Parties ’ Inte rpret ation of Events
C heng said that as of her August 9 e mail, TxDOT had no t y et selected one specific alternativ e for access and that refinements, changes, and possible revisions
were still to be made but that Northstar knew where it wanted t he ac cess and knew
that it would ha ve to pay for the fro ntage

- road extension

. She also s tat ed that the
connection ’ s exact loca tion did not d epend on TxDOT ’ s Phase 2 planning

. To h er ,36

t he lang uage in Schluter’s Tx DOT Letter draft did not differ significantly from what
she had told Northstar in her August 9 em ail.
C heng stated that as of November 1, TxD OT and Northstar “ [ had ] had an understanding that . . . this developm ent [w as] co ming into place. And the

u nd erstanding [w a s] , you know, in talking to the developer that we . . . [would] at

som e po int . . . howe ver the ac ce ss [was] desig ned, or en d [ed ] up being, that we [would] be . . . allowing access to th eir development ” even though n o definitive
agreement existed at tha t time on the p roposed connection ’ s exact location , di mensions, design, g

rade elevatio ns, a lig

nment , drai nage plans, or ot h er aspec ts of the access connection that were subject to TxDOT app roval in the permit applicatio n . Schluter, wh o had worke d for TxDOT for almost three decades and who had
sat on TxD OT ’s access

- permit revie w committee, t esti fied that TxDOT wou l d first orally agree for access , with details to f ollow as illustr ated in the permit ’ s issuance

. O n

cr oss

- examination, however, Schluter acknowledged that such a general concurr en ce or tacit agreemen t or understa nding between the devel o per and TxDOT wa s not an

access agreemen t. Schluter sta ted that in early 2015, TxD OT had orally agreed

— as was typical , he said, in the majority of case s
— to all ow Northstar access to SH 287 and that Northstar
ha d “always k n [own] where the poin t of acces s i nto the property was from the right

o f

- w ay, but everyt hing fluctuated a little bit, as f ar as where [would] we put th e ramp, where [would] we put the drainage structures , the wi dth of the roadway and things.”37

Until t he minor tweaking stop ped, Northstar cou ld not prepare a final set of plans to
p resent with the permit application.
Schluter said that when he had worked for TxDOT, he had never signed off on
a letter like the TxDOT Letter because it ha d not bee n in his authority “ to gra nt

acc ess at a level tha t [TxDOT did n o t] h ave the detail yet.” Schluter said tha t he had

nev er seen a w ritten TxDOT access agreement but that he had no doubt that by November 20, 2017 , T xDOT had agreed t o allow the t ie

- in and no doubt that
Northstar wou ld recei

ve a permit. Schl u ter said that in his 28 years at TxDOT, he had

never seen TxDOT rescind or pull back an unwritten agreement to allow access.
Gill e choed Schluter ’ s t est imony , stating that the TxDO T Letter w as the first
time he had ever gotten a letter f rom TxDOT direct ly to the developer

. He sa id that
he had p ushed in October 2017 for that letter because he “felt like it would solidify [Serene’s] comfort level in the TxD OT access agr eement ” and he wanted Serene to
have e veryt hing it needed to get financi ng so that it wo ul d c lose. Gill said that the
Serene team had appeared to be very inexperienced with that type of development, so
he felt the l etter wou ld be helpful to Ser en e’s lender “[t]o solidify th at acces s was avai lable by TxDOT. ”
Gill said that he did not obtain the Section 6(b) items in October 2016 (whe n the parties signed the contract) or in March 2017 ( when the parties f

irst extended the
dead l ine ) bec ause “early on it had been [ his] experience wi th T xDOT that once [he ]38

had met with them and had verbal agreements with them that they were going to give [ him] access to any of [his] projects, [he] knew [he] would get access .”
Attrux sa id that h e had read the Schluter L ett er and did not bel ieve Schluter’s
assertion t hat the TxDOT Letter was an access agreement, notwit hstanding Schluter’s

e xperience or the f

act that Schluter had hired and trained Cheng during the 2 8 years he worked for Tx DOT. Att rux said that Sere ne had determined that the TxDOT
Letter was in sufficien t to mee t Section 6(b)(v) based on what Ramirez had t old him

. But Ramir e z had also never see n a wri tte n access agreement and did not know
what one was , and he did no t have Schl uter ’ s l evel of exper ience with TxDOT

. Ramirez said that the largest development project he had worked on to obtai n an

access connec tion had been a 300

- acre mu ltifamily

- hou sing development ( an
apar tme nt complex) in Lew isville off of S ta te Highway 121

. He had n ever obtained a
TxDOT permit for a residential subdivision.
3. Application
The record reflects that b y th e en d of July 2017 , N o rthstar had long since
demo nstrated to T x DOT its c ommitment to e xtending th e existing front age road to what would eventually be Northstar Boulevard (once the City approved the preliminary plat) and to buil ding a northbound exit ramp from SH 287 to Northst a r Boulevard

. And the trial court could h ave found that by the tim e Cheng i ssued the
TxDOT Letter on No vember 1, 2017, a mutual understanding existed between
Northstar and TxDOT t hat the Northstar development would be allowed to tie

- in to39

SH 287 , with the d etails to be ultimately fin alized in a p ermit

. T he tr i al court thus
could have reasonably concluded that Northstar had entered into an access agreement

— something more than a n approval or consent but less than a cont rac t

—

w ith Tx DOT to allo w the tie

- in

. B ec ause the trial c ourt was entitled to con sider all the documentary evi dence
and to find the t estimon y of witnesses experien ced in working with TxDOT more credible than that of witnesses who had never before sought TxDOT ’ s perm ission to
tie i n a ccess to a st ate highway for a reside ntial sub d ivisio n , we conclud e that the
evidence suffices both legally a nd factually to support the trial c ourt ’ s finding , and we
overrule Serene ’ s se cond issue. See Golden Eagle Archery, Inc. , 116 S.W.3d at 761 ; s ee al so Liberty Mu t. Ins. v . B urk , 295 S.W.3d 771, 777 (Te x. App.

— F ort Worth 2009, no pet.) (noting that in a bench trial, the trial court is the “ sole judge of the credibility of the witnesses, assigns the weight to be given their testimony, may ac cept or reje ct all o r
any part of the ir testi mony, and resolves a ny confli cts or inconsistencies in the

te stimony ” ).
B ecause we hold that the evidence is legally and factually sufficient to suppor t the trial court ’ s finding that Northstar had satisfied Section 6( b)( v) , Norths tar c ould

cont ractually k eep Se rene ’ s earnest money when Sere ne refu sed to close the contract , and we need not reach Serene ’ s remaining i s sues. See Tex. R. App. P. 4 7.1.40 IV. Conclusion
Havi ng overru led Ser e n e ’ s dispositive issue , we a ffirm t he tr i a l cour t ’ s j udgment. /s/ Elizabeth Kerr
Elizab eth Kerr J ustice
De liv ered : December 10, 2020