## In t he Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 22

- 00050

- CV

___________________________

On Appeal from the 236th District Court Tarrant County, Texas Tri al Court N o. 236

- 304794

- 18

B efore Ke rr, Womack, and Wallach, JJ. Memorandum Opinion by Justice Kerr 

### PSQ B ARBIE 

### , LP AND 

### P ARKWOOD 

### C ONSTRUCTION 

### , LLC , Appellants

V


### . J EFFREY 

### H OWARD 

### , J OANNE 

### H OWARD 

### , J AMES 

### C HANG 

### , K EIT H 

### K UNKLE 

### , AND 

### R YAN 

### S TOKES 

### , Appellees2 MEMORANDUM OPINION
I. Introduction
T he trial court granted a motion for summary judgment brought by Appellees
Keith Kun kle , Ryan Stokes , J effrey Howard , Joanne Ho ward , and James Cha ng (collecti vely, the Homeowners) and d eclared that they owned a 12

- foot drive crossing their prop erties ( Lots 1

- R

- 2, 1

- R

- 3, and 1

- R

- 4, respectively) and that the 12

- foot drive

was not burdened by an express or implied easement
. The tria l court permanently enjoined Appellants P SQ Barbie, LP and Par kwoo d Construct ion , LLC ( collectively , the Developers), who owned the a djoining property, from entering upon the drive without the Homeo wners ’ permission. In three issues, the Devel ope rs appeal, complaining tha t the trial court erred by granting the Ho me owne rs ’ motion be cau s e “ there are incorrectly d ecided material
issues of law ” ; because an easement by estoppel was created in their favor ; a nd because the trial court improp erly decla red void a 2018 easement agre ement “ despite clear reservations ” in the Ho meow ners ’ title

- commitment d ocuments and the plat and condomini um declaratio n of covenan ts, conditions, restrictions, and easements ( CC R s ) governing the Homeowners ’ propert i es . Because t he trial cou rt did not err by granting the Homeowners ’ mo tion , w e affirm.3 II. Bac kground
A
. Factual summary In December 2016, Fort Linwood , LLC so ld Lot 2, Block 11 in the
We isenberger addition to Parkwood

. O n Se ptember 18 , 2017, F or t Linwood emailed

to Parkwood an “ access easeme nt ” agreement perta ining t o the adjacent Lot 1, Block
11 property, which F or t Linwood owned and which had been subdivi ded into four lots

. W i thin the t wo weeks that followed the Se pte mber 18 email , For t Linwood

s old to the Hom e owne rs three of the four lo ts that would have been burdened by the
easement in the agreement prof fered to Parkwood

. Each of the Ho meowners ’ lot s

co ntained a single

- family condominium , and the devel opment ’ s plat showed a 12

- foot

“ access easement ” b ehind t h e hom es , as the following reflects

.4 The Developers p lanned to construct mirror

- i mag e condominiums

— using both the lot and the plans they had ac qu ired from Fort Linwood

— t hat would share the twelve

- foot access easement shown on the plat. Some ten months after f irst emailing Parkwood, Fort L inwood sent a follow

- up email to Parkwood on July 23, 2018 about the “ ac cess easement ” agreement, stating5 that because Fort L inwood now o wned only one of the four lots , it could no long er approve and sign the agre ement . I t rec ommended contacting the homeowners ’
association (HOA) to see about arrang ing for “ the other homeo wners to agree and sign a new access easement agreement. ” Later that day, however, Fort Linwood tol d Parkw ood that it had con firmed wit h the HOA that it (Fort Linwood) could “ go ahead and execute [the] access e asement agreement and record. ” In the a greement executed on J ul y 26, 2018, Fort Linwood , reciting that it owned all four lots , purpo rted “ to create and grant a perpetual, no n- exclusive easement over the 12 foot

access easement dep icted o n the Fort Linwood Plat ” to pro vide pedestrian and vehicular access t o both the Fort Linwood and the Parkwood l ots i n exchange for Parkwood’ s being responsible for 50% of the ea sement ’ s maintenanc e. When the Developers later tried to use the easement to build on their adjoining
lot , the Homeowners sued the Developers, Fort Linwood, and PBP Properties, LLC, in December 2018

. B . Pro cedural h isto ry After th e Homeowners sued, F ort Lin wo od and PBP moved for summary judgment , argu ing th at the Hom eowners had bought their lots with notice of the

access e asement in the plat , the CC Rs , and their title

- commitment doc u ments and that the access

- easement agre ement benefited them by splitting the m aintenance cos ts that the Homeowners would otherw ise entirely bear

. Fort Lin woo d and PBP further argued that the CCRs gave Fort Lin wood , as the declarant, the authority to execute6 the acc ess
- easeme nt agreement and that the p lat a nd the CCRs “ clearly show [ ed] ” that the access easement was public

. Th e Deve lopers joined in Fort Lin wood ’ s summary

judgment motion. The Homeowners filed a respo nse an d c ros s
- mo tion for summary judgment

. They argu ed in their response that the access

- easement agreement purported to burden their lots with a 12

- foo t easement in Parkw ood ’ s favor and that they discovered th is after the City of Fo rt Wort h issued n otice that P arkwood i ntende d to develop and build on Lot 2. They also stated that the easement shown on the plat could not simultaneously b e both a “ public ” and a “ private ” ease ment , referen cing the followin g to support their argument : the “ own er d e di cation ” lan guage and note #18 on “ private maintenance ” in the plat ( described below ) ; t he CC Rs ’ ex pressly granting an e asement to emergency services that would have be en unnece ssary if the

easement was “ public ” ; a n d the existence of the 20 18 access

- easement a greement, which w ould have been unnecessary if the easement were already “ public , ” a nd which

— if pub lic

— would not require sharing maintenance costs.
The Hom eowne rs also point ed out that their ti tle commitments did not id entify a 1 2

- foot “ public ” access ease ment b ecause the plat merely st ate s “ access

easement ” and that the CCRs refer to a “ Public Right of Way Easement ” only in the defi nition s but do not contain a specific grant of th e easement or otherwise mention it7 elsew here

. They contended that ejusdem generis 1 should app ly to S ection 7.01 of the
CC Rs, which l isted exampl es of Fort Linwood ’ s authority as declarant to grant

ea sements , and that it could not reasonably be argued that gr anting access to a develop er or cons truct ion company was in any way similar to the thirteen specific purposes set out in that sect i on . And , as a summa ry

- judgm ent grou nd, they argued that Fort Linwood had no authority to grant the easement because , contra ry to its

owners hip r epres entation in the access

- ease ment agreement, it no longer owned Lots
1

- R

- 2, 1

- R

- 3, and 1

- R

- 4 , and beca use Fort Linwood had co nv eyed the authority to grant easemen ts when it conveyed the Homeowners ’ lots to them

. They requested a d ec laration t hat the agreement was void. During the pen dency of the summary

- judgment motions, t he Developers brought counterclaim s against the Hom eowners for an implied or equitable easement and for damages caused by the Hom eowners ’ repud iati on of the a cces s easement,

1 T he rule of ejusdem generis p ro vides that where specific and particular enumerations of persons or things in a statu te are followed b y general words, the general words ar e not to be construe d in their widest meaning or e xtent, but are to be treated as limited and applying only to perso ns or things of the same kind or class as those expressly mentioned. Stanford v. Butl er

, 18 1 S.W.2d 26 9, 272 ( Te x. 1944)

. Ejusdem g eneris m a y apply t o an ambigu ous contr act , but it does not apply when the parties ’ i ntent is apparent. Nicol v. Gonzales , 12 7 S.W.3d 390, 395 (Tex. App.

— Dallas 2004, no pet.)

.8 tortious interf erence with contract, and sl ander of title. The Homeowners answered with a gener al denial and raised the affirmative defenses of justification and privilege.
In a November 1 2, 20 19 interlo cutory order , t h e trial co u rt denied the

s ummary

- judgment motion of Fort Linw ood, PBP , and the Developers and granted
the Hom eowners ’ motion , declar ing that the access

- easement agreement between Fort Linwood and Par kwood was void

. The c ase then p roceeded to trial on Novemb er 15,
2 019, but re cessed whe n the trial court ordered the parties to mediation. S everal months later, PBP was nonsuited.
O n September 9, 2020, the trial court signed an agreed orde r of partial d ismissal with prejudice and parti al vacat ion of the November 12, 2019 summary ju dgmen t
. The order vacated any relief granted to the Ho meowners against Fort Linwood and PBP and dismissed all the claims against Fort Linwood and P BP with prej udi ce . Th e order stated that i t did not di spose of any previous orders rendered against the Devel opers or any of th e claims against them

. In their live pleading at the time the trial court dismissed Fort Linwood and PBP, the Homeowners s ou gh t a declar ation that the easement did not gran t access across their lo ts by an yone other than the prope rty owne rs and that the D e velopers

a nd anyone acting on their behalf should be permanentl y e njoined from using the easement to develop the adjoinin g land

. They arg ued alte rnatively that declar ing the easement public under any theory would constitute an unconstitut i onal taking , and9 they sought attorney ’ s fe es . The Homeo wners filed another summary

- judgment
motion.
I n their n ew motion , the Homeowners a rgued t hat t he trial court had already rendere d summary judgment that there was no express grant of an easement in th e Deve lopers ’ favor regard ing the 12

- foot dri veway . The Homeowners further argued
that no b asis exist ed for an easement by ne ce s sity , by impl ied dedication, by estoppel,

or by prescription ; that they had no ac tual or const ructive knowledge of a public

ease ment; and that Fort Linwood and the HOA lacked the power to grant an

easement to the D e velo pers . They also move d for summary judg ment on the
D e velopers ’ counter claims and requested an awar d of attorney ’ s fe es . The
Homeowners incorporated by refere nce the a rgumen ts and authority set o ut in their
earlier motion and relied o n , among o ther things, “ [a]ll trial [ e] xhibits off ered and admitted into evidence at the first day of the Novembe r 15, 2019 trial of this cause. ” After receiving tw o conti nuances, the Deve lopers filed a response to the
motion. In thei r response, the y argued that the easem ent was public via express ded ication in the plat ; that the access

- easemen t agreement was not void and that it merely set out “ con trols ” for such matters as obstructions, p arking , and maintenance ; that the Homeowners wer e on notice o f the public easement b ased on the plat, their title po licies, and the CCRs ; and that alterna tively, the D e velopers had an easement by estoppel. T hey challenged the Homeowners ’ request for attorn ey ’ s f ees bu t did not10 challenge th e summary

- judgm ent motion on the ir repudi ation, tortious

- interference, and slander

- of

- title counterclaims

. On November 10, 202 1, the trial court granted the Homeowners ’ motion. In its final judg ment, the tr ial court decla red th a t th e Home owner s owned the 12

- foot drive crossing t hei r prop erties , that it was a private wa y of access to their residences , and that there wa s no express or implied public

- way easement across their properties.
It also per mane ntly e n j oi ned the Devel opers from ent ering upon the drive without
the H om eo wners ’ prior permission and ordered tha t the Develo pers take nothing on their counter claims

. I t incorporated into the final judg ment the non

- va cated portion of i ts previous summary

- ju dgment order , which h ad gra nted the Homeowners ’ earlier
summary

- judgment motion and denied For t Linwood ’ s motion in which the Developers had joined

. It also awarded $6 4, 900 in attorney ’ s fees to the Ho meo wners and provided for their attor ney ’ s fees on appeal

. 2 See Te x. Civ. Pr ac. & Rem. Code Ann. § 37. 009.
III. Discussion
Th e Developers argue that the tr i al co urt e rred by gr anting summary judgment for the Homeo wners , contending that the approved plat ’ s express dedication created a

2 In their appell ees ’ brief, the Hom eown ers complai n that the a mount of a p pellate attorn ey ’ s fees a warded to t hem is insuf fi cient and ask us to modify and increase the amount. But they did not fil e their own notice of appeal , and w e may not award to t hem greater relief than that awarded by the t rial court. Se e Tex. R. App. P. 25.1 (c)

.11 publi c eas eme nt, that the 2018 access

- easement agreem ent was vali d, and

— altern atively

— that they posses s an easement by estoppel

. 3
A . Su mmary of th e relevant docu ments We begin by summarizing each relevant document

. 4
1 . The Plat
For t Linw ood record ed its p lat in th e T arrant County r eal p rope rty records i n Au gust 2016 , outlining develo pments for the Weisenberger Addition. 5 It placed and label ed a “ 1 2 ’ ACCESS EASE MENT ” on Lots 1

- R

- 1 thro ugh 1

- R

- 4 between the

3 In a s um mary

- judg ment case, the issue on appeal is whether the movant met the summary

- judgment burden by establish ing that no genuine i s sue of material fact exists and that the movant is entitled to judgment as a m atter of la w. Tex. R. Civ. P. 166a(c); Mann F ran kf ort Stein & Lipp Advisors, In c. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo. Traveler s In s. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010).

4 We construe condominium decl arations un der the ru les of contract inter pretat i on , and con tracts

— like statutes and ordinances

— should be construed based on their plain lang uage a nd by con sidering the entire writing in an effort to give eff e ct to all of the provisions so that none will b e rendered meaningles s. Est

. of Douglas v. Cast i lli

an Condo s . , Inc. , No . 02

- 21

- 00321

- CV, 2022 WL 4373603, at *5 (Tex. App.

— Fort Worth Sept. 22, 2022, no p et. ) ( mem. op.) ; City of Grapevine v. Muns , 651 S.W.3d 317, 335 (Tex. App.

— Fort Worth 2021, pet. filed ) (op. on reh ’ g) ; see Bd . of Adjus tment of City of San Anto n i o v. Wende , 92 S.W.3d 424, 430 (Tex. 2002)

. Th e primary goal of co nstruction is to ef fectua t e
— as expresse d in the document

— t he intent of the contract ing parties , the legislature, or the city council

. See M axim Crane Wor ks, L.P. v

. Zurich Am. Ins. Co

. , 64 2 S.W.3d 551 , 557 (Tex. 2022) (statute); M o nroe Guar. Ins. Co. v. BITCO Ge n. Ins. Corp. , 640 S.W.3d 1 95, 19 8

– 9 9 (Tex. 20 22) (contract); Wende , 92 S.W.3d at 430 ( ordinance)

.
5 Fort Linwood filed a corrected p lat on July 11 , 2017, bu t the corrections are irr el evant to th is case.12 homes to be built on the lots an d the lots ’ r ear boundar ies , wh ich ad joined the undeveloped We isen berger Addition 388

- A, “ Lot 2, Block 11 ” that P arkwood bought several months late r, in December 2 016. The plat contains eighteen notes
. 6 One of the m provid es t hat the C ity of For t W orth will not be respons ible for maintenance on the land, stating,
8. Priva te Com mon Areas and F acilities The C ity of F ort W orth shal l not be held responsible for the construction, mai ntenance or operation of any lots containing private commo n areas or fa cilities identified as s uch on this plat. Said areas shall include, but n ot be lim ited to: private streets, emergency access easements , and gated security entrances , recreation areas, l andscaped areas and open spaces, water and wa stewater dist ribution s yst ems and treatment facili ties, and recreation/clubhouse/exercise/buildings an d faci lities. The land owners and subsequent owners of the lots and parcels in this su b division, acting joint ly and severally as a land owners associatio n, shall be re sponsible for such construction, reco nstruction, maintenance and operation of the subdivi sion ’ s private common areas and facilities, and shall agre e to indemnify and hold harmless the C ity of F ort W orth, T exas from all claims, damages and losses arising ou t of, or r esu lting from the performan ce of the obligations of said owners association, as set f or [ th] herein. Another no te identifies h ow residential d riv eway access will be situated, stating,
14

. Resi dential Driv eway Access L imitation Driveway access fr om an adjacent urban local residential, limited local residential, cul

- de

- sac, loop, or col lector street to a residential lot less than f ifty (50) feet in width a [t] the building li ne shall be by one of the following means

6 The plat notes are typed in all caps, but in quoting some of the notes b elow, we have converte d the case fo r rea dability.13 a . Rear entry access shall be p rov ided from an abutting si de or rear alley or b

. A common shared driveway, centered over the commo n lot lines between the adjacent dwe lling units, shall be provided within an a ppropriate access easement

. T he “ rear building line ” sh own on the pl at for Lots 1

- R

- 1, 1

- R

- 2 , 1

- R

- 3, and 1

- R

- 4 is 20 feet. And another note , again addressing private rathe r than public maintenance,
states, 18. P rivate Mai ntenance The C ity of F ort W orth shall not be responsi ble for ma int ena nce of private street s, drives, emergency access easements, public pedestrian access easements, recreation areas, open spaces and d rainag e faci lities and said owners ag ree to indemnify and save harmless the C ity of F ort W orth, T exas, from c laims, dam age s a nd losses arising out of or from performance of the obligations of said owners set forth in this paragraph. The plat al so contain s the fo llowin g bo ilerplate language under For t L i nwood ’ s ded icat ion : “ K now all men by these presen ts that F o rt L inwood, LLC is the owne r of the following described property . . . a nd do hereby dedicate to the pu blic ’ s use the streets and easemen ts as shown hereon

. ”
2
. The CCRs
The CCR s , rec orded in the Tar rant County real

- property records on August 16, 2017, describe the four lots and recite Fort Linwood ’ s intent (as the declarant) “ to impose mutually beneficial res trictions under a general plan of improvement fo r th e14 benefit of all owners of property within the D evelopment

. ” In A rti cle I,

“ Definitions, ” th e CCRs identified “ com mon property ” as all real property together with any and al l improvements now or he reaf ter located thereon or in certa in i nstances over wh ich th e [ HO A ] has been granted easements, for the common u se and enj oym ent of the O wners or the benefit of the [HOA] . . . together with any other prope rty or easement rights that the [HO A] may from time t o t ime acquire by purchase, ass ign ment or other wise , subj ect however to the easements , limitati ons, restricti ons, dedic ati ons and/or reservations applicable thereto by virtue of this Dec laration, t he Plat, and/or prior gr ants or dedicat ions by Declarant or Declaran t ’ s predecessor s in ti tle

. A r ticle I also i denti fie s a “ P ublic Right of Way Easement ” as “ the 12 ’ acc ess easement located on the rear and/or side of each Lot which ha s been des ignated to the public ’ s use as more particular ly depicted a nd described on the Pla t. ”
In Article II, “ C ommon P roperty , ” t he CCR s state that the declarant co uld
convey co mmon property to the HOA “ for access, ingress and egre ss of both

v ehicular traffi c and pedestrians . . . [ and could, a t its ] sole discretion, modify, alter, increase, red uce, a nd otherwise change the C ommon P ropert y . . . at any time prior

to ” conveying it t o the asso cia tion. Under this section , the HOA ha s the right to

“ [g]rant ea seme nts or rights of way over Common Property to any entity i ncluding but not limited to any mu nicipality or other governmental bod y, age ncy or authority , any qua s i

- publ ic agency or a ny utility company or c able television system. ” A r ticle I
states, “ The sale by Dec larant o f any portion of the Property shall not include the conveyance of any of the rights of Declarant under this Declar ation un less those rig hts are specifically co nveyed in the conveyance document. ”15 Under Art icle VI, “ G en eral C ovenants and R estriction s , ” which a ppl ie s to all lots and all structu res built on the lots , regard ing prior easements or restrictions, the
CCRs st ate, A lo ng w ith the easements and r estrictions contained in these Restrictions, the Property is subject to al l implied or expressed restrictio ns , easement s, licenses, leases , and encumbr ances of rec ord, includ ing the Publi c Right of Way Easement. Each Ow ne r shal l be b ound by any prior

- rec or ded restriction, easement, license, lease , and/or encumbrance, including w ith out limitation , the P ublic Rig ht of Way Eas e ment, and further agrees to maintain any e asement, including without limitation, the P ublic Right of Way E as emen t, that affects an Owne r ’ s Lot. Under A r ticle VII, “ E asements, Zo ning and O ther R est rictions , ” the declarant

ex p ressly reserve s to its elf, its successors, and its a ssigns the right to create perpetual easements in, on, over and u nder any part of the Proper ty for any purpose that Declarant deems necessary (herea fter the “ Easement Area ” ), including, by way of exa mpl e , and not limitat ion, the following: [i] The erecti on, installation, construction and maintenance of cable wires, lin es, pipes , cond uits a nd pol es and the necessary or prope r attachments, equi pment and/or infrastructur e in connection with the transmis sio n of ele ctricity, telephone, cable television, commun ication systems, cables and other utilities and similar facilities ; [ ii] The erec ti on, insta llation, construct ion and maintenance of infrastructure for the collection of domestic waste; [iii] The er ect i on, installation, construct ion and maintenance of st orm

water drains, land drains, public and private sewers , irr igati on s ystems for Co mmon P rope rty , pipelines for s upplying gas, water and heat, and for any other public or quasi

- public facility, servic e o r function; [iv ] An easement of support in every por tion of the Lot [that] contributes to the support of a R esidence.16 [v] Slop e control purpos es , including the right to grade and plant slo pes and prevent the doing of an y activity [that] might inte rfere wit h slopes or [that] might create erosion or s liding pro blems of which might change , obstruct or retard drain a ge flow; and [v

i] The planti ng or r e
- planting of hedges, shrubbery , bushes, tre es, flowers and plants of any nat ure within easements and Common P rop e rty. [vii] To inspect the Property for compli ance with maintenance and architec tural standar ds and enfo r ce said s tand ard s; [viii ] To e nforc e the Restrictions; [ ix] To respond to emergencies; [x] To perform mainten ance that is permitted or require d o f the Owner by any governmental entity with applicabl e jurisdiction, if the Owner fails or ref uses to perf orm such m aintena nce ; [xi] To gran t ease ments to utility providers as may be necessary to install, maint ain , and inspect any utilities serving the Pr o perty; and [xii] To perform any and all functions o r duties of the Assoc iati on, Board or Decla rant as re quired by any gov ernmental entity wi t h app licable jurisdiction. It also grant s a non

- exc lusive easement of ingress and eg ress to the de clarant, the board, the HOA , and all police , fire protection, ambulance, emerge ncy medical
servi ces, and o ther em ergency or municipal residential utility and servi ce providers to enter upon the common property in performance of their duties

. T o the declara nt, each lot, and each owner , it gr ants an easement over the adjoining lots “ for the
purp ose of acc ommodating any en c roachment due to engineering errors, err ors in original construction, se ttlement [ , ] or shifting of any Structure, o r any other similar

caus e , ” and it grant s a two

- foot

- w ide easement for any company furnishing audio and17 v

ideo com mu nicatio n services and utili ties made available through an undergro und

co axial cable system. It also pr ohibit s any ow ner from using any easement retained by the declarant or conveyed by the declarant to the HOA “ in a manne r [that] i s incons istent or [that] in terferes with the intended u se for such easement. ”
3 . The Ho meow ners ’ w arranty d eeds The Howard s ’ deed , effective September 28, 2017, provi ded t hat Fort Linwood granted, bargained, s old , and conveye d to them L ot 1

- R

- 3 and “ all of Grant or ’ s right, title and interest in and to the fixtures and improvem ents located on th e Land

. . . together wi th all r ights, privileges and easements app urtenant to th e L and . . . and any and all easements, rights

- of

- way and other a pp urtena nces used in conne ction wi th the beneficial use and enjoyment of the Land, in each case to the extent assi gn able

. ” I t

was “ made and ac cepted subject to any and all val idly exi sting encumbrances, conditions and restriction s . . . as now refl ected by the [Tarr ant County real

- property ] records. ” Chang ’ s deed , effective October 2, 2017, f or Lot 1

- R

- 4, c ontaine d th e same langua ge . Kunkle and Stokes ’ s dee d , e ffective September 22, 2017, f or Lot 1

- R

- 2 , containe d the sam e initial language as the two above deeds but did not contain the reference to existing a nd recorded encumbrances, c onditio ns, or rest rictions

.18 4
. The H o meow ners ’ c ommit ment s for t itle i nsurance All three title commitmen ts identif ied the d eclaration as cont aining restrictive

covenants
. The Howards ’ com mitment also identif ied the plat as a restricti ve

covenant
. The title commitments all ide ntifi ed t he uti lity and access easements in the p lat and a grant of “ easement(s) and rights incidental thereto ” to Oncor and to the City of
Fort Worth. The Howards ’ and Kunk l e and Sto kes ’ s commit ments also identified an unrelated

- to

- th is

- case easement access agr eem ent
. T he How ards ’ and Chang ’ s title
commit ment s are dated Sept ember 13, 2017. Kunkle and Sto kes ’ s title commitment is dated Aug ust 6, 2017

. 5 . The a ccess - e asement a greement O n July 26, 2018 , Fort Lin woo d entered int o and then recorded the access

e aseme n t agre ement with Parkwood. The agreement identif ies Fort Linwood as the owner of all four lots in Lot 1, Bl ock 11 of the Weisenberger Addition and Parkwood

as the own er of Lot 2, Block 11 of the Weise nberger Addition. It states , [ F]o r the benefit of Parkwo od, Fo rt Lin wood, and all future owne rs of the Fort Linwood Lots and the Parkwood Lot ( collectiv e ly , the “ Lots ” ), Fort Linwood desires to create and grant a pe rpetual , non

- exclusive easement over th e 12 foot access ea sement depict ed on the Fo rt Linwood Pla t (the “ Easement Area ” ) for purposes of providing access to the Lots from Curr ie Street and Weisen berger St reet on the terms and conditions set forth in this A greement. Fort Linwo od gran ted to Par kwood “ an d its Permitee s ” a nd reserved to itself and its
per m it tees “ a perpetua l, non

- exclusive easement for pedestrian and vehicular ac cess19 over and across the roads and driveways that may from time to time e xist within the
Easeme nt Area on the Fort Lin wo od Lots ( the ‘ Access Easeme nt ’ ). ” It defined

“ p ermittees ” to “ in clud e a Party ’ s age nts, employees, tenants, co ntractors, representative s, occupants, guests, invitees, licensees, successors and assigns , ” and stated that the easement are a ’ s m ainte nance and upkeep would be a llocated
50 /50 b etween the Fort Linwood Lot owne rs a nd the Parkwood L ot owners. 6. Fort Wor th s ub divisi on o rdinance In their briefs ’ append ices, b o th the Develo pers and the Homeowners provided a copy of Fort W ort h Sub divi sion Ordinance Sec tion 31.106 , governing

street

- design stand ards

. See Fort Wo rth, Tex ., Code of Ordinan ces ch. 31, §§ 31.1

– .171 (20 22), a t https://codelibrary.amlegal.com/code s/ftworth/latest/ftworth_tx/ 0

- 0

- 0

- 2949 9 (hereinafter, Sub. Ord. )

. W e take judicial notice of the following pertinent
sections

. See Tex. R. Evid. 201.
Sect ion 31. 10 6 addresses the different types of streets based on their land

- use

conte xts
. Sub

. Ord. § 31.10 6(a). It provides for a “ residen tial drive way access limitation, ” whi ch parallels the lan guage in plat note # 14 in that it r equir es that [d] riveway access f ro m an a djacent urban local re sidential, limited local residential, cul

- de

- sac, loop, or collector [ ] street to a residentia l lot less than 50 f eet in wid th at the buildin g line shal l be by rear access by one of the following means:

a. From an abut ting side o r rear alley or side or rear d riveway wit h an appropriate access easemen t; or20 b. From a common shared driveway , center ed over t he common lot lines between the adj ac ent dwelling units continuing through t o the rear of the dw elling units, shall be provided with in an ap propriate access easement. Id. § 31.106(c) (13).
Section 31

. 106(i) , “ Access easement design sta ndards (pub lic ac ces s easement s,

re ciprocal access easeme nts, private drives or ways) , ” de fines an access easement as

“ an official ly approved and pr ivately maintained ‘ drive ’ or ‘ way , ’ with the roadway constructed to city street standards that i s open to unrestricted and irre vocable pu blic access and serves t wo or more lots, each having a minimum of 100 feet of fronta ge each, as their pr imary means of access. ” Id. § 31.106(i)(1)a. An access easement, under the City ’ s ordin ance, is “ designed to provide access from adjo ining lot s, such as within

a ‘ conventional ’ or ‘ strip ’ shopping center, to an adjacent arterial street, usually in conjunction with a med ian brea k. They may also provide an alte r nate access to a collector or a r terial street where unusual topography may oth erwise im pe de a saf e entry connection to the l ots serv ed. ” Id. § 31.106(i)( 1)b. T he City requires that “ [t]he unobstruct ed easement wi dth shall n ot be le ss than 24 feet , ” and that the easement paving wi d th “ sha ll not be le ss than 20 feet, and centered with in the un obstructed

access easement, ” with tur nouts with not l ess tha n a 25

- f oot interior radi us “ measu red at the vertex of the easement lines an d an outside radius of 50 feet. ” Id. § 31.106(i)( 2)

– (4).
In cont rast to its access

- easement defin ition , the or dinance d efines “ pr ivate streets and alleys ” a s “ private vehicular access ways shared by and serving th ree or21 more lots, which are not ot herwise dedicated to the public no r publicly maintained. ” Id. § 31.106(j) (1) . On a plat, a private street or alley must be “ acco mpanied by a standard p lat note stati ng that th e mainte nance and upkeep shall be by a property

owners association or other such legal en tity empowered by deed restrictions to own and ma intain such stre ets or alleys ”

— like plat note #8

— a nd while the City “ sh all have n o ownership or maintenance responsibi lities associated with private streets or alleys, ” it will review the property

- owners

- ass ociation documents “ prior to recording to ensure that adequate pr ov isions of private perpetual ownership , maint enance an d upkeep a re provided for in the asso ciation do cuments and to ensure that there is no liability to the city. ” Id. § 31.106(j)(2)

. “ No pr ivate street or alley shall be transferred to

t he city by a prope rty owners association nor shall the city acce pt a tran sfer, unle ss the city has first deter mined that such streets and/or alleys m eet or exceed the city ’ s requirements for righ t

- of

- w ay, road way pa ving and drain age standards in effect at time of transfer o r dedication. ” Id. § 31.106(j)(4).
Section 31 .171 defi nes the va rious terms in th e Subdivis ion O r dina nce , including “ alley ” (a minor right

- of

- way, not intended to provide the primary m eans o f access to abutting lots, that is primarily for vehicular servi ce access to the back or sides of lots or prop erties o therwise a butting on a street); “ comm on area ” (a n area or facility that is owned jointly by the owners within the su bdivision or m embers o f the property

- owners association , including

— but not limited to

— p rivate parks, community buildings, and screen ing wall s); “ dedic ation ” ( a gift or donation of22 prop erty or interest in property by the owner t o the public); “ access easement ” (an

easem e nt creat ed to provide veh icular or pedestrian acce ss to a property); “ emer gency

access easement ” (an easement on priva te prope rty create d to provide a ccess for

eme rgency vehicles to a property); “ private street s ” (private vehicular access way s shared by a n d servin g three or more lots, wh ich are not otherwise dedicated to the public nor publi cly maintained) ; and “ private s treet ” ( a vehicu la r ac cess way under private ownership and maintenance that has not been dedicated to the city or accepted by the city ). I d. § 31. 171.
B. The D e velopers ’ issues 1. Express dedication In their first issue, t he Develo pers conten d that the app roved pl at ’ s expre ss dedication created a pub lic eas ement that they should be allowed to use. A dedication for public u se requires the fol lowing: ( 1) the person who makes the dedication must have the ability to do so, i.e., hav e fee si mple title ; (2) there must be a publi c purpose served by the dedication; (3) the person must ma ke eit her an express or implied offer; and (4 ) there must be an acceptan c e of that offer. St reet v. Chance , No. 02

- 18

- 00409

- CV, 2019 WL 2293185, at * 3 (T ex. App.

— Fort Wort h May 30, 2019, no pet.) (m em. op.) ( citing Spin uzzi v. Town of Corinth , 6 6 5 S.W.2d 5 30,
53 2 (Tex. App.

— Fort Worth 1983, no writ) )

. A n expr ess d edica tion req uires the showing of a declaration or some express manifestation of the purpose to dev ot e the land to public use. Id. (citing Gutierrez v.23 C

n ty. of Zapata , 951 S.W.2d 831, 837, 840 (Tex. App.

— San Antonio 1997, no writ) ). Accordingly, w e first l ook to the pl at and related CCRs

. See Anderson v. Tall Timbers Corp. , 378 S.W.2d 16, 19 (Tex. 1964) ; 7 see also Tex. Loc. Go v ’ t Code Ann. § 212.004(b) (stating that to be re corded, a plat must, among other things, “ state the dimensions

. . . of each street

. . . or othe r part of the tract intended to be dedicated to public use or for the use of pur chaser s or owners of lots fronting o n or a dj acent to the street . . . or other part ” ). Fort Linwood owned the property at the time of the dedication , Fort Linwood ’ s p lat dedic ate d to public use the e asements shown on it , and the CCRs identified as a “ p ublic ri ght of way easeme n t ” a 12

- foot access easement “ as more par ticularly depicted and described on the P lat

. ” Accordingly, the record reflects at le ast two e le ments o f an expr ess publi c dedication

. See S treet , 2019 WL 2293185, at *3

. But a plat ’ s a pproval is not co nsidered an ac ce

ptan ce of a proposed dedication and does not impose on a muni cipality any duty to maintain or improve any d edicated parts until the proper m unicipal authorities actually appropriate

— by entry, use, or

7 In Anders on , the plat dedicated “the use of the s treets shown h ereon ” to publ ic use . 378 S .W.2d at 19

. (emphasis a dded). The plat ’s dedic ation did not mention the 40

- foot easement shown on the plat , and the court conclu d ed

— after reviewing the plat and the C CRs

— that “the easement areas shown on the plat were not dedica ted to the pub lic for an y us e. ” Id. at 2 1 ( “[ T]here are no circumstances u nder which it can be said that the reservation of the [40

- ] foot easement area in c o ntroversy carried a dedicat ion as a public street. ”).24 improvement

— the dedicat ed parts. Tex. Loc. Go v ’ t Code Ann. § 212.0 11(a). 8 T o complete a public easement ’ s creation by express dedication , a g overnmental entity

must accept the de dication by or on behalf of the public. Lambright v. Trahan , 322 S.W.3d 424, 432 ( Tex. App.

— T exarkana 2010, pet . denie d)

. F ormal acceptanc e is relatively easy to determine because i t is done by governmental

- entity action and recorded b y such things as meet ing minutes

. Id. I nformal a cceptance can be implied if the public uses the easement by g enera l and cu sto mary us e. Id. (referencing Viscard i v

. Pa

j

e stka , 576 S.W.2d 16, 19 ( Tex. 1978) , which noted that whether public right of way has been acquired by dedica tion is g enerally a fa ct qu e stion )

. The record here reflects no evidence of either a formal o r an inf ormal acce ptance by the public

. 9 Acco rdingly , the trial court did not err by denying summary judgment to the Developers based on their pub lic

- easement theo ry , a nd we overrul e this po rtion o f their first issue.

8 On the other hand, a plat ’ s di sapproval is considered a m unicipali t y ’s refusal of a plat ’ s off ered dedicat ion

. Tex. Lo c. Gov ’ t Code Ann. § 212.011(b).

9 Further, the plat ’ s access easement d oes not m e et the city ’ s requirements set out in the subdivision ordinance for an access easement : the plat ’ s e asement measu re s only 1 2 feet wide whil e the o rdinance require s a w idth of not le ss than 24 feet , with a paving width of not less than 20 feet. See Sub. Ord. § 31.106(i) . Instead, the plat ’ s easement most closely resembles the ordinance ’ s defin ition of “ priv ate s treet s ”

— “ private vehicular acce s s ways shared by and serving three o r more lots , which are not otherwise dedicated to the public nor publ icly maintained ”

— a nd the “ residential driv eway access limitation. ” See i d. § § 31.106 ( c) (13), (j)(1) , .171.25 2. Access

- easemen t agreem ent The D evelopers next c laim , in pa rt of their first issue and in their second issue,
that the 2018 ac c ess
- easement agreement valid ly create d an easement for their use and
that the t rial cour t improper ly declared it void

. T he agreement ’ s val idity , however, relies on Fort Linwood ’ s authori ty to enter into it

. T he CCRs authorized the HOA

— not Fort Linwoo d

— to grant eas emen ts over

common property
. And although For t L inwood, as the declarant, r eserv ed to its e lf the righ t to create easemen ts “ for any p ur pose [it] deems necessary , ” the types of

eas ements it cited as examples of what it could create focused on infrastructure

matters or government r equirements, such as the installation of pipe s , pol e s , a nd
wir ing f or various utilities ; the col lection of domestic was te ; irrigation ; erosion prevention; landscaping ; emergency response ; code

- enforcement

- related m aintenance ; and “ functions or duties of the [HOA] , Board or Declarant as required by any
gove rn men tal entit y wi th appli cable jurisdiction

. ” In light o f the CC Rs ’ purpose, which is “ to impose mutually beneficial res trictions under a general pl an of improvement for the benefit of all ow ners of property within the development , ” t he D evel opers have not sho wn how g r anting an easement to the developer

- next

- door was

“ necessary ” for the Homeowners ’ benefit in the same way that an easement f or , say, trash collection or emergency response would be. [Emphasis added.] Mo reover , the

rec ord does not conta i n evidence of the co sts in volved in maintaining the easement ,26 w hat fi fty percent of that amount would be , and how the easement might otherw ise b enefit the Homeowners. To further support their argument that the trial court could not void the

ease ment agree ment, t he De velo pers point out that a contract is void only if it violates a specific statute o r is against public policy

. See S wain v. Wiley Col l. , 74 S.W.3d 143,
146 (Tex. App.

— Texarkana 2002, no pet.)

. A s reflected on the agreement ’s face , F ort Linwoo d p u rported to repre sen t th at it could “create and grant ” an easement “over the 12 foot access eas ement depicted
on the Fort Linwood Plat ” as the owner of th e four lots , when i n fact , it then owned only one of th e m . An easement is an i nterest in real estat e. Copano Ener gy , LLC v

. Bujnoch , 593 S.W.3d 721, 727 (Tex. 2020)

. “ Texas law prohibi ts false representations in transactions involvin g real estate

. ” Fibela v. Wood , No. 08

- 20

- 00019

- CV,
2022 WL 45388 78, at *5 (Tex. App.

— El Paso Sept. 2 8, 2022, n o pet. ) ( citing Tex.
Bus. & Com. C ode Ann. § 27.01). On thi s re cord, we cannot say that the trial cou rt erred as a matter of law by granting t he Homeowners ’ motion on this i ssue as to their lots , and we overrule this portion of the Dev elopers ’ fi rst issue and their second issue

. 3
. Easemen t by estoppel The Developers alternatively argu e , in the ir third issue, that they possess an easement by e stoppel. Under the easement

- by

- estoppel doctrine , the owner of the

a lleged serv ient estat e may be estopped from deny ing an easement ’ s existe nce if th at

owner m ade represen tations t hat the owner o f the alleged domina n t estate (the27 p romise e ) acted on. Schwendeman v. BT SFRL I, LLC , No. 02

- 19

- 00007

- CV,
2020 WL 479592, at *8 ( Tex. App.

— F ort Worth Jan. 30, 2020, pet. denied) (mem. op.)

. The element s require d to create an easement by estoppel a re (1) a representation of the easement communicated, ei ther by words or action, by the

owner to the promisee; (2) the communication was believed; a nd (3) the promisee

r elied upon the communicatio n. Id. These e lements a pply at the time the
communication cr eating th e alleged easement is made. Id. Once created, t he easement binds the servient estate ’ s owner and his succ essors in interest if they had not ice

— actual or constru ctive

— of the easement claim ed. Id. It is also bin d ing if the dominant

estate ’ s owner and h is successors in interest continue to rely upon the e asement ’ s existence. Id. “ Servitudes or easements mu st be created by the owner. ” F.J. Harris on &
Co. v. Boring & Kennard , 44 Tex. 255, 267 ( 1875) ; see Sto rms v. Tu ck , 579 S.W .2d 447, 451 (Tex. 19 79) ( “ As gener ally stated, the doctrine holds that the owner of land may be estopped to deny the [e]xistence of a n easement by making representations tha t have been acted u po n by a purchaser to his det riment

. ” ). 10

10 In S t orms , the court noted that in the tra dit ional easement

- by

- estoppel case, t here is generally no written grant of an easement and instead a p aro l grant or a representat ion th at an easement already exists , a nd the issue revolves around whether t he easement ex ists. 5 79 S.W.2d at 452. S uch cases g ene rally involve the servient estate owner ’ s oral promise to convey an easement, his oral grant of an eas ement, his statement that a n easement exists when i n fact it does not, or his remaining silent in th e face of a du ty to spea k, in relian ce on which the ot her p arty expends money in making improvements. Id. at 453. Under th is li st of circumstances , the doct rine28 T he record reflects t hat by the time Fort Linwood recommunicated to the
D evelopers the possibility of a n access easement in its July 23, 2018 email , Fort
L

inw ood no longer owned three of the four lots that would have otherwise been
servient an d that the Hom eowners n ever made a ny representations to th e Developers. Accordingly , the trial court did not err by concluding that no eas ement had been created by esto p pel with regard to the Ho meowners. 11
IV . Conclusio n Having overruled the D evelop er s ’ i ssues, we affir m the tri al court ’ s judgme nt.

/s/ Elizabeth Kerr Elizabeth Kerr Justice
D eli vered: February 2, 2023

prevents the servient estate ’ s owner from asserting the statute of frauds a s a defense in denia l of the easem ent ’ s exi s tence. Id. at 454. Here, t here is n o evidence to show that the D evel opers spent any money on improv ements before or after t he Ho meowners fil ed suit.

11 Based on our conclusions that ne ither a public easem ent (by plat) nor a priv ate easement ( by contract o r est op pel ) was created , we do no t re a ch the De velopers ’ notice

- bas ed arguments. See Tex. R. App. P. 47.1.