Douglas B. Moseley v. Sherrie Arnold, 06-15-00031-CV

Background

In 1985 Moseley sold a 5-acre tract (with an operating truck stop) to Gorman and, as part of the negotiated sale, executed a recorded restrictive covenant barring use of an adjacent 6.379-acre tract as a truck/fuel stop to "protect the value and desirability" of the 5 acres; Moseley received consideration for the restriction.
The restrictive covenant states it "shall run with the real property" and benefits Gorman "and their successors and assigns."
Appellee (Arnold) later acquired the 5 acres; Appellant (Moseley) still owned the 6.379 acres and sought to sell that tract for use as a truck stop, prompting enforcement litigation.
The trial court entered partial summary judgments (November and December) and a final judgment in favor of Appellee enforcing the restrictive covenant; this brief opposes Moseley’s appeal of that judgment.
Appellee argues she has standing as the successor owner of the benefitted 5-acre dominant estate, that changed-circumstances, waiver, and abandonment doctrines do not apply as a matter of law, and that Moseley’s separate breach-of-contract/right-of-first-refusal claims are untimely, personal, and unrecorded.

Issues

Issue	Plaintiff's Argument (Arnold)	Defendant's Argument (Moseley)	Held
Standing to enforce restrictive covenant	Arnold, as successor owner of the 5 acres, is an interested beneficiary and may enforce the covenant that "runs with the land"	Moseley contends the covenant terminated or is unenforceable because it was not separately assigned to each successor	Trial court upheld that Arnold has standing; covenant benefits dominant estate and successors
Applicability of changed‑circumstances doctrine	Covenant remains enforceable; surrounding changes have not rendered the restriction of no substantial benefit to Arnold	Moseley argues intervening events (foreclosure, fire, demolition, lack of assignment) are changed circumstances defeating enforcement	Court held changed‑circumstances inapplicable as a matter of law; benefit to dominant estate remains
Waiver/abandonment of covenant	No evidence of violations or acquiescence; no waiver or abandonment occurred	Moseley argues conduct and subsequent events show acquiescence or abandonment	Court concluded no waiver or abandonment; no violations of the restriction occurred
Alleged breach of contract/right of first refusal	Arnold contends the right of first refusal was personal to Gorman, unrecorded, not triggered by foreclosure sale, and barred by limitations	Moseley claims the unhonored right excused his obligations and affects the covenant	Court rejected Moseley’s contract claim: right was personal, unrecorded, not triggered by involuntary foreclosure, and statute of limitations bars relief

Key Cases Cited

Carr v. Brasher, 776 S.W.2d 567 (Tex. 1989) (appellate court may affirm summary judgment on any ground supported by evidence)
El Chico Corp. v. Poole, 752 S.W.2d 306 (Tex. 1987) (summary judgment standards and preservation of points on appeal)
Strather v. Dolgen Corp. of Texas, Inc., 96 S.W.3d 420 (Tex. App.—Texarkana 2002) (appellant must attack every ground if trial court doesn't specify basis for summary judgment)
Cowling v. Colligan, 312 S.W.2d 943 (Tex. 1958) (changed‑conditions/abandonment doctrine for restrictive covenants; equity may release covenants when benefits are substantially defeated)
Dempsey v. Apache Shores Property Owners' Ass'n, 737 S.W.2d 589 (Tex. App.—Austin 1987) (application of changed‑conditions principles to restrictive covenants)
Draper v. Gochman, 400 S.W.2d 545 (Tex. 1966) (involuntary transfers such as foreclosure sales do not trigger rights of first refusal)
Scaling v. Sutton, 167 S.W.2d 275 (Tex. Civ. App.—Fort Worth 1942) (restrictive covenant enforceable only by those for whose benefit it was intended)
Anderson v. New Property Owners' Assn. of Newport, Inc., 122 S.W.3d 378 (Tex. App.—Texarkana 2003) (property owner may sue to enforce restrictive covenant)
Giles v. Cardenas, 697 S.W.2d 422 (Tex. App.—San Antonio 1985) (any person entitled to benefit under a covenant may enforce it)