Opinion issued April 15, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-00825-CV

———————————

COUNTRY COMMUNITY TIMBERLAKE VILLAGE, L.P., CHARLES 

AND JUDITH CAYLEY, DENNIS AND TIFFANY DILLARD, JIM AND

TINA DILLARD, TODD AND SAMANTHA DOWNING, KENNETH AND

PENNY EDWARDS, STEWART AND KELLI GUSS, RICK AND DONNA 

HAWRYLAK, LEONARD AND ROBBIE HIGGINS, ET AL., Appellants

V.

HMW SPECIAL UTILITY DISTRICT OF HARRIS AND MONTGOMERY 

COUNTIES, Appellee

On Appeal from the County Civil Court at Law No. 1

Harris County, Texas

Trial Court Case No. 912,608
2

O P I N I O N

This appeal concerns the acquisition of a piece of real property outside a 

gated subdivision by a special utility district for use as a utility site and the 

condemnation of a deed restriction affecting that property. At trial, a jury awarded 

various individual homeowners, including the developer, in the adjacent 

subdivision damages for the reduction in value each suffered due to the 

condemnation. The homeowners and the developer appeal, and the utility district 

cross-appeals. We hold that the homeowners and the developer lack standing and 

therefore vacate the judgment of the trial court and dismiss the case.

Background

This appeal concerns Timberlake Village, a gated subdivision in northwest 

Harris County, Texas, developed by Country Community Timberlake Village, L.P. 

(“Country Community”). Country Community created the subdivision in May 

2002 by subdividing a 143.5-acre tract of land. Timberlake Village consists of 

eighty-five residential lots to the north of the entry gate, where each of the 

individual Appellants resides, and fourteen lots outside the entry gate along 

Loblolly Lane, the entry road to Timberlake Village, the owners of which did not 

participate in the lawsuit. The subdivision is subject to a variety of covenants, 

conditions, and restrictions, which were set forth in a declaration recorded by 

Country Community (the “Subdivision Declaration”). To help administer the 
3

covenants, conditions, and restrictions, Country Community created a homeowners 

association, Timberlake Village Homeowners Association, Inc. (“TVHA”).

In addition to the 143.5-acre tract that became Timberlake Village, Country 

Community also owned a 3.9332-acre tract on Loblolly Lane. This smaller tract 

(the “Small Tract”) was not subdivided or made part of Timberlake Village, 

although Country Community imposed certain covenants, conditions, and 

restrictions on the Small Tract (the “Small Tract Declaration”) in October 2002.

The Small Tract Declaration includes the following recitals, which inform 

much of the parties’ argument in this appeal:

WHEREAS, Declarant [Country Community] desires to provide and 

adopt a set of conditions, covenants, and restrictions designed to 

govern, control, and preserve the value of the Property and to preserve 

the value of property located within Timberlake Village; for the 

development, improvement, sale, use, and enjoyment of the Property 

and property located within Timberlake Village; and

WHEREAS, Declarant desires to subject the Property to the 

conditions, covenants, and restrictions hereinafter set forth, for the 

benefit of the owners of the Property and for the benefit of owners of 

property located within Timberlake Village; and

NOW, THEREFORE, Declarant hereby declares that the Property 

shall be developed, improved, sold, used, and enjoyed in accordance 

with, and subject to the following conditions, covenants, and 

restrictions herein set forth, all of which are hereby adopted for, and 

placed upon said Property and shall run with the Property and be 

binding on all parties, now and at anytime [sic] hereinafter, having or

claiming any right, title, or interest in the Property or any part 

thereof, their heirs, executors, administrators, successors, and assigns, 

regardless of the source of, or the manner in which any such right, 

title, or interest is or may be acquired, and shall inure to the benefit of 

each Owner of any part of the Property.
4

(emphasis added). The Small Tract Declaration defines “Property” to mean the

3.9332-acre tract, which it describes by metes and bounds. It defines “Owner” as 

“an owner of any portion of the Property.” It also defines “Timberlake Village” as 

“TimberLake [sic] Village Subdivision located in Harris County, Texas, and 

described by Declaration of Covenants[,] Conditions, and Restrictions for 

TimberLake Village filed of record at Clerk’s File No. V896592, Real Property 

Records, Harris County, Texas.”

The Small Tract Declaration restricts use of the 3.9332-acre tract to 

residential purposes. Article III, Section I, captioned “Deed Restriction 

Enforcement,” provides:

(1) Remedies:

Every Owner shall comply with all provisions of this Declaration, and 

any amendments or supplements to any of the foregoing. Failure to 

comply shall be grounds for an action to recover sums due, for 

damages or injunctive relief, or for any other remedy available at law 

or in equity.

(2) Enforcement by Owners:

Each Owner is empowered to enforce this Declaration.

The Small Tract Declaration also provides that, if the smaller tract was subdivided, 

any subdivided portions of the Small Tract would become subject to additional 

covenants, conditions, and restrictions, such as subjecting any proposed 

construction on the subdivided portions to review by the subdivision’s 

Architectural Review Committee. Even after subdivision of the Small Tract, 
5

however, only owners of the Small Tract or lots subdivided from it would have 

power to enforce these additional covenants, conditions, and restrictions.

HMW Special Utility District of Harris and Montgomery Counties, a Texas 

water district, provides retail water service to customers in Harris and Montgomery 

Counties, including residents of Timberlake Village and adjacent subdivisions.

In 2008, HMW purchased 0.2105 acres of the Small Tract from Donald and 

Nancy Tucker, who owned the Small Tract at the time. HMW intended to use this 

0.2105-acre tract as a utility site and has since constructed a small water plant on 

the site. Because this use would have violated the residential-use restriction in the 

Small Tract Declaration, HMW filed a petition to condemn that restriction as it 

applied to the 0.2105 acres that HMW had purchased. As defendant, HMW named 

TVHA.

The trial court appointed special commissioners pursuant to Section 21.014 

of the Texas Property Code. The special commissioners held a hearing to 

determine the value of the condemned deed restriction, at which TVHA did not 

appear, and awarded TVHA $4,600 as compensation. See TEX. PROP. CODE ANN.

§ 21.015 (West Supp. 2013); id. § 21.016 (West Supp. 2013). TVHA appealed 

that decision to the trial court, pursuant to Section 21.018 of the Property Code. 

TVHA also sought the joinder of all of the property owners in the subdivision, 

which the trial court ordered. The trial court eventually dismissed the 
6

counterclaims of eighty of the defendants for want of prosecution, but did not 

dismiss the declaratory judgment claims against those defendants. The remaining 

defendants were Country Community (the developer), TVHA (which did not own 

any property in Timberlake Village), and 30 homeowners; between them, Country 

Community and the homeowners owned a total of 33 tracts in Timberlake Village. 

The homeowners and Country Community own properties located at varying 

distances of approximately 1,800 feet to one mile from the utility site.

By the time of trial, the parties had amended their pleadings multiple times. 

HMW sought a declaratory judgment (1) that neither the homeowners nor TVHA 

held any deed restriction or other property interest permitting the recovery of 

condemnation damages under Section 21.042(d) of the Texas Property Code or 

other applicable law and (2) that, pursuant to the Property Code, TVHA was the 

designated representative of the homeowners and had acted for them in that 

capacity.

By their counterclaims, the defendants each sought damages for the 

diminution in market value of their respective properties. The trial court submitted 

only one question to the jury: “What is the difference, if any, between the fair 

market value of the property in Timberlake Village owned by the individuals 

named below immediately before HMW condemned the deed restrictions at issue 

and immediately after HMW condemned the deed restrictions at issue? Answer in 
7

‘Dollars and Cents’ for each of the following owners.” The jury awarded $1,000 

in damages for each of the subject properties.

Both sides appealed. The homeowners and Country Community appealed, 

arguing that the trial court erred in admitting the testimony of HMW’s real estate 

appraisal expert and that the jury’s verdict of $1,000 per property owner was 

manifestly inadequate and not supported by the evidence at trial or, alternatively, 

was against the great weight and preponderance of the evidence presented.

In its cross-appeal, HMW raises five issues: (1) whether the homeowners 

and Country Community have standing to recover damages for condemnation of 

deed restrictions on property in which they have no property interest; (2) whether 

the damages are precluded by law; (3) whether the homeowners’ expert’s 

testimony was properly admitted; (4) whether any evidence supports the judgment; 

and (5) whether legally and factually sufficient evidence supports the judgment.

Standing

Because standing is a threshold issue, we address it first. Douglas v. Delp, 

987 S.W.2d 879, 883 (Tex. 1999).

A. Standard of Review

“Whether a party has standing to maintain a suit is a question of law, which 

we review de novo.” Hobbs v. Van Stavern, 249 S.W.3d 1, 3 (Tex. App.—
8

Houston [1st Dist.] 2006, pet. denied) (citing Tex. Dep’t of Transp. v. City of 

Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004)).

B. Substantive Law

“Standing is a prerequisite to subject-matter jurisdiction, and subject-matter 

jurisdiction is essential to a court’s power to decide a case.” Bland Indep. Sch. 

Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000) (citation omitted). “In order for 

any person to maintain a suit it is necessary that he have standing to litigate the 

matters in issue.” Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984). “Standing 

consists of some interest peculiar to the person individually and not as a member of 

the general public.” Id. Standing may be raised by a party for the first time on 

appeal or may be considered by the court sua sponte. Tex. Ass’n of Bus. v. Tex. Air 

Control Bd., 852 S.W.2d 440, 445–46 (Tex. 1993). Standing cannot be waived or 

conferred by agreement. Id.; Green Tree Servicing, LLC v. Woods, 388 S.W.3d 

785, 790 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

A party seeking affirmative relief must allege facts in his or her pleading that 

“affirmatively demonstrate the court’s jurisdiction to hear the cause.” Tex. Ass’n 

of Bus., 852 S.W.2d at 446 (citing Richardson v. First Nat’l Life Ins. Co., 419 

S.W.2d 836, 839 (Tex. 1967)); see also In re S.M.D., 329 S.W.3d 8, 13 (Tex. 

App.—San Antonio 2010, pet. dism’d) (“The burden of proof on the issue of 

standing is on the party asserting standing.”). Courts must consider evidence 
9

relevant to jurisdiction, however, when doing so is necessary to resolve a challenge 

to the trial court’s jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 

S.W.3d 217, 223 (Tex. 2004); Bland, 34 S.W.3d at 555.

In disputes over deed restrictions, a person has standing to enforce the 

restriction only upon showing that the restriction was intended to inure to his or her 

benefit. Calvary Temple v. Taylor, 288 S.W.2d 868, 870 (Tex. Civ. App.—

Galveston 1956, no writ); see also Wasson Interests, Ltd. v. Adams, 405 S.W.3d 

971, 974 (Tex. App.—Tyler 2013, no pet.) (where city leased parcel of land to 

lessee and conveyed second parcel across road from first parcel subject to 

restrictions, restriction was for city’s benefit, and lessee of first parcel lacked 

standing to enforce restriction against owner of second parcel); Ski Masters of Tex., 

LLC v. Heinemeyer, 269 S.W.3d 662, 668–69 (Tex. App.—San Antonio 2008, no 

pet.) (standing depends on privity of contract or existence of a common plan or 

scheme applicable to restricted property and property owned by party seeking 

enforcement); McCart v. Cain, 416 S.W.2d 463, 465 (Tex. Civ. App.—Fort Worth 

1967, writ ref’d n.r.e.) (party claiming restriction must show that restriction exists 

and is for the benefit of his land).

The seminal case regarding enforcement of restrictive covenants by persons 

who were not party to the covenants at issue is Hooper v. Lottman, 171 S.W. 270 

(Tex. Civ. App.—El Paso 1914, no writ). See Evans v. Pollock, 796 S.W.2d 465, 
10

466 (Tex. 1990) (describing Hooper as “[t]he leading Texas case” in this area);

Curlee v. Walker, 244 S.W. 497, 498 (Tex. 1922) (quoting Hooper at length as 

correctly stating the law). When a grantor subdivides his land, imposing covenants 

and restrictions that run with the land, and conveys it to various grantees, each 

grantee may enforce those covenants if they were part of a general plan or scheme 

of development for the entire parcel that was part of the inducement for purchasers 

to obtain land within the restricted area. Hooper, 171 S.W. at 272; see also Ski 

Masters, 269 S.W.3d at 669. “Such a plan may be established in various ways, 

such as by express covenant, by implication from a filed map, or by parol 

representations made in sales brochures, maps, advertising, and oral statements on 

which the purchaser relied in making his purchase.” Lehmann v. Wallace, 510 

S.W.2d 675, 680 (Tex. App.—San Antonio 1974, writ ref’d n.r.e.).

On the other hand, it is well settled that a restriction on a piece of property 

may not be enforced by one who owns land not subject to the restriction, absent 

privity of contract or a general plan or scheme of development applicable to the 

land that the plaintiff does own. Wasson Interests, 405 S.W.3d at 974 (restrictive 

covenant is not enforceable solely due to common source of title, but requires 

either privity of contract or a general plan or scheme of development); Sills v. 

Excel Servs., Inc., 617 S.W.2d 280, 284 (Tex. App.—Tyler 1981, no writ) (tract 

outside of subdivision was not subject to restrictive covenants imposed on 
11

subdivision); Nelson v. Flache, 487 S.W.2d 843, 846 (Tex. App.—Amarillo 1972, 

writ ref’d n.r.e.) (“It is well settled that property owners of one subdivision of an 

addition have no standing to enforce the restrictive covenants applicable to 

separate and distinct subdivisions.” (citation omitted)); Jobe v. Watkins, 458 

S.W.2d 945, 948 (Tex. App.—Fort Worth 1970, writ ref’d n.r.e.) (“property 

owners in one subdivision of an addition have no standing in court to enforce deed 

restrictions imposed on property located in a separate and distinct subdivision”); 

Moody v. City of Univ. Park, 278 S.W.2d 912, 923 (Tex. App.—Dallas 1955, writ 

ref’d n.r.e.) (“Property owners in another subdivision have no standing to enforce 

deed restrictions imposed upon property in a separate and distinct subdivision.”); 

Russell Realty Co. v. Hall, 233 S.W. 996, 999 (Tex. Civ. App.—Dallas 1921, writ

dism’d w.o.j.) (when developer subdivided a single parcel of land in two sections 

by filing two plats, imposing deed restrictions on first section, buyers of lots in 

second section had no standing to enforce deed restrictions on first section).

To establish the existence of a general plan or scheme of development, the 

party seeking to enforce deed restrictions must establish that

[1] a common grantor [2] develop[ed] a tract of land [3] for sale in

lots and [4] pursue[d] a course of conduct which indicates that he 

intends to inaugurate a general scheme or plan of development [5] for 

the benefit of himself and the purchasers of the various lots, and [6] 

by numerous conveyances [7] inserts in the deeds substantially 

uniform restrictions, conditions and covenants against the use of the 

property . . . .
12

Evans, 796 S.W.2d at 466 (quoting Minner v. City of Lynchburg, 129 S.E.2d 673, 

679 (Va. 1963)); see also Burns v. Wood, No. B–3537, 1973 WL 142567, at *2

(Tex. 1973) (identifying “the elements of a general scheme or plan” as the 

requirement that “each conveyance of a lot . . . contain or carry adequate reference 

to the recorded restrictions,” the burdening of each lot with the restrictions for the 

benefit of each other lot, and the right of each lot owner to enforce the restrictions 

against the other lots). When the developer’s actions satisfy all of these 

requirements, “the grantees acquire by implication an equitable right, variously 

referred to as an implied reciprocal negative easement or an equitable servitude, to 

enforce similar restrictions against that part of the tract retained by the grantor or 

subsequently sold without the restrictions to a purchaser with actual or 

constructive notice of the restrictions and covenants.” Evans, 796 S.W.2d at 466

(quoting Minner, 129 S.E.2d at 679) (emphasis added). “The most common test of 

the existence of a general building or neighborhood scheme is an intent that the 

protection of the restrictive covenant inure to the benefit of the purchasers of the 

lots in the tract.” Lehmann, 510 S.W.2d at 680. “Such an intent is said to arise 

from representations as to the restrictions made for the purpose of inducing the 

purchaser of the several lots to pay higher prices because of the restrictions.” Id.

We analyze restrictive covenants in a deed by applying the general rules of 

contract interpretation. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998). If 
13

a restrictive covenant is unambiguous, a court may not subject it to further judicial 

interpretation. Id.; Monsanto Co. v. Tyrrell, 537 S.W.2d 135, 137 (Tex. Civ. 

App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.). Whether a restrictive covenant 

is ambiguous is a question of law, which we must resolve by examining the 

covenants as a whole in light of the circumstances present when the parties entered 

the agreement. Pilarcik, 966 S.W.2d at 478.

Recitals in a contract do not control the operative clauses of the contract 

unless the latter are ambiguous. Furmanite Worldwide, Inc. v. NextCorp, Ltd., 339 

S.W.3d 326, 336 (Tex. App.—Dallas 2011, no pet.); McMahan v. Greenwood, 108 

S.W.3d 467, 484 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (quoting 

BLACK’S LAW DICTIONARY 1270 (6th ed. 1990)) (defining “recital” as “[t]he 

formal statement or setting forth of some matter of fact in any deed or writing, in 

order to explain the reasons upon which the transaction is founded”); Gardner v. 

Smith, 168 S.W.2d 278, 280 (Tex. Civ. App.—Beaumont 1942, no writ). 

Whenever possible, the recitals should be reconciled with the operative clauses and 

given effect, unless they cannot be so harmonized, in which case unambiguous 

operative clauses will prevail. Gardner, 168 S.W.2d at 280. “In other words, 

recitals, especially when ambiguous, cannot control the clearly expressed 

stipulations of the parties; and where the recitals are broader than the contract 
14

stipulations, the former will not extend the latter.” Id.; see also Furmanite 

Worldwide, 339 S.W.3d at 336. 

C. Analysis

HMW asserts that Country Community and the homeowners lack standing 

to sue for damages for the condemnation of the residential-use restriction in the 

Small Tract Declaration, because none of them owns any part of the Small Tract or 

has any property right in it. Country Community and the homeowners argue that 

they have standing because recitals in the Small Tract Declaration reflect that the 

Small Tract’s restrictions “were created for their benefit.”

The parties do not dispute that the 143.5-acre parcel that became Timberlake 

Village and the 3.9332-acre parcel adjacent to Timberlake Village are distinct 

pieces of property and that each is subject to certain deed restrictions, including a 

residential-use restriction. But different instruments impose the restrictions on 

each parcel, and the restrictions are substantively different in myriad ways. The 

Subdivision Declaration gives TVHA and all owners of property within the 

subdivision the right to enforce the deed restrictions applicable to the subdivision. 

The Small Tract Declaration gives only owners of the Small Tract or a portion 

thereof the power to enforce the restrictions applicable to the Small Tract. Neither 

Country Community nor any of the homeowners owns any portion of the Small 

Tract. Rather, their properties are located within the subdivision.
15

To establish the existence of a general plan or scheme applicable to both the 

Small Tract and the subdivision, Country Community and the homeowners bear 

the burden of showing, among other facts, that Country Community “develop[ed] a 

tract of land for sale in lots . . . and by numerous conveyances insert[ed] in the 

deeds substantially uniform restrictions, conditions and covenants against the use 

of the property.” Evans, 796 S.W.2d at 466 (quoting Minner, 129 S.E.2d at 679). 

Country Community and the homeowners have not met this burden in their 

pleadings, or in the evidence presented at trial. Tex. Ass’n of Bus., 852 S.W.2d at 

446; Miranda, 133 S.W.3d at 223; Bland, 34 S.W.3d at 555; In re S.M.D., 329 

S.W.3d at 13. On the contrary, the pleadings and evidence at trial established the 

opposite of these elements of a general plan or scheme. Country Community did 

not develop “a tract of land,” but two tracts of land. One such tract, the Small 

Tract, was never subdivided into lots. And the restrictions, conditions, and 

covenants governing the Small Tract and the subdivision were not “substantially 

uniform,” but differed in many respects.

As the Supreme Court has explained, the imposition of restrictions on only 

one piece of property or one portion of a larger parcel is evidence of a general 

scheme covering only the restricted land. Evans, 796 S.W.2d at 472 & n.2. 

Examining the law of numerous other states, the Court explained that only the land 

specifically restricted is subject to restrictive covenants, and those covenants 
16

benefit only the land so restricted. Id. When a landowner imposes different 

conditions on different portions of his land or subdivides the land in stages, “for 

purposes of the implied reciprocal negative easement doctrine, each separate 

recording create[s] a separate and distinct subdivision with its own set of 

restrictions benefiting and burdening only the land in that particular subdivision.” 

See id. (citing with approval Duvall v. Ford Leasing Dev. Corp., 255 S.E.2d 470, 

473 (Va. 1979); Bernui v. Tantallon Control Comm., 488 A.2d 186, 191 (Md. Ct. 

Spec. App. 1985)).

Accordingly, we conclude that the Small Tract was not part of a general plan 

or scheme of development such as would bring it within the exception to the 

general rule that requires privity of contract. Hooper, 171 S.W. at 272; Ski 

Masters, 269 S.W.3d at 669. 

We turn next to the contention that Country Community and the 

homeowners may enforce the residential-use restriction because the recitals in the 

Small Tract Declaration indicate that the restriction was intended for the benefit of 

owners of land in the subdivision. E.g., Ski Masters, 269 S.W.3d at 668–69. The 

recitals in the Small Tract Declaration state that Country Community:

• “desires to provide and adopt a set of conditions, covenants, and 

restrictions designed to govern, control, and preserve the value of the 

Property and to preserve the value of property located within 

Timberlake Village; for the development, improvement, sale, use, and 

enjoyment of the Property and property located within Timberlake 

Village.” (emphasis added).
17

• “desires to subject the Property to the conditions, covenants, and 

restrictions hereinafter set forth, for the benefit of the owners of the 

Property and for the benefit of owners of property located within 

Timberlake Village.” (emphasis added).

But the operative provisions of the Small Tract Declaration make no mention of 

property located within Timberlake Village or owners thereof.

In other words, the Small Tract Declaration gives the owners of property in 

Timberlake Village no rights whatsoever. The paragraph immediately after the 

recitals states: “NOW, THEREFORE, Declarant hereby declares that the Property 

shall be . . . subject to the following conditions, covenants, and restrictions . . . all 

of which . . . shall inure to the benefit of each Owner of any part of the Property.” 

(emphasis added). The Small Tract Declaration defines “Owner” as one owning 

all or part of the Small Tract, and does not include owners of property in the 

subdivision.

Further, the Small Tract Declaration confers the power to enforce the 

restrictions in the Small Tract Declaration only to owners of the 3.9332-acre tract 

or portions thereof. In this regard, it states: “Each Owner [of the Small Tract or a 

portion thereof] is empowered to enforce this Declaration.”

It is clear from the recitals that Country Community’s desire to benefit the 

homeowners in the subdivision was a reason the grantor executed the Small Tract 

Declaration. But whatever the grantor’s motivation, the plain language of the 

Small Tract Declaration created property rights only with respect to owners of the 
18

Small Tract or portions thereof. First, it states that the benefits it creates “shall 

inure” or take effect only to the benefit of those owners, but does not mention 

owners of property in the subdivision. See BLACK’S LAW DICTIONARY 900 (9th ed. 

2009) (defining “inure” as “to take effect; to come into use”). The omission of any 

mention of the Timberlake Village property owners from this provision raises a 

presumption that the parties did not mean to confer a legal benefit on owners of 

property within the subdivision. CKB & Assocs., Inc. v. Moore McCormack 

Petroleum, Inc., 734 S.W.2d 653, 655 (Tex. 1987); Calvary Temple, 288 S.W.2d at 

874 (such an omission is “strongly probative” and raises a “presumption . . . that 

the restrictions were inserted in the deeds for the benefit alone of the owners of 

[the identified] property”). Second, the enforcement provision likewise indicates 

that the Timberlake Village owners may not enforce the Small Tract Declaration. 

And these operative provisions of the Small Tract Declaration are unambiguous.

The recitals, which reflect the intent to benefit property owners within 

Timberlake Village, cannot control the operative clauses of the Small Tract 

Declaration. Gardner, 168 S.W.2d at 280; see also Furmanite Worldwide, 339 

S.W.3d at 336. Nor can they enlarge the operative clauses. Gardner, 168 S.W.2d 

at 280; Furmanite Worldwide, 339 S.W.3d at 336. Where the document’s 

enforcement clause provides unambiguously for a means of enforcement of the 

document’s terms, we cannot read a recital to enlarge that power or vest power in 
19

individuals not named. We therefore hold that the homeowners have no property 

interest in the Small Tract and therefore lack standing to enforce the Small Tract 

Declaration’s terms. The same logic applies to Country Community; although it 

recorded the Small Tract Declaration, it no longer holds any property or interest in 

the Small Tract, and nothing in the Small Tract Declaration reserves for Country 

Community any right of enforcement in the absence of such ownership.1

 

Accordingly, we hold that neither Country Community nor the homeowners have 

standing to recover damages for the condemnation of the residential-use restriction 

applicable to the Small Tract.

2

Our interpretation of the Small Tract Declaration is consistent with Texas 

law regarding enforcement of restrictive covenants in comparable circumstances. 

Texas courts have often held that landowners may not enforce deed restrictions 

applicable to another’s property, absent privity of contract or a demonstration that 

both parcels are part of a common, general plan or scheme for their development. 

 1 Further, Country Community did not seek to recover damages in its capacity as 

original grantor of the small tract, but rather in its capacity as an owner of land 

within the subdivision.

2 Country Community and the homeowners also argue that their status as 

defendants, rather than plaintiffs, is evidence of their standing to defend against 

HMW’s claims and of their standing to bring claims against HMW for damages. 

But neither the alignment of the parties—who originally sued whom—nor any 

action by HMW is sufficient to confer standing on Country Community and the 

homeowners if it is otherwise lacking. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 

852 S.W.2d 440, 445–46 (Tex. 1993); Green Tree Servicing, LLC v. Woods, 388 

S.W.3d 785, 790 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Accordingly, we 

reject Country Community and the homeowners’ contention that their status as 

defendants gives them standing.
20

E.g., Wasson Interests, 405 S.W.3d at 974; Sills, 617 S.W.2d at 284; Nelson, 487 

S.W.2d at 846; Jobe, 458 S.W.2d at 948; Moody, 278 S.W.2d at 923; Russell 

Realty, 233 S.W. at 999.

The cases upon which Country Community and the homeowners rely are 

distinguishable. Country Community and the homeowners cite City of Heath v. 

Duncan, 152 S.W.3d 147 (Tex. App.—Dallas 2004, pet. denied), Harris County 

Flood Control District v. Glenbrook Patiohome Owners Ass’n, 933 S.W.2d 570 

(Tex. App.—Houston [1st Dist.] 1996, writ denied), and City of Houston v. 

McCarthy, 464 S.W.2d 381 (Tex. App.—Houston [1st Dist.] 1971, writ ref’d 

n.r.e.). In each of these cases, the governmental authority and the parties seeking 

damages owned property within a single subdivision; thus, each property was 

subject to the same restrictions. City of Heath, 152 S.W.3d at 149 (city owned 

property within same subdivision as homeowners, and all properties at issue were 

subject to same residential-use restrictions); Glenbrook, 933 S.W.2d at 573 (flood 

control district purchased 20 patiohomes within subdivision, which it sought to 

destroy, and sought to condemn portion of common area within subdivision); 

McCarthy, 464 S.W.2d at 382–83 (city purchased land from grantors, who 

imposed use restrictions, then sought to condemn additional land owned by 

grantors). Country Community and the homeowners, by contrast, bear the burden 

to establish that the residential-use restriction in the Small Tract Declaration was 
21

imposed for the benefit of their land. Webb v. Voga, 316 S.W.3d 809, 813 (Tex. 

App.—Dallas 2010, no pet.). They have not met this burden.

Nor does Calvary Temple, discussed above, compel a different result. 288 

S.W.2d at 870. In that case, all of the parties owned land within a subdivision on 

which restrictive covenants had been imposed, limiting all of the lots to residential 

use. Id. at 869–70. Each deed, however, contained an enforcement provision 

stating, “It shall be lawful for any person owning land fronting on ____ Street . . . 

to institute and prosecute appropriate proceedings” for breach of the covenants. Id.

at 870. In each deed, the space shown as a blank in the foregoing quotation 

contained the name of the street on which the property conveyed fronted as shown 

by the plat or map. Id. The appellant, which sought to build a church on lots 

fronting on Ross Street (now West Alabama Street), sought to dissolve a temporary 

injunction preventing the construction of the church. Id. The appellant argued 

that, at the time of the motion to dissolve the injunction, none of the appellees 

owned property fronting on Ross Street, and thus none had the right to enforce the 

deed restriction applicable to the subject lots. Id. We held that the trial court did 

not err in refusing to dissolve the injunction, based on the procedural posture of the 

case and the appellant’s failure to present evidence sufficient to overturn the 

injunction. Id. at 874. Our holding was premised on the fact that all of the parties 

to Calvary Temple owned land subject to the restrictions and thus potentially 
22

subject to a general plan for development, which is not the case here. Id. at 873–

74. 

We sustain HMW’s first issue. Because our resolution of the standing 

question is dispositive, we do not reach HMW’s remaining issues or the issues 

presented by Country Community and the homeowners.

Conclusion

We vacate the judgment of the trial court and dismiss the case. We dismiss 

all pending motions as moot.

Rebeca Huddle

Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.