In the

Court of Appeals

Second Appellate 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.

Memorandum Opinion by Justice Kerr

SERENE COUNTRY HOMES, LLC, Appellant

V.

NORTHSTAR RANCH, LLC, Appellee
2

MEMORANDUM OPINION

I. Introduction

Appellant Serene Country Homes, LLC agreed to pay $24 million to Appellee 

Northstar Ranch LLC1for 733 acres of unimproved property in Fort Worth’s 

extraterritorial jurisdiction that Serene planned to develop into a residential 

subdivision. Northstar promised under Section 6(b)(v) of the parties’ contract that it 

would use good-faith and commercially reasonable efforts to enter into an access 

agreement with the Texas Department of Transportation (TxDOT) to connect the 

property to State Highway 287 (SH 287), which bordered the property; the access 

agreement would by necessity require an extension of an access road to connect an 

entrance to the property.

During the bench trial that ensued when Serene did not close on the 

transaction, Northstar claimed that it could retain Serene’s earnest money because, 

among other things, it had satisfied Section 6(b)(v). The trial court agreed, signed a 

take-nothing judgment against Serene, and entered 135 findings of fact and 65

conclusions of law. Serene complains that the evidence is legally and factually 

insufficient to support the trial court’s finding that Northstar had entered into a

TxDOT access agreement.

2 We affirm.

1Northstar is the successor to the original seller.

2Northstar also argued at trial that Serene had repudiated or anticipatorily 

breached the contract and that Serene’s breach-of-contract claim was barred by 
3

II. Background

The trial court heard two days of live testimony from Serene’s Chief Executive 

Officer Joseph Attrux; from Ron Ramirez, a licensed professional engineer who had 

been Serene’s executive vice president of engineering and development; from Mark 

Schluter, a former-TxDOT-engineer-turned-consultant hired by Northstar; and from 

Northstar principal Kim Gill. By agreement, the trial court also admitted into 

evidence over 150 exhibits, as well as deposition excerpts from TxDOT Area 

Engineer Edrean Cheng, who had been trained by Schluter; from real estate broker 

Matt Bilardi; from Serene’s Chief Operating Officer Allan Lind; and from Robert

Snelus, Serene’s executive vice president of operations for home building and sales.

We begin by reviewing pertinent contract provisions and amendments and 

some of the trial court’s unchallenged fact findings for context,

3

and we then review

some key documentary evidence and additional unchallenged fact findings.

estoppel, quasi-estoppel, 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-construction issue. Because we find the TxDOT-accessagreement issue dispositive, we do not reach these remaining issues. See Tex. R. App. 

P. 47.1.

3Unchallenged fact-findings are entitled to the same weight as a jury’s verdict 

and bind an appellate court unless either the contrary is established as a matter of law 

or no evidence supports the finding. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696

(Tex. 1986); Inimitable Grp., L.P. v. Westwood Grp. Dev. II, Ltd., 264 S.W.3d 892, 902 & 

n.4 (Tex. App.—Fort Worth 2008, no pet.). In other words, we defer to unchallenged 

fact findings that some evidence supports. Tenaska Energy, Inc. v. Ponderosa Pine Energy, 

LLC, 437 S.W.3d 518, 523 (Tex. 2014).
4

A. The Parties’ Contract and Contract Amendments

Section 6 of the parties’ October 28, 2016 contract set out Serene’s review 

period, how Serene could terminate the contract and get its earnest money back, and 

the items that Northstar had to obtain before Serene was required to close. 

Section 6(b), “Approvals, Consents and Agreements Contingency,” required the 

following of Northstar:

Seller shall use good faith and commercially reasonable efforts to obtain 

the following (collectively, the “Approvals, Consents and Agreements”

[ACAs]):

(i) The approval of a preliminary 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 Environmental Quality (the “TCEQ”) and 

the establishment of the MUD;

(iii) Enter into a Development and Utility Agreement(s) with the City 

of Fort Worth;

(iv) Enter into surface use agreement[s] with the various energy 

companies;

(v) Enter into an access agreement with the Texas Department of 

Transportation (“TxDOT”) allowing the tie-in of Northstar Boulevard

to SH 287; and

(vi) Receipt of written consent from the applicable railroad company 

[BNSF] that Northstar Boulevard can cross the railroad at-grade.

4A preliminary plat is essential to subdivide and develop land. See generally Tex.

Loc. Gov’t Code Ann. §§ 212.001, 232.001.
5

Seller shall keep Purchaser apprised of its progress in obtaining the 

[ACAs] and, upon Purchaser’s written request, furnish Purchaser with 

any submission made to the City, the TCEQ or TxDOT and any 

proposed [ACAs]. Seller shall advise Purchaser in writing of the date 

when Seller has obtained all of the [ACAs] (the “ACA Date”). If Seller is 

unable to obtain the [ACAs] on or before May 20, 2017, then Purchaser

may elect to terminate this Contract . . . whereupon the Earnest Money

(less the Independent Consideration) shall be returned to Purchaser[.] 

The contract stated that closing would be on the first business day to occur 30

days “immediately following the ACA Date, but in no event later than May 30, 2017,”

and declared that “Time is of the essence,” notwithstanding two later amendments

that changed both the ACA deadline and closing date.

The parties’ March 2, 2017 amendment changed the ACA deadline to 

September 20 and deleted “but in no event later than May 30, 2017” from the closing 

deadline. The amendment also modified how and when Serene would deposit the

$750,000 earnest money, made the earnest money directly payable to Northstar, and 

made the earnest money nonrefundable “under any and all circumstances other than 

as provided in Section 6(b) of the Contract, regarding the [ACAs], and Section 12(b), 

regarding Seller’s default or breach.” The parties’ second amendment pushed the

ACA deadline to November 20 and added that the closing date would occur “in no 

event prior to November 20, 2017,” but changed nothing about the earnest-money 

provisions.
6

The trial court assessed conflicting testimony and found that Serene had asked 

for both amendments so that it could come up with the funds or financing to close.5

Snelus said that after the first amendment, Serene knew that the only way it would get 

its earnest money back was if Northstar did not satisfy one of the Section 6(b) items. 

B. Uncontested Fact Findings—Background 

Serene had never before acquired a raw tract of land that required access to a 

state highway, and it was inexperienced in developing residential subdivisions and in 

obtaining loans to do so from institutional lenders. 

Gill, on the other hand, was experienced in both. Such was Gill’s experience 

that several months before the parties entered into the Northstar contract, Serene’s 

owners had asked him to consider becoming the fee developer for other lots that a

Serene affiliate owned. Northstar, through Gill, had originated the Section 6(b) 

language because Gill had anticipated what an institutional lender would want to see 

before making a development loan. 

With regard to Section 6(b)(v), TxDOT does not promulgate or use any

specific form of “access agreement.” Rather, if TxDOT’s agent agrees to allow 

access—orally or in writing—TxDOT later will issue a “Permit to Construct Access 

Driveway Facilities,” following which the access-construction project can be put out 

for bids after all environmental studies, traffic studies, final schematics, and final plans 

5The trial court found that at no time did Serene acquire sufficient funds or 

financing to close.
7

have been completed. When a developer buys raw land, a development loan usually 

finances the costs of the final plans necessary to obtain a TxDOT permit. To obtain 

an access agreement for the tie-in, Northstar did not have to acquire a TxDOT permit 

by November 20, 2017. 

Under Section 6(a), Serene had a separate 120-day review period from 

October 28, 2016, during which it could determine the feasibility of the tie-in’s 

location and satisfy itself that developing the property was financially feasible. Serene 

received the property’s preliminary plat showing the precise access point for the tie-in 

of Northstar Boulevard to SH 287,

6

as well as the tie-in’s estimated cost. Because the

costs to build the tie-in were reimbursable from the MUD,

7 Serene was not concerned 

with that cost, and it allowed the 120-day review period to expire on February 24, 

2017, without terminating the contract.

8

C. The November 1, 2017 TxDOT Letter

On November 1, 2017, Cheng, the TxDOT area engineer, issued a letter

drafted by Schluter and addressing Northstar’s requested tie-in:

6The final City approval necessary for the preliminary plat occurred on 

November 14, 2017.

7The order granting the petition to create Northstar’s MUD was issued on 

January 12, 2017. 

8Attrux and Ramirez agreed that Serene had received a budget showing $2.4 

million for the tie-in connection (Phase 1 of the SH 287 plans).
8

TxDOT is in agreement that access to the Northstar Development will

be permitted via a tie-in of Northstar Boulevard to US 287. The exact 

location, dimensions and other aspects shall be determined following 

TxDOT’s review of the plans and specifications.

[9] This agreement is

provided with the understanding that preliminary studies, including 

traffic and environmental, are still ongoing in determining the desirable 

alternative for schematic along the US 81/287 corridor. There may be 

adjustments and refinements during this process.

[10]

TxDOT is supportive of the developer pursuing the extension of the

existing two-way frontage road from the current terminus at Santa Fe 

Court to the entrance of the proposed Northstar development with an 

exit ramp from northbound US 81/287 to the frontage road for access 

to the development.

In addition, TxDOT is planning to construct a grade-separated 

interchange at Ram Horn Hill Road, north of your development. This 

work is currently planned in FY 2020. Once this project is completed or 

in conjunction with this proposed work, the northbound frontage road 

can be extended and converted to one-way operation.

D. Northstar’s November 17, 2017 Letter and Serene’s Response

On November 17, Tim Fleet, one of Northstar’s principals, sent Attrux a letter 

on which Northstar’s and Serene’s respective counsel were copied, stating, 

Please be advised that all [ACAs] required under Section 6(b) of the 

Contract have been obtained and the “ACA Date” thereunder is 

November 17, 2017. Seller has kept Purchaser advised of Seller’s 

9Cheng said that “plans and specifications” referred to Northstar’s final 

construction plans, which she expected to be included in Northstar’s permit 

application.

10Cheng said that the intent behind this paragraph’s last two sentences was to 

let the developer know TxDOT had not finalized its schematic, so under the worstcase scenario, grade adjustments could occur. Traffic and environmental studies were 

still ongoing as of November 1, 2017. 
9

progress in obtaining the [ACAs],

[11] but should you need anything

further in that regard, please let us know.

Please also note that the “Closing Date” under the Contract shall be on 

or before December 18, 2017.

Serene’s lawyer responded by email the same day, asking Fleet to send Attrux copies 

of the Section 6(b) documents. Three days later, Bilardi emailed to Attrux all the ACA 

documents, copying Fleet, Gill, and the parties’ counsel. Included was the TxDOT 

Letter. 

E. Serene’s November 22, 2017 Letter

On November 22, Serene’s lawyer wrote Northstar; the memo line read 

“Notice of Default of Paragraph 6b of Contract for Sale and Purchase of 

Unimproved Real Property (‘Contract’).” In the letter, Serene disputed that the

TxDOT access agreement had been obtained.

12 Serene asserted that the TxDOT

Letter was “not an access agreement” because “[i]t leaves open the question of 

location, dimensions and ‘other aspects’” and was “subject to ongoing preliminary

studies, including traffic and environmental (both of which can stop a deal).” Serene 

warned that if Northstar failed to cure the defaults within 15 days—by December 7, 

2017—it would elect to terminate the contract and seek the return of its earnest 

money. 

11Attrux said that Northstar had kept Serene apprised of its ACA progress 

through Peloton Land Solutions, the engineering firm that Northstar had hired. 

12Serene disputed in the same letter that the BNSF consent had been obtained. 
10

F. Northstar’s December 6, 2017 Letter and Attachments

On December 6, Northstar’s counsel responded, raising anticipatory breach 

and repudiation involving some comments Serene’s agents had made earlier. To this

letter, Northstar’s counsel attached a December 5 letter from BNSF and a December 

4 letter from Schluter to Gill (the Schluter Letter) about the TxDOT access

agreement, in addition to another copy of the TxDOT Letter.

The Schluter Letter stated that Schluter’s engineering firm had been “working 

diligently with the TxDOT to set the alignment and ramp locations for the permit 

plans” and anticipated a permit “around the middle of February 2018”; that the 

TxDOT Letter confirmed the agreement to allow the tie-in “by way of the frontage 

road extension and northbound exit ramp”; and that “[t]here is no issue as to whether

the tie-in will be allowed, but some of the details concerning the grades and design 

parameters are still being discussed with TxDOT.”

The Schluter Letter referenced a January 2016 meeting with TxDOT District 

Engineer Brian Barth to discuss confirmation of the access, and a February 2017 

meeting with Cheng and John Cordary, another TxDOT engineer, to discuss details

that included providing the access requested with the frontage road and exit ramp. 

Concerning Northstar’s ability to rely on the TxDOT Letter, the Schluter Letter 

stated,

[W]e are confident that the confirmation we have been provided thus far 

is as good or better than we have seen TxDOT commit to. The letter

referenced is rarely provided by TxDOT, however, in this case, it has 
11

been given. I worked at TxDOT in the Fort Worth District for 28 years. 

During that period, I served as Area Engineer for both Wise and Tarrant 

Counties, Director of Transportation Operations, and on the Access 

Permit Review Committee. You will never see a more firm[]

commitment from TxDOT than you will see in the attached letter.

Schluter’s accompanying credentials showed that he had started working for TxDOT 

in 1978, became a licensed professional engineer in 1983, and had retired from 

TxDOT in 2006 as the Director of Transportation for the nine counties in the Fort 

Worth District, which included Wise and Tarrant Counties.

13

At trial, Attrux said that Serene had previously determined that the TxDOT 

Letter failed to satisfy Section 6(b). Attrux also said that he had read the Schluter 

Letter and did not believe Schluter’s assertion that the TxDOT Letter was an access 

agreement, notwithstanding Schluter’s experience or the fact that Schluter had hired 

and trained Cheng during his time at TxDOT. 

G. Serene’s December 7, 2017 Letter and Northstar’s Response

Serene told Northstar to return the earnest money within ten days or be sued 

for its return. Northstar replied twelve days later, disputing Serene’s contract 

13Schluter’s curriculum vitae reflected that as TxDOT Area Engineer, he had 

“[w]orked closely and collaboratively with City, County, State[,] and Federal elected 

officials to develop mutually a beneficial transportation system” while managing a 

diverse 100-person workforce that “was responsible for design, construction, 

maintenance[,] and operations in North Tarrant County, including the City of Fort 

Worth.” He listed the $233 million interchange of Interstate 30 and State Highway 

360, the $100 million Northeast Mall interchange, and the $30 million reconstruction 

of State Highway 114 through Southlake as notable projects during his TxDOT 

career. 
12

interpretation and factual recitation and stating that Northstar would not return the 

earnest money. When Serene did not close, Northstar put the property back on the 

market. 

H. Additional Uncontested Fact Findings

In satisfaction of Section 6(b), Northstar had kept Serene apprised of its 

progress in obtaining the TxDOT access agreement, and the November 17, 2017

email from Serene’s attorney to Fleet was Serene’s only Section 6(b) written request 

for information.

The trial court found that because of Serene’s inexperience, it had relied on 

Ramirez to determine whether Northstar had obtained the access agreement. But 

Ramirez had never obtained a TxDOT permit or access agreement to connect a 

residential development to a state highway, and the trial court found that Ramirez 

“did not know what an access agreement was at any time prior to or during trial.”

Further, Ramirez did not know the difference between a permit and an access 

agreement, did not know whether Section 6(b)(v) required something other than a 

permit, had never asked anyone at Northstar what an access agreement was, and had 

never contacted Schluter. The trial court found that Serene’s claim that the TxDOT 

Letter did not constitute an access agreement was a pretext for Serene’s inability to

close so that Serene could reclaim its earnest money.
13

I. The TxDOT Permit

On January 17, 2019, Schluter put his professional engineer’s stamp on the final 

plans for the tie-in, and TxDOT issued the permit the next day. The permit stated 

that “[a]ny changes to the work shown on the plans will need to be reviewed and 

approved by TxDOT”; that “[t]he State reserves the right to require any changes,

maintenance or repairs as may be necessary to provide protection of life or property 

on or adjacent to the highway prior to final acceptance”; and that “[t]he State reserves 

the right to require a new access driveway permit in the event of a material change in 

land use or change in driveway traffic volume or vehicle types.”

III. Discussion

Serene challenges the evidentiary sufficiency to support the trial court’s finding

that Northstar had entered into an access agreement with TxDOT.

A. Standards of Review

A trial court’s fact findings have the same force and dignity as a jury’s answers 

to jury questions. See Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). 

As with jury findings, a trial court’s fact findings on disputed issues are not conclusive,

and when the appellate record contains a reporter’s record, an appellant may challenge 

those findings for evidentiary sufficiency. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 

1994); Super Ventures, Inc. v. Chaudhry, 501 S.W.3d 121, 126 (Tex. App.—Fort Worth 

2016, no pet.). We review the sufficiency of the evidence supporting challenged 
14

findings using the same standards that we apply to jury findings. Catalina, 881 S.W.2d 

at 297.

We may sustain a legal-sufficiency challenge—that is, a no-evidence 

challenge—only when (1) the record bears no evidence of a vital fact, (2) the rules of

law or of evidence bar the court from giving weight to the only evidence offered to 

prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere 

scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Shields 

v. Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017); see also Ford Motor Co. v.

Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (op. on reh’g); Uniroyal Goodrich Tire Co. v. 

Martinez, 977 S.W.2d 328, 334 (Tex. 1998) (op. on reh’g). In determining whether 

legally sufficient evidence supports a finding, we must consider evidence favorable to 

the finding if a reasonable factfinder could and must disregard contrary evidence

unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 

228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 

(Tex. 2005). We indulge “every reasonable inference deducible from the evidence” in 

support of the challenged finding. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018).

When reviewing a finding for factual sufficiency, we set it aside only if, after 

considering and weighing all the pertinent record evidence, we determine that the 

credible evidence supporting the finding is so weak, or so contrary to the 

overwhelming weight of all the evidence, that the finding should be set aside and a 

new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on 
15

reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 

823 (Tex. 1965). The factfinder is the sole judge of the witnesses’ credibility and the 

weight to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 

757, 761 (Tex. 2003).

B. TxDOT Access Agreement

Serene acknowledges that “access agreement” is not defined in the parties’

contract and does not “appear in the statutes or regulations governing TxDOT or on 

TxDOT’s website,” and it admits—as it did at trial—that the parties’ contract did not 

require a TxDOT permit.14 Our first task, then, before even reaching evidentiary 

sufficiency, is to determine what the parties’ contract meant by “access agreement.”

1. Contract Interpretation

Our primary objective in construing a contract is to give effect to the written 

expression of the parties’ intent, and we interpret a contract’s language according to 

its plain, ordinary, and generally accepted meaning unless the instrument directs 

otherwise. Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 888

(Tex. 2019). We must consider the entire writing in an effort to harmonize and give 

effect to all its provisions so that none will be rendered meaningless. Id. at 889; 

14Serene also asserts that it needed the TxDOT access agreement so that it 

could assess the property’s economic feasibility, but it does not contest the trial 

court’s finding that it used the 120-day review period to satisfy itself that developing 

the property—and the tie-in—was financially feasible. Attrux agreed during crossexamination that Serene was not claiming that the lack of cost information made the 

TxDOT Letter insufficient to meet Section 6(b)(v). 
16

Arlington Surgicare Partners, Ltd. v. CFLS Invs., LLC, No. 02-15-00090-CV, 2015 WL 

5766928, at *2 (Tex. App.—Fort Worth Oct. 1, 2015, no pet.) (mem. op.) (“A 

contract cannot be interpreted in a way that renders any words or phrases meaningless 

or in a way that leads to an absurd result.”). Further, we may not rely on evidence of 

surrounding circumstances to make the contract’s language say what it unambiguously 

does not say or to create an ambiguity. Pathfinder Oil & Gas, Inc., 574 S.W.3d at 889.

But we may consider objectively determinable facts and circumstances that 

contextualize the parties’ transaction and inform the meaning of the language used as 

long as we do not use surrounding circumstances to alter or contradict an 

unambiguous contract’s terms. Murphy Expl. & Prod. Co.-USA v. Adams, 560 S.W.3d 

105, 109 (Tex. 2018); see URI, Inc. v. Kleberg Cty., 543 S.W.3d 755, 757–58 (Tex. 2018)

(“Contract language is thus construed in its lexical environment, which may include 

objectively determinable facts and circumstances that contextualize the parties’

transaction.”). Evidence of surrounding facts and circumstances may include evidence 

of industry custom and usage where appropriate. Barrow-Shaver Res. Co. v. Carrizo Oil 

& Gas, Inc., 590 S.W.3d 471, 485 (Tex. 2019) (“When consideration of evidence as to 

industry custom and usage is appropriate, it is a question of fact for the [factfinder], 

and it is the province of the [factfinder] to weigh witness credibility.”).
17

2. The Contract’s Language

Section 6(b)’s ACA list encompassed three agreements, two approvals, and a

written consent. In our quest to discern what “access agreement” meant, we will first 

consider the contract’s uses of the word “agreement.”

a. “Agreement”

As Northstar points out, while a contract is always an agreement, an agreement 

is not always a contract. That is, although the terms are sometimes used 

interchangeably, they are not synonymous. 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. op.). 

“Agreement,” as Serene acknowledges, refers to a manifestation of mutual assent by 

two or more persons while “contract” refers to a legally enforceable promise. Id.

(citing Restatement (Second) of Contracts §§ 1, 3 (1981)); see Rachal v. Reitz, 

403 S.W.3d 840, 845 (Tex. 2013) (noting that Black’s Law Dictionary defines 

“agreement” as “a manifestation of mutual assent by two or more persons”). Parties 

to a contract are presumed to know the law and are likewise presumed to intend that 

their contract will have legal effect. Phila. Indem. Ins. v. White, 490 S.W.3d 468, 483

(Tex. 2016).

Under Section 6(b), in addition to the TxDOT “access agreement,” Northstar 

was required to “[e]nter into a Development and Utility Agreement(s) with the City of 

Fort Worth” and to “[e]nter into surface use agreement[s] with the various energy 

companies.”
18

A “Development and Utility Agreement” between a municipality and the 

owner of land located in the municipality’s extraterritorial jurisdiction is specifically

authorized by Local Government Code Section 212.172, which requires the 

agreement to be in writing. See Tex. Loc. Gov’t Code Ann. § 212.172(b), (c).

15 The 

agreement “is binding on the municipality and the landowner and on their respective 

successors and assigns for the term of the agreement” but not on any end buyer of a 

fully developed and improved lot within the development (subject to other applicable 

land-use and development regulations). Id. § 212.172(f). The Development and Utility 

Agreement “constitutes a permit under Chapter 245.”

16 Id. § 212.172(g).

15City Secretary Contract No. 49783, the “Development Agreement Between 

the City of Fort Worth, Texas and Northstar Ranch, LLC for the Far North Fort 

Worth Municipal Utility District No. 1 of Tarrant and Wise Counties,” stated that 

Northstar, the MUD, and the City had entered into a utility and infrastructure 

agreement setting out the terms under which Northstar and the MUD would build 

roads and water, wastewater, and drainage infrastructure to serve the Property and the 

City would provide retail water and wastewater service to the Property. City Secretary 

Contract No. 49784, “Utility and Infrastructure Agreement,” was the utility and 

infrastructure agreement referred to in the development agreement. See Tex. Loc.

Gov’t Code Ann. § 212.172.

16Local Government Code Chapter 245 governs the issuance of local permits 

within the context of land-use regulations. See generally Tex. Loc. Gov’t Code Ann. 

§§ 211.001–250.009. Section 245.001 defines a “permit” under Chapter 245 as “a 

license, certificate, approval, registration, consent, permit, contract, or other 

agreement” for construction related to “a water or wastewater utility owned, operated, 

or controlled by a regulatory agency, or other form of authorization required by law, 

rule, regulation, order, or ordinance that a person must obtain to perform an action or 

initiate, continue, or complete a project for which the permit is sought.” Id.

§ 245.001(1).
19

Section 6(b)(iii) thus required a statutorily compliant written contract between the City 

of Fort Worth and Northstar. See Phila. Indem. Ins., 490 S.W.3d at 483.

With regard to the only surface-use agreement required under Section 6(b)(iv), 

Northstar and Devon Energy Production Company executed their agreement on 

November 16, 2017. In it, the energy company (a private entity) and Northstar agreed 

to specific terms, including the granting of a subsurface easement, which required a 

written agreement for enforceability. See Tex. Bus. & Com. Code Ann. § 26.01; Tex. 

Prop. Code Ann. § 5.021; Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983) (“An 

easement is an interest in land which is subject to the Statute of Frauds.”); Phila. Indem.

Ins., 490 S.W.3d at 483.

But the final “agreement” in Section 6(b)—the one at issue in this case—was 

with a state agency, TxDOT. To determine whether “agreement” in this context 

required more than the manifestation of mutual assent, we must consider this 

agreement within the context of the word “access.”

b. “Access”

Through TxDOT, the State has the authority to create and maintain public 

roads and to regulate traffic on them under its police power. See Brazoria Cty. v. Basin 

Credit Consultants, Inc., No. 07-01-00304-CV, 2002 WL 31084700, at *1 (Tex. App.—

Amarillo Sept. 18, 2002, no pet.) (not designated for publication). As explained by 

various witnesses and in various documents during the trial, TxDOT controls access 

to highways, and if property is landlocked, TxDOT is legally obligated to allow access 
20

for ingress and egress. But TxDOT will not allow a private-property owner to connect 

to a regionally significant highway without its permission. To understand how 

TxDOT grants such permission, we must consult the regulations governing TxDOT’s

exercise of its police power.

Although the Texas Administrative Code does not define “access agreement,”

within the context of “access management” it specifically addresses the process 

involved in obtaining a proposed tie-in17 to a state highway. See 43 Tex. Admin. Code 

§ 11.50. “Access management” is “an engineering and planning method of balancing 

the needs of mobility and safety on a highway system with the needs of access to 

adjacent land uses” to promote a coordinated intergovernmental long-term approach 

to land-use and transportation decisions within the context of public safety, quality of 

life, and economic development. Id. § 11.50(a). 

17The Texas Administrative Code does not define “tie-in” either, but it does 

define “access connection”: a “[f]acility for entry and/or exit such as a driveway, 

street, road, or highway that connects to a highway on the state highway system.” See

43 Tex. Admin. Code § 11.51(1). The Code also defines “[p]latted access point,”

stating that it is an “access connection identified in a plat or replat of a subdivision of 

real property properly recorded in the county clerk’s office in accordance with 

Property Code, § 12.002.” Id. § 11.51(19). Under Property Code Section 12.002, a plat 

may not be recorded unless it has been approved “as provided by law by the 

appropriate authority.” Tex. Prop. Code Ann. § 12.002(a), (b). To be recorded, among 

other things a plat must describe the subdivision by metes and bounds and state its

dimensions, as well as the dimensions of each street, alley, square, park, or other part

of the tract intended to be dedicated for public use. Tex. Loc. Gov’t Code Ann. 

§ 212.004(b)(1), (3). Because Section 6(b)(i) referred to the “approval”—but not the 

recording—of Northstar’s preliminary plat, we conclude that “tie-in” as used in 

Section 6(b)(v) did not require a metes-and-bounds or other specific description.
21

With that purpose in mind, Subchapter C, “Access Connections to State

Highways,” is applied “to all new access connections constructed on highways on the 

state highway system,” id. § 11.50(b), including to the issuance of a permit providing 

“for a definite understanding as to the location and manner in which the access 

connection will be constructed and maintained” before an access connection may be 

built. Id. § 11.52(a)(1), (2). Such a permit is not a contract, though; rather, it is a grant 

of authority from a governmental entity, regulating conduct through its police power,

to do that which would otherwise be unlawful. Brazoria Cty., 2002 WL 31084700, at 

*1–2 (noting that police powers cannot be bound by contract). That is, as several 

witnesses explained at trial, although a developer cannot build onto a state highway 

without TxDOT’s permission, TxDOT does not enter into contracts with private 

developers to do so.

TxDOT’s Access Management Manual (AAM), which sets out design criteria

and which was admitted into evidence, is used by developers that want to build access 

to the state highway system and by TxDOT’s engineers to evaluate such requests.

18

Factors that TxDOT considers in determining an access connection’s precise location 

include design speed, traffic volume, truck-traffic volume, sight distance, and interval 

spacing between existing access points. According to the AAM, the number, location, 

18The AAM states, “Proper access management assists in protecting the

substantial public investment in transportation by preserving roadway efficiency and 

enhancing traffic safety, thus reducing the need for expensive improvements.

Furthermore, access management can significantly reduce traffic accidents, personal 

injury, and property damage.” 
22

spacing, design, and construction of access connections “have a direct and often 

significant effect on the safety and operation of [a] highway.” Thus, TxDOT’s 

standards “are necessary to enable the highway to continue to function effectively and 

safely in the future, while at the same time providing reasonable access to 

development.”

The final expression of access management is the issuance of a written permit

to allow construction. See 43 Tex. Admin. Code § 11.52(a)–(b). Here, both parties 

agreed that Section 6(b)(v) did not require the issuance of a permit. Accordingly, 

“access agreement,” as used in Section 6(b)(v), means something less than or 

preliminary to the issuance of a TxDOT permit; otherwise, the contract would have 

stated “permit” instead of “access agreement,” and “agreement” in this context is thus 

different from the other two usages of “agreement” in Section 6(b), both of which 

required a writing by law.

c. Section 6(b)’s Other Provisions—“Consent” and “Approval”

The final subsection of Section 6(b), requiring “[r]eceipt of written consent”

from BNSF so that Northstar Boulevard could cross the railroad at grade, supports 

the trial court’s interpretation that the TxDOT “access agreement” did not have to be 

in writing. That is, based on the contract’s language, the parties must have intended 

the TxDOT “access agreement” to mean something other than a “written consent” or 

they would have put “written consent” in both places.
23

Section 6(b) also required two “approvals”—one by the City of Fort Worth 

with regard to the preliminary plat and one by TCEQ to establish the MUD. Because 

TxDOT’s approval of Northstar’s tie-in plans would have resulted in the issuance of a 

permit, which the contract did not require, the “access agreement” was also not an 

“approval” as that word was used elsewhere in Section 6(b). Cf. Barrow-Shaver Res. Co., 

590 S.W.3d at 480 (defining “consent” as “approval” based on its “plain, ordinary, 

and generally accepted meaning”).

3. Surrounding Circumstances

Based on the above, because the TxDOT “access agreement” was substantially 

different from the other items in Section 6(b), we must next consider the objectively 

determinable facts and circumstances surrounding the parties’ transaction to identify

what they meant by requiring Northstar to “enter[ ] into” an access agreement. See 

Murphy Expl., 560 S.W.3d at 109.

The access here was not for “a simple driveway permit.” Rather, it included 

building an off ramp and extending a two-way frontage road in a corridor that

TxDOT had long been planning from I-35 to SH 114.

19 How long it takes from 

obtaining TxDOT’s initial agreement to allow access to finally receiving a permit for 

19Because freeway main lanes involve the “highest level of mobility” in terms of 

speed, they provide no direct access to property; instead, access is provided only at 

interchanges and ramps. Cheng said that there would be “quite a bit” of detail for the 

connection sought by Northstar and that its permit-application packet might be 100 

to 200 pages, containing construction drawings, schematics, engineering plans, and 

studies.
24

construction is related to the project’s complexity,

20 and Cheng said that the Northstar 

project was an “8” on a complexity scale of 1 to 10, 10 being the most complex.

The AAM recommends that developers meet with TxDOT staff and any 

governing municipality “[a]s early as possible in the development process” to discuss 

the specific requirements associated with obtaining access to the state highway system 

and to define the requirements for any needed engineering study or traffic-impact 

analysis. Accordingly, in early 2015 and with the goal of obtaining a TxDOT permit, 

Gill hired Schluter to be Northstar’s project manager and point of contact with 

TxDOT. Schluter began discussions with TxDOT about the tie-in access in 

February 2015. 

By October 2015, Schluter and TxDOT engineer Cordary were discussing 

environmental schematics for US 81/287, and TxDOT’s consultants were examining 

adding one-way frontage roads on each side of the corridor and preparing preliminary 

schematics and traffic forecasts.21 At that point, TxDOT estimated that the 

preliminary engineering study would take until around October 2017. 

20Depending on the type of traffic that a development might generate, in 

deciding to issue a permit TxDOT might require a traffic-engineering study, and it 

would consider the layout of the highway system and proposed access, as well as the 

impact on drainage onto the state highway system or the right-of-way, as well as 

utilities (proposed or in place), and environmental issues. 

21Schluter had originally sought to include Northstar’s proposed section in

TxDOT’s overall corridor-improvement plan, which covered a 15-mile span from I35 to SH 114, instead of pulling out “a one mile section.”
25

Around the time Bilardi was introducing Attrux to Gill as someone who could 

help Serene develop the raw land it had been buying, Northstar was already presenting

concept drawings to TxDOT with the access connection’s proposed location. In 

July 2016, TxDOT moved forward with a traffic study on the project.

Schluter continued to work between TxDOT and Peloton, Northstar’s 

engineering firm, and in September 2016—a month before Northstar and Serene 

signed their contract—TxDOT’s Cordary sent a letter to Fort Worth’s Transportation 

and Public Works Department to inform the City that TxDOT officials had met with 

Northstar representatives “to evaluate access from the proposed development to the 

US 81/287 corridor.” Cordary’s letter stated that the discussion had covered 

extending the existing two-way frontage road from its ending point at Santa Fe Court 

to the property’s entrance and building an exit ramp to the proposed frontage road

(which became Phase 1 of the project), and converting the existing two-way frontage

road to a one-way configuration and extending the frontage road from Santa Fe Court 

to the proposed Ramhorn Hill interchange (which became known as Phase 2). 

A 42-page traffic-impact analysis was completed October 5, 2016, and the first 

preliminary plat was prepared October 7, 2016, at which time TxDOT had begun 

reviewing the access connection’s placement. Some three weeks later, the parties 

signed their contract on October 28, 2016.
26

By that time, Northstar was already well underway to achieving mutual assent 

with TxDOT for a tie-in of Northstar Boulevard to SH 287.

22 See Ferachi, 2009 WL 

1506899, at *1 n.2. Based on the surrounding circumstances, as well as the abovediscussed contractual language and the policy purposes underlying that language, we

construe Section 6(b)(v)’s “enter into” requirement to mean nothing more than some

manifestation of Northstar’s and TxDOT’s mutual assent to the tie-in connection.

And as we discuss later, the record amply manifests that mutual assent.

4. Serene’s Arguments

Serene argues that Section 6(b)(v) required Northstar to “enter into a written 

access agreement in which Northstar and TxDOT agreed to the precise location of 

the entry and exit point where TxDOT would allow the final connection of Northstar 

Boulevard to SH287.” But Serene’s interpretation adds words to the contract’s plain 

22In contrast, Northstar began talking with BNSF in November 2016, and 

BNSF’s January 6, 2017 letter stated that BNSF would “support the project,” which 

included the permanent elimination and closure of two adjacent crossings identified 

by location and Department of Transportation identification number. When Serene

later told Northstar that this letter was insufficient to satisfy Section 6(b)(vi) and gave 

Northstar until December 7 to cure it, Northstar obtained another letter from BNSF. 

In that December 2017 letter, BNSF stated that it “ha[d] approved the creation of an 

at-grade crossing for the proposed Northstar Parkway subject only to the satisfaction 

of the following conditions, each of which is customarily required for new at-grade 

crossings.” The letter set out as conditions the same elimination of the adjacent 

crossings, in addition to “BNSF’s approval of final design which meets [its] standard 

criteria,” the purchase from BNSF of a permanent street easement and a temporary 

construction license, and reimbursement to BNSF “of actual cost of all railroad work 

necessary” for the installation. Attrux and Ramirez both agreed at trial that BNSF’s

supplemental letter met Section 6(b)(vi)’s “written consent” requirement. See BarrowShaver Res. Co., 590 S.W.3d at 480 (equating consent with approval). 
27

language, which says nothing about whether the agreement may be oral or must be 

written—and Serene conceded at trial that the Section 6(b)(v) agreement “didn’t have 

to be in writing.”

Serene also contends that what TxDOT gave Northstar amounted to an oral

license that failed to satisfy the statute of frauds and that we should consider factors 

set out by the supreme court in determining whether the TxDOT Letter constituted 

the final expression of an access agreement between Northstar and TxDOT. But this 

would require us to ignore how the Texas Administrative Code treats access 

management, the final expression of which is the issuance of a permit allowing

construction. See 43 Tex. Admin. Code § 11.52(a)–(b). Although not defining “access 

agreement,” the Code does specifically address the process involved in obtaining a

proposed tie-in to a state highway within the context of “access management.” See id.

§ 11.50. And TxDOT was not granting Northstar a statute-of-frauds-covered interest 

in real property. Cf. Tex. Bus. & Com. Code Ann. § 26.01(a), (b)(4)–(5). 

To the contrary, Northstar’s ultimate goal upon securing TxDOT’s agreement 

was to get a construction permit, which is not a real-property conveyance––Section 

11.52 specifically provides that “[n]o term or condition of a permit will be construed 

to grant, convey, or extinguish an interest in real property held by either the state or a 

permittee.” 43 Tex. Admin. Code § 11.52(a)(3); cf. Tex. Prop. Code Ann. § 5.021

(stating that a conveyance of an estate in land for more than one year must be in 

writing); Tex. Transp. Code Ann. § 202.021(a) (noting that Texas Transportation 
28

Commission can recommend sale or transfer of real property determined “no longer 

needed for a state highway purpose”).

Further, although Serene notes that the statute of frauds requires a writing for 

“an agreement which is not to be performed within one year of making the 

agreement,” Tex. Bus. & Com. Code Ann. § 26.01(b)(6), it does so in the context of 

arguing that a TxDOT agreement is like a perpetual license. But Serene cites no 

authority suggesting that we must or should consider state-agency action in that light. 

Moreover, no one disputed that working with TxDOT could take a long time, in part

due to the evolving nature of the public’s transportation needs, as well as TxDOT’s 

budgetary constraints—indeed, Phase 2, the Ramhorn Hill interchange, had been on 

TxDOT’s books for the last 30 or 40 years. The ultimately issued permit contained 

TxDOT’s reservation of rights to require future changes “to provide protection of life 

or property on or adjacent to the highway” and to require a new permit if a “material 

change” occurred in land use or traffic volume or vehicle types. Because of the very 

nature of TxDOT’s work, then, we conclude that the “access agreement” here was

simply not the type of agreement to which the statute of frauds applies.

Finally, Serene argues that the contractual “access agreement” was to be

unconditional (notwithstanding the lack of any language in Section 6(b)(v) to make it 

so) and that the trial court thereby erred by concluding that it could have been an oral

agreement that was subject to finalizing such underlying details as the access point’s 

precise location. Adopting Serene’s interpretation would require us to ignore that the 
29

TxDOT permit itself was conditional with regard to TxDOT’s “review[ ] and 

approv[al]” and was subject to amendment for any material changes affecting public 

safety, something undoubtedly true of all such TxDOT permits.

Because the ultimate permit is conditional, the trial court did not err by 

concluding that the pre-permit access agreement must of necessity also have been

conditional. And although Serene argues that the access agreement had to specifically

identify the tie-in’s access point to be valid, nothing in Section 6(b)(v) requires this

specificity because neither the access agreement nor the permit constituted a 

conveyance. Cf. Savering v. City of Mansfield, 505 S.W.3d 33, 47 (Tex. App.—Fort Worth 

2016, pet. denied) (op. on en banc reconsideration) (“An instrument that conveys land 

must contain a sufficient legal description, or it is void under the statute of frauds.”).

5. Conclusion

Words must be construed within their contexts because “a single word can 

carry subtle—and significant—differences in meaning when applied to different 

situations.” URI, Inc., 543 S.W.3d at 764. In Section 6(b), “agreement” was used three 

different ways. Given the facts and circumstances surrounding the contract’s 

execution, as a matter of law Section 6(b)(v) required nothing more than an oral 

agreement by TxDOT, as a state agency, to allow Northstar to tie in the property to 

SH 287 based on the continuing work on the project among Northstar, TxDOT, and 

the City of Fort Worth, and subject to conditions imposed by TxDOT so that it could 
30

exercise its police power regarding public safety. Cf. Tex. Bus. & Com. Code Ann. 

§ 26.01(a), (b)(6).

We now turn to whether the evidence sufficed to support the trial court’s 

finding that Northstar had in fact entered into an access agreement with TxDOT 

allowing the tie-in of Northstar Boulevard to SH 287. 

C. Sufficiency

In addition to the unchallenged fact findings that support the trial court’s 

conclusion that Northstar used good-faith and commercially reasonable efforts to 

enter into an access agreement with TxDOT, the record reflects the following 

chronology of TxDOT’s assent to the tie-in between October 2016, when the parties 

entered into the contract, and the November 2017 TxDOT Letter, which Northstar 

put forth as a written manifestation of TxDOT’s agreement to the access tie-in.

1. Chronology

As noted, for a year before the parties signed the contract, Schluter had been 

working closely with TxDOT to figure out how the proposed tie-in would fit with 

TxDOT’s existing plans, traffic forecasts, and traffic-impact analyses for the 15-mile 

corridor so that, among other things, the tie-in (Phase 1) could be included in the 

preliminary plat that required City approval.
31

By February 2017, Peloton engineers had told Ramirez that Northstar had “a 

commitment from TxDOT to be able to provide the access as requested”

23 and that 

“it’s just the logistics of how it will happen. Currently, TxDOT is looking at lumping 

in some of the Environmental Study work in their overall plan for the region to speed 

things up.” A few days later, another Peloton employee sent Ramirez a copy of 

Cordary’s September 22, 2016 letter to the City that had been provided with the

preliminary plat application.24 A week after Peloton told Ramirez about TxDOT’s 

access commitment, Schluter and Gill met with Cheng and Cordary to discuss the 

construction timeline, but momentum slowed as from April to July 2017 TxDOT 

waited to see if it would get funding for the entire corridor project.

25 Even though 

TxDOT’s timeline for construction bid-letting for Phase 2 ended up slipping from 

2019 to 2020, by July 13, 2017, according to Schluter, TxDOT had agreed that 

Northstar could “just do the ramp and extension from Santa Fe Court to Northstar 

Blvd” (Phase 1).

23Ramirez said that he had found this information encouraging “but a long way 

from what [Serene] needed to satisfy the conditions of the contract.” 

24Ramirez stated, “I thought it was useful information for the project and 

necessary information, but it did not meet the requirements of paragraph 6(b)(5) of 

the contract” because he wanted to see a precise location, in writing, without 

qualifications, limitations, or conditions. 

25During her 2018 deposition, Cheng observed that with regard to the I-35-toSH-114 schematic, “it’s been over three years and we still don’t have a schematic in 

place.” 
32

After Schluter repeatedly sought TxDOT confirmation about the Santa Fe 

Court–Northstar Boulevard connection and exit ramp as part of what the City 

required Northstar to show, a TxDOT project manager contacted him asking to 

whom at the City Northstar wanted its “Northstar access” letter sent and what the 

letter should say. On July 21, 2017, Schluter set out the following to include in 

TxDOT’s letter to the City:

After reviewing multiple options regarding the proposed intersection of 

the new Northstar Parkway with US Hwy 81/287, TxDOT has 

determined that this intersection should be designed and implemented in 

two phases.

• The initial phase will function as an interim condition until the 

Ramhorn Hill Road interchange is built. The initial phase will 

consist of extending the existing 2-way frontage road north to the 

Northstar [Boulevard] intersection and construction of the 

northbound exit ramp from NB US 81/287 to Northstar 

[Boulevard]. The developer is committed to funding these initial 

improvements. 

• Phase 2 will be constructed in conjunction with the Ram Horn 

Hill interchange project. This will include the extension of the 

northbound frontage road from Northstar [Boulevard] to the 

interchange. Once the Ramhorn Hill Road interchange and 

frontage road are built, the frontage road will [be] converted to 

one-way operation. This will be funded as part of the interchange 

project by TxDOT. 

Three days later, Schluter’s TxDOT contact emailed that information to one of 

the Peloton engineers and told him that TxDOT had not yet approved Phase 1—the 

ramp’s location was still subject to relocation “after review of topo[graphy] in area,”
33

and Northstar Boulevard’s location was still approximate—and that TxDOT was not 

yet on board with TxDOT’s funding the proposed Phase 2.26

On August 9, 2017, Cheng emailed Schluter and Gill:

With the understanding that preliminary studies, including traffic and 

environmental, are still ongoing in determining the desirable alternative 

for schematic along the US81 /287 corridor and

adjustments/refinements should be expected risks of the developer, 

TxDOT is supportive of the developer pursuing the extension of the 

existing two-way frontage road from the current terminus at Santa Fe 

Court to the entrance of the proposed Northstar development with an 

exit ramp from northbound US81 /287 to the frontage road for access 

to the development.

A couple of weeks later, Gill told Attrux, Snelus, Lind, and Bilardi at their August 24

meeting that Northstar had received TxDOT’s “verbal” approval for access.

27

In October, Schluter started drafting the TxDOT Letter using some of the 

language from Cheng’s August 9 email. Northstar’s lawyer tried to add “agreement”

language and signature lines to the letter draft, and on October 20, Schluter sent the 

additional language to Cheng. Cheng told him, “I’m okay with the language in the 

letter except[] for the last sentence, ‘please execute this agreement.’” Cheng said at her 

deposition that she had not been “okay” with the “agreement” language because at 

26Because all Northstar had to show was mutual assent to a tie-in of Northstar 

Boulevard to SH 287, the trial court could have reasonably found that Phase 2 

discussions were irrelevant.

27Attrux testified that he did not recall Gill’s telling him about TxDOT’s oral 

agreement to allow access and said that the subject did not come up at all during the 

meeting. 
34

that point it was “not an agreement.” Cheng and Schluter apparently did not have the 

same idea of what “agreement” connoted: Cheng testified that a permit was in writing

because it was an “agreement” between TxDOT and a developer while Schluter 

defined “agreement” as “mutual consent by two parties and agreeing to terms and 

conditions that are very similar to what are listed on a [permit].” 

Cheng said that the TxDOT Letter’s intent had been to advise the developer 

that TxDOT supported its pursuing a tie-in connection. On November 1, Gill told 

Schluter he could take out the sentence that Cheng found objectionable. 

On November 5, a TxDOT engineer emailed Schluter to let him know that 

there would still be uncertainty regarding “the final direction in the ultimate 

schematic” because the “stakeholders and public” had not yet “been presented the 

alternatives,” including reasonable access to adjacent property owners. 

Two days later, Ramirez contacted Peloton for an update on the Section 6(b) 

items, but he denied at trial that when he asked for this information he had been 

looking for a way for Serene to get out of the contract. When Gill learned about 

Ramirez’s inquiry, he replied, “I take it as a good sign but we have all the contractual 

obligations but the surface agreement so I’m not worried about them getting out [of 

the contract].” Fleet suggested asking Serene if it wanted a 30-day extension to get 

financing and “to make sure [Northstar had] the surface use agreement signed.”

After Serene sent its November 22 notice-of-default letter disputing

Northstar’s compliance with Section 6(b)(v), on November 28, Northstar’s attorney 
35

emailed Gill and copied Fleet, asking whether they could get TxDOT to write another 

letter. Northstar’s attorney recommended that a new letter reference or attach the 

TxDOT Letter and state that “[t]he attached letter evidences TxDOT’s agreement to 

allow the tie-in of Northstar Boulevard to US 287 in our customary format. There is 

no issue as to whether the tie-in will be allowed, but some of the parameters 

pertaining to same have yet to be determined, pending completion of the referenced 

studies.” 

This message was sent to Schluter, who forwarded it to Cheng and told her to 

feel free to refuse, stating, “These crazy attorneys are always asking for something. I 

am forwarding a request . . . to write another letter to state the obvious of the first 

letter. You have been very gracious in accommodating them thus far and I wouldn’t 

blame you if you just said no.” In her deposition, Cheng said that she did not think 

that she and Schluter ever came to any resolution on this request. Northstar ended up 

attaching the Schluter Letter to its December 6 letter to Serene.

2. Parties’ Interpretation of Events

Cheng said that as of her August 9 email, TxDOT had not yet selected one 

specific alternative for access and that refinements, changes, and possible revisions 

were still to be made but that Northstar knew where it wanted the access and knew 

that it would have to pay for the frontage-road extension. She also stated that the 

connection’s exact location did not depend on TxDOT’s Phase 2 planning. To her, 
36

the language in Schluter’s TxDOT Letter draft did not differ significantly from what 

she had told Northstar in her August 9 email. 

Cheng stated that as of November 1, TxDOT and Northstar “[had] had an 

understanding that . . . this development [was] coming into place. And the 

understanding [was], you know, in talking to the developer that we . . . [would] at 

some point . . . however the access [was] designed, or end[ed] up being, that we 

[would] be . . . allowing access to their development” even though no definitive 

agreement existed at that time on the proposed connection’s exact location, 

dimensions, design, grade elevations, alignment, drainage plans, or other aspects of 

the access connection that were subject to TxDOT approval in the permit application.

Schluter, who had worked for TxDOT for almost three decades and who had 

sat on TxDOT’s access-permit review committee, testified that TxDOT would first 

orally agree for access, with details to follow as illustrated in the permit’s issuance. On 

cross-examination, however, Schluter acknowledged that such a general concurrence 

or tacit agreement or understanding between the developer and TxDOT was not an 

access agreement. 

Schluter stated that in early 2015, TxDOT had orally agreed—as was typical, he 

said, in the majority of cases—to allow Northstar access to SH 287 and that Northstar 

had “always kn[own] where the point of access into the property was from the rightof-way, but everything fluctuated a little bit, as far as where [would] we put the ramp, 

where [would] we put the drainage structures, the width of the roadway and things.” 
37

Until the minor tweaking stopped, Northstar could not prepare a final set of plans to 

present 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 had not been in his authority “to grant 

access at a level that [TxDOT did not] have the detail yet.” Schluter said that he had 

never seen a written TxDOT access agreement but that he had no doubt that by 

November 20, 2017, TxDOT had agreed to allow the tie-in and no doubt that 

Northstar would receive a permit. Schluter said that in his 28 years at TxDOT, he had 

never seen TxDOT rescind or pull back an unwritten agreement to allow access. 

Gill echoed Schluter’s testimony, stating that the TxDOT Letter was the first 

time he had ever gotten a letter from TxDOT directly to the developer. He said that 

he had pushed in October 2017 for that letter because he “felt like it would solidify 

[Serene’s] comfort level in the TxDOT access agreement” and he wanted Serene to 

have everything it needed to get financing so that it would close. Gill said that the 

Serene team had appeared to be very inexperienced with that type of development, so 

he felt the letter would be helpful to Serene’s lender “[t]o solidify that access was 

available by TxDOT.”

Gill said that he did not obtain the Section 6(b) items in October 2016 (when 

the parties signed the contract) or in March 2017 (when the parties first extended the 

deadline) because “early on it had been [his] experience with TxDOT 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 said that he had read the Schluter Letter and did not believe Schluter’s 

assertion that the TxDOT Letter was an access agreement, notwithstanding Schluter’s 

experience or the fact that Schluter had hired and trained Cheng during the 28 years 

he worked for TxDOT. Attrux said that Serene had determined that the TxDOT 

Letter was insufficient to meet Section 6(b)(v) based on what Ramirez had told him. 

But Ramirez had also never seen a written access agreement and did not know

what one was, and he did not have Schluter’s level of experience with TxDOT. 

Ramirez said that the largest development project he had worked on to obtain an 

access connection had been a 300-acre multifamily-housing development (an 

apartment complex) in Lewisville off of State Highway 121. He had never obtained a 

TxDOT permit for a residential subdivision. 

3. Application

The record reflects that by the end of July 2017, Northstar had long since

demonstrated to TxDOT its commitment to extending the existing frontage road to 

what would eventually be Northstar Boulevard (once the City approved the 

preliminary plat) and to building a northbound exit ramp from SH 287 to Northstar 

Boulevard. And the trial court could have found that by the time Cheng issued the 

TxDOT Letter on November 1, 2017, a mutual understanding existed between 

Northstar and TxDOT that the Northstar development would be allowed to tie-in to 
39

SH 287, with the details to be ultimately finalized in a permit. The trial court thus 

could have reasonably concluded that Northstar had entered into an access 

agreement—something more than an approval or consent but less than a contract—

with TxDOT to allow the tie-in. 

Because the trial court was entitled to consider all the documentary evidence 

and to find the testimony of witnesses experienced in working with TxDOT more 

credible than that of witnesses who had never before sought TxDOT’s permission to 

tie in access to a state highway for a residential subdivision, we conclude that the 

evidence suffices both legally and factually to support the trial court’s finding, and we 

overrule Serene’s second issue. See Golden Eagle Archery, Inc., 116 S.W.3d at 761; see also

Liberty Mut. Ins. v. Burk, 295 S.W.3d 771, 777 (Tex. App.—Fort 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 accept or reject all or 

any part of their testimony, and resolves any conflicts or inconsistencies in the 

testimony”).

Because we hold that the evidence is legally and factually sufficient to support 

the trial court’s finding that Northstar had satisfied Section 6(b)(v), Northstar could 

contractually keep Serene’s earnest money when Serene refused to close the contract, 

and we need not reach Serene’s remaining issues. See Tex. R. App. P. 47.1.
40

IV. Conclusion

Having overruled Serene’s dispositive issue, we affirm the trial court’s 

judgment.

/s/ Elizabeth Kerr

Elizabeth Kerr

Justice

Delivered: December 10, 2020