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Click here for the full text of this decision FACTS:Raman Chandler Properties LC (the managing partners), Villas at Caldwell Creek Ltd. (the Villas), and Caldwell’s Creek Ltd. (the developer) appealed from a declaratory judgment the trial court granted in favor of Caldwell’s Creek Homeowners Association Inc. (the association) in connection with an access easement located in the Caldwell’s Creek Addition (the addition). The trial court determined that the easement and common areas were for the sole benefit and exclusive use of the homeowners of the addition and that, therefore, the managing partners and the developer had no authority to grant an access easement to the Villas. The trial court also granted the association its attorneys’ fees under Civil Practices & Remedies Code ��37 and 38. From 1994 through 1999 the developer sold lots in the addition. In October 1999 the association was formally incorporated as Caldwell’s Creek Homeowners Association Inc. In December 1999, however, the developer executed an easement agreement granting access to the addition’s common areas in favor of the Villas, an adjacent development. The developer for the addition was also the developer for the Villas. The purported access easement was a 20-foot easement that ran generally north and south along the east property line of the addition, and adjacent to a portion of the Villas. Under the easement’s terms, the association remained obligated for all expenses incurred maintaining the common areas, with The Villas assuming the expense and maintenance of a new iron and brick fence along their common border with the addition. HOLDING:Affirmed. Appellants challenge the trial court’s judgment in favor of the association. They first challenge the trial court’s determination that the common areas were for the “sole and exclusive use” of the homeowners in the addition. The court states that the primary issue is whether the developer, in 1999, retained the right to unilaterally amend the plat or create and burden the common areas for the benefit of a different association by granting it an easement. The court finds that the answer is no, and holds that restrictive covenants that run with the land, such as these, generally burden and govern all lots within the subdivision to which they were intended to apply. Additionally, the court holds that according to Texas statute, express designations establishing the methods for extending, adding or modifying such restrictions control over other statutory provisions for same. Thus, only if the developer followed the specific procedure for amending the restrictions or the plat as set forth in the covenants could it have had the right to create such an easement for the benefit of some entity or owner other than the association and its lot owners. Appellants next assert trial court error in basing its judgment on “estoppel in pais,” claiming that there were no pleadings to support that theory. The court points out that the association also filed a supplemental petition a few weeks after trial, that specifically set forth its estoppel in pais theory but appellants contend that the pleading should be struck because the association failed to seek leave to file its supplemental answer post-trial as required by Texas Rule of Civil Procedure 63. The court finds that evidence and testimony on the issue were admitted without objection and therefore concludes that this theory was tried by consent, that the trial court did not err in allowing an amendment to include the estoppel theory. Therefore, the court considers this theory on appeal as well. Finally, appellants allege trial court error in awarding the association its attorneys’ fees. The court notes, however, that appellants challenge none of the trial court’s findings of fact that clearly declare the rights, duties and powers of the parties to the suit and ultimately support the trial court’s conclusion of law that the association is entitled to recover attorneys’ fees under the declaratory judgments act. The court points out that unchallenged findings of fact are binding unless the contrary is established as a matter of law or there is no evidence to support the findings. Since none of the findings that declare the rights of the parties to this litigation are challenged in connection with the award of attorneys’ fees and those findings support the trial court’s legal conclusion that attorneys’ fees could be awarded, the court concludes the trial court properly granted the association its attorneys’ fees under the declaratory judgments act. OPINION:Livingston, J.; Cayce, C.J., Livingston and McCoy, JJ.

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