Lockhill Ventures, LLC v. Ard Mor, Inc., Texas Ardmor Properties, LP, and Texas Ardmore Management, LLC

Opinion

ACCEPTED 04-14-00796-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 3/6/2015 12:26:43 PM NO. 04-14-00796-CV KEITH HOTTLE CLERK

IN THE COURT OF APPEALS FOR THE FOURTH JUDICIAL DISTRICT SAN ANTONIO, TEXAS

LOCKHILL VENTURES, LLC, Defendant-Appellant

v.

ARD MOR, INC.; TEXAS ARDMOR PROPERTIES, LP; AND TEXAS ARDMOR MANAGEMENT, LLC, Plaintiffs-Appellees

From the District Court of Bexar County 407th Judicial District of Texas No. 2014-CI-10796

BRIEF OF APPELLEES

KAREN L. LANDINGER State Bar No. 00787873 klandinger@cbylaw.com JAY K. FARWELL State Bar No. 00784038 jfarwell@cbylaw.com Co-Counsel COKINOS, BOSIEN & YOUNG David L. Earl 10999 West IH-10, Suite 800 State Bar No. 06343030 San Antonio, Texas 78230 dearl@earl-law.com (210) 293-8700 (Office) EARL & ASSOCIATES, P.C. (210) 293-8733 (Fax) Pyramid Building 601 NW Loop 410, Suite 390 ATTORNEYS FOR APPELLEES, San Antonio, Texas 78216 ARD MOR, INC., TEXAS ARDMOR (210) 222-1500 (Office) PROPERTIES, LP AND TEXAS (210) 222-9100 (Fax) ARDMOR MANAGEMENT, LLC

ORAL ARGUMENT REQUESTED ONLY IF APPELLANT’S REQUEST FOR ARGUMENT IS GRANTED IDENTITY OF PARTIES AND COUNSEL

The undersigned counsel of record certifies that the following listed persons

have an interest in the outcome of this case. These representations are made in order

that the judges of this court may evaluate possible disqualification or recusal.

1. Defendant / Appellant Lockhill Ventures, LLC

2. Counsel for Defendant / Appellant Lance H. “Luke” Beshara Randall A. Pulman Brandon L. Grubbs PULMAN, CAPPUCCIO, PULLEN, BENSON & JONES, LLP 2161 N.W. Military Highway, Suite 400 San Antonio, Texas 78213 (210) 222-9494 (Office) (210) 892-1610 (Fax) lbeshara@pulmanlaw.com rpulman@pulmanlaw.com bgrubbs@pulmanlaw.com

3. Plaintiffs / Appellees ARD MOR, Inc. Texas ARDMOR Properties, LP Texas ARDMOR Management, LLC

ii 4. Counsel for Plaintiffs / Appellees Karen L. Landinger Jay K. Farwell COKINOS, BOSIEN & YOUNG 10999 West IH-10, Suite 800 San Antonio, Texas 78230 klandinger@cbylaw.com jfarwell@cbylaw.com

5. Co-Counsel for Plaintiffs /Appellees David L. Earl EARL & ASSOCIATES, P.C. Pyramid Building 601 NW Loop 410, Suite 390 San Antonio, Texas 78216 (210) 222-1500 (Office) (210) 222-9100 (Fax) dearl@earl-law.com

6. Interested Party at Trial Court City of Shavano Park (“Shavano”)

iii 7. Counsel for Interested Party at Trial Court Patrick C. Bernal Elizabeth M. Provencio DENTON NAVARRO ROCHA BERNAL HYDE & ZECH A Professional Corporation 2517 N. Main Avenue San Antonio, Texas 78212 (210) 227-3243 (Office) (210) 225-4481 (Fax) patrick.bernal@rampage-sa.com elizabeth.provencio@rampage-sa.com

/s/ Karen L. Landinger KAREN L. LANDINGER JAY K. FARWELL

ATTORNEYS FOR APPELLEES, ARD MOR, INC., TEXAS ARDMOR PROPERTIES, LP AND TEXAS ARDMOR MANAGEMENT, LLC

iv STATEMENT REGARDING ORAL ARGUMENT

Appellees believe that the issues before the Court involve simple questions of

law that are well settled and simple questions of fact that are readily answered by the

appellate record. However, because Appellant has requested oral argument, Appellees

request the opportunity to argue, but only if Appellant’s request for argument is

granted.

v TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . v

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. Ard Mor Purchased Property in Shavano Park Subd Ut-16-A-1 That Was Bound by the Restrictive Covenants of Shavano Creek Commercial Properties. . . . . . . . . . . . . 1

II. Lockhill Purchased Property in Shavano Park Subd Ut-16-A-1 That Was Bound by the Restrictive Covenants of Shavano Creek Commercial Properties. . . . . . . . . . . . . 2

III. The Storage and Use of Explosives Is Prohibited by the Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV. Lockhill Plans to Build a Shell Gasoline Station on the Restricted Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

V. Ard Mor Sought Injunctive Relief to Enforce the Covenants. . . . . . . 4

VI. Ard Mor Presented Evidence Demonstrating its Right to Injunctive Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

vi ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I. A Reviewing Court May Not Review the Merits of the Applicant’s Case in an Interlocutory Appeal from a Temporary Injunction Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

II. The Appellate Record Demonstrates That Ample Evidence Was Presented to Support the Trial Court’s Factual Findings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. Lockhill argued that it was undisputed that Lockhill and Ard Mor were neighbors and that evidence proving that point was not relevant. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1. Allegation on appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2. Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

B. The evidence established that the terms gasohol and gasoline are interchangeable in the United States and the evidence presented was specific to the product Lockhill intends to sell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1. Allegation on Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2. Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

C. Appellant stipulated that it intended to build and operate a gas station and expert testimony established that explosive gas vapors are released during the operation of a gas station. . . . . . . . . . . . . . . . . . . . 17

1. Allegation on Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2. Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

vii D. Gasoline is a judicially recognized explosive and significant evidence was presented establishing the explosive nature of gasoline vapors released during the operation of a gas station. . . . . . . . . . . . . . . . . . . . . . . . . . 20

1. Allegation on Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2. Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

III. The Covenants of the Shavano Commercial Property Partnership, Unit I Expressed a Clear Intent and Purpose to Benefit the Adjacent Landowners Through its Restrictions. . . . . 24

A. Evidence in the record tends to prove standing. . . . . . . . . . . . 27

B. Ard Mor’s objections to the evidence of standing are matters reserved for the full trial on the merits. . . . . . . . . 28

C. Lockhill waived or invited any error regarding the lack of admission of sufficient evidence of standing by objecting to evidence of standing on relevancy grounds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

D. The court was entitled to take judicial notice of public records attached to pleadings. . . . . . . . . . . . . . . . . . . . 34

E. The harm to Lockhill, which is the preservation of the status quo pending trial, has been prolonged by Lockhill. . . . 37

IV. The Phrase, “Storage, handling or use of explosive material” Is Not Ambiguous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

V. The Temporary Injunction Is Not a Prior Restraint. . . . . . . . . . . . . . 41

CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

viii CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Declaration of Protective Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . Tab A

ix INDEX OF AUTHORITIES

CASES:

Al-Saady v. State, No. 02-13-00186-CR, 2014 WL 3536806 (Tex. App.—Fort Worth July 17, 2014, no pet.) (mem. op.). . . . . . . . . . . . 21

Amalgamated Acme Affiliates, Inc. v. Minton, 33 S.W.3d 387 (Tex. App.—Austin 2000, no pet.). . . . . . . . . . . . . . . . . . . 11

Anderson v. New Prop. Owners’ Ass’n of Newport, Inc., 122 S.W.3d 378 (Tex. App.—Texarkana 2003, pet. denied).. . . . . . . . . . . 25

Antonov v. Walters, 168 S.W.3d 901 (Tex. App.—Fort Worth 2005, pet. denied). . . . . . . . . . . 25

Atkins v. Fine, 508 S.W.2d 131 (Tex. Civ. App.—Austin 1974, no writ). . . . . . . . . . . . . . 41

Berry v. Segall, 315 S.W.3d 141 (Tex. App.—El Paso 2010, no pet.) . . . . . . . . . . . . . . . . . 32

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Bluestar Energy, Inc. v. Murphy, 205 S.W.3d 96 (Tex. App.—Eastland 2006, pet. denied). . . . . . . . . . . . . . 30

Breof BNK Texas, L.P. v. D. H. Advisors, Inc., 370 S.W.3d 58 (Tex. App.—Houston [14th Dist.] 2012, no pet.). . . . . . . . 33

Burbage v. Burbage, 447 S.W.3d 249 (Tex. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

x City of El Paso v. Fox, No. 08-12-00264-CV, 2014 WL 5023089 (Tex. App.—El Paso Oct. 8, 2014, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . 36

City of San Antonio v. Humble Oil & Ref. Co., 27 S.W.2d 868 (Tex. Civ. App.—San Antonio 1930, writ dism’d).. . . . . . 21

City of Shavano v. Ard Mor, Inc.; Texas ArdMor Properties, LP, and Texas ArdMor Management, LLC, Case No. 04-14-00781-CV.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Couch v. Southern Methodist University, 10 S.W.2d 973 (Tex. Comm’n. App. 1928, opinion adopted). . . . . . . . . . . 41

Curlee v. Walker, 244 S.W. 497 (Tex. 1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Davis v. State, 227 S.W.3d 766 (Tex. App.—Tyler 2005), aff’d, 227 S.W.3d 733 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . 21, 24

Escamilla v. Estate of Escamilla, 921 S.W.2d 723 (Tex. App.—Corpus Christi 1996, writ denied). . . . . . . . 35

Estate of York, 934 S.W.2d 848 (Tex. App.—Corpus Christi 1996, writ denied) .. . . . 33, 36

Fairfield v. Stonehenge Ass’n Co., 678 S.W.2d 608 (Tex. App.—Houston [14th Dist.] 1984, no writ) . . . . . . 29

Gigowski v. Russell, 718 S.W.2d 16 (Tex. App.—Tyler 1986, writ ref’d n.r.e.).. . . . . . . . . . . . . 39

xi Giles v. Cardenas, 697 S.W.2d 422 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.).. . . 25, 26

Hendee v. Dewhurst, 228 S.W.3d 354 (Tex. App.—Austin 2007, pet. denied). . . . . . . . . . . . . . . 40

Henderson v. KRTS, Inc., 822 S.W.2d 769 (Tex. App.—Houston [1st Dist.] 1992, no writ) . . . . . . . 42

Hooper v. Lottman, 171 S.W. 270 (Tex. Civ. App.—El Paso 1914, no writ). . . . . . . . . . . . . . . 26

Houston v. Southwestern Bell Tel. Co., 263 S.W.2d 169 (Tex. Civ. App.—Galveston 1953, writ ref’d). . . . . . . . . 24

In re Department of Family and Protective Services, 273 S.W.3d 637 (Tex. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

In re Estate of Hemsley, No. 08-12-00368-CV, 2014 WL 5854220 (Tex. App.—El Paso Nov. 12, 2014, no pet.).. . . . . . . . . . . . . . . . . . . . . . . 36

Jim Rutherford Invs., Inc. v. Terramar Beach Comty. Ass’n, 25 S.W.3d 845 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) . . . . 39

Johnson v. Johnson, No. 03-02-00427-CVC, 2005 WL 3440773 (Tex. App.—Austin Dec. 16, 2005, no pet.).. . . . . . . . . . . . . . . . . . . . . 33, 37

Kinney v. Barnes, 443 S.W.3d 87 (Tex. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Knopf v. Standard Fixtures Co., 581 S.W.2d 504 (Tex. Civ. App.—Dallas 1979, no writ). . . . . . . . . . . . . . 41

Lacy v. First Nat’l Bank, 809 S.W.2d 362 (Tex. App.—Beaumont 1991, no writ). . . . . . . . . . . . . . . 36

xii Landry’s Seafood Inn & Oyster Bar-Kemah, Inc. v. Wiggins, 919 S.W.2d 924 (Tex. App.—Houston [14th Dist.] 1996, no writ).. . . . . . 11

Langdale v. Villamil, 813 S.W.2d 187 (Tex. App.¯Houston [14th Dist.] 1991, no writ).. . . 36, 37

Lehmann v. Wallace, 510 S.W.2d 675 (Tex. Civ. App.—San Antonio 1974, writ ref’d n.r.e.). . . 26

Liverpool & London & Globe Ins. Co. v. Currie, 234 S.W. 232 (Tex. Civ. App.—El Paso 1921, writ ref’d). . . . . . . . . . . . . 21

Lombardo v. City of Dallas, 47 S.W.2d 495 (Tex. Civ. App.—Dallas 1932, writ granted), aff’d, 73 S.W.2d 475 (Tex. 1934). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Matuszak v. Houston Oilers, Inc., 515 S.W.2d 725 (Tex. Civ. App.—Houston [14th Dist.] 1974, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 24

McCulloch v. State, 740 S.W.2d 74 (Tex. App.—Fort Worth 1987, pet. ref’d) . . . . . . . . . . . . . 20

Menna v. Romero, 48 S.W.3d 247 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.). . . 42, 43

Merchant v. Houston Gas & Fuel Co., 78 S.W.2d 656 (Tex. Civ. App.—Galveston 1935, writ dism’d) . . . . . . . . 21

Millwrights Local Union No. 2484 v. Rust Eng’g Co., 433 S.W.2d 683 (Tex. 1968).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Nelkin v. Young, 397 S.W.2d 956 (Tex. App.—Texarkana 1965, writ ref’d n.r.e.). . . . . 19, 23

Nesmith v. Magnolia Petroleum Co., 82 S.W.2d 721 (Tex. Civ. App.—Austin 1935, no writ) .. . . . . . . . . . . . . . 20

xiii Northeast Tex. Motor Lines v. Hodges, 158 S.W.2d 487 (Tex. 1942).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Pirtle v. Gregory, 629 S.W.2d 919 (Tex. 1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Ramirez v. State, 973 S.W.2d 388 (Tex. App.—El Paso 1998, no pet.). .. . . . . . . . . . . . . . . . 30

RP&R, Inc. v. Territo, 32 S.W.3d 396 (Tex. App.—Houston [14th Dist.] 2000, no pet.). . . . . . . . 23

Scarbrough v. Metro. Transit Auth. of Harris County, 326 S.W.3d 324 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). . . . . 39

Scott v. Champion Bldg. Co., 28 S.W.2d 178 (Tex. Civ. App.—Dallas 1930, no writ) . . . . . . . . . . . . . . . 21

Scott v. Rheudasil, 614 S.W.2d 626 (Tex. Civ. App.—Fort Worth 1981, no writ). . . . . . . . . . 29

Settegast v. Foley Bros. Dry Goods Co., 270 S.W. 1014 (Tex. 1925).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Shamrock Fuel & Oil Sales Co. v. Tunks, 406 S.W.2d 483 (Tex. Civ. App.—Houston 1966, no writ).. . . . . . . . . . . . 21

Sheehan v. Levy, 215 S.W. 229 (Tex. Civ. App.—Dallas 1919, writ granted), aff’d, 238 S.W. 900 (Tex. Comm’n App. 1922, opinion adopted).. . . . . . . 24

Tel. Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601 (Tex. App.—Houston [1st Dist.] 2002, no pet.). . . . . . 10, 11

Texas Real Estate Comm’n v. Nagle, 767 S.W.2d 691 (Tex. 1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

xiv Texas State Bd. of Educ. v. Guffy, 718 S.W.2d 48 (Tex. App.—Dallas 1986, no writ). . . . . . . . . . . . . . . . . . . 36

Thomas v. Beaumont Heritage Soc’y, 296 S.W.3d 350 (Tex. App.—Beaumont 2009, no pet.). . . . . . . . . . . . . . . 15

Tigua Gen. Hosp., Inc. v. Feuerberg, 645 S.W.2d 575 (Tex. App.—El Paso 1982, no writ) . . . . . . . . . . . . . . . . . 36

Tittizer v. Union Gas Corp., 171 S.W.3d 857 (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d).. . . . . 19

Transport Company of Texas v. Robertson Transports, Inc., 261 S.W.2d 549 (1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Venus v. State, 282 S.W.3d 70 (Tex. Crim. App. 2009) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Winfield v. Lamoyne, No. 05-94-01851-CV, 1995 WL 634161 (Tex. App.—Dallas Oct.16, 1995, writ dism’d) (mem.op.) . . . . . . . . . . . . 39

STATUTES AND RULES:

29 CFR 1910.106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Tex. R. App. P. 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Tex. R. App. P. 44.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Tex. R. Evid. 201.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

xv NO. 04-14-00796-CV

IN THE COURT OF APPEALS FOR THE FOURTH JUDICIAL DISTRICT SAN ANTONIO, TEXAS

LOCKHILL VENTURES, LLC, Defendant-Appellant

v.

ARD MOR, INC.; TEXAS ARDMOR PROPERTIES, LP; AND TEXAS ARDMOR MANAGEMENT, LLC, Plaintiffs-Appellees

From the District Court of Bexar County 407th Judicial District of Texas No. 2014-CI-10796

BRIEF OF APPELLEES

TO THE FOURTH COURT OF APPEALS:

ARD MOR, INC.; TEXAS ARDMOR PROPERTIES, LP; AND TEXAS

ARDMOR MANAGEMENT, LLC (collectively “Ard Mor” or “Appellees”), file this

Brief of Appellees.

xvi ISSUES PRESENTED

The issues presented for review are as follows:

(1) Whether or not the trial court abused its discretion by granting temporary injunctive relief to preserve the status quo of the parties pending a full trial on the merits?

(2) Whether or not a trial court abuses its discretion by finding facts in favor of injunctive relief when conflicting evidence is presented?

(3) Whether or not Lockhill’s admission that Ard Mor is an adjoining property owner is some evidence that Ard Mor owns property in proximity to Lockhill?

(4) Whether or not gasoline is a judicially recognized explosive?

(5) Whether or not a trial court abuses its discretion by taking judicial notice of public records?

(6) Whether a trial court abuses its discretion by taking notice of the documents contained in its own file?

(7) Whether an appellant can complain about the sufficiency of evidence when it objected to the allegedly missing evidence as being irrelevant?

(8) Whether standing to enforce covenant restrictions is a factual question that must be established during the trial of the merits?

(9) Whether or not Lockhill established that it was harmed by the trial court’s finding that Ard Mor has standing when public records contained in the court’s own file establish standing?

(10) Whether or not a temporary injunction to enforce an agreed upon covenant constitutes a prior restraint?

xvii STATEMENT OF FACTS

I. Ard Mor Purchased Property in Shavano Park Subd Ut-16-A-1 That Was Bound by the Restrictive Covenants of Shavano Creek Commercial Properties.

Ard Mor is the owner and operator of the Luv-N-Care Child Development

Center located at 13211 Huebner Rd., San Antonio, Texas, and legally described as

CB 5938 Lot 1814 Shavano Park, Subd Ut-16-A-1, Bexar County, Texas. CR.I:2, 10;

CR.II:115-121; RR.VI:PX3. Ard Mor purchased the property from Shavano Creek

Commercial Properties for the express purpose of building the child development

center in 2001. CR.I:2, 10; CR.II:115-121. The property was encumbered by the

restrictive covenants of Shavano Creek Commercial Partnership Unit 1, Ltd.

CR.II:88-113. (Tab A).

In its covenants, Shavano Creek Commercial Properties expressed its desire for

the systematic and orderly development and use of the property in a manner beneficial

to the adjoining residential area. CR.II:88. In that regard, the covenants expressly

require that the portion of the property purchased by Cooke that runs closest to

Huebner Road be used for a driveway to service the property and the remaining

Shavano Creek Commercial Properties. CR.II:93. The covenants further prohibit

certain activities such as the sale of certain motor vehicles, any activity deemed to be

1 offensive by virtue of omitting odors and fumes, and the storage or use of explosive

material. CR.II:93.

Luv-N-Care opened its doors at its current location in July, 2002. RR.II:25-26.

Since that time, it has operated continuously and currently services approximately

250 children between the hours of 6:30 a.m. and 6:30 p.m., Monday through Friday.

Supp.RR.II:25. The age of the children range from newborn to 13 years. RR.II:25.

II. Lockhill Purchased Property in Shavano Park Subd Ut-16-A-1 That Was Bound by the Restrictive Covenants of Shavano Creek Commercial Properties.

In 2014, Lockhill Ventures, LLC., Appellant in this matter, purchased two

properties adjacent to the Luv-N-Care Child Development Center, which are also

located in Shavano Park, Subdivision 16-A-1. CR.I:77, 96-98; RR.VII:PX2. The

properties are also encumbered by the restrictive covenants of Shavano Creek

Commercial Partnership Unit 1, Ltd. CR.I:102; RR.VII:PX1. The express intent and

purpose of the covenants is to “ensure that the use and development of the Property

and the improvements constructed thereon are not incompatible with any adjoining

commercial properties and the residential neighborhoods.” CR.I:102; RR.VII:PX1.

The same stated purpose of the covenants is integrated within its requirement that all

development plans be approved. CR.II:67; RR.VII:PX1.

2 III. The Storage and Use of Explosives Is Prohibited by the Covenants.

The covenants provide examples of permitted uses of the property, which

include multi-family units, schools, churches, and health care facilities. CR.I:105;

RR.VII:PX1. The covenants also expressly prohibit uses of the property that are

prohibited by zoning laws or governmental regulations. CR.I:105; RR.VII:PX1.

Specifically, the covenants limit development of the disputed property to uses

permitted by Shavano’s B-2 zoning classification. CR.I:110; RR.VII:PX1. The

covenants also prohibit a number of enumerated activities, such as the sales of certain

motor vehicles, the “[s]torage, handling or use of explosive material,” and any use

that is offensive because of the discharge of fumes. CR.I:105; RR.VII:PX1.

IV. Lockhill Plans to Build a Shell Gasoline Station on the Restricted Property.

Despite the express language contained in the restrictive covenants, Lockhill

purchased the property with the intent to build a Shell gas station. RR.IV:25. Sean

Nooner, the President of Lockhill, was undeterred by the fact that a gas station is not

listed as a permitted use by Shavano’s B-2 zoning classification, which is specified

by the covenants as the applicable zoning law. CR.I:105, 109; RR.VII:PX10-11.

Nooner was also undeterred by the fact that gasoline vapors are explosive and are

created in the operation of a gas station, thereby rendering a gas filling station

3 specifically prohibited by the covenants. CR.I:105; RR.VII:PX7-8. Despite his

knowledge of the restrictions, Nooner expressed that he could do anything he wanted

with the property once he purchased it. RR.VI:13-14.

V. Ard Mor Sought Injunctive Relief to Enforce the Covenants.

Ard Mor sought injunctive relief to halt development and enforce the

restrictions on the Lockhill property. CR.I:1, 206. In its pleadings, Ard Mor requested

a declaratory judgment pursuant to Chapter 37 of the Texas Civil Practice &

Remedies Code, seeking a declaration that the use of the Lockhill property as a gas

filling station would violate both the restrictive covenants and Shavano’s ordinances.

CR.I:209-212. Relative to this appeal, Ard Mor asked the trial court to declare that

Lockhill’s intended use of the property to dispense gasoline was prohibited because:

a. Use of the premises for storage, handling or use of gasoline is prohibited by paragraph 4(b)(ii) of the covenants because gasoline is or can be an explosive material;

b. Use of the premises as a gasoline station is prohibited by the covenants because the risk of the emission or discharge of fumes and odorous matter;

c. Use of the premises as a gasoline station will involve business activities, except for outside dining, that are not completely contained within an enclosed structure or court in violation of City of Shavano Ordinance 36-39(6) and (7); and

d. Use of the property as a gas station is not a permitted use under any zoning category in the City of Shavano Park.

4 CR.I.210.1 Ard Mor’s request for relief included a request for the cessation of the

development, planning, and construction of a gas station on the properties adjoining

the Luv-N-Care Child Development Center. CR.I:212-213; CR.II:5-9.

VI. Ard Mor Presented Evidence Demonstrating its Right to Injunctive Relief.

On July 9, 2014, the trial court granted a temporary restraining order against

Lockhill that prohibited the commencement or continuation of development or

construction on the Lockhill property. CR I:91. The trial court heard testimony and

considered evidence on the temporary injunction over a four day period. RR.II:1;

RR.III:1; RR.IV:1; RR.V:1. During the four days of testimony, Ard Mor presented

evidence of the following:

• Ard Mor and Lockhill are adjacent landowners bound by nearly identical covenants of Shavano Creek Commercial Partnership Unit 1, Ltd. CR.I:44, 248, 262, 264, 319-324, 265, 337; CR.II:45, 88-113, 115-212; RR.II:25, 28, 43, 50, 101; RR.IV:55; RR.VII:Exhibit 13.

• Lockhill purchased its property subject to binding restrictive covenants. CR.I:102-105, 291-318; RR.VII:Exhibit 1.

1 Ard Mor also sought declarations that: (i) Shavano’s ordinances are void due to their admitted ambiguity; (ii) the Development Agreement and the ordinance annexing the disputed property are void contract zoning; (iii) the Development Agreement violates existing ordinances; (iv) Shavano inconsistently applies its ordinances in violation of equal protection; and (v) the actions of the City of Shavano Park and its officials in contracting with Lockhill were ultra vires. CR.II:5-6. Those issues are central to a parallel, but separate, appeal brought by the City of Shavano Park from the trial court’s order denying Shavano’s plea to the jurisdiction. See City of Shavano v. Ard Mor, Inc.; Texas ArdMor Properties, LP, and Texas ArdMor Management, LLC, Case No. 04-14-00781- CV.

5 • The covenants restrict the use of the property to those permitted by B-2 zoning. CR.I:110; RR.VII:PX.1.

• Gas stations are not listed in Shavano’s B-2 zoning tables. CR.I:105, 109; RR.VII:PX.9-10.

• The covenants expressly prevent the use or storage of explosive material on the property. CR.I:105; RR.VII:PX.1.

• Lockhill planned to build a Shell gas station on the restricted property which necessarily included gasoline tanks. CR.I:121, 127; RR.II:16, 17, 24, 58, 66; RR.III:40; RR.IV:76, 78; RR.V:15; RR.VII:DX5, CX3.

• Shell gas is also known as gasohol. RR.II:66, 79.

• All gas stations in the United States sell gasohol. RR.II:79; RR.VII:PX.7.

• The terms gas, gasoline, and gasohol are interchangeable. RR.II:79; RR.VII:PX.7.

• The operation of all gas stations results in the release of gas fumes and vapors. RR.II:83, 86, 98.

• Gasoline or gasohol fumes are explosive. RR.II:41, 57, 64, 66-67, 77-79, 83, 86, 88, 89, 95-97, 98, 105; RR.III:44; RR.V:23, 65-68; RR.VII:Exhibits 6-8.

After hearing the evidence and argument of counsel, the trial court issued an

Order for Temporary Injunction. CR.II:128, 136-139. In its order, the trial court found

that Lockhill was planning the construction of a gas station and that such use of the

property was prohibited by applicable zoning laws or other governmental regulations.

CR.II:137. The trial court also found that gasoline would be stored or handled on the

6 property if development continued and that such use would violate the applicable

declaration of protective covenants. CR.II:137. Further, the trial court found that Ard

Mor had standing to enforce the restrictive covenants. CR.II:137.

Lockhill was ordered to cease and desist from commencing or continuing the

development of the property, including seeking or applying for approval from

Shavano, or any other governmental authority, to use its property to store or sell

gasoline. CR.II:138. Lockhill did not secure findings of fact or conclusions of law

with respect to the trial court’s order.

SUMMARY OF THE ARGUMENT

In this interlocutory appeal, the sole issue before this Court is whether or not

the trial court abused its discretion in granting a temporary injunction to maintain

status quo pending a final trial. The central focus of Lockhill’s complaint concerns

the sufficiency of the evidence to support the trial court’s ruling. Lockhill concedes

that there is evidence to support the trial court’s findings that gasoline vapors are

explosive under some conditions and that Lockhill intends to store gasoline on its

property. However, Lockhill contends that such evidence does not support the grant

of a temporary injunction because those findings were insufficiently specific to

Lockhill’s intended use of the gasoline.

7 Even a brief review of the record reveals that significant evidence was

presented on all of the challenged grounds. In fact, Lockhill stipulated and testified

through its representative that it intended to construct a Shell gasoline station and sell

Shell gasoline on its property. Ard Mor offered significant testimony, both

documentary and in the form of expert testimony, to establish that the mere operation

of a Shell gas station – or any gas station – would necessarily result in the release of

gasoline or gasohol vapors which are a known explosive. Although Lockhill disputed

that gasoline vapors are an explosive, a conflict in the evidence does not provide

grounds for the dissolution of an injunction.

Lockhill also challenges the sufficiency of the evidence to support the trial

court’s finding of Ard Mor’s standing to enforce the restrictive covenants. However,

Lockhill’s complaint regarding standing is premature. Lockhill barely referenced the

issue of standing during the four days of hearings. Instead, and oddly enough,

Lockhill vigorously objected any time that Ard Mor offered evidence establishing its

right to enforce the covenants. In fact, as to evidence of ownership of property,

counsel for Lockhill argued that it was undisputed that Lockhill and Ard Mor were

adjoining commercial properties, but that such fact was irrelevant to the issue before

the court. By objecting to relevant evidence obscuring its standing objection, this

issue should be deemed waived.

8 Moreover, it is undisputed that there is significant evidence in the appellate

record that establishes Ard Mor’s standing. Lockhill does not dispute the existence

or veracity of that evidence. Instead, Lockhill’s complaints are narrowly crafted to

assert that insufficient documentation of undisputed facts was formally admitted

during the temporary injunction hearing. However, the trial court had the

documentary evidence, which consisted of public records, in its own file, which were

argued and considered by all parties. Ard Mor requested that the court take judicial

notice of such documents, which both the trial court and this Court can do.

Lockhill also raises a constitutional argument, which likewise was not

developed during the temporary injunction hearing. Specifically, Lockhill suggests

that the restrictive covenants amount to a restraint on its freedom of speech. However,

the law is well established that a party cannot be deprived through the enforcement

of its own agreements — in this case, a restrictive covenant. Lockhill’s constitutional

arguments, even if before this Court, lack merit.

What Lockhill seemingly fails to recognize is that the only relief that Lockhill

can obtain through this appeal is either the dissolving of the injunction or a remand

to the trial court for further proceedings. Considering that the date set for trial on the

merits has passed as a result of this appeal and Lockhill’s multiple requests for

extensions, Lockhill’s procedural objections have done nothing more than extend the

9 status quo far beyond the date set by the court. Further, considering that Lockhill has

not shown that Ard Mor will not prevail at trial, Lockhill has not shown how it would

have benefitted by being allowed to proceed towards constructing improvements that

would have to be removed, resulting in waste. Lockhill has shown no error and

demonstrates no harm beyond the harm that it has inflicted upon itself.

ARGUMENT AND AUTHORITIES

I. A Reviewing Court May Not Review the Merits of the Applicant’s Case in an Interlocutory Appeal from a Temporary Injunction Order.

In a hearing on an application for a temporary injunction, the only question

before the court is the right of the applicant to preserve the status quo of the subject

matter of the suit pending a final trial of the case on its merits. Butnaru v. Ford Motor

Co., 84 S.W.3d 198, 204 (Tex. 2002). To warrant the issuance of the writ, the

applicant need only show a probable right and a probable injury. He is not required

to establish that he will finally prevail in the litigation. Transport Company of Texas

v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953). For that reason,

a reviewing court may not review the merits of the applicant’s case in an interlocutory

appeal from a temporary injunction order. Tel. Equip. Network, Inc. v. TA/Westchase

Place, Ltd., 80 S.W.3d 601, 607 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

10 Whether to grant a temporary injunction lies within the trial court’s sound

discretion. Tel. Equip. Network, 80 S.W.3d at 607. A reviewing court will not reverse

the trial court’s order unless the trial court’s action was “so arbitrary that it exceeded

the bounds of reasonable discretion.” Id. Evidence is to be viewed in the light most

favorable to the trial court’s order, indulging every reasonable inference in favor of

affirming the trial court’s decision. Amalgamated Acme Affiliates, Inc. v. Minton, 33

S.W.3d 387, 392 (Tex. App.—Austin 2000, no pet.); Tel. Equip. Network, 80 S.W.3d

at 607. A reviewing court may not substitute its judgment for that of the trial court by

vacating or modifying an injunction simply because it would have decided the issue

differently. Landry’s Seafood Inn & Oyster Bar-Kemah, Inc. v. Wiggins, 919 S.W.2d

924, 926 (Tex. App.—Houston [14th Dist.] 1996, no writ).

II. The Appellate Record Demonstrates That Ample Evidence Was Presented to Support the Trial Court’s Factual Findings.

Lockhill’s underlying theme throughout its brief concerns sufficiency of the

evidence. However, assertions of insufficient evidence are improper in an appeal from

an order granting or denying a temporary injunction. See Matuszak v. Houston Oilers,

Inc., 515 S.W.2d 725, 728 (Tex. Civ. App.—Houston [14th Dist.] 1974, no writ). The

only evidentiary challenge appropriate in an appeal from a temporary injunction is a

no evidence challenge. Id. To the extent that Lockhill is asserting a no evidence

11 challenge, even a brief review of evidence presented during the four-day hearing

demonstrates that the trial court had ample evidence before it to support its factual

findings. Given the abundance of evidence in the record, Ard Mor presents some of

the evidence refuting Lockhill’s no evidence challenges as succinctly as possible

below.

A. Lockhill argued that it was undisputed that Lockhill and Ard Mor were neighbors and that evidence proving that point was not relevant.

1. Allegation on appeal.

“There is no evidence in the record that any of Appellees own any real property, much less: (1) property near the LV Property (referenced in the proceeding as being a childcare center).”

Appellant’s Brief at 1, and

“Appellees presented no evidence of what real property they allege to own.”

Appellant’s Brief at 5.

2. Evidence.

Ard Mor’s verified petition and application for a restraining order alleges that

Ard Mor is the owner and operator of the Luv-N-Care Child Development Center

located at 13211 Huebner Rd., San Antonio, Texas, and legally described as CB 5938

Lot 1814 Shavano Park, Subd Ut-16-A-1, Bexar County, Texas. CR.I:2, 10;

12 CR.II:115-121. The petition is supported by the affidavit of Paul M. Cooke, which

provides:

“Lockhill Ventures, LLC took the property located adjacent to the Luv- N-Care Child Development Center subject to the Declaration of Protective Covenants as attached to Plaintiff’s Original Petition as Exhibit D. The adjoining land owners have taken property with similar, if not identical covenants.”

CR.I:10. The affidavit also confirmed the factual statements contained in the petition

which included the averment of the location of Ard Mor’s property. CR.I:2, 10;

CR.II:115-121. Lot 1814, which is Lockhill’s lot and which is identified throughout

the pleadings and papers, appears on the land title surveys attached to the

Development Agreement at issue. CR.I:44, 248, 262, 264, 265, 337; CR.II:45;

RR.VII:PX3.

A copy of the restrictive covenants applicable to Ard Mor was also filed and

is a part of the appellate record. CR.I:291-318. The covenants are supported by a

number of exhibits, including field notes that describe Ard Mor’s property and the

Cooke plans for the Luv-N-Care Child Development Center. CR.I:319-321;

CR.II:116-118. Drawings and the plats and plans are also attached as exhibits.

CR.I:322-324; CR.II:119-120.

In addition to the documentary evidence, Lockhill confirmed the location of

Ard Mor’s property. RR.II:43. Witnesses for Ard Mor testified to the location of Ard

13 Mor’s day care facility. RR.II:25, 50, 101. The witnesses also testified that the day

care facility was an adjoining property that was connected to the site of the proposed

gas station. RR.II:25-26, 41, 50-51, 56.

Sean Nooner, the President of Lockhill, testified that Ard Mor is an adjoining

commercial property. RR.IV:15. Nooner even pointed to the location of the Ard Mor

property on a map, indicating its location as an adjacent property. RR.IV:55.

Counsel’s arguments and questioning during the hearing confirmed the location of

Ard Mor’s property. RR.II:13, 27, 36, 43.

Significantly, during the presentation of evidence, counsel for Lockhill

repeatedly and consistently objected to evidence of “how the adjoining property is

used” and that Ard Mor was “an adjoining property” and part of “three adjoining

tracts of land that are subject to the declarations of covenant,” asserting that such

evidence was irrelevant to the proof necessary to establish Ard Mor’s right to a

temporary injunction. RR.II:28-35.

Indeed, counsel for Appellant argued, “[w]e know that there’s a day care center

in proximity, and the Court doesn’t need to know anything more. And, quite frankly,

the Court doesn’t even need to know that.” RR.II:34, 35. Counsel for Lockhill

continued, “[i]t has nothing to do with the neighbors.” RR.II:35.

14 When, as here, the trial court has not entered findings of fact or conclusions of

law, the evidence is viewed in the light most favorable to the trial court’s order and

indulges every reasonable inference in its favor. See Thomas v. Beaumont Heritage

Soc’y, 296 S.W.3d 350, 352 (Tex. App.—Beaumont 2009, no pet.). All findings

necessary to support the trial court’s judgment are presumed. Lockhill does not

dispute that Ard Mor is an adjoining business owner, nor did Lockhill present any

evidence to indicate that Ard Mor is not an adjoining landowner in Shavano Park,

Subd Ut-16-A-1. For purposes of the temporary injunction, the above-cited and

unchallenged evidence is sufficient to show that, upon a trial on the merits, Ard Mor

will be able to fully establish standing to enforce the covenants.

B. The evidence established that the terms gasohol and gasoline are interchangeable in the United States and the evidence presented was specific to the product Lockhill intends to sell.

1. Allegation on Appeal.

“There was no evidence: (1) that gasoline (as opposed to gasohol and diesel) or gasoline vapors would be stored, handled or used on the LV Property.”

Appellant’s Brief at 8.

2. Evidence.

Nooner confirmed that he intends to build a Shell gas station on the property

next to Ard Mor’s. RR.II:16, 17, 24, 58, 66. Lockhill introduced its request for

15 approval of plans during the hearing. RR.VII:Exhibit 5. The plans specifically

reference Nooner’s intent to place a Shell sign on the proposed building.

RR.VII:Exhibit 5, A-1-1, A-1-2, A-1-7, A-1-8. Nooner also confirmed his intent to

build gasoline tanks on the property. RR.IV:76. Nooner testified that the tanks would

contain gasoline and diesel. RR.IV:78.

The Material Safety Data Sheet (MSDS) for Shell gasoline was admitted into

evidence. RR.VII:Exhibit 7, p. 1. The product code includes all forms of gasohol.

RR.VII:Exhibit 7, p. 1. The MSDS warns of the explosive nature of gasoline (or

gasohol). RR.VII:Exhibit 7, p. 4.

Ard Mor’s expert, Dennis Caputo, reviewed the MSDS regarding Shell

Corporation’s products. RR.II:66. The MSDS covers several grades of gasoline,

including premium gasohol, midgrade gasohol, and regular gasohol. RR.II:78. Caputo

explained that gasohol is what is sold as gasoline within the United States and that

the name gasoline was commonly used to describe the gasohol products utilized in

the market. RR.II:79. The MSDS and Caputo’s testimony were specific as to gasohol,

and even more specific as to the gasohol sold by Shell. RR.II:79.

Lockhill’s attempts to claim that there is a difference between the gasohol that

would be stored and used on the property and gasoline is firmly refuted by the

evidence. The argument’s disingenuous nature is apparent given the fact that

16 Lockhill’s own counsel framed the issue before the court as whether or not gasoline

(as opposed to gasohol) is an explosive material, and whether or not a store that sells

gasoline is prohibited by the covenants. See, e.g., RR.II:6, 15, 27, 32, 33, 52, 53, 68,

71, 72, 73, 74, 75, 107; RR.III:10-35, 48, 49, 135, 151, 184; R.IV:130. Ard Mor

offered significant evidence that confirmed Lockhill planned to sell and use Shell

gasoline, also known as Shell gasohol, on the disputed property, and Lockhill never

disputed or discredited such evidence.

C. Appellant stipulated that it intended to build and operate a gas station and expert testimony established that explosive gas vapors are released during the operation of a gas station.

1. Allegation on Appeal.

“There is no evidence in the record regarding the conditions under which Appellant would store gasohol.”

Appellant’s Brief at 2, and

“There is no evidence in the record that the vapors of gasohol are explosive under the conditions under which Appellant proposes to store gasohol.”

Appellant’s Brief at 3.

2. Evidence.

Lockhill stipulated that it intended to build a Shell gas station. RR.III:40.

Nooner also characterized his existing and proposed businesses as gasoline stations.

17 RR.IV:8, 16, 17, 25, 28, 39. One out of every twenty-three gas stations experiences

a fire or explosion associated with its operation. RR.II:67.

It is undisputed that gasoline stations have gasoline tanks to store the gasoline,

or gasohol and diesel. RR.II:96. As the liquid is disbursed through normal usage, it

is replaced by gas vapors. RR.II:97. Ard Mor’s expert, Dennis Caputo, testified about

the ability of gasoline vapors to leak and the explosive threat involved in such cases.

RR.II:64. Caputo has been personally involved in hundreds of cases involving such

leaks. RR.II:64.

Caputo also testified that the operation of a gasoline station releases vapors that

are explosive. RR.II:83. Indeed, gas stations cannot operate without generating gas

vapors. RR.II:86. Caputo testified that gas vapors are explosive under many

circumstances, including flames, sparks, heat, and static discharge. RR.II:83.

Gasoline vapors are released any time that someone places gasoline into their

vehicles. RR.II:98. This release of vapors creates a risk of explosion. RR.II:98.

One of the several ways in which gasoline vapors can be ignited is through

static electricity which can ignite or cause vapors to explode. RR.II:88-89. Caputo

further explained that gasoline can even explode spontaneously under certain

conditions. RR.II:105. The product information sheet for the Shell product to be sold

by Nooner warns that:

18 “All it takes to create a violent explosion is fuel vapors, enough oxygen and a source of ignition, hyphen, like a spark from a cigarette, comma, a hot exhaust pipe, comma, faulty wiring, comma, or a wisp of vapor reaching the open flame of a pilot light or a match.”

“Even something as seemingly innocuous as a spark from a static electricity discharge can cause gasoline vapors to explode if it happens near an atmosphere source. Remember that when you move around in your vehicle you can build up a static electricity charge in your body.”

RR.III:44.

Although Lockhill’s expert claimed that gasoline and gasoline vapors were

actually stable, the trial court functions as the fact finder in a temporary injunction

hearing and an abuse of discretion does not exist where the trial court bases its

decision on conflicting evidence. Nelkin v. Young, 397 S.W.2d 956, 958 (Tex.

App.—Texarkana 1965, writ ref’d n.r.e.). A reviewing court must draw all legitimate

inferences from the evidence in the light most favorable to the trial court’s order

granting a temporary injunction. T-N-T Motorsports, Inc. v. Hennessey Motorsports,

Inc., 965 S.W.2d 18, 21 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d). There

was ample evidence submitted to support the trial court’s findings that gas or gas

vapors would be used on the disputed property in a manner that could lead to an

explosion.

19 D. Gasoline is a judicially recognized explosive and significant evidence was presented establishing the explosive nature of gasoline vapors released during the operation of a gas station.

1. Allegation on Appeal.

“There was no evidence: . . . (2) that the vapors of gasohol or diesel can explode under any circumstances; (3) of the actual conditions under which gasoline vapors are actually explosive; or (4) of the conditions which Appellant proposed to store, handle or use gasohol or diesel were conditions such as to render gasoline vapors explosive.”

Appellant’s Brief at 8-9.

2. Evidence.

Gasoline is designed to explode. RR.II:95. It is the very explosive nature of

gasoline that makes is a useful substance for our vehicles. RR.II:95. Indeed, the

explosive property of gasoline is so well known that it has been judicially noticed for

nearly 100 years. See McCulloch v. State, 740 S.W.2d 74, 76 (Tex. App.—Fort Worth

1987, pet. ref’d) (“A court of appeals may take judicial notice of facts which are

notorious, well known or easily ascertainable. Therefore, we take judicial notice of

the explosive nature of gasoline.”) (internal citation omitted); Nesmith v. Magnolia

Petroleum Co., 82 S.W.2d 721, 723 (Tex. Civ. App.—Austin 1935, no writ) (“The

volatile, inflammable, and explosive properties of gasoline are matters of most

general common knowledge. It is but stating the obvious to aver that every normal

person of high-school age or over, of average mentality and ordinary experience, is

20 presumed to have a general practical knowledge of these properties.”); Merchant v.

Houston Gas & Fuel Co., 78 S.W.2d 656, 658 (Tex. Civ. App.—Galveston 1935, writ

dism’d) (“[T]he explosion may have been caused by vapor or gas emanating from

gasoline which is, as a matter of common knowledge, a highly explosive and

inflammable substance.”); Scott v. Champion Bldg. Co., 28 S.W.2d 178, 180 (Tex.

Civ. App.—Dallas 1930, no writ) (“Courts judicially know that gasoline and other

inflammable petroleum products are explosive and constantly menace the safety of

persons and property, wherever stored or kept for sale.”).2

Ample evidence regarding the explosive nature of gasoline vapors, under the

conditions of use proposed by Lockhill, supports the trial court’s findings. In addition

to the evidence outlined in sections II.B. and II.C., Lockhill’s expert confirmed that

“Shell gasoline” was the product that would be sold at Lockhill’s proposed gas

station. RR.V:15. The warning signs displayed at Nooner’s existing gasoline and

Shell stations warn of the risk of explosion. RR.III:37, 44, 46; RR.IV:28, 49.

2 See also Al-Saady v. State, No. 02-13-00186-CR, 2014 WL 3536806, at *4 (Tex. App.—Fort Worth July 17, 2014, no pet.) (mem. op.); Davis v. State, 227 S.W.3d 766, 769 (Tex. App.—Tyler 2005), aff’d, 227 S.W.3d 733 (Tex. Crim. App. 2007); Shamrock Fuel & Oil Sales Co. v. Tunks, 406 S.W.2d 483, 488 (Tex. Civ. App.—Houston 1966, no writ); Lombardo v. City of Dallas, 47 S.W.2d 495, 498 (Tex. Civ. App.—Dallas 1932, writ granted), aff’d, 73 S.W.2d 475 (Tex. 1934); City of San Antonio v. Humble Oil & Ref. Co., 27 S.W.2d 868, 869 (Tex. Civ. App.—San Antonio 1930, writ dism’d); Liverpool & London & Globe Ins. Co. v. Currie, 234 S.W. 232 (Tex. Civ. App.—El Paso 1921, writ ref’d).

21 A Shell gasoline pamphlet regarding its gasoline products was admitted into

evidence. RR.VII:Exhibit 8, pp. 2, 4. The pamphlet acknowledges that accidents have

happened and warns of the potential for a violent explosion. RR.VII:Exhibit 8, pp. 2,

4. The pamphlet further admonishes that, “[a] simple gasoline splash or spill could

lead to an explosion, fire and possible serious injury.” RR.VII:Exhibit 8, p. 6.

Plaintiff’s Exhibit 6, a warning notice from a shell gasoline station that advises that

gasoline vapors may explode, was also admitted into evidence. RR.VII:6.

The MSDS for Shell gasoline was also admitted into evidence. RR.VII:Exhibit

7, p. 1. The product code includes all forms of gasohol. RR.VII:Exhibit 7. p. 1. The

MSDS expressly warns of the explosive nature of gasoline (or gasohol).

RR.VII:Exhibit 7, p. 4.

In addition to the documentary evidence, Ard Mor presented expert testimony

regarding the explosive nature of gasoline vapors. RR.II:77. Lockhill’s expert could

not negate the possibility of explosion as outlined in the Shell product information

documents. RR.V:21, 23. Specifically, Lockhill’s expert could not dispute that Shell

gasoline has explosive properties. RR.V:23. Even lay witnesses testified about their

personal knowledge of explosions at gas stations and the explosive nature of gasoline.

RR.II:41, 57.

22 Lockhill argues that the trial court abused its discretion in finding that gasoline

is an explosive material because it is not listed as an explosive material in ATF

guidelines, and is listed as a flammable by some regulations. Even if this position had

merit, the existence of controverting evidence does not demonstrate that the trial court

abused its discretion. Nelkin v. Young, 397 S.W.2d at 958. Moreover, Lockhill’s

representations of the guidelines and regulations is not complete.

The ATF guidelines upon which Lockhill’s expert relied to exclude gasoline

from the definition of explosive materials specifically state that the list is not all

inclusive of explosive materials. RR.V:71. The fact that a substance is not listed does

not mean that it is not an explosive.

Likewise, the characterization of gasoline as a flammable substance does not

mean that it is not explosive. 29 CFR 1910.106 specifically provides that the

flammable range is also known as the explosive range. See also RR.VII:Exhibit 18,

p. 3. Lockhill’s own expert could not dispute that official OSHA regulations indicate

that the terms flammable range and explosive range are interchangeable. RR.V:65-68.

The trial court does not abuse its discretion if the applicant pleads a cause of

action and presents some evidence tending to sustain that cause of action. RP&R, Inc.

v. Territo, 32 S.W.3d 396, 402 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

Significantly, a reviewing court is not to assume the evidence taken at a preliminary

23 hearing will be the same as the evidence developed at a full trial on the merits. Davis

v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). If there is some evidence of substantive

and probative character, a reviewing court may not find that the trial court abused its

discretion. Houston v. Southwestern Bell Tel. Co., 263 S.W.2d 169 (Tex. Civ.

App.—Galveston 1953, writ ref’d).

In this case, the trial court was presented with four days of testimony, including

the testimony of two experts. Ard Mor presented significant evidence of all elements

of Ard Mor’s probable right of recovery. To the extent that Lockhill claims to have

discredited such evidence, a conflict in the evidence does not demonstrate an abuse

of discretion. Matuszak v. Houston Oilers, Inc., 515 S.W.2d 725, 728 (Tex.

App.—Houston [14th Dist.] 1974) (“It is also settled that fact findings on conflicting

evidence will not be disturbed.”); see Sheehan v. Levy, 215 S.W. 229 (Tex. Civ.

App.—Dallas 1919, writ granted), aff’d, 238 S.W. 900 (Tex. Comm’n App. 1922,

opinion adopted). The trial court did not abuse its discretion in rendering its findings

or conclusions.

III. The Covenants of the Shavano Commercial Property Partnership, Unit I Expressed a Clear Intent and Purpose to Benefit the Adjacent Landowners Through its Restrictions.

Although Lockhill acknowledges that restrictive covenants may be enforced

by someone other than the grantor or grantee, Lockhill raises another sufficiency of

24 the evidence challenge with respect to Ard Mor’s right to do so. Specifically, Lockhill

claims that Ard Mor failed to present evidence that it is entitled to benefit from the

restrictive covenants. Appellant’s Brief at 10.

The test for standing is whether there is “(1) a real controversy between the

parties (2) that will be actually determined by the judicial declaration sought.”

Antonov v. Walters, 168 S.W.3d 901, 904 (Tex. App.—Fort Worth 2005, pet. denied).

Ordinarily, any person entitled to benefit under a restrictive covenant is entitled to

enforce it. Anderson v. New Prop. Owners’ Ass’n of Newport, Inc., 122 S.W.3d 378,

384 (Tex. App.—Texarkana 2003, pet. denied). Where many property owners are

interested in a restrictive covenant, any one of them can enforce it. Giles v. Cardenas,

697 S.W.2d 422, 427 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.).

Although a restrictive covenant is a contractual agreement between the seller

and the purchaser of real property, circumstances exist in which a restrictive covenant

may be enforced by someone other than the grantor or grantee. For example, a

property owner may subdivide property into lots and create a subdivision in which

all property owners agree to the same or similar restrictive covenants designed to

further the owner’s general plan or scheme of development. Under these

circumstances, each purchaser within the subdivision is assumed to benefit from the

restrictions and each has the right to enforce the restrictions. See, e.g., Curlee v.

25 Walker, 244 S.W. 497, 498 (Tex. 1922) (“It is perfectly clear that it is lawful for

districts with restrictions [designed to benefit all property owners] to be created, and

also that each purchaser has the right to rely on and to enforce those restrictions.”).

If the deed of the property owner against whom enforcement of the restriction is

sought contains the restriction, standing is based on an implied mutuality of

covenants among the various purchasers within the subdivision. See, e.g., id.; Giles,

697 S.W.2d at 427 (holding that where many property owners are interested in a

restrictive covenant, any one of them can sue to enforce it); Hooper v. Lottman, 171

S.W. 270, 272 (Tex. Civ. App.—El Paso 1914, no writ) (standing is predicated on

mutuality of covenant between original owner and each purchaser).

In other words, where an owner of a tract subdivides and sells the subdivided

parcels to separate grantees, with restrictions on the use of each parcel pursuant to a

general plan or scheme of development, each grantee may enforce the restrictions

against each other. Lehmann v. Wallace, 510 S.W.2d 675, 680–81 (Tex. Civ.

App.—San Antonio 1974, writ ref’d n.r.e.). “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.” Id. at 680.

26 A. Evidence in the record tends to prove standing.

The appellate record demonstrates that Ard Mor does have standing to enforce

the restrictive covenants. Lockhill does not suggest that Ard Mor is not an adjacent

property owner or that Ard Mor lacks standing. Instead, Lockhill argues that for

purposes of the injunction hearing, (1) there was no document introduced into

evidence proving that Ard Mor owns property in the vicinity of the Lockhill property;

(2) there was no document introduced into evidence of common source of the

property; and (3) there was no document introduced into evidence that any of the

Appellees were parties to the restrictive covenants. Appellant’s Brief at 10.

In addition to the evidence recited in the statement of facts and arguments

above, the record reflects that Ard Mor is the owner of the Luv-N-Care Child

Development Center located at 13211 Huebner Rd., San Antonio, Texas, and legally

described as CB 5938 Lot 1814 Shavano Park, Subd Ut-16-A-1, Bexar County,

Texas. CR.I:2, 10, 44, 248, 262, 264, 265, 321, 322-324, 337; CR.II:45, 115-121;

RR.II:25, 28, 43, 50, 101; RR.IV:15, 55. Ard Mor purchased the property from

Shavano Creek Commercial Properties. CR.I:2, 10; CRII:115-121. The record also

reflects that Lockhill Ventures, LLC purchased two properties adjacent to the Luv-N-

Care Child Development Center, which are also located in Shavano Park, Subdivision

27 16-A-1. CR.I:77, 96-98. Therefore, the appellate record demonstrates that Ard Mor

and Lockhill are not only adjacent landowners, but own land in the same subdivision.

Both properties are encumbered by nearly identical covenants of Shavano

Creek Commercial Partnership Unit 1, Ltd. CR.I:102, 291-318; CR.II:88;

RR.VII:PX0-1. Both covenants’ stated purpose is to ensure compatibility with the

residential neighborhood in which the properties are located. CR.I:105; CR.II:67, 88;

RR.VII:PX0-1. Both covenants prohibit certain activities, such as the sale of certain

motor vehicles, activity deemed by be offensive by means emitting odors and fumes,

and the storage or use of explosive material. CR.I:105; CR.II:93; RR.VII:PX0-1. The

appellate record clearly demonstrates Ard Mor’s standing to enforce the restrictive

covenants.

B. Ard Mor’s objections to the evidence of standing are matters reserved for the full trial on the merits.

Lockhill does not dispute that Ard Mor is an adjacent landowner in the same

subdivision, or that both parties are bound by nearly identical covenants of Shavano

Creek Commercial Properties. Lockhill’s complaint seems to be that the public

records already contained in the court’s file, argued by the parties, and reviewed by

the court, were not formally admitted into evidence during the injunction hearing. The

problem with Lockhill’s argument is that Lockhill repeatedly objected to the

28 admission of evidence of standing on relevancy grounds during the injunctive

hearing.

At the outset, Appellant’s argument is facially improper because matters

regarding issues of common source and beneficiary status under the covenants are

matters reserved for trial on the merits. Scott v. Rheudasil, 614 S.W.2d 626 (Tex. Civ.

App.—Fort Worth 1981, no writ). In Scott v. Rheudasil, on an appeal from a

temporary injunction, the appellant made similar objections regarding whether or not

the plaintiffs had standing given that the development entity was defunct. There the

court found that “[t]he posture of this case being in the nature of temporary injunction

the equities appear to be on the side of holding, pending a trial on the merits, that the

Plaintiffs have standing to enforce the protective covenant.” Id. at 639. The court

admonished however, that “[u]pon a trial on the merits the burden will be on the

Plaintiffs to show that the covenant was intended to inure to their benefit . . . .” Id.

When counsel for Ard Mor attempted to introduce evidence and discuss the

three parcels of land subject to the covenants, counsel for Lockhill asserted, “[t]hey

might want to be able to do that in a damage lawsuit, but they don’t get that in a

temporary injunction . . . .” RR.II:36. Lockhill’s argument regarding standing is

premature. Fairfield v. Stonehenge Ass’n Co., 678 S.W.2d 608, 612 (Tex.

29 App.—Houston [14th Dist.] 1984, no writ) (the merits of the underlying case are not

presented for appellate review on appeal from a grant of a temporary injunction).

C. Lockhill waived or invited any error regarding the lack of admission of sufficient evidence of standing by objecting to evidence of standing on relevancy grounds.

Without waiving the forgoing, and in the alternative, this Court should hold

that Lockhill waived or invited any error with respect to the sufficiency or admission

of Ard Mor’s evidence regarding standing at the temporary injunction phase of the

proceedings. The doctrine of invited error provides that a party may not complain of

an error which he has invited. In re Department of Family and Protective Services,

273 S.W.3d 637, 646 (Tex. 2009); Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862

(Tex. 2005); Ramirez v. State, 973 S.W.2d 388, 392 (Tex. App.—El Paso 1998, no

pet.). Nor may a party ask something of the trial court and then complain that the

court erred in granting the relief sought. Northeast Tex. Motor Lines v. Hodges, 158

S.W.2d 487, 488 (Tex. 1942); Bluestar Energy, Inc. v. Murphy, 205 S.W.3d 96, 101

(Tex. App.—Eastland 2006, pet. denied).

Lockhill did not mention standing or raise any objections to the proceedings

during opening statement or presentation of evidence. RR.II:14-17. At all times

during the four-day hearing, Lockhill’s counsel framed the relevant issue before the

30 court as whether or not gasoline is explosive. In fact, Lockhill’s counsel objected to

testimony from Ard Mor employees regarding the location and use of Ard Mor’s

property and “about what is happening on these three adjoining tracts of land that are

subject to the declarations of covenant” — asserting that such testimony was

undisputed and irrelevant, and that the only issue before the trial court was whether

there was a breach of covenant or zoning. RR.II:28-29, 32-34. For example, during

the presentation of one of Ard Mor’s witnesses regarding Ard Mor’s use of the

property, counsel for Appellant objected and framed the issue before the court as

follows:

“The question is: On the parcel of land in which the Nooners are trying to construct a convenience store, retail space, and gas retail pumps, whether or not that is permissible under the covenants and whether or not it’s permissible under zoning? It has nothing to do with the neighbors.”

RR.II:35. After Lockhill vigorously argued to narrow the issues before the court,

counsel for Ard Mor specifically asserted that, “Your Honor, the Luv-N-Care clearly

has a right to enforcement of the declaration of covenant.” RR.II:35. Although this

statement was a clear assertion of standing, Lockhill continued its attempt to narrow

the issues before the court by asserting that, “the focus of proof necessary to–for this

Court to extend or dissolve the TRO, which has six pronounced elements.” RR.II:35.

Undeterred, Ard Mor attempted to discuss the three parcels of land subject to the 31 covenants, but Lockhill again asserted, “[t]hey might want to be able to do that in a

damage lawsuit, but they don’t get that in a temporary injunction . . . .” RR.II:36. A

thorough review of the exchange almost makes it appear as if Lockhill was trying

desperately to steer the court away from the issue of standing and keep evidence

related to standing out of the record. The few minor references that Lockhill made to

standing were vague and were couched in terms of questions of law.

When Lockhill finally mentioned standing, during closing argument, it was a

brief assertion that Ard Mor was not a party to the same declaration of covenants as

Lockhill. RR.V:112. But, even at closing arguments, Lockhill attempted to steer the

court away from a full discussion of the standing issue, objecting to the submission

of a trial brief that Ard Mor offered in anticipation that Lockhill might finally

expound upon the standing issue recited in its pleading . RR.V:138-139.

If Lockhill wanted to test the sufficiency of Ard Mor’s evidence establishing

standing at the injunctive stage of the proceedings, it should not have objected to the

admission of the evidence as being irrelevant for purposes of the injunction hearing.

Tex. R. App. P. 33.1(a); see Venus v. State, 282 S.W.3d 70, 73-74 (Tex. Crim. App.

2009) (doctrine of invited error precluded appellant from challenging sufficiency of

evidence when appellant’s own objections kept the evidence from being developed

at the trial court); Berry v. Segall, 315 S.W.3d 141, 144 (Tex. App.—El Paso 2010, 32 no pet.) (holding that doctrine of invited error precluded appellant’s complaint that

trial court should have submitted issue of offset for insurance payments to the jury

when appellant characterized the issue of offset as one of law to be determined by the

court, and posited that the jury should not hear any evidence of insurance or offset

issues); see also, e.g., Breof BNK Texas, L.P. v. D. H. Advisors, Inc., 370 S.W.3d 58,

68 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding that “general language

does nothing to make the trial court aware” of the appellant’s beliefs and arguments).

Indeed, if evidence of standing was an issue, Lockhill should have mentioned

standing before the parties spent four days putting on argument and evidence

regarding the nature of gasoline. Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex.

2014) (“Preservation of error reflects important prudential considerations recognizing

that the judicial process benefits greatly when the trial courts have the opportunity to

first consider and rule on error.”).

In the present matter, Lockhill did not simply fail to bring the issue of standing

evidence to the trial court’s attention, Lockhill continually objected to the relevance

and the importance of evidence establishing standing. As such, Lockhill failed to

preserve for appellate review the issue of the sufficiency of the evidence to support

standing. See Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (“The reason for

the requirement that a litigant preserve a trial predicate for complaint on appeal is that 33 one should not be permitted to waive, consent to, or neglect to complain about an

error and then surprise his opponent on appeal by stating his complaint for the first

time.”). Lockhill’s current objections to standing — as to the injunctive proceedings

— should be deemed waived or estopped as invited error.

D. The court was entitled to take judicial notice of public records attached to pleadings.

In the alternative, and without waving the foregoing, even if the issue of

standing evidence was before the trial court, it is clear that the trial court determined,

based on its own file and on public records, that Ard Mor would be able to establish

standing at trial. During the initial stages of the hearing, when the court surveyed

counsel regarding the admission of documents attached to pleadings, counsel for Ard

Mor stated that he had no objection to the admission of such things as the

declarations, deeds, and ordinances. CR.II:21-22. This statement was not

contradicted. In fact, during the proceedings, documents were handed to the court

upon the court’s request. CR.II:21. However, a review of the record makes it appear

as if Lockhill was intentionally negating the issue it now raises to ensure that Ard

Mor would not formally introduce the documents being discussed by all partes.

When Lockhill, for the first time during closing argument, asserted that the

documents attached to Ard Mor’s pleadings were not formally introduced into

34 evidence, counsel for Ard Mor asserted that the documents were public record and

that the trial court could take judicial notice of them. RR.V:139; see Johnson v.

Johnson, No. 03-02-00427-CVC, 2005 WL 3440773, *6 (Tex. App.—Austin Dec.

16, 2005, no pet.) (property deeds meet the requirements of Rule 201). Indeed, Rule

201 specifically allows a court to take notice of facts that can be accurately and

readily determined from “sources whose accuracy cannot reasonably be questioned.”

Tex. R. Evid. 201(b)(2). Moreover, a court may take judicial notice on its own, at any

stage of the proceeding, and a court must take judicial notice if it is requested and the

court is provided with the necessary information. Tex. R. Evid. 201(c); see Estate of

York, 934 S.W.2d 848, 851 (Tex. App.—Corpus Christi 1996, writ denied) (“A court

may take judicial notice of its own records in a case involving the same subject matter

between the same, or practically the same, parties.”); Escamilla v. Estate of

Escamilla, 921 S.W.2d 723, 726 (Tex. App.—Corpus Christi 1996, writ denied); see

also Texas Real Estate Comm’n v. Nagle, 767 S.W.2d 691, 694 (Tex. 1989).

The covenants of Ard Mor are not just public records, but were attached to the

pleadings and were provided to the trial court. Pursuant to Texas Rule of Evidence

201(c), the trial court was required to take notice of the documents. Consequently,

even if preserved, Lockhill’s sufficiency arguments regarding standing lack merit

because the trial court was required to judicially notice the documents attached to the 35 pleadings. Given the trial court’s ruling, it appears that the trial court followed this

rule of law.3 See also Estate of York, 934 S.W.2d at 851 (“The trial court can take

judicial notice in the absence of a request from a party, and may be presumed to have

taken notice of its own files.”) (internal citation omitted); Lacy v. First Nat’l Bank,

809 S.W.2d 362, 367 (Tex. App.—Beaumont 1991, no writ).

Furthermore, appellate courts can and do “take judicial notice of matters of

public record, whether requested by a party or on its own motion, for the first time on

appeal.” City of El Paso v. Fox, No. 08-12-00264-CV, 2014 WL 5023089, *4 (Tex.

App.—El Paso Oct. 8, 2014, no pet.) (citing Langdale v. Villamil, 813 S.W.2d 187,

190 (Tex. App.¯Houston [14th Dist.] 1991, no writ)); see, e.g., In re Estate of

3 Lockhill argued during the hearing that documents attached to the pleadings, but not introduced into evidence, could not be considered by the trial court. The cases so holding stand for the proposition that a temporary injunction cannot stand on pleadings and affidavits alone, but must be supported by the introduction of evidence at a hearing. See Millwrights Local Union No. 2484 v. Rust Eng’g Co., 433 S.W.2d 683 (Tex. 1968); Texas State Bd. of Educ. v. Guffy, 718 S.W.2d 48 (Tex. App.—Dallas 1986, no writ). Those cases, however, acknowledge the right of the opposing party to test evidence such as an affidavit. In this case, the evidence attached to the pleading were public records and as such were self-authenticating. Moreover, and significantly, Lockhill never objected to the documents or suggested that the documents were untrue or misleading. See Tigua Gen. Hosp., Inc. v. Feuerberg, 645 S.W.2d 575, 576 (Tex. App.—El Paso 1982, no writ) (treating affidavits as sufficient temporary injunction proof, despite lack of parties’ agreement to do so below, when opposing party did not complain of deficiency of affidavits on appeal). Lockhill’s argument is inapplicable in light of the facts that the court conducted a four-day hearing with extensive testimony and evidence and that Lockhill never challenged the fact that Ard Mor was an adjacent landowner in the same subdivision burdened by covenants of the same developer.

36 Hemsley, No. 08-12-00368-CV, 2014 WL 5854220, *7-8 (Tex. App.—El Paso Nov.

12, 2014, no pet.); Johnson v. Johnson, 03-02-00427-CVC, 2005 WL 3440773, *5-6

(Tex. App.—Austin Dec. 16, 2005, no pet.); Langdale, 813 S.W.2d at 190. In the

event that this Court determines that the issue of standing is before it, this Court can

also take judicial notice of the covenants and public records attached to Ard Mor’s

pleadings to confirm Ard Mor’s standing to enforce the covenants against Lockhill.

If necessary, Ard Mor requests that this Court do so. (Tab A).

E. The harm to Lockhill, which is the preservation of the status quo pending trial, has been prolonged by Lockhill.

Even if the trial court erred as Lockhill alleges — by relying on the public

records attached to Ard Mor’s pleadings and the testimony provided at the evidentiary

hearing — Lockhill’s own actions have dwarfed any harm caused by the trial court’s

error. The only issue before the trial court was the propriety of a temporary

injunction, i.e. whether the trial court should preserve the status quo pending a full

trial. Prior to Lockhill’s appeal, this matter was set for trial on February 17, 2015.

CR.II:138. As a result of Lockhill’s appeal and requests for extension, that date has

long since passed.

Even if the trial court erred in granting a temporary injunction, the only harm

caused by the error was a delay in Lockhill’s construction and development until

37 February 17, 2015. But for Lockhill’s own actions of working in concert with the City

to appeal the trial court’s ruling, the injunctive relief would have already concluded.

Not only did Lockhill file an appeal, it also requested two lengthy extensions of time

to file its brief. Therefore, any harm caused by the decision of the trial court to

preserve status quo was negated by Lockhill’s decision to file an appeal based on an

alleged hyper-technicality that in no way demonstrates that Ard Mor will not prevail

upon full trial. As such, any error committed by the trial court was harmless and is not

reversible. See Tex. R. App. P. 44.1 (“No judgment may be reversed on appeal on the

ground that the trial court made an error of law unless the court of appeal concludes

that the error complained of . . . probably caused the rendition of an improper

judgment.”).

Restated, Lockhill’s appeal is not based on an assertion that Ard Mor will not

prevail in proving its case on trial, nor that Ard Mor will not be able to establish its

standing to enforce the restrictive covenants during a full trial. Lockhill’s appeal is

based on the allegation that the trial court should not have granted injunctive relief

because some of the documents contained in the court’s file, which conclusively

establish standing, were not formally introduced into evidence. Yet, if the trial court

did not grant injunctive relief and Lockhill continued to develop its property despite

the pending litigation, Lockhill would likely face the additional cost and burden of 38 removing any improvidently placed improvements. See Jim Rutherford Invs., Inc. v.

Terramar Beach Comty. Ass’n, 25 S.W.3d 845, 850 (Tex. App.—Houston [14th

Dist.] 2000, pet. denied) (holding that equities did not favor builder who refused to

halt construction after being informed of deed restrictions); Gigowski v. Russell, 718

S.W.2d 16, 22 (Tex. App.—Tyler 1986, writ ref’d n.r.e.) (ordering appellants to

remove mobile home despite “considerable expense” when they had actual and

constructive notice of deed restrictions); Winfield v. Lamoyne, No. 05-94-01851-CV,

1995 WL 634161, *15 (Tex. App.—Dallas Oct.16, 1995, writ dism’d) (mem.op.)

(ordering removal of exterior stairway and other improvements when builder had

actual and constructive knowledge of deed restrictions prior to construction). Under

the facts of this case, the harm Lockhill alleges the trial court caused is actually self-

inflicted.

Finally, if this Court finds that Lockhill’s challenge to the sufficiency of

evidence supporting standing has merit, the appropriate remedy is to remand the

cause for factual development (in this case, remand for the mechanical exercise of

officially admitting into evidence documents already in the record). An appellate

court should only render judgment that a plaintiff lacks standing when the defendant

affirmatively negates the possibility that the plaintiff has standing. See Scarbrough

v. Metro. Transit Auth. of Harris County, 326 S.W.3d 324, 339 (Tex. App.—Houston 39 [1st Dist.] 2010, pet. denied). When, as here, the defendant’s challenge to the

plaintiff’s standing depends on disputed evidentiary matters, the appropriate remedy

is to remand. See Hendee v. Dewhurst, 228 S.W.3d 354, 376 (Tex. App.—Austin

2007, pet. denied) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.

2000)). This is especially true in the present case, since Lockhill attempted to keep

evidence supporting standing out of the record.

IV. The Phrase, “Storage, handling or use of explosive material” Is Not Ambiguous.

Despite abundant evidence that gasoline — or gasoline vapors — are

explosives, Lockhill revisits its argument that gasoline is not an explosive material

by repackaging it as an issue of interpreting a restrictive covenant, likely in an

attempt to obtain a more favorable standard of review. Under this argument, Lockhill

asserts that the covenant should be interpreted in its favor. However, Lockhill’s

argument does not seek to interpret the meaning of the restrictive covenant. Indeed,

Lockhill does not even cite to the specific language of the covenant which requires

interpretation. Instead, Lockhill’s argument seeks to re-interpret whether or not

gasoline is explosive. Notably, Lockhill does not suggest that the term “explosive”

is ambiguous.

40 As in other written instruments, the end sought in the construction of restrictive

covenants is the ascertainment of the intent of the parties as revealed by the language

used in the covenant. Couch v. Southern Methodist University, 10 S.W.2d 973 (Tex.

Comm’n. App. 1928, opinion adopted). Words and phrases used in a restrictive

covenant will be accorded their ordinary and commonly accepted meaning. Settegast

v. Foley Bros. Dry Goods Co., 270 S.W. 1014 (Tex. 1925). The rule that restrictive

covenants must be strictly construed, favoring the grantee against the grantor and

resolving all doubts in favor of the free and unfettered use of the premises, applies

only when the intent of the parties is not ascertainable from the terms of the covenant.

Atkins v. Fine, 508 S.W.2d 131 (Tex. Civ. App.—Austin 1974, no writ); Knopf v.

Standard Fixtures Co., 581 S.W.2d 504, 505 (Tex. Civ. App.—Dallas 1979, no writ).

The intent of the covenant — to ban the storage and use of explosives — is clear, and

is also reasonable, given that Lockhill’s property is located within a residential area.

V. The Temporary Injunction Is Not a Prior Restraint.

As an alternative argument, Lockhill asserts that the temporary injunction

should be modified to remove the portion that prohibits Lockhill from:

“Commencing or continuing with any applications for approval by the City of Shavano Park or any other governmental authority to use the above described real property for storage or sale of gasoline or other explosive material.”

41 Appellant’s Brief at 15 (citing CR.II:138). Lockhill claims that this portion of the

temporary injunction infringes upon Lockhill’s rights under the First Amendment of

the United States Constitution and Article 1, Section 8 and 27 of the Texas

Constitution because the temporary injunction is a prior restraint on speech. In

support of this argument Lockhill cites to Kinney v. Barnes, but does not

acknowledge that Kinney dealt with the issue of defamatory statements. See Kinney

v. Barnes, 443 S.W.3d 87, 89 (Tex. 2014).

Lockhill also fails to acknowledge the Texas case law dealing with the issue

before this Court — whether a temporary injunction is a prior restraint when it

prohibits only that speech which the speaker has already agreed to abstain from. That

issue has been previously and consistently resolved in Ard Mor’s favor. See

Henderson v. KRTS, Inc., 822 S.W.2d 769, 775-76 (Tex. App.—Houston [1st Dist.]

1992, no writ) (temporary injunction that prohibited appellant from petitioning the

F.C.C. was not a prior restraint because appellant had agreed not to oppose appellee’s

application with F.C.C.).

In fact, this Court has already encountered and rejected the same prior restraint

argument forwarded by Lockhill. In Menna v. Romero, the appellant argued that the

temporary injunction was an unconstitutional prior restraint. 48 S.W.3d 247, 251

(Tex. App.—San Antonio 2001, pet. dism’d w.o.j.). However, because the appellant 42 had already covenanted to refrain from the speech that the temporary injunction

prohibited, this Court rejected the constitutional claim and upheld the temporary

injunction. See id. at 249, 253.

The portion of the temporary injunction cited above is neither an impermissible

prior restraint nor overly broad. The temporary injunction only prohibits Lockhill

from petitioning the government for permission “to use the above described real

property for storage or sale of gasoline or other explosive material.” CR.II:138.

Lockhill already covenanted to abstain from using the property in this manner.

CR.I:105. Therefore, the temporary injunction is merely enforcing the covenant

Lockhill already made and is not restraining Lockhill from doing anything that

Lockhill is legally entitled to do.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellees pray that this Court

affirm the trial court’s order for temporary injunction. In the alternative, Appellees

pray that this Court remand this matter to the trial court for determination of standing.

Appellees request any further relief, in law and equity, to which Appellees may justly

be entitled.

43 Respectfully submitted,

COKINOS, BOSIEN & YOUNG

By: /s/ Karen L. Landinger KAREN L. LANDINGER State Bar No. 00787873 klandinger@cbylaw.com JAY K. FARWELL State Bar No. 00784038 jfarwell@cbylaw.com 10999 West IH-10, Suite 800 San Antonio, Texas 78230 (210) 293-8700 (Office) (210) 293-8733 (Fax)

ATTORNEYS FOR APPELLEES, ARD MOR, INC., TEXAS ARDMOR PROPERTIES, LP AND TEXAS ARDMOR MANAGEMENT, LLC Co-Counsel David L. Earl State Bar No. 06343030 dearl@earl-law.com EARL & ASSOCIATES, P.C. Pyramid Building 601 NW Loop 410, Suite 390 San Antonio, Texas 78216 (210) 222-1500 (Office) (210) 222-9100 (Fax)

44 CERTIFICATE OF SERVICE

I certify that on the 6th day of March, 2015, a true and correct copy of the foregoing BRIEF OF APPELLEES was served on the following counsel of record by electronic service through MyFileRunner.com; and the BRIEF OF APPELLEES was duly filed with the Clerk of the Fourth Court of Appeals through MyFileRunner.com, together with this proof of service:

Lance H. “Luke” Beshara Randall A. Pulman Brandon L. Grubbs PULMAN, CAPPUCCIO, PULLEN, BENSON & JONES, LLP 2161 N.W. Military Highway, Suite 400 San Antonio, Texas 78213 (210) 222-9494 (Office) (210) 892-1610 (Fax) lbeshara@pulmanlaw.com rpulman@pulmanlaw.com bgrubbs@pulmanlaw.com

Patrick C. Bernal Elizabeth M. Provencio DENTON NAVARRO ROCHA BERNAL HYDE & ZECH A Professional Corporation 2517 N. Main Avenue San Antonio, Texas 78212 (210) 227-3243 (Office) (210) 225-4481 (Fax) patrick.bernal@rampage-sa.com elizabeth.provencio@rampage-sa.com

/s/ Karen L. Landinger KAREN L. LANDINGER JAY K. FARWELL

45 CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned certifies this Brief complies with the type-volume limitations of Tex. R. App. P. 9.4(i)(2)(B).

1. Exclusive of the exempted portions in Tex. R. App. P. 9.4(i)(2)(B), the Brief contains 9,994 words.

2. The Brief has been prepared in proportionally spaced typeface using WordPerfect Version X5.

3. If the Court so requests, the undersigned will provide an electronic version of the Brief and/or a copy of the word or line printout.

4. The undersigned understands a material misrepresentation in completing this Certificate, or circumvention of the typevolume limits in Tex. R. App. P. 9.4, may result in the Court’s striking the Brief and imposing sanctions against the person signing the Brief.

/s/ Karen L. Landinger KAREN L. LANDINGER JAY K. FARWELL

46 Tab A '5oo030t7 1111~ DocB 2m0101B8420

DECLARATION OF PROTECTIVE COVENANTS

This Declaration of Protective Covenants ("Declaration") Is made to be effective as of October 22, 2001, by Shavano Creek Commercial Partnership Unit 1, Ltd., a Texas limited ·partnership ("Declarant").

WITNESSETH

WHEREAS, Declarant Is the owner of the real property in the· City of Shavano Park, Bexar County, Texas, described In Exhibit A attached hereto and Incorporated herein (the "Property");

WHEREAS, Declarant intends to market and develop the Property and certain surrounding properties owned by Declarant described In Exhibit B attached hereto and incorporated herein (collectively, the "Shavano Creek Commercial Propertiesu) for commercial purposes and Declarant desires to provide for the systematic, orderly development and use of the·Property for the benefit of the Property and the Shavano Creek Commercial Properties, and to enhance the compatibility of the use and development of the Property and the Improvements constructed thereon with the adjoining residential neighborhood; and

NOW THEREFORE, Declarant declares that the Property shall hereinafter be held, transferred, sold, conveyed, occupied and used subject to the covenants, requirements, conditions, restrictions, easements and charges hereinafter set forth, it being expressly acknowledged and agreed that the covenants, restrictions, easements and coriditfons herein set forth shall run with the land and be binding on all parties having all rlg'ht, title or Interest in the Property, and their respectrve heirs, successors and assigns.

1. DEFINITIONS.

(a) "Architectural Design Guidelines" and "ADG" shall mean the architectural standards, guidelines, obJectives and procedures for the design, placement .. and .-iS 1:\D.,! ;~-·· construction of Improvements within the Property. Declarant shall have the right to revlse, amend and update the_ ADG. A copy of the current ADG is available from Declarant upon request. ..... 0

(b) "City" shall mean the City of Shavano Park, Texas and/or the City of San Antonio, Texas, and their applicable agencies, departments, and commissions.

(c) "'DBH" and "Diameter at Breast Height" shall mean the diameter of a tree measured approximately forty-two (42") lnches·from the ground or top of the root ball.

(d) "Declarant" shall mean Shavano Creek Commercial Partnership Unit 1, Ltd., a Texas limited partnership, and its successOrs or assigns who are designated by

CERTIF1CATE The page to which this certlncntc Is affixed may have been nUe~·ed to rednct conndcntlnl pCI'sonal informntion but is othenvise a full, t1·ue and corn•ct copy of the original on nle ami ofreco1·d in my office.

ATTESTED:===;;;-- GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY:~ Deputy Date Declarant as such In writing, and who consent in writing to assume the duties and obligations of the Declarant with respect to the Property.

(e) "Declaration" shall mean this instrument and any amendment or supplement hereto duly approved in accordance with the tenns hereof and recorded In the Official Public Records of Real Property of Bexar County, Texas.

(f) "Governmental Authority.. shall mean all federal, state and local authorities, agencies, commissions and regulatory bodies having jurisdiction over the Property, or any portion thereof, or over the Declarant or any Owner.

(g) "Governmental Regulations" shall mean all statutes, rules, codes, ordinances, regulations, permits, licenses and other requirements of any Governmental Authority.

(h) "Improvements" shall mean every structure on the Property and all appurtenances thereto, including, but not limited to, buildings, outbuildings, roads. driveways, sidewalks, walkways, paved areas, parking areas, fences, screening walls, retaining walls, loading areas and facilities, signs, utilities, lawns, hedges, mass plantings, landscaping, water lines, sanitary and storm sewers, electrical and gas distributions facilities, street lights, and all exterior HVAC or other exterior fixtures or equipment, pumps, tanks, lines, antennas, satelllte dishes, towers, metering equipment and other utility ol' Infrastructure facilities.

(i) "Owner'' shall mean and refer to each owner of record, whether one or more persons· or entitles, of fee simple title to all or any part of the Property, including contract sellers, but. excluding those having such interest merely as security for the performance of an obligation.

(k) "Property" shall mean and refer to the real property described in E~hibit A attached hereto and incorporated herein, and/or any portion thereof.

(I) "Required Plans" shall mean complete architectural and engineering plans, . including site plans, grading plans, exterior elevations, typical floor plans, light spillage

:= ~

pi! plans, landscape and irrigation plans, and any other plans or inf6rmatlon deemed necessary Jn the reasonable judgment of the Declarant In accordance with Section 3 herein. ..,... 0

(m) "Shavano Creek Commercial Properties" shall mean and refer to the real ~ property described in Exhibit 8 attached hereto and incorporated herein, and/or any portion thereof.

2. PROPERTY SUBJI;CT TO THIS DECLARATION. The real property which Is and shall" be held, trahsfe_rred, sold, conveyed, developed and occupied subject to this Declaration is the Property described In Exhibit A attached hereto and Incorporated herein.

CERTIFICATE Thr pngr to which this cettlncate Is affixed mny hnw brcu altered to redact conndentlnl prt"SOIHtllnforumtion but Is othenvlsc a full, true and cot·rect copy of the ol'iglnal on file and ofrecm·d In my office.

ATTESTED:====c-- GERARD C. RICKIIOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: ,__,.. fJ.Ib·lt\ Date Deputy 3. ARCHITECTURAL CONTROL.

(a) Plan Review. No Improvement shall be erected, constructed, placed, altered (either by addition or deletion), maintained or permitted to remain on any portion of the Property until the Required Plans, In such form and detail as the Declarant may deem reasonably necessary, shall have been submitted to and approved in writing by the Declarant. The Required Plans shall Include the location of and accommodate all easements affecting the Property, Including the reserved easements described in Section 7 herein. The Declarant may employ professional consultants to assist It in such review, and impose reasonable fees for processing of applications. The decision of the Declarant shall be final, conclusive, and binding upon the applicant and the Declarant, entitling the applicant to rely on such decision. Declarant has promulgated the Architectural Design Guidelines to more fully describe the design and aesthetic requirements for the Property and other matters In connection with the plan submission and review required herein.

(b) Limitation of Liability. Declarant and its representatives shall not be liable to any person subject to ·or possessing or claiming the benefits of this Declaration for any damage or Injury to property or for damage or loss arising out of their acts hereunder. Declarant's evaluation of the Required Plans Is solely to determine compliance with the terms of this Declaration. Declarant expressly disclaims any responsibility to .determine compliance of the plans with any applicable Governmental Regulations, building code or other standard for construction. Declarant shall not be responsible for reviewing any plans or specifications from the standpoint of structural safety, engineering soundness, or conformance with bulldlng or other codes, or other Governmental Regulations, nor shall Declarant's approval be deemed a verification of the structural safety, engineering soundness, or conformance of the Improvements to building or other codes, or other Governmental Regulations. Neither the Declarant, nor any of the partners, employees or agents thereof, shall be liable In damages or otherwise to anyone submitting plans and specifications for approval or to any Owner affected by this Declaration by reason of mistake of judgment, negligence, or nonfeasance arising Out of or in connection with the approval or disapproval or failure tO approve or to disapprove any plans and specifications or requests for variance.

(c) Procedures. The Required Plans submittals are more fuHy described in the ADG and may he revised by Declarant from time io time effective upon written notice to the owners. Declarant shall notffy Owner in writing whether any Required Plans are approved or disapproved (specifying reasons for disapproval) within thirty (30) days after Declarant has received the Required Plans and written notice that the Owner desires to obtain Declarant approval thereof. If plans submitted by any Owner are not sufficiently complete or are otherwise Inadequate, Declarant may reject them as being inadequate or may approve or disapprove them In part,·condltionally or unconditionally, and reject the balance, or may notify the Owner that additional documents or Information are required. If the_ submitted plans are deemed to be Inadequate or

CERTIFICATE The page to which this cr111flcatc Is affiud may han bern altered to •·edact coufldcntial prrsonal information but Is otherwise a full, t1·ue and corrut copy of the original on me and ofrtcord in my offict.

ATTESTED:====,.-- GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

llY: _ _..,"'-c==----- Deputy Incomplete and wfitten notice of su6h ·~etertnrn·iit.Jon Is given to Owner within thirty (30) days of .submission of such plans. the- thirty (30) ·day··reJVISY.i period shall not commence until Declarant has received a complete set of the Required Plans. If Declarant fails to reject or approve sUbmitted plans within the review period, such plans shall be deemed approved as submitted by the Owner.

{d) Variances. Declarant may, but shall not be obligated to, grant variances and waivers relative to deviations from this Declaration and/or the ADG, or to correct or avoid hardships to any Owner. Upon submission of a written request for variance, Declarant may, from time to time, In its reasonable discretion, pennit an Owner to construct, erect or Install an Improvement which Is in variance from the covenants, restrictions or architectural standards which are provided In this Declaration or the ADG. In any case, however, the Improvement with such variances must, in Declarant's reasonable discretion, blend effectively With the general architectural style and design of existing Improvements on the Property and must not detrimentally affect the Integrity of the Property and the Shavano Creek Commercial Properties as a first class suburban commercial and retail center. All requests for variances shall be In writing, shall be specifically indicated to be a request for variance, and shall indicate with specificity the particular standard sought to be varied and the nature of the variance requested. All requests for variances shall be deemed to be disapproved If Declarant has not expressly approved such request In writing within fifteen (15) days of the submission of such request. Declarant shall not be liable to Owner or any other person for any claims, causes of action or damages arising out of the grant of any variance to an Owner. Each request for a variance submitted hereunder shall be reviewed independently, and the grant of a variance to any one Owner shall not constitute a waiver of Declarant's right to deny a variance to another Owner. The decisions of Declarant with rGspect to variances shall be final and mutually binding upon the applicant and Declarant. All variances, to be effective, must be in writing. Owners are advised that certain variances may require the separate approval of the Board of Adjustments of the City or other applicable Governmental Authority.

(e) Approval Letter. Upon approval of the final Required Plan submittals, an Approval Letter wlll be Issued by Declarant. The Approval Letter must be signed by the Owner and returned to Declarant before construction of the Improvements specified' ~ l 'U)~ therein may begin. By execution and delivery to Declarant of the Approval letter, the Owner covenants and agrees as follows: ·~ """" '

(I) Construction of the Improvements will be completed within twelve (12) consecutive months from start of construction.

(ii) Construction will be in substantial accordance with the approved Required Plans.

CERTIFICATE Th~:' page to which this certificate Is affixed may have been nltt~•ed to reduct confidential personnllnfornmtlon but is ofhenvlse a full, true und correct copy of the oa·iglnnl on Hie mad ofrecm·d In myofficr.

A'ITESTED:====-- GERAilD C, IUCKHOH COUNTY CLERK BEXAR COUNTY, TEXAS

BY: -~~;c;--=----­ Deputy (llf) Any exterior changes after final approval of the Required Plans by D6clarant must be approved In writing by Declarant prior to construction of those changes.

(lv) Declarant may, upon advance notice to Owner, make regular inspections of the Improvements and construction site at times reasonably acceptable to Owner and accompanied by a representative of Owner If required by Owner.

If any of these conditions are not met and such failure continues for thirty (30) days after written notice thereof to Owner detailing the nature of such failure, the Approval Letter shall terminate and be of no further force or effect, and Owner shall be subject to the plan review process and all other requirements set forth herein with respect to the construction of any Improvements on the Property.

(f) Failure of Declarant to Act. If Declarant falls to provide Owner wHh written notice of Its approval or disapproval of any plans within thirty (30) days after submission by Owner of the Required Plans (subject to Declarant's rejection thereof and/or request for additional documents or Information pursuant to subsection (c) above), It shall be conclusively presumed that Declarant has approved such plans; provided, however, that a deemed approval of any plan submHtal shall not permit a violation of any of the terms of this Declaration, nor extend to any deviation from or alteration to the plans actually submitted, nor to any matter requiring a written variance,

(g) Decisions Final. All decisions of Declarant shall be final and binding, and there shall not be revisions of any action of Declarant except by appropriate legal proceedings. In the event of construction of Improvements or threatened construction of Improvement& In violation of this Declaration, any Owner or Declarant may seek to enjoin such construction or seek other relief against the Owner and/or builder responsible therefor, provided that Owner sheill first be given written notice of the perceived violatlqn and a reasonable period of time to remedy the violation prior to the filing of suit as prOVIded herein.

(h) Compliance Inspection and Enforcement. Declarant, may, but Is not required, to police or enforce compliance with such considerations as setbacks or other specific, . objective construction requirements. Declarant's agent may inspect those Items reviewed by Declarant, Including Inspection for cohforfnance to the site plan (grading and drainage), building plan, landscaping pl~m. and exterior design, colors and materials. In the event Declarant reasonably determines that significant field discrepancies exist, Declarant may .notify Owner of the nature and extent of the discrepancy. Written clarification must be supplied by Owner to Declarant within ten (1 0) business days of receipt of such notification. In the event clarification by the Owner Is not forthcoming or is determined to be Inadequate. by Declarant in its reasonable discretion, Declarant may at it's sole discretion retain a private consultant tor the purpose of obtaining an outside opinion. All reasonable professional fees: and

CEUTIFICATE The page to which this ctt11ncnte is nffixed may ha\'t' been nltered to 1·edact COilfidentlal pt'l-sonnl infornmtlon but Is othenvist a full, fl•ue and COI"l"t'Ct copy oft he original on flle and of1·ecord In my offict>.

ATTESTED:'-;,;===;;-- GEUARD C. niCKIIOFF COUNTY CLERK llEXAH. COUNTY, TEXAS

BY: -cJO:::::::::_,;::--;------ rl·U.~-1q Deputy Dntt expenses associated with the retention of a private consultant up to $750 may be assessed by Declarant against the Owner.

(I) . Cooke Plans. Declarant has approved the building and grading plans submitted by Paul M. Cooke for the propoSed children's day care center and related facilities described In Exhibit C attached hereto and incorporated herein ("Cooke Plans"), and has granted a variance and/or waiver with respect to any specifications herein or In the ADG, which conflict or are Inconsistent with the Cooke Plans, subject to the submission and approval of the slgnage, lighting and landscape and other required plans for the project and the requirements and limitations set forth In Section 3(e)(l), (II), (ill) and (iv) and in Section 7 herein. Any material change In the Cooke Plans. or any material modification or addition to the Improvements after Initial construction in accordance with the Cooke Plans, shall be subject to the plan submission, review and approval process and all other terms and conditions set forth In this Section 3.

4. USES OF PROPERTY.

(a) Permitted Uses. The Property and Improvements shall· be developed, constructed and used only for retail and/or commercial uses permitted by applicable Governmental Authority and Govemmontal Regulations to operate on the Property, Including but not limited to a children's day·care center, except those uses which are prohibited pursuant to subsection (b) below. Notwithstanding anything herein to the contrary, that portion of the Property fronting on Huebner Road and described in Exhibit Q attached hereto and lncorpofated herein ("Restricted Area") shall be used only for the pufposes of a driveway to service the Property and the Shavano Creek Gommerclal Pro'perties and attendant lighting, landscaping and slgnage In accordance with the standards and requirements for such Improvements set forth herein and fn the ADG.

(b) Prohibited Uses. No portion of the Property shall be used for purposes prohibited by the zoning and other ordinances of the City of San Antonio or City of Shavano Park or for any of the following:

(I) Adult entertainment, Including, but not limited to: adult bookstore, adult· booths, adult dancing establishments, adult motel, adult theater, or other activity or use (which terms Include anything capable of being discerned by the hum'an senses) which Is pornographic, obscene, lewd, or lascivious, as such terms are defined from time to time by the Supreme Court of the United States.

(ii) Trailer, mobile home, or recreational vehicle park.

(fll) Commercial storage facility, or commercial storage or sales of motor vehicles, new or used automobile parts, mobile homes, portable buildings or other temporary buildings.

CEUTIFICATE The page to which this cr 111flcnte Is affixed may ha\'C been altered to redact conndentinl personnllnformatlon but is otherwise a full, true and correct copy of the original on file and ofrec01·d In my office.

ATTESTED: 7 GERAIID C.~RI C=KI=IO"'F=F,....--- COUNTY CLERK BEXAH COUNTY, TEXAS

BY: -C:.-~--;;:--:::------­ 1, Ht- 1~ \ Deputy Date (iv) Yards for Junk, wrecking, parts reclamation, or salvage. ' (v) Sale of used appliances or equipment.

(vi) Feeding pens for animals, animal slaughtering, confinement of animals, stockyards, or uses related to the preparation of animals for slaughter.

(vii) Asphalt manufacturing or refining; petroleum or petrochemical refining or manufacturing; asphalt or concrete paving, mixing, or batching plant; corrosive acid manufacturer or bulk storage, including but not limited to hydrochloric, nitric, sulfuric, and similar acids; bone distillation or the reduction, rendering, Incineration or storage of garbage, offal, animal parts or animal waste, fats, fish, or similar materials or products.

(viii) Manufacture of cement, limes, gypsum or plaster of paris.

(lx) Manufacture, refining, or. open storage of raw materials or finished products related to the manufacture or refining of, glue, size, gelatin, aloe, grease, lard, or vegetable oil.

(x) Biomedical waste, storage or transfer.

(xi) Wholesale meat and produce distribution.

(xll) Welding, bottling and distribution plants.

(xiii) Machine or trade shop.

(xiv) Heavy equipment rental or sales.

(xv) Manufacture or stripping or refinishing of furniture.

(xvi) Manufacture of garments.

(xvii) Contractor storage and equipment yards. 'rn ~· (xviii) Manufacture of confectionery. 1!10 ··.;:;:-. 'N;:) (xix) Repair, storage, or terminals for buses, cabs or trucks.

(XX) Bulk paint mixing.

(xxi) Manufacture of billboards.

(xxll) Auction house or other business devoted primarily to holding auctions.

CERTIFICATE The page to which this cel11flcate Is affixed may haw been alte1·ed to redact confidential pN-sonallnformatlon but Is ofhcnvlse a full, true and correct copy oft he original on nle and of rcc01·d in my office.

ATTESTED:====-- GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: J__.. 1'ilt'l'l Deputy Date (XXIII) Any use or activity reasonably deemed by Declarant to be offensive, unpleasant, unsightly, or Illegal by reason of the light emissions, vibrations, odor, fumes, gas, dust, airborne dirt ash, smoke, noise,· sound frequency or shrillness, or pollution or which Declarant reasonably determines to present excess hazards by reason of excessive danger of fire or explosion.

(xxiv) Exploration, mining, or quarrying or drilling for oil, gas, phosphate, or other minerals of any type or kind.

(xxv) Use, manufacture, transportation, storage, disposal, handling, generation, or treatment of "toxic waste," "hazardous waste," "hazardous substance,'' or "hazardous material" as those terms are defined In or pursuant to any Governmental Regulations.

(xxvi) Storage, handling or use of explosive material.

(xxvll) Commercial landfill, dump, junkyard or other similar operation.

(xxvili) Raising, maintenance, housing or treatment of livestock or other animals overnight; provided, however, that a veterinary clinic with no outdoor kennels, dog runs or other outside animal housing facilities Is permitted, if the facility Is given the approval of TNRCC and other applicable Governmental Authority.

(xxix) Outdoor storage or display of equipment, material or merchandise except where not visible from any pub/lc street; provided, however, that outside restaurant tables and bank teller equipment is permitted.

(xxx) Nightclubs, taverns, massage parlors, play parks. or dance halls, except as such use Is wholly contained within a bona fide restaurant or 8!? is oth6rwlse considered an amenity by the Owner's or Property clientele, such as a health club, tennis club or racquetball club.

(XXXI) Outdoor theater. =· (xxxil) Institutional establishments which by nature of operation or character are Incompatible with the Owner's or Property environment, including but not limited to, mortuaries, funeral homes, and cemeteries.

(xxxili) Temporary buildings, trailers and mobile homes In the open, except as a construction- office for a project on the Property and only for the period of such construction.

CERTIFIC,nE The page to which this cc11incnte Is affixed mny hnve bfeH altered to redact c.onfidcntlal personal information but Is othenrlse a full,htle and c01·rect copy of the original on file and of record Ill my office.

ATTESTED:====~­ GERARD C. RICKHOFF COUi\"TY CLERK UEXAR COUNTY, TEXAS

BY: ~ ~,I~- tl ! Deputy Date (c) E:"dwards Aquifer. Owners will be sensitive to the fact that the Property lies over the Edwards Aquifer Recharge Zone. Owners will abide by and compfy with all City and State laws, rules, and regulations relating to construction over the Edwards Aquifer Recharge Zone.

5. CONSTRUCTION AND DEVE:LOPMENT STANDARDS.

(a} Structural Requirements.

(J} Exterior Walls: Each exterior wall shall be not less than ninety percent (90%} masonry, inclusive of brick, brick veneer, stucco, masonry, limestone, or such other exterior building materials as may hereafter be in use for construction of first class buildings, In each case of a design and color approved by Declarant. No corrugated metal may be used unless approved by Declarant for use as architectural elements. No concrete block or tilt wall construction may be used unless the wall is completely covered with stucco or a similar material or painted (textured paint} to resemble masonry or stucco. All tilt wall construction must have architectural reveals as approved by Declarant. No product regardless of composition which is manufactured to have a wood or non-masonry appearance will be considered masonry. All design, colors, coursing, and

pattern will be subject to approval by Declarant and In accordance with the standards set forth in the ADG.

(il) Roof Design: Roof design shall be gable, Dutch gable, hlp, shed, or other such design as Declarant may deem appropriate. Flat roofs with parapets may be approved on a case by case basis by Declarant.

(Ill) Roofing Material: Standing seam metal, Tennessee v-crlmp, and concrete tile are acceptable roofing materials, Declarant may approve ~ other materials In Jts sole discretion. :~ co· (iv) Roof Structure: All obJects mounted on tho roof of any building, Including, but not limited to, air-conditioning units, exhaust fans, and chillers, must be screened by parapets or other screening approved by Declarant. The "'" •

(v) Overhead Doors: All overhead doors, service entrances and Installation entrances shall be limited to side or rear entrances only. For the purpose of determining the side or rear elevation, the building wall line parallel or most closely parallel to any public street shall be deemed the front. A

CERTIFICATE The page to which this ce!iiflcate Is affixed may have been altered to 1·edact confidential personal inrormntlon but is otherwise a full, true and correct copy or the original on me and or record in myoffic(.'.

ATTESTED:'=====-- GERARD C. RICKIIOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: ,..,..-· l!~d"-l Deputy Date building located on a corner may be deemed to have two (2) front elevations by Declarant In its discretion.

(b) Lighting.

(I) Parking Lot Lighting:

(1) Lights shall not exceed fifteen Feet (15') In height. Height variance may be granted by Declarant to accommodate overall light designs, provided the lights ·comply with spillage requirements.

(2) Pole and reflector design must be submitted for approval by Declarant.

(3) A complete light spillage diagram shall be submitted to Declarant, and is subject to Declarant approval.

(4) Parking lots will be Fully lighted during business hours. Security lighting levels shall not exceed 15-20 toot candle 24 hours a day.

(II) Landscape and walkway lighling plans shall be submitted to Declarant, and are subject to Declarant approval.

(Ill) Wall or building lighting:

(1) All wall or building lighting shall be ground-mounted and visually shielded by berms or landscaping. Decorative mounted wall lighting will be considered on a case-by-case basis relative to the architecture of the structure(s).

(2) Lighting shall be designed so as to light only the exterior. walls of the building.

(3) A complete light spillage diagram shall be submitted to Declarant, and Is subject to Declarant approval.

(4) Buildings may be lighted from 6:00a.m. to 10:00 p.m., San Antonio time. Lighting must be reduced to security level after 10:00 p.m. and shall not be Increased over such level until 6:00 a.m. of the following day.

(iv) All lighting shall be designed to prevent the spill-over of light onto adjacent properties and shall .be installed so as not to create traffic hazards due to impalnnent of vision and/or confusion with traffic signals. Not more than

CERTIFICATE The page to which this ce 111flcnte Is nffixed mny hn\'C bc('nnltHcd to r<'dnct confidential personnllnfornmtlon but is otherwise n full, true nnd correct copy of the original on fil(' nnd of reconl In my office.

ATTESTED: GERARD C.~RI 7 C=KI=Io=F"'•F,--- COUNTY CLERK BEXAR COUNTY, TEXAS

BY:_~~o-=-----­ 'l-l~t'1l1 Deputy • Date 0.26 foot candles will spill into a residential area from lights or signs within the Property.

(c) Signs.

(I) Permitted signs are those which:

{1) Identify the Property or a project situated thereon and/or give directions.

(2) Identify a building or a particular business.

(3) Monument signs which:

(A) Conform to the architectural spirit and integrity of the Property and the Shavano Creek Commercial Properties and all applicable Governmental Regulations of Governmental Authority.

(B) Are ground mounted and constructed of brick, masonry, stone, stucco or comparable material as approved by Declarant.

(C) Are no more than ten feet (10') In width and ten teet (10') in height. A sign less than ten feet (10') In height may be wider than ten feet (1 0'), but the surface area of the sign shalf not exceed one hundred feet -(1 00') square feet.

(D) Are used as. reader board signs (defined as a sign listing more than one business or entity on one sign} and contaiit no more than five (5) busii1ess and entity names. ';::§ ~ .,;~: (4) Directional, advertising, promotional or for sale or lease signs that: .s;. ¢) .o:- (A) Are no larger than four feet (4') wide and eight feet (8') taiL •m ·~· (B) Are Installed In a vertical position.

(C) Are placed at locations approved by Declarant. {D) Are painted in a color scheme approved by Declarant.

(ii) Monument signs, wall signs and pole or pylon signs may be lighted from 6:00 a.m. to 10:00 p.m., San Antonio time.

CERTii'!C,~fE The page to which this ce 11lflcnte Is nmxed mny hnvc been nltered to redact confldentinl personnl informntion but fs otherwise a full, true and co•·•·ect copy of the original on file and ofr('cord In my office.

ATTESTED: GERARD C.-;RI"'C"'KI=IO=FF""•- - COUl\TJ'Y CLERK BEXAH COUNTY, TEXAS

BY: ~.t::!C.:._,~-:------­ Deputy (iii) Prohibited signs are:

(1) Portable signs of any kind.

(2) Bench signs.

(3) Pole signs or pylon signs or signs protruding above the building roof line or building parapet.

(4) Neon signs, blinking, rotating, animated, painted, Day-Gio colored signs, or Internally lit signs (except Internally lit signs as may be approved by Declarant on a case-by-case basis In the sole discretion of Declarant).

(5) For Sale or For lease signs, except one (1) sign of not more than four feet (4') by eight feet (8') erected In a vertical position and used to advertise the. Property or a particular part of the Property for sale or lease. Each For Sale or For Lease sign must be removed as soon as the Property is sold or leased.

(6) lnflatables (e.g. purple gorillas) or banner signs located on any building elevation, roof or any other portion of the Improvements or the Property.

(7) "Bandft" signs located on the Property or on any street outside the Property when such signs direct traffic to the Property.

(lv) Approval: All signs must be architecturally coordinated with the development to which they apply and architecturally compatible with other signs on or approved for the Property. All plans for any new or replacement signs and placement thereof must conform to the current sign criteria promulgated by Declarant, and must be approved in writing by Declarant and conform to the standards set forth In the ADG.

(d) Dumpster and Other Screening. i.ag ·.::::3; (i) Screen walls shall be constructed of the same or comparable material comprising the exterior walls of the main building and be a minimum of six feet (6') in height but not less that one foot (1 ') taller than the Item being ""' ...::"':"' '"'.1

screened. The screen wall shall screen from the view of all parking areas, major thoroughfares, major collection streets, public streets and other buildings or residences, the following Items:

(1) Refuse containers, dumpsters, utility meters, transformers and satellite dishes.

CERTIFICATE The page to which this certificate is affixed may have lleen alte1·ed to redact c.onfidentlal personal information but is otherwise a full, true nnd correct copy of the original on file and of record Ill IllY office..

ATTESTED:====;;-- GERAilD C. RICKHOFF COUi\'TY CI~ERK BEXAR COUNTY, TEXAS

DY: ---'~:..._,;c--;-----­ Deputy (2) Loading areas, service areas and outside storage, other than normal parking associated with the use of the Property.

(II) A wood framed non-climb mesh fence with dense landscaping may be substituted for the screen wall described above in the areas approved by Declarant.

(iii) Gates In screen walls shall be solid and of a design and material approved by Declarant. Such gates shall remain closed at all times.

(lv) All screening and outdoor storage must comply with applicable Governmental Regulations of Governmental Authority.

(v) Outdoor HVAC condensers shall be screened to limit off-site sound Intrusion into neighboring residential areas.

(e) Fences.

(i) No fence may be built within view of any public or private street unless the fence conforms to the requirements of Section 5(d) above or is of a design approved by Declarant.

(II) No fence may be erected forward of the building front setback line as prescribed herein and by applicable Governmental Regulations.

(Ill) All fences shall be a minimum of six feet (6') In height. Height restriction for fences may be reduced to not Jess than five feet (5') at the discretion of Declarant.

(iv) There Is an existing eight foot (8') cedar fence along the north and· east boundary of the Property ("Existing Fence"), The Owner(s) of. the Pro'perty On which the Existing Fence Is sitUated shall continuously maintain the Existing Fence in gOod condition, Including the replacement of broken or missing slats and support structures to ensure the ExiSting Fence shall not become more than ten degrees (1 0°) out of vertical alignment.

(f) Parking and Loading Areas.·

(I) Parking Jots, driveways and service roads shall be paved with concrete, asphalt or other permanent material approved by Declarant.

(II) All driveway approaches must be concrete from the street pavement to the property line.

CER!IFJC,VfE The page to which this ce 111flcntc Is affixed may have beennltered to redact conndentlal penonnllnformntlon hut is otherwise a full, t1·ue und cor1·ect copy of tltl' origlnnl on fill' und of rec01·d in my office.

ATTESTED:====-- GERARD C. IUCKJJOFF COUNTY CLERK BEXAR COUNTY, TEXAS ll~t·(lj Date (Iii) All parking areas shall conform to or exceed the then current requirements of the City of San Antonio building codes and landscape ordinances and applicable ordinances of the City of Shavano Park, Texas, as amended from time to time.

(fv) No Inventory, vehicles, equipment or other property may be maintained, stored, or placed outdoors without the express written consent of the Declarant, except for overnight and weekend or holiday parking of business vehicles, and vehicles kept within the loading area of the Improvements and appropriately screened.

(v) No on-street parking shall be permitted.

(VI) Owners shalf be responsible for managing the parking of vehicles by their employees, contractors, customers and Invitees. ·

(g) Curb Cuts. The number and location of all curb cuts on Huebner Roa~ and Lockhlll Selma Road will be subject to approve! by Declarant.

(h) Setbacks. All setbacks on the Property shall conform to applicable Governmental Regulations.

{I) Off-street parking areas.

(I) Shall be curbed and paved.

(il) Shall be built and maintained so that grades are acceptable. from a civil engineering and public safety standpoint and with due regard for any overall grading plan for the Property.

(iii) Shall be landscaped In accordance. with either the City of Sah Antonio landscape ordinance or the following guidelines, whichever Is more stringent;

(1) There shall be the equivalent of one (1) planting area containing a I~

tree and one hundred square feet (100') of planting area for each = ten (10) parking spaces. Landscaped areas within setbacks or landscape buffers shall count as planting areas for purposes of calculating the foregoing ratios. Trees shall be live oaks (or equal quality) and shall be at least twelve feet (12') In height and four inches (4") In caliper measured thirty-six Inches {36") from the ground. Groupings of trees with smaller calipers may be deemed to satisfy this requirement as determined by Declarant.

CERTIFICATE The page to which this ceJ11flcate Is uffixed may h:we been ultercd to •·cdnct conn dentin I pc1-sonnllnformntion but is othcnYise a full, true and eorrt>cf copy of the original on me mtd of J'ccord in my office.

ATTFBTED'====-- GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: .J..-" Deputy (2) All landscaping shall be maintained In a neat and orderly condition. The location of plant material and its design shall conform to the landscape requirements set forth herein and in the ADG.

(3) Landscape plans for parking lots shall be submitted to Declarant for review along with building plans.

(iv) There shall be no on-street parking permitted within the Property.

0) Landscape Requirements and Guidelines.

(I) In connection with the preliminary design of a building or project, Owner will furnish Declarant two (2) copies of a detailed landscaping plan which shall comply with the requirements from time to time promulgated by Declarant. Such plans shall be drawn to scale and shall Include delineation of existing or proposed structures, pavement and other site features, and shall designate by name, size, spacing and location the plant material to be Installed. The approximate location, size and type of all existing trees, six Inches (6n) In diameter (DBH) or greater, or significant matts (groupings) of smaller trees shall also be cleariy shown. After a landscaping plan has been approved and Instituted, Owner is required to submit to Declarant a written request for any change in the plan. Owner shall at all times maintain the minimum required vegetation as shown In the original plans. Owner shall make every effort to preserve slgnlficant natural vegetation. Revised landscape plans shall Incorporate all commercially reasonable changes suggested by Declarant and shall be resubmitted for final approval by Declarant.

(ii) Landscaping shall consist of a combination of undisturbed areas, and deslgn9d and enhanced areas of native plants includinQ, grasses, trees, shrubs, flowers, and ground cover as listed in the ADG. Landscapes will consist of plants and trees that are drought tolerant, Indigenous to the area and require minimum amounts of water to survive and prosper. Low flow, water efficient systems will be used to irrigate the landscaping material that requires periodic supplemental watering. Installation of all l~ndscaplng and Irrigation systems must be completed within ninety (90) days following the cor:npletlon of the Initial building and parking areas on the Property. Owner shall be responsible for watering and maintaining the landscaping on the Property owned by It, Including landscape buffers and easementt. and pedestrian easements.

(Ill) The reasonable cost of any watering or maintenance of vegetation or landscaping by the Declarant on the Property as a result of Owner's failure .to do so for more than five (6) business dayS after receipt from Declarant of written notk.a detailing such failure shall be billed to Owner

CERTIFICATE The page to which this certlncate Is affixed may haYc been altel'<·d to redact confidential pCI"SOJl!ll information but Is othenl'lsc a full, true and correct copy of the ol'iglnnl on file nnd of record In my office.

ATTESTED: GERAilD C. "'RI~C"'KH=o=FF"'•- - COUNTY CLERK BEXAH COUNTY, TEXAS

BY:--'"--,----,------ J.l~l'l Deputy Date and paid by Owner to Declarant within ten (1 0) days after receipt of such invoice.

(lv) Non-Developed Areas:

(1) Non-developed areas, including drains, drainage areas, creeks, greenbelts and buffers, sh~:~ll be left In a relatively natural state and shall not be cleared, mowed or otherwise disturbed except as designated and approved by Declarant or required by applicable Governmental Authority.

(2) Each Owner shall selectively and minimally clear a continuous area twelve feet (12') In depth from the curb line of all publicly used streets and maintain and clean this area regularly.

{3) Each Owner will be responsible for cleaning and removing trash from the undeveloped areas.

(v) All landscape plans and mate rials lists shall be reviewed and approved by Declarant prior to Installation.

(vi) owner shall be responsible for the Installation, maintenance, and upkeep of the landscaping and a water efficient !rrigatlon system. All such items must be constructed and Installed concurrently with the development of a project on such portion of the Property.

(vii) Should any Owner neglect, damage, or In any way destroy, or allow to be destroyed any vegetation or landscaping upon the Property, such Owner shall ·be solely responsible for the repair or replacement thereof, and, In absence of timely repair or replacement thereof by the Owner, within thirty .-,: (30) days after notice thereof from Declarant, the Declarant may perform ?i! such repair or replacement on behalf of the Owner. Owner shall then ·~\;£) reimburse Declarant for the reasonable costs thereof within five (5) ·~ business days after demand therefor together with reasonable supporting .a evidence of such expenses. ··.~ 'a5 (k) Sidewalks.

(I) Required Sidewalks: Each Owner of the Property will construct and continuously maintain all sidewalks required by Governmental Authority. All required sidewalks-will be constructed of broom finish concrete or other material acceptable to the City and Declarant, and shall be constructed concurrently with the development of a project on such portion of the Property. Declarant may requ ire the preservation of significant trees within. the area otherwise designated for tho required sidewalks, In which

CEIU'.IFICATE The pngr to which this crJ11flcntr Is nffixed mny hnw been nltrrr~J to rrdnct conOdrntial personnllnformntlon but Is otherwise n full, true nnd cmTrct copy ofthr orlglnnl on nrr nnd ofrrcord In my office.

ATTESTED: GERARD c.'=ru""c""KH:.-=-0-F_F_ _ COUNTY CLERK BEXAR COUNTY, TEXAS

BY: _ __.._'--~--:------­ r-- D rputy Date event the Owner will be required to vary the location of the sidewalk to accommodate such tree{s).

(il} Optional Sidewalks: All other sidewalks shall be optional but shall require the approval of Declarant and shall be shown on plans submitted to Declarant. Optional sidewalks may be either broom finished concrete or pebble finish concrete.

(I) Building Haight Restrictions. All buildings on the Property Will be limited to forty-five feet {45') in height, as measured from the average finished ground level to the highest point of the roofs surface If a flat surface, or to the deck line of mansard roofs, or to the mean height level between eaves and ridge for hip and gable roofs (excluding chimneys, cooling towers, ornamental cupolas, domos or spires, parapet walls not exceeding four feet {4') In height, and basements).

(m) Maintenance.

{I) Construction Sites: Each Owner shall maintain construction sites in a clean condition, removing accumulation of scrap and rubbiSh regularly and storing construction materials and equipment in a neat, orderly manner. On-site burning or disposal of trash shall be prohibited. Each Owner shall, during construction, provide adequate dumpsters and port-a- potties on site and be responsible for having these receptacles emptied and reset on a regular basis.

{II) Developed Property: Outdoor storage of trash, materials, equipment and vehicles must be screened as set forth In Section 5(d) hereof. All trash must be removed on a regular basis, and in no event less frequently than once weekly.

6. GOVERNMENTAL REQUIREMENTS.

{a) Compliance. Ali Improvements located, erected, constructed and installed upon the Property and all activities of each Owner, their tenants, invitees, agents, employees and contractors on or about the Property, shall conform to and ·comply with all applicable Governmental Regulations.

(b) Precedence Over Less Stringent Governmental Regulations. If the covenants, conditions and restrictions set forth In this Declaration set or establish rnfnfmUm standards or limitations or restrictions on use in excess of any Governmental Regulations, the covenants, conditions and restrictions set forth In this Declaration shall take precedence and prevail over any less stringent Governmental Regulations. Similarly, when any Governmental Regulations are more stringent than those set forth In this Declaration, the more stringent Governmental Regulations shall control.

CERTIFICATE Thr pngr to which this ce1iiflcnte Is nffixed mny han been altned to reduct confldentinl personnllnformatlon but is othenYlse n full, true nnd corn•ct copy of the orighml on file nnd of record In my office.

ATTESTED: GERARD C. "RI"-C"'KI=Io"'F"'•F;--- COUl\'TY CLERK BEXAR COUNTY, TEXAS BY: _,....,..,.-. Deputy Date (c) Remedies of the Declarant. ~y acceptance of a deed to all Or any part of the Property, each Owner agrees that Declarant shall have the right to enter upon the Property if one or more conditions or activities prohibited by applicable Governmental Authority or this Declaration is maintained, or on which there has been a failure to perform any act required by applicable Governmental Authority or this Declaration, for the purpose of curing any such violation, provided that Owner has been given five (5) business days prior written notice and has failed to remedy the violation within such time, or If such violation cannot be remedied within such period, has failed to commence such remedy within such period and pursue the same diligently to completion. EACH OWNER INDEMNIFIES AND HOLDS HARMLESS DECLARANT FROM ALL COST AND EXPENSE OF ANY SUCH CURATIVE ACTION AND ANY COST OR EXPENSE OR PENALTIES OR FINES LEVIED BY ANY GOVERNMENTAL AUTHORITY AS A RESULT OF THE ACT OR FAILURE TO ACT OF THE OWNER WITH RESPECT TO THE PROPERTY. THE FOREGOING REMEDY SHALL BE CUMULATIVE OF ALL OTHER REMEDIES FOR VIOLATIONS OF PROVISIONS OF THIS DECLARATION.

(d) Water Pollution Abatement Plan. The Property lies within the area classified as the Edwards Aquifer Recharge Zone and as such Is subject to the rules and regulations of agencies of the State of Texas, Including the Texas Natural Resources Conservation Commission {TNRCC), governing the use of said land, in addition to the Govemmenta~ Regulations of the City of San Antonio, the City of Shavano Park, and other Governmental Authority. Each Owner is advised that such requirements and prohibitions may relate to the types of pesticides and fertilizers which may be used, minimum topsoil requirements, Inspection of sewer laterals prior to covering, and criteria standards for sewer pipe, among other matters. Each Owner is responsible for ascertaining all such requirements and prohibitions with respect to the Property and, by acceptance of. a deed to all or any part of the Property, agrees to abide by the same. No statement herein, nor action by the Declarant shall act to relieve any Owner from such duty of compliance. Each Owner Is advised to obtain, read and use What's Buqging You? A Practical Guide to Pest Control, available from the Edwards Aquifer Authority (210/222-2204), or equivalent Information produced by recognized authorities such as the Soli Conservation Service, Texas Department of Agriculture, U.S. Dept. of Agriculture, S.A.W.S., etc.

In addition to the foregoing, each Owner Is required to abide by and comply with all of the terms of the Water Pollution Abatement Plan (WPAP) approved by TNRCC applicable to the Property and certain other properties. EACH OWNER IS ADVISED THAT THE WPAP CONTAINS RESTRICTIONS APPLICABLE TO THE PROPERTY. A copy of the WPAP may be obtained from Declarant.

(e) Additional Obligations. By acGeptance of a deed to the Property, or by lnltlatin·g conStruction of Improvements to the Property, each Owner assumes responsibiliW for complying with all certifications, permitting, reporting, construction, and procedures required under all applicable Governmental Regulations, including, but not

CEHTIFICATE The page to which this ce11incate Is affixed may luwe been altered to rednct confidential personallnfonnation but is otltCI'\Vise a full, true and correct copy of the orlglnnl on file nnd of record Jn my office.

ATTESTED:n;c===:-- GEHAHD C. HICKHOFF COUNTY CLERK BEXAH. COUNTY, TEXAS

BY:---"'-"'-;~-;------­ Deputy 1-I(Q- I \1 Date limited to those promulgated or issued by the Environmental Protection Agency and related to Storm Water Discharges from Construction Sites (see Federal Register, Volume 57, No. 175, Pages 41176 et seq.), and with the reSponsibility of ascertaining and complying with all regulations, rules, rulings, and determinations of the Texas Natural Resources Conservation Commission (TNRCC), related to the Property, Including, without limitation, the provisions of Chapters 325 and 331, Texas Administrative Code, and any specific rulings made pursuant to the terrns thereof. The foregoing references are made for the benefit of each Owner and do not In any way limit the terms and requirements of this covenant and the requirement that Owners and contractors comply with all Governmental Regulations, and any plan required by such Governmental Regulations, such as a Storm Water Pollution Plan, affecting the Property and construction site with which they are associated, Including delivery to Declarant of a certification of understanding relating to any applicable NPDES permit prior to the start of construction. EACH OWNER, BY ACCEPTANCE OF A DEED TO ALL OR ANY PART OF THE PROPERTY OR UNDERTAKING THE MAKING OF IMPROVEMENTS TO THE PROPERTY, AGREES TO HOLD HARMLESS, DEFEND AND INDEMNIFY DECLARANT FROM AND AGAINST ALL COST (INCLUDING REASONABLE ATTORNEYS FEES AND COURT AND OTHER COSTS), LOSS, LIABILITIES, FINES, PENALTIES OR DAMAGE OCCASIONED BY OWNER'S FAILURE TO ABIDE BY ANY APPLICABLE GOVERNMENTAL REGULATIONS RELATED TO THE PROPERTY.

(f) Annexation. The Property lies within the extraterritorial jurisdiction of the City of Shavano Park ("CSP") and Declarant has requested the Property be annexed by CSP. It is anticipated that CSP will or may impose use or development requirements or standards on 1he. Property or portions of the Property as a condition of approval of plats for one or more lots or In conn~ctlon with such platting process. Each Owner is hereby advised that it.Js Declarant's Intent that this Property be annexed Into the city limits of the City of Shavano Park. All Owners shall comply with all conditions or restrictions imposed in connection with such annexation, No Owner will withdraw the request for annexation submitted to CSP without Declarant's prior written approval.

(a) Reserved Easements. All dedications, limitations, restrictions and reservations shown on a plat of the Property or any part thereof or in any other instrument heretofore or to be recorded In the Dead and Plat Records and/or Real Property Records of Bexar County, Texas, and the easements, rightswofwway, restrictions, and related rights ·~ referenced therein are Incorporated herein by reference an'd made a part of _this Declaration for all purposes, as is fully set forth herein, and shall be constru.ed as being adopted In each and (;)Very contract, deed or conveyance executed or to be executed. by or on behalf of Declarant conveying any Part of the Property.

(b) Drainage Easements. Declarant hereby creates, declares, grants and reserves for the· benefit of oeclarant, Bexar County, the City, and each owner of all or any part of

CERTIFICATE The page to which this ccrtlflcatc is nfllnd mny hnve been alfut>d to l'Cdnct confidential pcrsonnl information but Is olhe1·wisc a full, true and correct copy of the original on file and of record In my office,

ATTF.STED'====-- GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: ,/____....,. Deputy the Shavano Creek Commercial Properties, and any public or private .Providers of utility services to the Property and/or the Shavano Creek Commercial Properties, and their respective successors and assigns. nonexclusive easements for drainage on, over, under and across (I) all areas within ten (10) feet of the center line of all natural drainage courses on the Property, and (il) the Property for the acceptance of stormwater drainage from the Property and the Shavano Creek Commercial Properties, before and after development thereof (collectively, the "Drainage Easements"). Each Owner shall, upon request by Declarant or other easement holder, or their respective successors or assfgi'Js, execute and deliver to the requesting party such Instruments In recordable form necessary or desirable to further evidence and/or more specifically Identify the as-built or designated location of the Drainage Easements. No Owner may perform or cause to be performed any act Which would alter or change the course of the Drainage Easements In a manner that would divert, Increase, accelerate or Impede the flow of water over and across the Drainage Easements. More specifically, and without limitation, no Owner may:

(I) Alter, change or modify the existing natural vegetation or design of the Drainage Easements in a manner that changes the character of the design or original environment of such Drainage Easements; or

(il) Alter, change or modify the existing configuration of the Drainage Easements, or fill, excavate or terrace such easements or remove trees or other vegetation therefrom without the prior written approval of Declarant; or (iii) Construct, erect or Install a fence or other structure of any type or nature within or upon the Drainage Easements; provided, however, that fences may be permitted in the event the proper openings are incorporated therein to accommodate the flow o{ water over the affected Drainage Easement as detennined by a qualified engineer and the applicable Governmental Authority authorizes the construction; or

(lv) Permit storage, either temporary or permanent, of any type upon or within the Drainage Easements; or

(V) Piac'e, store or permit to accumulate trash, garbage, leaves, limbs or other debris within ·or upon the Drainage Easements, either on a temporary or pennanent basis.

Declarant may, from time to time, prepare or require the preparation of a grading plan for the Property. A copy of the grading pfan shalf be maintained by the Declarant. By acceptance of a deed to· all or any part of the Property, each Owner covenants and agrees to ensure compliance that the Property Is graded and maintained In accordance with the grading plan to the extent that compliance can be achieved without materially damaging or compromising the Integrity of Improvements on the Property, and that the

CERTIFICATE d booJJ nltoJ-ed to redact conndentlal personal Information but I iin tc is affixe may 1taW The page to which t It s CCI ca ftl ·iginal on file and ofn•cord lnnty office. Is othenvisc a full, h·ue and con·ect copy o te Ol '

ATTESTED'====:---- GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY' ~ Deputy · - • • • -· . ....... . . . . . . . . . . -. -- ~· ·· --- --- --·.- _ _ _..,._ 4 0 • - -~=-.-----.- ·...___· - · · .. .--.. . . . . . . . . . -·-·-- . ~ · --·

drainage of the Property Is maintained in accordance with a grading plan prepared by a professional engineer in connection with the construction of any Improvements on the Property.

(c) Utility Easements. Easements for Installation and maintenance of utilities, cable television, and other utility facilities to service the Property ·and the Shavano Creek Commercial Properties have been reserved as shown on the plats and/or as provided by Instruments of record. Declarant hereby creates, declares, grants and reserves for the benefit of Declarant, Bexa r County, the City, and each owner of all or any part of the Shavano Creek Commercial Properties, and any public or private providers of utility services to the Property and/or the Shavano Creek Commercial Prope rties and their respective successors and assigns, nonexclusive easements for utility purposes over, und er, within and upon the Property for the purposes of constructing, installing, inspecting, maintaining, repairing and replar.lng from time to time any and all utility lines, systems and facilities (including, without limitation, sanitary sewer, electric, gas, water, cable telev ision and other utility services) from time to time deemed reasonably necessary or appropriate by Declara nt for development of the Property and/or the Shavano Creek Commercial Properties. Each Owner shall upon request by Declarant or other easement holder, or their respective successors or assigns, execute a nd deliver to the requesting party such instruments In recordable form necessary or desirable to further evidence and/or more specifically Identify the as- built or designated location of the easements reserved herein. All utility facilities on the Property shall be underground, except for necessary above-ground appurtenances to such facilities required by applicable Governmental Authority. The surface of easement a reas for unde rground utility services may be used for planting of shrubbery, trees, lawns or flowers and for paving of driveways, unless otherwise specifically prohibited by the plat or any other record ed easement. The easement area of the Property, if any, and a il improvements In such easement area shall be maintain ed continuously by the Owner, except for those Improvements for which Governmental Authority or any utility or private company Is responsible.

(d) Certain Otl:ler Easements. There is hereby created In favor of the easement holders, the Declarant, and their respective successors and assigns, a right of ingress or egress across, over, and under the Property for the purpose of installing, replacing, repairing, and m aintai ning a ll facilities for utilities, Including, but not limited to, water, sewer, telephone, electricity, gas, and appurtenances thereto, and to construct, ==-:::: •• reconstruct, repair, correct, replace. or maintain a ny wall, fixture, light, or other structure or Item required to be constructe d or maintained unde r the terms hereof or to corroct or remove any condition prohibited to be maintained under the terms hereof; provided, however that all such activities s hall be conducted In such a way as to minimize any Impact on the business operated on the servient property and that once s uch activities are completed all Improvements Including landscaping within the affected portion of the easement shall be restored at the sole cost and expense of the easement owner.

CERTIFICATE Thr pngr to which this crrtlflcntc Is affixed mny hnw hcrn nltercd to redact confldrntlnl personnl information but Is othcnrisc n full, true nnd correct copy of the ol'iginnl on fil e nnd of record in my office.

ATTESTED: GERARD C.-::RI::-C::::KH=::-0:::-:: F-:: F-- COUNTY C LERK B EXAR COUNTY, TEXAS

BY: .,r- Deputy Dnte (e) Maintenance of Easements. By acceptance of a deed to all or any part of the Property, eaCh Owner covenants and agrees to keep and maintain, in a neat and clean condition, any easement which may traverse any portion of the Property, Including, without limitation, removing weeds, mowing grass and trimming shrubbery and trees, if any, within such easement area.

(f) Damages. Declarant shall not be liable for any damages done by any utility company or their assigns, agents, employees or servants, using any easements now or hereafter in existence, whether located on, in, under or through the Property, to persons or to property, Including, without limitation, fences, shrubbery, trees or flowers or other property now or hereinafter situated on, in, under, or through the Property. No provision hereof related to placement or the nature of structures or conditions on the Property, nor the approval thereof, express or Implied, by the Declarant shall affect the rights of easement owners nor enlarge the rights of Owner with regard to the construction or maintenance of Improvements or conditions within the easement area.

8. ENFORCEMENT.

(a) General. Declarant and each Owner shall have the right, but not the obligation, to enforce all restrictions and covenants imposed by this DeClaration. Failure to enforce any covenant or restriction shall not be deemed a Waiver of the right. The reservation of the right of enforcement shall not create an obligation of any kind to enforce same. Any court action brought to enforce any obligation or restriction hereunder shall, if successful, entitle the prevailing party In such action to the award of costs and attorney's fees.

(b) Declarant's Remedies. If any Owner falls to construct, landscape or maintain its Property, as specified herein, Declarant l3ha11 have· the right, but not the obligation, to proceed as follows:

(I) Give the Owner written notice of such failure whereupon the Owner must stop work Immediately, submit a plan for remedy within thirty (30) days, and perform the required remedy in a reasonable time as Identified by Declarant.

(II) Should the Owner fail to fulfill his duty within thirty (30) days, then Declarant- shall have the right, but not the obligation, to perform such remedy without any liability for damages or wrongful entry .or trespassing. =· ..d:! 0.:-.,J (Iii) The defaulting Owner or occupants (Including lessees) of any part of the Property In which such work Is performed shall jointly and severally be liable for the cost of such work and shall promptly reimburse Declarant for such cost.

CERTIFICATE The page to which this cc11iflcnte Is affixed IliA)' haw beE-n altt'red to redact conndentlal personal information but is ofherwln a full, true and COITcct copy of the ol'iginal on file mul oft('tord in my office.

ATTESTED: GERARD C.-rRI;;cC;;;KI=!O~F"•F""•- - COUNTY CLERK BEXAU COUNT\', TEXAS

DY: --{'~'--~---,----­ Deputy 1-IL~f1 Daf(' (lv) Should the Owner or occupant fail to reimburse Declarant within thirty (30) days after receipt of Its statement, then the debt shall be a debt of all such persons, Jointly and severally, and shall constitute a lien against that portion of the Property on which the work was performed.

(v) "The liens created shall· be subordinate and inferior to any and all mortgages and/or deeds of trust filed of record prior to filing of the lien affidavit by Declarant.

(vi) Failure to pay on time will result In the over-due amount bearing interest at the highest, per annual, legal rate of interest pennitted and the Owner shall additionally be obligated to pay reasonable attorney's fees Incurred by Declarant and such sums shall be subject to the liens of Declarant.

(vii) Declarant shall have the right to enter the grounds of any lot or tract within the Property, at any time for the purposes of Inspecting the Property and determining the adequacy at the Owner's maintenance without any liability for damage, wrongful entry or trespassing.

(c) Easement Holders. Declarant, the owners of all or any part of the Shavano Creek Commercial Properties, and all other holders of the easements referenced in Section 7 herein shall have the right to enforce all restrictions, cOvenants and provisions with respect to the easements as set forth in Section 7 herein. Failure to enforce any such provision shall not be deemed a waiver of the right of enforcement. Any court action brought to enforce any obligation or restriction pursuant to Section 7 shall, If successful, entitle the prevailing party In such action to the award of costs and attorney's fees.

9. PROPERTY CONDITION.

(a) Proximity to Quarries. The Property is located approximately one-half (1/2) mile southeast of the Vulcan Materials stone quarry and approximately two and one- half (2Yz) to three (3) miles southwest of the Martin Marrietta (Beckman Quarry East and Beckman Quarry West) stone quarry, as depicted on Exhibit E attached hereto and Incorporated herein (collectively, the "Quarries"). ·~ = EACH PROSPECTIVE PURCHASI'R IS ADVISED THAT DIVERSE. MATERIAL EXTRACTION AND PROCESSING HAVE AND WILL OCCUR ON THE QUARRY PROPERTIES, AND MAY INCLUDE, WITHOUT LIMITATION, MINING, BLASTING, EXTRACTION, PROCESSING, HANDLING, CRUSHING, WASHING, SCREENING, SORTING, STOCKPILING, AND/OR THE PRODUCTION, PACKAGING, DISTRIBUTION AND TRANSPORTATION OF AGGREGATI', CONCRETE AND CONCRETE PRODUCTS, INCLUDING ACTIVITIES REQUIRED FOR THE SUPPORT OF SUCH OPI'RATIONS, SUCH AS VEHICLE MAINTENANCE AND REPAIR FACILITIES, OFFICE AND DISPATCH FACILITIES, OUTSIDE STORAGE OF

CERTIFICATE The page to which this Cfliificate Is affixed may haw been nltered to •·edact confidential pwsonnllnformatlon but Is olhcnvisc n full, fi"Ue and corn•ct copy of the orighml on nte and of1·ecord in my office.•.

ATTESTED: GERARD C."'ru"'Co;;KH=o"'F"'F,----- COUNTY CLERK BEXAR COUNTY, TEXAS

BY: --..'"'---;o;---,,--------- ~ -ltdli Deputy Date MATE~IALS, AND OTHER OPERATION$ INCIDENTAL TO QUARRY OPERATIONS. COMPLETE INFORMATION ON THE QUARRY OPERATIONS, INCLUDING BLAST LEVELS AND SCHEDULES, OPERATING HOURS AND OTHER INFORMATION SHOULD BE OBTAINED FROM THE QUARRY OPERATORS, MARTIN MARIETTA MATERIALS SOUTHWEST, INC., 17910 IH-10 WEST, SAN ANTONIO, TEXAS 78257, TELEPHONE 210-696-8500, AND VULCAN MATERIALS COMPANY, BOO ISOM ROAD, SAN ANTONIO, TEXAS 78216, TELEPHONE 210-524- 3500.

Declarant makes no warranties, representations or covenants with respect to the effect on the Property or the value thereof of the blasting or other quarry operations at the Quarries. By completing the purchase of all or any part of the Property, each Owner acknowledges and agrees that It has been afforded full access to, and has fully and completely Inspected and Investigated all aspects of the Property to its satisfaction, including the proximity of the Property to the Quarries and the operations at the Quarries, and has made an independent determination of the suitability of the Property for Owne(s Intended use. BY PURCHASING ALL OR ANY PART OF THE PROPERTY, EACH OWNER AGREES (I) TO WAIVE, ACQUIT AND RELEASE DECLARANT, AND (li) NOT TO INSTITUTE SUIT AGAINST DECLARANT WITH RESPECT TO THE PROPERTY ARISING OUT OF THE PROXIMITY OF THE PROPERTY TO THE QUARRIES AND THE OPERATIONS OF THE QUARRIES.

(b) Indemnification and Release. EACH PROSPECTIVE PURCHASER IS RESPONSIBLE FOR THOROUGHLY INSPECTING AND EXAMINING THE PROPERTY AND FOR CONDUCTING SUCH INVESTIGATIONS OF THE PROPERTY AS IT DEEMS NECESSARY TO EVALUATE ITS PURCHASE. BY COMPLETING THE PURCHASE OF ALL OR ANY PART OF THE PROPERTY, EACH PROSPECTIVE PURCHASER IS ACKNOWLEDGING THAT IT IS PURCHASING THE PROPERTY ON AN "AS IS", "WHERE IS" AND "WITH ALL FAULTS" BASIS.

BY PURCHASING ALL OR ANY PART OF THE PROPERTY, EACH OWNER AGREES TO INDEMNIFY AND HOLD HARMLESS AND TO UNCONDITIONALLY RELEASE DECLARANT, ITS PARTNERS, OFFICERS, DIRECTORS, CONTRACTORS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY CLAIMS, COSTS, FEES, EXPENSES, DAMAGES OR LIABILITIES THAT AN OWNER, HIS FAMILY, EMPLOYEES, GUESTS, TENANTS, CONTRACTORS AND ANY OTHER INVITEES MAY SUFFER OR INCUR AS A RESULT OF, ARISING OUT OF, OR RELATED TO ANY CONDITION ON, IN OR UNDER ALL OR ANY PART OF THE ."=:; '

PROPERTY, INCLUDING; BUT· NOT LIMITE!;) TO, CAVES, SINKHOLES, STREETS, 00 TREES WITHIN OR NEAR THE STREET RIGHTS·OF-WAY, DRAINAGE FACILITIES, ·u. -~ AND OTHER DANGE~OUS OBJECTS OR CONDITIOI'jS OF WHICH DECLARANT HAS NO ACTUAL KNOWLEDGE AS OF THE DATE OF RECORDING OF THIS INSTRUMENT OR AS TO WHICH DECLARANT HAS MADE A WRITTEN DISCLOSURE TO OWNER.

CERTIFICATE The page to which this ce~11flcatc Is affixed may haw bccnaltcl·cd to redact confidential personal information but is othr~·wlse a full, trur and con·ect copy of the original on fllc mul of rcconl in my office.

ATTESTED''-~==~­ GERARD C. RICKHOFF COUNTY CLERK BEXAU COUNTY, TEXAS

BY,_L._ _ _ _ _ _ _ __ ~ 'll~·ltj , ' Deputy Date 10. GENERAL PROVISIONS.

(a) Severability. Invalidation of any one of the provisions, covenants or restrictions set forth In this Declaration by judgment or court order shall In no wise affect any other provisions which shall remain in full force and effect.

(b) Term. The foregoing covenants are_ made and adopted to run with the land, and shall be binding upon the undersigned and all parties and persons claiming through and under the undersigned until December 31, 2026, at which time said covenants will be automatically extended for successive periods of twenty-five (25) years, unless an instrument signed by Declarant and the then record Owners In the aggregate of 2/3rds or more of the gross land area of the Property has been recorded agreeing to terminate or change said covenants In whole or In part.

(c) Assignment by Declarant. Notwithstanding any provision in this Declaration to the contrary, Declarant may in writing filed of record expressly assign, In whole or In part, any of the privileges, exemptions, rights and duties under this Dec/afatlon to any other person or entity and may permit the participation, in whole or In part, by any other person or entity in any of its privileges, exemptions, rights and duties hereunder. Upon assignment by Declarant of any or all of such rights, such Declarant shall no longer be liable for performance Of such assigned rights provided that the assignee expressly assumes In the recorded assignment the obligations of Declaiant that are assigned.

(d) Amendment. This Declaration may be amended by written Instrument executed bY the then Owners In the aggregate of 2/3rds or more of the gross land area of the Property and the Declarant, upon recording of such written Instrument In the Real Property Records of Bexar County, Texas. Notwithstanding the foregoing, Declarant shall have the right to file an amendment to this Declaration, without the necessity of joinder by Owner, for the limited purposes of correcting a clerical error.

(e) Singular Includes Plural. Unless the context requires a contrary construction, the singular shall include the plural and the plural the singular, and the masculine, fBminlne or neuter shall each include the masculine, feminine and neuter.

(f) Captions. All captions and titles used In this Declaration are intended solely for convenience of reference and shall not enlarge, limit or otherwise affect that which is set forth in any of the paragraphs or sections hereof.

(g) Notice. Whenever written notice to an Owner Is permitted or req!Jir€d hereunder, such notice shall be given by mailing such notice to the address of such Owner appearing.on the records of the Declarant, unless such Owner has given written notice to the Deciarant of a different address, In which event such notice shall be sent to the Owner at the address so designated. Such notice shall conclusively be deemed to have been given as of the date such notice Is deposited In the United States Mall,

CEH.TIFICATE The page to which this ce11iflcate Is affixed may ha\'C been altered to redact confldwtial pe~·sonal tnrormatlon but Is othe•·wlse a ru11, tl'uc nnd co1·rect copy or the original on file and or record In my office.

ATTF-STED:====:-- GERARD C. RICKHOFF COUNTY CLERK BEXAR COUi\'TY, TEXAS

BY: --'<='<---:o"",-p-uc-tJ-'- - - - - -

/ certified mall, return receipt requested, properly addressed, whether actually received by the addresSee or not.

(h) Governfng Law. This Declaration shall be governed by and construed in accordance wlth the laws of the State of Texas and shall be performable in Bexar County, Texas.

(I) Counterparts. This Declaration may be executed In one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same. Instrument.

~~rR:.~:~~~~ch this crliiflcnte Is affixed may have breu altered to redact confldrntlal prrsonnllnformatlon but is othn·wlsc a full, t1·ue nnd c01·rrct copy of the ol'lginal on file and ofrrcord in my officr.

ATTESTED:'-;c==~;;-­ GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: _ _L~;;-~----­ lll~ 1\\ Drputy D;lte DECLARANT:

SHAVANO CREEK COMMERCIAL PARTNERSHIP UNIT 1, LTD., a Texas limited partnership

By Its General Parther:

BITTERBLriU~~~{ orp tto Texas

By: " J--< ~ Wm. E. ewell Chief Executlve Officer

STATE OF TEXAS § § COUNTY OF BEXAR §

This Instrument was acknowledged before me on OcmfltL.J..t, , 2001, by Wffi. Eu'gene Powell, Chief Executive Officer of Bltterblue, Inc., a Texas corporation, as . the_ General Partner of Shavano Creek Commercial PartnershiP Unit 1, Ltd., a Texas llinlted partnership, on behalf of said corporatlo d · · ership. I

/jJ1ii~V-~~;;_;:,~ .MElANIE L KENWORTHEY (g h: NOTARY PUBLIC -..~.Clo-~/ STATEOFTEXAS ••• .,_.,.... MyComm. fll'p,02·13-2005

AFTER RECORDING, RETURN TO: Ms. Jamie M. Wilson Kerr, WilsOn & Negr6n, P.C. 750 E. Mulberry, Suite 510 Sah Antonio, Texas 78212

CERTIFICATE The page to wltlth this ce111flcutc Is affixed may haw been nlh·red to redact confidential personnllnformntlon hut me Is othe1·wlse n full, true and correct copy orthe o1·ighml 011 mul of recOI·d in my office.

ATTESTED, GERARD C••'ru=c:-:KH=o"'F"F"•- - COUNTY CLERK BEXAR COUNTY, TEXAS ------ ~--~-~~-------- ---~~-

Exhibits: Exhibit A- Property Exhibit B -Shavano Creek Commercial Properties Exhibit C - Cooke Plans Exhibit D - Restricted Area Exhibit E - Location of Quarries

M:\data\Jmw\denloo\c00ke\pmloova3.doo

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CERTIFICATE The page to which this cct1iflcate Is affixed may have beNt altered to redact confidential pct·sotHlllnformntion but Is othct·wlse a full, true and correct copy of the original on me and of record In my office.

ATTESTED:====-- GERARD C. RICKHOFl' COUNTY CLERK BEXAR COUNTY, TEXAS

BY: .,---- Deputy Dntc I EXHIBIT A

Fl6l.. D 'NOTES fOR A 1.838 ·ay line ofL()CkhiiJ.Selm.a Road, tbc- Southeast comer.ofthe :>aid Lot 1400; · · THBNCE: N 41 c$0'46 1'£, o.long a~d with the northwest ri)!ht·of-w~y \lne of sa!cl Huebner Road and \h~ southeast line nf said Lot 1400, a dislance of 410.00 fe~t to a set W' iroll rod with. y~lloW cil.p nutrked "Papc:-.Oawson'' ,!lt the l)OJN"T OF BEGINNING; 1'1-{f;NCE: N 48"09'14"W, departing the nortbV::est right·of-way lino of said Huebner Road, a distanc.~.of204.?.l'fect ton ~t:t 1.4" iron rod -..vith yellow cap mark~d "Papc·Da\\'SOn~ for an lnt~ri~r an,S!i within said L~t 1400; 11-fEN~f.:: S 4l "50'46~w, n distanco;; of2l4.67 teet to a. point; THENCE: N 48° 16'11"\V, a distam;e of160.73 feet to a point on the northwest line Qf said Lot 1400, being in· th<.~ southeaslline ot Lot 1404 of thoa a.forem«:ntioned ShiloV-'l\0 Park Unit 16A subd.ivision; ·N

.tt~­ THENCE;. S 4S"09'14"E. along ~d with lhe northeast llne of said l,.ot 1400 and the .soutbwen line ··-&· of s."'!td Lot 1417, at 186.94 f¢et, pas~lng: the common coroer of Lot 1417 and Lot 1418 -of .:;; saJd Subdivision, and ~ ·rotal distance of 436.22 feet to a found %" Iron rod on the ·-.z:--: nqrtllwest right·of~w3.y 11M of ihre".~t, . ,'l/ ;.9V/.-It-- 1.. ~:P. * ....(,.~. ~:f. I DOC.! D.: n.,~urvey01\I-9600\9S56-0l\l''note~ doe I· " ~~.f!P,i:i~NiCHQU:S ,;;._~.m2···:r· PM1~•DAWSOH'W/01HEJIRS, ~'1f5'1'siW•q:';-.";> I 5;JO F.~" Rs.rr::;<;;y 1 S

T6XIl$ 70216 I Fho-lr>: 2t0,3l6.WJO I r~· .210.37!.;.0010 I t:

lfllc.:P;.vf):l'.

CERTIFICATE The page to which this Ctl1iflcnte is affixed may haw been altered to redact confidential personal information but Is other·wlse a full, trur and cor1·ect copy of the Ol'lginal on file and of record In my office.

ATTESTED'====:-- GERARD C. RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

RY: _.r- Deputy EXHIBITS

SHAVANO CREEK COMMERCIAL PROPERTIES

Lot 1400, Shavano Park Unit 16A, In Bexar County, Texas, according to plat thereof recorded in Volume 9509, Page 209, Deed and Plat Records of Bexar County, Texas, SAVE AND EXCEPT the 1.838 acre tract of land described in §2tf:!ibit A attached to this Declaration.

CERTIFICATE The pagr to which this cet1ificnte Is affixed may have been altered to redact conndrntial personal information but Is othN·wlsc a full, fru(' and con·ect copy of the ol'iglnal ou file and of record in my office.

ATTESTED' GERARD c.'"'ru'"'c"KH=""o""FF""•- - COUNTY CLERK BEXAR COUNTY 1 TEXAS

ny, ~-=--~-c-----­ ~,1(,1'-t Dcputy Date EXHIBITC

COOKE PLANS

§i...f..§_ding Plan: Grading Plan for Huebner Road project, prepared by G.E. Reaves Engineering, il)c., Robert Thornber, P.E. #83416, Job No. 01-0928, dated 9-4-01, Sheet C1.0.

Building Plans: A new building for Luv - N - Care Child Development Centers, Huebner Road at Lockhiii-Selma Road, San Antonio, Texas, prepared by Tschoepe & Associates, consisting of the following:

Architectural: AO Cover Sheet A1 Floor Plan A2 Interior Elevations A3 Exterior El6vatlons A4 Reflected Ceiling Plan A5 Building Sections A6 Roof Plan and Details A7 Wall Sections and Details A8 Schedules Strug!yral: S1 Foundation and Roof Framing Plans 82 Building Sections and Details 83 Sections and Details 84 Retention Ta-nk Plans and Details Mechanical: M1 First Floor- H.V.A.C. M2 Attic and Pool House- H.V.A.C. M3 Mechanical Details and Schedules j::lectrical: E1 First Floor- Lighting Plan E2 First Floor- Power Plan E3 Attic and Pool House - Lighting Plan E4 Attic- Power Pian E5 Riser Diagram and Schedules Plumbing: P1 First Floor Plumbing P2 Pool House Plumbihg P3 Plumbing Details P4 Plumbing Schedules

CERTIFICATE The page to which this ce~11ficote is affixed may haw bl'en altered to redact confidential pe1·sonallnformatlou but is othenvlse a full, tnu.• and correct copy of the original on me and ofreco1·d In my office.

ATTESTED' GERARD c.~ru""c"'rrn=o=FF""·- - J COUNTY CLERK BEXAR COUNTY, TEXAS

BY' ~ Deputy .. EXHIBITD ·.

RESTRICTED AREA

.....

. ""s ""''· ·,,··-...,. ~ .. lOT 1400

........._ _SHAVANO 'p.4_~K --,.._•--:(•.Q.._g~ l'(l?M-,1,~~-P..fl,)

·-,, ~ro'l'::::lr -~ 41----:-~"!iiw-....-::~~~-4~ '.(

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CERTIFICATE The page to which this ce111flcate is affixed mny lm\'f been nltei'NI to a·cdact confidential pti'Sonnllnformntlon but Is otherwise a full, h·ue and correct copy of the oa·ighml on file nnd ofrcc01·d In my office.

ATTF$TED:====-- GEllA!lD C. illCKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY: .,..,_- Deputy ~ EXHIBITE, -.... ,.. -.....• . "'·· ,. LOCATION, .OF QUARRIES ----"-~-~; _ _ _ _._._ _ L.....-..L__~_ ·; _ _ _ _~ r I ,--- <:. ' - ...... l ·,··-...__/ I \

B ECK\1.~ ,., .• Ql:.-\RRY ·~ EAST

/ _,·

CERTIFICATE The page to which this certificate Is affixed may have been nltcred to redact confldcntlnl personnlinformntlon but Is otherwise a full, true and COITfCt copy of the original on file nnd of record in my office.

ATTESTED:====-- GERARD C. RICK!IOFF COUNTY CLERK BEXAR COUNTY, TEXAS

BY:~--=----~·ll,-1' f Deputy Date 'RECORD!OR'S MEMORANDUM 'AT rnE l:IME OF RECORDATION, THfS <'tNSTRUMefr WJ>S FQU.'IIDTO 6E INADEQUATE ~OR lriE ~ PHOTOGFW'HIC m:PHOOUCTlON tHE CAUSE OF lUEO!BIUlY, CAA..~N OR ~o;;HO'fO COPY. OISCOLOREO PAPER, ETC.

i$i Docft .20010:1.88420 -·~-. ' '· .. " pta~esr2aat ll2=~a=26 Pff fil!XI S R~tCUrdid in Offieia:l ReMfds of I= 8£XAR COtJ!H'J' .= GERRY RICKHOFF --:a.:,'

- COUI!TY ClERl( f(>e-5 $75.69 <» ""'

CERTIFICATE The page to which this cc1110cate Is affixed may han been altered to redact confidential personal infornmtlon but Is othe1·wlse a full, t.-ue nnd con·ect copy of the original on me and of record in my offict'.

ATTESTED: GERARD C. ""R'"'IC"'KH="o"'FF"'•- - COUNTY CLERK BEXAR COUNTY, TEXAS

BY: _.- Deputy ' I

Gerard Rickhoff COUNTY CLERK BEXAR COUNTY

BEXAR COUNTY COURTHOUSE 100 DOLOROSA, SU ITE 104 SAN ANTONIO , TEXAS 78205

CERTIFICATE

STATE OF TEXAS§

COUNTY OF BEXAR§

I, GERARD RICKHOFF, COUNTY CLERK OF BEXAR COUNTY, TEXAS, DO HEREBY CERTIFY THAT THE FOREGOING IS A TRUE AND CORRECT COPY OF THE OFFICIAL PUBLIC RECORDS OF REAL PROPERTY OF BEXAR COUNTY, TEXAS, NOW TN MY LAWFUL CUSTODY AND POSSESSION AS SAME APPEARS OF RECORD FILED TN :

VOLUME q J N t.-f THIS COPY MAY HAVE BEEN ALTERED TO REDACT CONFIDENTIAL PERSONAL INFORMATION AS REQUIRED BY TEXAS GOVERNMENT CODE 552.147.

IN TESTIMONY WHEREOF, WITNESS MY HAND AND OFFICIAL SEAL OF OFFICE GIVEN IN THE CITY OF SAN ANTONIO, BEXAR COUNTY, TEXAS, ON THIS .L~-k_ DAY OF :Ji~ A.D., 20 _..i_'-1 _,:.....___

GERARD RICKHOFF COUNTY CLERK BEXAR COUNTY, TEXAS .- .,.~ \

... . I \,

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i . ' ''•

ANY PROVISION HEREIN WHICH RESTRICTS THE SAL E, RENTAL, OR USE OF THE DESCRIBED REAL PROPERTY BECAUSE OF RACE, COLOR, RELIGION, SEX, HANDICAP, FAMI LIAL STATUS OR NATIONAL ORIGIN IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.