Davis v. Canyon Creek Estates Homeowners Ass'n, 350 S.W.3d 301

Canyon Creek Estates adopted restrictive covenants restricting use to residential purposes in 1957 and reaffirmed them in 1963; covenants run with the land and require majority consent to modify.
Edward and Rosaura Davis and Elare acquired Lots 6, 7, and 8 along Blanco Road in 1997–2000; Luis Davis and family moved into Lot 8, then Lots 6 and 7 after Elare’s acquisition.
In 2001 Canyon Creek Estates recorded covenants adopting the prior 1957 and 1963 restrictions and other changes; majority of owners approved the revised covenants.
In 2005 Luis Davis purchased an interior lot and moved his family there; later, deed conveyances to the Trust reflecting ownership of Lots 6–8 surfaced only as unrecorded deeds dated 2006 but notarized 2008.
The Trust filed suit in 2006 seeking declaratory relief to end residential-use restrictions; Association moved to dismiss for lack of standing/capacity and trespassers; partial dismissals and a partial summary judgment followed on various issues.
On remand, the Association moved for summary judgment on remaining 2001 covenants and trust’s claimed “changed conditions” defense; the trial court granted, and later awarded attorney’s fees to the Association under §5.006, which the Trust challenges on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether changed conditions can void the 2001 covenants	Davis Trust argues changes post-acquisition render covenants radical	Association argues no radical change proof; only 1957/1963 covenants at issue	No genuine evidence of radical change; 2001 covenants survive = judgment affirmed on this issue
Whether attorney's fees under §5.006 are recoverable	Trust contends no anticipatory breach shown; no recoverable fees	Association asserts anticipatory breach evidence supports §5.006 recovery	Anticipatory breach not proven; fee award reversed in part

Lebo v. Johnson, 349 S.W.2d 744 (Tex.Civ.App.-San Antonio 1961) (radical change must be proven to void restrictive covenants)
Simon v. Henrichson, 394 S.W.2d 249 (Tex.Civ.App.-Corpus Christi 1965) (radical change standard; scope of changed conditions)
Cowling v. Colligan, 312 S.W.2d 943 (Tex. 1958) (change of conditions must be radical and great)
Hemphill v. Cayce, 197 S.W.2d 137 (Tex.Civ.App.-Fort Worth 1946) (increased traffic/commerce alone not enough to void covenants)
Oldfield v. City of Houston, 15 S.W.3d 219 (Tex.App.-Hou. [14th Dist.] 2000) (cannot rely on existing changed conditions known at purchase)
Traeger v. Lorenz, 749 S.W.2d 249 (Tex.App.-San Antonio 1988) (considerations for radical change in conditions)
King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (framework for reviewing evidence of changed conditions)
Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502 (Tex. 2002) (no evidence standard; burden on movant)
Pollack v. Pollack, 39 S.W.2d 853 (Tex.Com.App.1931) (anticiapatory breach requires unequivocal repudiation)
Jenkins v. Jenkins, 991 S.W.2d 440 (Tex.App.-Fort Worth 1999) (anticiapatory breach criteria)
El Paso Prod. Co. v. Valence Operating Co., 112 S.W.3d 616 (Tex.App.-Hou. [1st Dist.] 2003) (recognizes anticipatory breach standards)
Van Polen v. Wisch, 23 S.W.3d 510 (Tex.App.-Hou. [1st Dist.] 2000) (definitions of repudiation in contract)
Kilgore v. Nw. Tex. Baptist Educational Society, 37 S.W. 600 (Tex. 1896) (early anticipatory breach standard)