In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-21-00036-CV 

________________________

THE LOCATION, LOCATION, LOCATION, LTD., APPELLANT 

 

V. 

 

HOME DEPOT USA, INC., APPELLEE 

 

 

On Appeal from the 47th District Court 

Potter County, Texas 

Trial Court No. 108,791-A-CV; Honorable Dan Schaap, Presiding 

 

January 25, 2022 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and PIRTLE and PARKER, JJ. 

The parties to this appeal are also parties to a Restrictive Covenant and Easement 

Agreement, dated August 22, 2005, which created a covenant running with certain land 

situated in Amarillo, Potter County, Texas. Appellant, The Location, Location, Location, 

Ltd., sued Appellee, Home Depot USA, Inc., alleging a breach of that agreement and 

seeking the recovery of monetary damages. Location filed a motion for partial summary 
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judgment alleging that Home Depot had breached the agreement as a matter of law. 

Home Depot responded by filing its own motion for summary judgment asserting that 

Location’s claims were barred by limitations and/or waiver. On submission, the trial court 

denied Location’s motion for partial summary judgment, granted Home Depot’s motion 

for summary judgment, and, without specifying the grounds on which it based its ruling, 

entered a “take nothing” judgment in favor of Home Depot. 

Through one issue, Location appeals that judgment, arguing that the trial court 

erred because the breach at issue is one of a “continuing” nature having a rolling statute 

of limitations. Home Depot responds that the trial court properly granted summary 

judgment in its favor based on the affirmative defenses of statute of limitations, waiver, 

and laches. We reverse the judgment of the trial court and render judgment in part in 

favor of Home Depot, and in part in favor of Location. We also remand the case to the 

trial court for further proceedings.

BACKGROUND

As stated above, this is a breach of contract case arising from a specific contractual 

provision included within a Restrictive Covenant and Easement Agreement entered into 

between the parties, pertaining to their respective tracts of adjacent real property.

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Pursuant to that agreement, Location, Home Depot, and a third-party (not a party to this 

proceeding) entered into mutually beneficial cross-easements, restrictive covenants, and 

building restrictions applicable to the commercial development of their respective 

properties, thereby creating covenants running with the land. 

1 The Restrictive Covenant and Easement Agreement is recorded in the Official Public Records of 

Potter County, Texas, at Volume 3643, Pages 473-494.
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At issue in this proceeding is Paragraph 3.2(b) of the Restrictive Covenant and 

Easement Agreement, which provides as follows:

(b) Any pylon sign located at any time on the Home Depot Property within 

fifty feet (50’) of Georgia Street (as improved as of the Effective Date hereof) 

shall be constructed so that the lowest part of any sign panel thereof (not 

including the pylon pole) shall be at least thirty-eight and one-half feet 

(38.5’) above the ground surface at the base of such pylon sign.

It is undisputed that in May 2006, Home Depot opened Store #6831 located at 

2410 South Georgia Street, Amarillo, Texas. At approximately that same time, Home 

Depot erected a sign at the south entrance to the store within fifty feet of South Georgia 

Street. It is further undisputed that the lowest part of “any sign panel” of that sign has 

been less than thirty-eight and one-half feet “above the ground surface at the base” of 

that sign since May 2006. 

Location owns and maintains a separate billboard sign on South Georgia Street 

and maintains in this lawsuit that Home Depot’s sign is “blocking” the south side of 

Location’s billboard sign. Location’s billboard sign was in place at the time the parties 

entered into the agreement in 2005. The location, height, or size of both signs has not 

changed since that time.

Location argued in its pleadings that “Home Depot breached the contract when it 

erected a sign that did not comply with the [Restrictive Covenant and Easement 

Agreement].” Despite its knowledge of the breach, Location did not address the height 

of the sign with Home Depot until Location’s corporate representative, Paul Fields, sent 

an email to Home Depot in August 2016. In May 2019, Location sent a demand letter to 

Home Depot stating that “Home Depot is in breach of the [agreement] and has been in 
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breach for some time.” Location subsequently filed suit for breach of contract against 

Home Depot on June 28, 2019.2 Significantly, Location sought recovery of “actual 

damages, attorney fees and expenses; [a]nd, all other relief to which plaintiff is entitled.” 

Home Depot originally filed a general denial but later amended its pleadings to include 

the affirmative defenses of statute of limitations, waiver, and laches.

Location filed a Motion for Partial Summary Judgment in June 2020. It argued 

there were no genuine issues of material fact regarding any of the elements of its breach 

of contract claim against Home Depot because it was undisputed that Home Depot’s 

billboard sign was within fifty feet of South Georgia Street and less than thirty-eight and 

one-half feet above the surface. Home Depot filed its Motion for Summary Judgment in 

September 2020. It asserted that Location’s claim for breach of contract was barred by 

the applicable four-year statute of limitations and by the doctrine of waiver. Relevant to

Home Depot’s claim of waiver, the Restrictive Covenant and Easement Agreement 

contains a nonwaiver provision which provides, in part, that “[n]o delay or omission by 

any Party to exercise its rights accruing upon any noncompliance or failure of 

performance by any Party shall impair any such right or be construed a waiver thereof.”

The trial court considered both summary judgment motions and the responses filed 

and entered a Final Judgment on November 12, 2020. In granting Home Depot’s motion, 

2 Generally, the elements of a breach of contract claim are: (1) the existence of a valid contract; (2) 

the plaintiff performed or tendered performance as the contract required; (3) the defendant breached the 

contract by failing to perform or tender performance as the contract required; and (4) the plaintiff sustained 

damages as a result of the breach. USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 502 n.21 (Tex. 

2018). Restrictive covenants are subject to the general rules of contract construction. Pilarcik v. Emmons, 

966 S.W.2d 474, 478 (Tex. 1998) (citation omitted). 
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the trial court did not specify whether it was granting summary judgment on the basis of 

limitations or waiver.

ANALYSIS

STANDARD OF REVIEW

An appellate court reviews a trial court’s grant of summary judgment de novo. 

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A plaintiff moving 

for summary judgment on its own claim must conclusively prove each essential element 

of its cause of action. Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). 

A defendant presenting a traditional motion for summary judgment must conclusively 

negate at least one essential element of each of the plaintiff’s causes of action or 

conclusively prove each essential element of its affirmative defense. TEX. R. CIV. P.

166a(c); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Thus, 

either way, the movant for summary judgment has the burden of showing there are no 

genuine issues of material fact and it is entitled to summary judgment as a matter of 

law. TEX. R. CIV. P. 166a(c). 

When parties file cross-motions for summary judgment on overlapping issues, and 

the trial court grants one motion and denies the other, a reviewing court considers the

summary judgment evidence supporting both motions and “render[s] the judgment the 

trial court should have.” Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). 

Moreover, when the summary judgment does not specify the grounds on which it was 

granted, it may be affirmed on any ground in the motion that is meritorious. Provident 

Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). That is to say, in 
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order to warrant reversal, an appellant must negate every ground on which the trial court 

could have based its judgment.

APPLICATION

Location frames its appellate issue as “Whether Appellant can insist on 

performance of a contract where the contract is a ‘continuing’ contract and Appellant has 

elected to excuse Appellee’s breaches that are outside of the four-year breach of contract 

statute of limitations.” Home Depot frames the appellate issues differently, asking 

whether the trial court properly granted summary judgment based on Home Depot’s 

statute of limitations and waiver defenses. 

Regardless of how the issue is framed, the parties agree that “the lowest part of 

any sign panel” on the sign in question has been below a height of thirty-eight and onehalf feet above the “ground surface at the base of [such] sign” and that the sign has been 

located well within fifty feet from South Georgia Street since approximately May 2006. In 

other words, the parties agree that Home Depot violated the restrictive covenant between 

the parties when it originally erected the store sign in 2006, more than thirteen years prior 

to the filing the present lawsuit. While Home Depot argues that Location’s claims are 

barred in their entirety by the doctrines of waiver and statute of limitations, Location 

contends the restrictive covenant is a “continuing” obligation requiring ongoing “annual 

performance” and thus, it is entitled to bring suit at any time. 

Summary judgment evidence from the deposition of Paul Fields, a corporate 

representative of Location, established that he believed Home Depot’s sign has been in

violation of the Agreement since the sign was erected in 2006. He also answered “Yes” 

when asked whether Location had always been aware that the Home Depot sign had 
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been at the same height in the same place since it was erected. Consequently, it is clear 

that Location was aware of the breach of the Agreement in 2006, more than thirteen years 

prior to its filing of suit. What is at issue, therefore, is whether Location’s “continuing” 

claims are barred by the affirmative defenses of either waiver or limitations, thereby 

supporting the trial court’s summary judgment.

Restrictive covenants concerning real property are subject to the general rules of 

contract construction and Texas has a strong public policy in favor of allowing parties to 

enter into agreements restricting the use of land for the commercial development of that 

property. Vance v. Popkowski, 534 S.W.3d 474, 478 (Tex. App.—Houston [1st Dist.] 

2017, pet. denied). This public policy favoring the right of parties to freely contract 

mandates that courts remember that they “are not lightly to interfere with this freedom of 

contract.” Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) 

(quoting BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 767 (Tex. 2005)). In that 

regard, Texas courts have consistently held that adjacent property owners have the right 

to contract with regard to their property as they see fit, so long as the contract does not 

offend public policy and is not illegal. Vance, 534 S.W.3d at 478. Therefore, when 

construing a restrictive covenant, the court’s primary duty is to ascertain the intent of the 

contracting parties as expressed within the four corners of the instrument. Id. When a 

restrictive covenant is unambiguous, we construe it according to the plain meaning of its 

express term and enforce it as written. Id.

WAIVER

Here, Home Depot asserts Location’s claims are barred by the affirmative defense 

of waiver. However, as stated above, the Restrictive Covenant and Easement Agreement 
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in question contains a nonwaiver provision which provides, in part, that “[n]o delay or 

omission by any Party to exercise its rights accruing upon any noncompliance or failure 

of performance by any Party shall impair any such right or be construed a waiver thereof.” 

In this context, the intended purpose of the nonwaiver provision is to prevent claims of 

waiver and abandonment from being asserted due to non-enforcement of the restrictive 

covenants. Vance, 534 S.W.3d 479. Here, the plain language of the nonwaiver provision 

protects Location from claims that the restrictive covenants have been abandoned or 

waived due to Location’s failure to assert its claim against Home Depot earlier.

“Given Texas’s strong public policy favoring freedom of contract, there can be no 

doubt that, as a general proposition, nonwaiver provisions are binding and enforceable.” 

Vance, 534 S.W.3d 479 (quoting Shields Ltd. Partnership v. Bradberry, 526 S.W.3d 472, 

481 (Tex. 2017)). Furthermore, relevant to the issue before us, nonwaiver provisions 

have often been enforced in the context of the enforcement of restrictive covenants. See,

e.g., A.G.E., Inc. v. Buford, 105 S.W.3d 667, 676 (Tex. App.—Austin 2003, pet.

denied); Straus v. Kirby Court Corp., 909 S.W.2d 105, 108-09 (Tex. App.—Houston [14th

Dist.] 1995, writ denied). See also Musgrove v. Westridge Street Partners I, LLC, No. 02-

07-281-CV, 2009 Tex. App. LEXIS 2660, at *4 (Tex. App.—Fort Worth April 9, 2009, pet. 

denied) (mem. op.).

Despite this general acceptance of the enforceability of nonwaiver provisions in 

the context of restrictive covenants, some Texas courts have found that a nonwaiver 

provision does not absolutely preclude a finding of abandonment or waiver. See, e.g.,

Musgrove, 2009 Tex. App. LEXIS 2660, at *4-6; Loehman v. Hunter, No. 04-13-00072-

CV, 2013 Tex. App. LEXIS 11990, at *8-9 (Tex. App.—San Antonio Sept. 25, 2013, no.
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pet.) (mem. op.). Relying on Shields Ltd. Partnership, 526 S.W.3d at 482-83, and Hobby 

Lobby Stores, Inc. v. Standard Renewable Energy, LP, No. 02-15-00124-CV, 2016 Tex. 

App. LEXIS 8753, at *16 (Tex. App.—Fort Worth Aug. 11, 2016, pet. denied), Home Depot 

argues that there are no genuine issues of material fact regarding whether Location 

waived its claim for breach of paragraph 3.2(b) and thereby waived the enforcement of 

the nonwaiver provision.

However, the Texas Supreme Court has held that waiver of a nonwaiver provision 

cannot be “anchored in the same conduct the parties specifically agreed would not give 

rise to a waiver of contract rights.” Shields Ltd. Partnership, 526 S.W.3d at 474. That is, 

Location’s waiver of the nonwaiver provision could not be based on its failure to enforce 

paragraph 3.2(b), but instead, must be based on other conduct of the parties showing an 

intent to abandon or waive the agreement as a whole.

In that regard, waiver is the voluntary relinquishment of a known right. Waiver may 

be either express or implied. Here, Location did not expressly waive either the nonwaiver 

provision or the restrictive covenant found in paragraph 3.2(b). An implied waiver occurs 

when one party engages in intentional conduct inconsistent with the right allegedly being 

waived. No such intentional conduct was established in this case. An implied waiver can 

also occur by inaction when the party to whom the right accrues fails to act in a prompt 

and efficient manner. To establish waiver by abandonment of a restrictive covenant 

running with the land, where there is a nonwaiver provision, a property owner must prove 

that the existing violations are so great and the violations so pervasive, that they have 

destroyed the fundamental purpose of the restrictions and have caused the average 

person to conclude that the entire set of restrictions in question have been abandoned. 
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Densmore v. McCarley, No. 02-19-00287-CV, 2020 Tex. App. LEXIS 2304, at *1 (Tex. 

App.—Fort Worth March 19, 2020, no pet.) (mem. op.); Vance, 534 S.W.3d at 480. Such 

determinations are inherently fact-intensive inquisitions to be determined by the trier of 

fact on a case-by-case basis. Vance, 534 S.W.3d at 481.

Here, Home Depot does not contend that the entire purpose of the agreement has 

been abandoned or waived, only that the restrictions set forth in paragraph 3.2(b) have 

been waived. Furthermore, Home Depot has failed to establish, as a matter of law, that 

the fundamental purpose of the restrictive covenant agreement has been abandoned or 

waived. Therefore, we conclude that Home Depot has failed to carry its burden to 

establish a waiver of the restrictive covenant because the nonwaiver provision operates 

to preclude any finding that the restrictive covenant found in paragraph 3.2(b) was waived 

or abandoned. As such, we find that the trial court could not have based its decision on 

Home Depot’s affirmative defense of waiver.

LIMITATIONS

A breach of contract claim accrues when the contract is breached. Barker v. 

Eckman, 213 S.W.3d 306, 311 (Tex. 2006). A breach of contract occurs when a party 

fails or refuses to do something a party has promised to do. Capstone Healthcare Equip. 

Servs. v. Quality Home Health Care, Inc., 295 S.W.3d 696, 699 (Tex. App.—Dallas 2009, 

pet. denied) (citation omitted). 

Some contracts involve continuing obligations, such as those included in 

construction contracts. Those contracts typically contemplate performance and payment 

that “is divided into several parts or, where the work is continuous and indivisible, the 

payment for work is made in installments as the work is completed.” Capstone Healthcare 
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Equip. Servs., 295 S.W.3d at 700 (citing Hubble v. Lone Star Contracting Corp., 883 

S.W.2d 379, 381 (Tex. App.—Fort Worth 1994, writ denied)). Limitations begin to run on 

the contract at the earlier of (1) the completion of the work; (2) the termination of the

contract under its own terms; or (3) the anticipatory repudiation of the contract by one 

party and the adoption of the repudiation by the other party. Capstone Healthcare Equip. 

Servs., 295 S.W.3d at 700 (citation omitted). But, if the terms of a continuing contract call 

for fixed, periodic performance during the course of the agreement, a cause of action for 

the breach of the agreement may arise at the end of each period, before the contract is 

completed. Capstone Healthcare Equip. Servs., 295 S.W.3d at 700 (citing Davis Apparel 

v. Gale-Sobel, A Division of Angelica Corp., 117 S.W.3d 15, 18 (Tex. App.—Eastland 

2003, no pet.)). The injured party has four years from each breach to bring suit. Capstone 

Healthcare Equip. Servs., 295 S.W.3d at 700 (citing F.D. Stella Prods. Co. v. Scott, 875 

S.W.2d 462, 465 (Tex. App.—Austin 1994, no writ)).

Other contracts of a continuous nature include those involving an alleged breach 

of an obligation to make ongoing or periodic payments, including installment contracts 

with fixed payments, contracts requiring periodic payments such as commissions or 

portions of sales proceeds, lease payments, and payments on promissory notes. Spin 

Doctor Golf, Inc. v. Paymentech, L.P., 296 S.W.3d 354, 362-63 (Tex. App.—Dallas 2009, 

pet. denied). The statute of limitations for “open accounts” involving creditor-debtor 

relationships like credit lines are also different. Bank of America v. Jeff Taylor, LLC, 358 

S.W.3d 848, 859-61 (Tex. App.—Tyler 2012, no pet.). 

Finally, as applicable to the facts of this case, deed restrictions, plats, and 

covenants running with the land, create on-going contractual obligations between various 
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parties relative to the continuing use of a particular tract of land. In such cases, those 

covenants are enforceable under the same principles and legal theories as typical 

contractual agreements. In many cases, such as this case, the restrictive covenant is a 

direct contractual obligation between the primary parties to the agreement in question. In 

such cases, an injured party may seek various forms of relief, such as injunctive relief or 

the recovery of monetary damages. In such cases, the application of an affirmative 

defense will turn on the nature of the relief being sought and defense being presented.

Based on the summary judgment evidence presented, we conclude Location’s 

claims are barred, in part, and remain sustainable, in part, based on the doctrine of statute 

of limitations. Clearly, Home Depot violated the restrictive covenant in question. The 

statute of limitations for the recovery of monetary damages and other relief stemming 

from the breach of a contract is four years from the day the cause of action accrues. TEX.

CIV. PRAC. & REM. CODE ANN. § 16.004 (West 2002). Because the breach of a restrictive 

covenant is a breach of contract, Location’s claims for the recovery of monetary relief of 

any damages accruing more than four years prior to the date suit was filed is barred by 

limitations. However, to the extent that Location seeks recovery of damages accruing 

less than four years from the date suit was filed or to the extent that Location seeks “other 

relief to which it is entitled,” such relief would not be barred by limitations. Therefore, the 

trial court erred by granting a blanket “take nothing” judgment in favor of Home Depot on 

the basis of limitations. Issue one is sustained, in part, and denied, in part. 

CONCLUSION

We affirm the judgment of the trial court as to any claim or cause of action for 

damages accruing prior to June 28, 2015 (four years prior to the date suit was filed), but 
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we reverse the judgment of the trial court as to any claim or cause of action accruing after 

that date, and we remand this case to the trial court for further proceedings.

Patrick A. Pirtle

 Justice

Quinn, C.J., dissenting