Camino Real Developers, LLC; Jack Dyer; And Dan Addante v. Tim Adkins and RivenRock, LLC

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00233-CV

Camino Real Developers, LLC; Jack Dyer; and Dan Addante, Appellants

v.

Tim Adkins and RivenRock, LLC, Appellees

FROM THE 421ST DISTRICT COURT OF CALDWELL COUNTY

NO. 21-0-359, THE HONORABLE CHRIS SCHNEIDER, JUDGE PRESIDING

MEMORANDUM OPINION

Dan Addante and Jack Dyer, who were defendants in the suit below, and Camino

Real Developers, LLC, an intervenor in the suit below, all appeal the trial court’s judgment,

rendered after a bench trial. The court rendered judgment for Tim Adkins and RivenRock, LLC

on their claim for breach of contract, by which they sought specific performance, and on their

claims for declaratory relief, but the trial court denied all their other claims—fraudulent

inducement, breach of fiduciary duty, tortious interference with prospective contractual relations,

involuntary winding up and termination, quantum meruit, unjust enrichment, promissory estoppel,

and claims for other injunctive relief. In six appellate issues, Addante and Dyer seek reversal

of the judgment on the contract and declaratory-relief claims, including reversal of the

specific-performance relief awarded, offering several reasons for why Adkins and RivenRock

cannot recover in contract. We agree with Addante and Dyer that Adkins and RivenRock cannot

recover in contract because the parties agreed to a condition precedent to contract formation and

that condition was unmet. Thus, we reverse all challenged portions of the trial court’s judgment

and render judgment that Adkins and RivenRock take nothing on their contract claims and on most

of their declaratory-relief claims.1

BACKGROUND

Addante and Dyer developed a business idea for building and operating a luxury

RV park along a road in Caldwell County called Camino Real. They formed Camino Real

Developers, LLC for the project, with Camino Real’s Company Agreement going into effect in

late 2017. In accordance with the Company Agreement, one of Camino Real’s members—

JLR Mansions, LLC—would be responsible for much of the LLC’s capital funding.

JLR Mansions owned a 50% membership interest in the LLC. Addante and Dyer were the other

two members, each owning a 25% membership interest. JLR Mansions was run by Josh Dikoff.

Dikoff came to doubt JLR Mansions’ ability to keep meeting Camino Real’s

funding needs, including the monthly payments on its land note, so Addante and Dyer began

looking for someone to take JLR Mansions’ place in the project. Addante approached Jeff Ballard

1

There is one item of declaratory relief awarded by the trial court’s judgment that is not

challenged by the appellants’ issues—a declaration “that RivenRock LLC owns a

50% membership interest in Camino Real Developers, LLC.” Also, no one challenges the portions

of the judgment that deny all other claims in the suit, that is, Adkins and RivenRock’s other claims

and Addante and Dyer’s and Camino Real’s counterclaims, and that order each side to bear their

own fees and costs. We affirm these unchallenged portions of the judgment. See Bass v. Bogle,

No. 03-23-00319-CV, 2024 WL 3446921, at *7 (Tex. App.—Austin July 18, 2024, no pet.)

(mem. op.) (“As a preliminary matter, we address the portions of the final judgment that are not

challenged on appeal. Specifically, no party has challenged [two portions of the judgment].

Because they are unchallenged on appeal, we affirm those portions of the final judgment.”); Elliott

v. Rockwood Vill. Partners, Ltd., No. 03-12-00298-CV, 2012 WL 6554826, at *8 (Tex. App.—

Austin Dec. 12, 2012, no pet.) (mem. op.) (“The remaining portions of the district court’s judgment

were not challenged on appeal and are therefore affirmed.”).

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about taking over the funding role in the project. In the midst of their discussions, Addante in

early August 2018 emailed Ballard, copying Dyer, a document titled “Financial Scope Recap.”

The Recap is addressed as a letter to Ballard from Addante, with Camino Real’s

name appearing just below Addante’s in the signature block. The Recap, according to its

beginning, “summarizes the financial scope of the project” and gives “a snapshot of our anticipated

costs, returns, phased build out and financial costs/stakes/responsibilities to move forward.” The

Recap then discusses a sale of JLR Mansions’ 50% membership interest in Camino Real and the

buyer of that interest’s assuming “all current liabilities of the Business of the Company . . . .” The

Recap gives details under headings titled “Current LLC expenses,” “Project Costs and Buildout

Schedule,” “Project Design / Preconstruction,” and “Investor Responsibilities.” And under that

last heading, the Recap says: “Complete financial funding and liability throughout construction

and park operation. The financial partner will have 50% revenue stake as well as 2/3 dictating

vote of financial and larger operation matters. All other management and operation duties will be

the sole responsibility of 2 other members.”

Discussions continued among Addante, Dyer, and Ballard, and Adkins was soon

brought in. Adkins and Ballard were the co-owners of RivenRock. A week after Addante emailed

the Recap to Ballard, Dyer emailed it to Adkins. The Recap, Adkins testified at trial, was the first

written communication about Camino Real that he ever saw. Discussions continued.

The day after the Dyer–Adkins email, Addante emailed Adkins, copying Dyer

and Ballard, to send two items—(1) the Recap and (2) a letter of intent with the filename

“LOI - Ballard.” Addante described in his email the “attachments below: our current LLC, original

LOI and the financial/timeline project overview.”

3

Eleven days later, in late August 2018, Adkins emailed Addante, copying Ballard,

to return a signed copy of a slightly edited version of the letter of intent, substantially the same in

terms as the document named “LOI – Ballard.” The edited document bore a new date and included

Adkins as an addressee alongside Ballard, among other changes not relevant here. Adkins had

signed this revised letter of intent. (We refer to this document signed by Adkins as the “LOI.”)

Adkins admitted in his trial testimony that “there’s some overlap” between the LOI’s terms and

the Recap’s. Also in the LOI was language calling for a “definitive agreement” among the parties:

2. Definitive Agreement

The closing will be subject to the negotiation and execution of definitive transaction

documents that will include, among other things, customary representations,

warranties, covenants, and indemnities by [Camino Real] and their principals

regarding the business, operations, and financial condition of the Business.

....

4. Conditions to Closing

The consummation of the Transaction will be subject to the satisfaction of

customary conditions, including, without limitation . . . [t]he negotiation,

execution, and delivery of definitive agreements satisfactory to each of the

parties . . . .

5. Binding Agreement

Other than this paragraph 5, which is intended to be and is legally binding, this

letter is nonbinding and constitutes an indication of intent only and creates no

liability or obligation of any nature whatsoever among the parties hereto with

respect to any contemplated transaction or any other matter or action described or

referred to herein. Legally binding obligations with respect to the contemplated

transaction will only arise upon execution of a definitive agreement and related

agreements with respect to the transaction.

Discussions continued between the parties, moving toward the drafting of documents to effect the

sale of JLR Mansions’ 50% membership interest to RivenRock.

4

In September 2018, Adkins emailed Addante a draft of a purchase agreement

between JLR Mansions and RivenRock. Later that month, Adkins edited the draft in accordance

with requests made by Addante,2 and Addante and Dyer responded that the edited draft sent to

them looked good. Near the end of the month, the documents effecting the sale of the

50% membership interest from JLR Mansions to RivenRock were fully executed by Dikoff and

Adkins. The closing of the sale was postponed for a time, and later in fall 2018, Dikoff and Adkins

executed an amendment to the sale documents allowing for a two-part payment to be made to

JLR Mansions. Both payments were made.

Afterward, in December, Adkins emailed Addante and Dyer to, as Adkins testified

at trial, “begin discussions around finalizing a new operating agreement” to replace the Camino

Real Company Agreement. From this point onward, Adkins, per his testimony, made the monthly

land-note payments for Camino Real.

The next summer, Dikoff, Addante, Dyer, and Adkins executed documents among

themselves and with Camino Real’s lender acknowledging that RivenRock had replaced

JLR Mansions and that Adkins had replaced Dikoff as personal guarantor of Camino Real’s land

note. A short time later, Adkins bought out Ballard’s rights and interest in RivenRock.

But as the months went on, a disagreement grew between Adkins on the one

hand and Addante and Dyer on the other about management of Camino Real. The disagreement

2

Adkins’s original document included a paragraph that would have required Addante and

Dyer to sign an attached “First Amended Operating Agreement of” Camino Real, which would

have granted RivenRock “majority voting power (51%) over all Camino Real Developers, LLC’s

affairs, operations, and transactions, despite [RivenRock]’s ownership of a mere fifty percent” of

Camino Real. Addante asked that this paragraph be removed, writing back to Adkins to say that

Addante and Dyer “want to keep new amendment operating agreement separate.” Adkins removed

the paragraph before sending the edited draft back to Addante and Dyer.

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involved whether RivenRock was entitled to, as mentioned in the Recap, the two-thirds voting

rights over certain matters in Camino Real or whether, in Addante and Dyer’s view, the parties

had not yet drafted and signed any definitive agreement, such as an amended company agreement

for Camino Real, resolving the relative voting strengths in Camino Real of Addante, Dyer, and

RivenRock. Unable to resolve the disagreement, Adkins and RivenRock filed this suit.

Adkins and RivenRock pleaded several claims against Addante and Dyer, and they

sought monetary, declaratory, and specific-performance relief. Camino Real intervened in the suit

to assert rights and obligations relating to its Company Agreement. The parties tried the suit to

the bench and submitted their closing arguments in writing to the court.

The court sent a letter to the parties to inform them of its ruling in the suit. The

court said in its letter that RivenRock “has a 50% ownership interest in Camino Real and a

2/3 voting authority over financial and larger operational matters,” that a “$5 million capital call

issued by” Addante and Dyer for Camino Real over RivenRock’s opposition “is voided,” and that

each side was to pay its own attorneys’ fees. The letter mentioned no other relief.

The court asked Adkins and RivenRock to draft a judgment for the court’s

signature. They did not object to the court’s ruling. Instead, they submitted a draft judgment, and

the trial court signed exactly the judgment that they submitted.

According to the signed judgment, the court rendered judgment for Adkins and

RivenRock on their claims for breach of contract and declaratory and specific-performance relief,

and it denied all other claims in the suit, whether Adkins and RivenRock’s other claims or Addante

and Dyer’s or Camino Real’s counterclaims. The judgment does not award any monetary relief.

Otherwise, generally speaking, the judgment awards a declaration about RivenRock’s ownership

of the 50% membership interest in Camino Real; declarations and specific performance regarding

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the two-thirds voting rights over certain Camino Real matters as mentioned in the Recap;

declarations and specific performance explaining that Adkins and RivenRock were not bound by

the Camino Real Company Agreement; and an order voiding the 2022 capital call that Addante

and Dyer had voted to approve in their capacities as members of Camino Real to call on RivenRock

to contribute funds to the LLC. The court stated in writing its findings of fact and conclusions of

law and sent them to the parties and later wrote and sent another round of findings and conclusions.

The court explained in its findings and conclusions that it had rendered judgment

in contract for Adkins and RivenRock because the Recap communicated an offer of contract to

them that they later accepted by performance. The Recap, the court ruled, offered that in exchange

for (1) RivenRock’s buying the 50% membership interest, (2) its paying Camino Real’s expenses

as they came due, and (3) Adkins’s becoming the personal guarantor of the land note, RivenRock

would receive a 50% revenue stake in Camino Real and the two-thirds voting rights over certain

Camino Real matters that the Recap mentioned. The court ruled that these terms, proposed by the

Recap, were accepted by Adkins and RivenRock by their performance, forming a binding contract

(the Contract).3 The court also concluded that the LOI did not affect the Contract at all but related

only to JLR Mansions’ sale of the 50% membership interest to RivenRock.

Addante, Dyer, and Camino Real now appeal.

STANDARD OF REVIEW

When, as here, the parties try their suit to the bench and the trial court has made

and sent its written findings of fact and conclusions of law to the parties, we review the findings

and conclusions according to their substance, not their title. See Tex. R. Civ. P. 296–97; 12636

3

The purported Contract and the Camino Real Company Agreement are different items.

7

Rsch. Ltd. v. Indian Bros., No. 03-19-00078-CV, 2021 WL 417027, at *5 (Tex. App.—Austin

Feb. 5, 2021, no pet.) (mem. op.). Although the trial court is the factfinder in a bench trial and its

findings of fact are entitled to deference, we review the court’s conclusions of law de novo. See

id. at *5, *8. Trial courts’ decisions on questions of law are afforded no deference. Custer v. Wells

Fargo Bank, N.A., No. 03-15-00362-CV, 2016 WL 1084165, at *2 (Tex. App.—Austin Mar. 18,

2016, pet. dism’d w.o.j.) (mem. op.); see also Italian Cowboy Partners, Ltd. v. Prudential Ins. Co.

of Am., 341 S.W.3d 323, 337 (Tex. 2011) (“We review legal questions that rest on a factual basis

de novo, while affording deference to the trial court’s findings of fact.”).

DISCUSSION

Addante and Dyer in their six appellate issues offer several independent reasons for

why Adkins and RivenRock should not have recovered on the Contract. Many of their reasons

depend on showing that the trial court erred by concluding that the Contract’s terms were

evidenced by the Recap alone and were not affected by the LOI—in other words, that the LOI

should not be construed together with the Recap when analyzing the Contract. Addante and Dyer

argue under one of their issues that if the Recap and LOI are construed together, then a condition

present in the LOI went unmet and prevented them from being liable on the Contract.

Camino Real raises four appellate issues of its own, the first three of which address

the declaratory and specific-performance relief awarded by the trial court that says that Adkins

and RivenRock are not bound by the Camino Real Company Agreement and that otherwise orders

Addante and Dyer to cause RivenRock to be admitted as a Member and Manager of Camino Real

under the Company Agreement. Then in its fourth issue, Camino Real attacks the portion of the

trial court’s judgment that awarded declaratory relief voiding the capital call for Camino Real

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voted on by both Addante and Dyer because, the court ruled, RivenRock should have enjoyed the

two-thirds voting rights and would have voted against the capital call.

We agree with Addante and Dyer that the Recap and LOI must as a matter of law

be construed together when analyzing the Contract. As a result, and because there is no evidence

that the condition present in the LOI was fulfilled, Addante and Dyer are not liable on the Contract,

and the trial court erred by concluding otherwise. Without judgment on their claim for breach of

contract, Adkins and RivenRock are not entitled to the declaratory and specific-performance relief

in the trial court’s judgment that Addante, Dyer, and Camino Real challenge in this appeal.

The LOI and Recap must be construed together

Many of the parties’ competing positions in this appeal depend on the threshold

dispute of whether the LOI must be read as part of any contract formed or to be formed between

the parties.4 The Contract, according to the trial court and to Adkins and RivenRock, is set forth

in the Recap and is not affected by the LOI. The trial court in its findings and conclusions said

that the LOI “only related to the sale of JLR Mansions’ 50% membership interest in Camino Real

and did not address the offer of the Voting Rights contained in the . . . Recap,” that the LOI “did

not relate to the” Contract, and that it “only related to the transaction between RivenRock on the

one hand and JLR Mansions on the other for RivenRock’s purchase of JLR Mansions’

50% membership interest in Camino Real.” The court thus concluded that the LOI “did not have

any effect on the offer” set forth in the Recap. Addante and Dyer disagree with all this, arguing

that the LOI must be read as part of any proposed contract between the parties.

4

Addante and Dyer preserved their appellate issues relating to this dispute by their written

closing arguments filed with the trial court after the close of evidence at the bench trial.

9

When analyzing whether a contract was formed between parties, courts may decide

that the contract is “expressed in multiple writings exchanged between the parties.” See Chalker

Energy Partners III, LLC v. Le Norman Operating LLC, 595 S.W.3d 668, 669 & n.2 (Tex. 2020);

see also Fort Worth ISD v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000) (applying

“well-established law that instruments pertaining to the same transaction may be read together to

ascertain the parties’ intent”). “In appropriate instances, courts may construe all the documents as

if they were part of a single, unified instrument.” Fort Worth ISD, 22 S.W.3d at 840. The decision

that a contract comprises multiple writings may be made as a matter of law. Rieder v. Woods,

603 S.W.3d 86, 94 (Tex. 2020); Fort Worth ISD, 22 S.W.3d at 840. Trial courts’ decisions on

questions of law are not entitled to deference. See Custer, 2016 WL 1084165, at *2.

When deciding whether multiple writings “are part and parcel of a unified

instrument, a court may consider whether each [writing] was ‘a necessary part of the same

transaction.’” See Rieder, 603 S.W.3d at 94 (quoting Board of Ins. Comm’rs v. Great S. Life Ins.

Co., 239 S.W.2d 803, 809 (Tex. 1951)); see also In re Laibe Corp., 307 S.W.3d 314, 317 (Tex.

2010) (orig. proceeding) (per curiam) (standard met because “the two writings pertained to the

same transaction”); Veal v. Thomason, 159 S.W.2d 472, 475 (Tex. 1942) (“It is the settled rule in

this State, as well as the rule generally, that written contracts executed in different instruments

whereby a single transaction or purpose is consummated are to be taken and construed together

as one contract.”), superseded by rule on other grounds as recognized in In re Kappmeyer,

668 S.W.3d 651, 658 n.9 (Tex. 2023) (orig. proceeding). The consideration of that issue involves

“reviewing the language of [the multiple writings] and the facts and circumstances surrounding

their execution.” See Rieder, 603 S.W.3d at 95. Multiple writings may pertain to the same

transaction even if the parties executed them at different times and even if the writings do not

10

expressly refer to each other. Fort Worth ISD, 22 S.W.3d at 840. For example, when three

successive writings, though made months apart, each involved a lease of the same farm and

lacked any merger clause and the latter two built on the one just before by adding more detail

about the leasehold interest involved, all three writings were appropriately considered together as

one contract, as a matter of law. See Arriola v. Kutscherousky, No. 07-15-00004-CV, 2015 WL

5244417, at *2 (Tex. App.—Amarillo Sept. 4, 2015, pet. denied) (mem. op.).

To begin the analysis of the Recap and LOI, we review the Recap’s terms that the

trial court determined were the Contract terms offered. According to the findings and conclusions,

Addante and Dyer proposed in the Recap that “RivenRock would buy JLR Mansions’

50% membership interest in Camino Real and pay Camino Real’s then-existing financial

obligations as they came due” and “Adkins would replace . . . Dikoff as a personal guarantor on

the Project’s land note.” In exchange, Adkins and RivenRock would receive Addante and Dyer’s

“use [of] their authority as Managers of Camino Real to grant . . . RivenRock ‘a 50% revenue stake

as well as 2/3 dictating vote of financial and larger operation matters’ over Camino Real.”

Many of these same terms are addressed in the LOI. It uses nearly identical

language to discuss the sale of the 50% membership interest and the payment of Camino Real’s

obligations. Compare the Recap’s language,

An entity newly formed by [Camino Real] would transfer the primary membership

of 50% to Jeff Ballard, or said Group, substantially all of the operating assets,

including all tangible and intangible assets, equipment, leases, contract rights, and

intellectual property used in the Business for a purchase of full liability of capital

needs per agreed upon terms,

with the LOI’s,

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An entity newly formed by [Camino Real] would transfer the primary membership

of 50% to you or an entity nominated by you, substantially all of the operating

assets, including all tangible and intangible assets, equipment, leases, contract

rights, and intellectual property used in the Business for a purchase of full liability

of capital needs per agreed upon terms.

Similarly, the Recap says that the “Buyer will assume all current liabilities of the Business of the

Company as of September 1, 2018[,] with any new acquisition of liability to be agreed upon at a

later date or shortly after,” and the LOI says nearly the same thing, “Buyer will assume all current

liabilities of the Business of the Company as of September 1, 2018[,] with any new acquisition of

liability to be agreed upon at a later date.”

The Recap’s and LOI’s contents bear still more resemblances. Both are addressed

as letters to Ballard from Addante, with Camino Real’s name just under Addante’s. (The LOI is

addressed to Adkins as well, and he signed it.) Both detail Camino Real’s expenses of $3,000 for

the land note and $15,000 for Initial Operation costs; the timing of Camino Real’s Sewer Permit

Costs; that the “50% LLC membership buyout” would be within either a month or two “of LLC

agreement”; and that the rough summary of its expenses was $120,000. Moreover, in tension with

the trial court’s conclusion that the Recap alone states the Contract terms between the parties, the

Recap lacks any merger clause.

As for the circumstances surrounding the two writings, Addante and Dyer at

different times sent the Recap to Ballard and Adkins in early August 2018. On the same day in

mid-August—via the same email, in fact—Addante sent both the Recap and the LOI to Adkins.

The email describes the timeline and financing for their RV-park “project”:

Tim,

See attachments below: our current LLC, original LOI and the financial/timeline

project overview.

12

Please feel free to contact me with any questions.

Again, all pre-construction is at a holding point and ready to go. Our timeline is

dependent on finalizing our business agreement and $10,000 sewer permit

initiation.

Talk to y[’]all soon!

At the end of the month, Adkins returned by email the LOI with his signature. (He never signed

any copy of the Recap.) In an ensuing email chain stemming from his return of the signed LOI,

Adkins told Addante, Dyer, and Ballard, “We will be meeting with our attorney . . . to draft the

agreement to buy out Di[]koff and finalizing the LLC structure and agreements going forward.”

Given all the similarities and interrelations between the Recap and LOI, in both

their contents and their surrounding circumstances, we conclude as a matter of law that the LOI

relates to any contract formed under the Recap between Addante, Dyer, Adkins, and RivenRock.

Both writings were necessary parts of the same transaction involving Adkins and RivenRock’s

substitution for Dikoff and JLR Mansions in the Camino Real project to create the RV park. See

Rieder, 603 S.W.3d at 94; Laibe, 307 S.W.3d at 317; Arriola, 2015 WL 5244417, at *2.

Adkins and RivenRock resist this conclusion, making several arguments, but none

persuades us. They point out that the LOI lacks terms about the Recap’s “2/3 dictating vote of

financial and larger operation matters” term. True enough, but in plenty of the cases in which

Texas courts have construed multiple writings together, one of the writings lacked a term or

concept contained in another. See, e.g., Laibe, 307 S.W.3d at 316–17 (writings construed together

even though one lacked forum-selection clause that other contained); Sullivan v. Microsoft Corp.,

618 S.W.3d 926, 931–34 (Tex. App.—El Paso 2021, no pet.) (offer letter and employment

agreement construed together in suit for breach of offer letter even though offer letter lacked

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forum-selection clause contained in employment agreement); Title Res. Guar. Co. v. Lighthouse

Church & Ministries, 589 S.W.3d 226, 229, 233–42 (Tex. App.—Houston [1st Dist.] 2019, no

pet.) (construing two writings together as one contract even though first predated second by month,

first included terms about payment of taxes that second lacked, and second contained terms about

payment of taxes that first lacked); Arriola, 2015 WL 5244417, at *2 (three writings construed

together even though first lacked term providing that lease was “cash lease” and first and second

each lacked leasehold details contained in third); Northern Nat. Gas Co. v. ONEOK Bushton

Processing, Inc., No. 14-11-00539-CV, 2012 WL 4364652, at *5–9 & n.6 (Tex. App.—Houston

[14th Dist.] Sept. 25, 2012, no pet.) (mem. op.) (two agreements construed together even though

their terms about ownership of liquids were in tension). Similarly for Adkins and RivenRock’s

argument that the Recap involved different parties than did the LOI, the difference in parties does

not undermine the conclusion that the Recap and LOI were still necessary parts of the same

transaction. See Northern Nat. Gas, 2012 WL 4364652, at *5 n.6. In any event, the Recap and

LOI on their face involve the same parties—both documents are addressed from Addante, with

Camino Real’s name just below his, to Ballard, and both were emailed to both Ballard and Adkins

by either Addante or Dyer. Plus, similar to how Adkins argues that the Recap was an offer of

contract to him and RivenRock, the LOI, which he signed, was addressed to him as well.

Adkins and RivenRock go on to point out that elsewhere among the LOI’s terms is

a statement that all its language aside from its definitive-agreement language is nonbinding:

Other than this paragraph 5, which is intended to be and is legally binding, this

letter is nonbinding and constitutes an indication of intent only and creates no

liability or obligation of any nature whatsoever among the parties hereto with

respect to any contemplated transaction or any other matter or action described or

referred to herein. Legally binding obligations with respect to the contemplated

14

transaction will only arise upon execution of a definitive agreement and related

agreements with respect to the transaction.

But Adkins and RivenRock provide no authority suggesting that the presence of some nonbinding

terms prevents the Recap and LOI from being construed together—they still can be. The decision

about whether to construe documents together can affect not only how a binding contract should

be interpreted but also whether a binding contract was even formed. See WTG Gas Processing,

L.P. v. ConocoPhillips Co., 309 S.W.3d 635, 643–47 (Tex. App.—Houston [14th Dist.] 2010, pet.

denied) (construing multiple communications together and deciding as matter of law that contract

was not formed because one communication included language providing that “[a] Proposal will

only be deemed to be accepted upon the execution and delivery by [seller] of a [PSA]” and that

“[u]ntil the [PSA] for this transaction is executed by [seller] and a purchaser, [seller] . . . shall not

have any obligations to any party with respect to the contemplated transaction”).

Adkins and RivenRock next point to the post-LOI sale documents between

JLR Mansions and RivenRock, which effected the sale of the 50% membership interest. They

assert that the LOI relates only to that sale and add that neither Addante nor Dyer could sell that

interest because JLR Mansions owned it but that Addante and Dyer were arranging the sale for

JLR Mansions. Yet the LOI’s text does not match this interpretation—the LOI is addressed from

Addante and Camino Real to Ballard and Adkins and was sent by Addante and Dyer to Ballard

and Adkins, and it contains terms that on their face apply not just to JLR Mansions but to Addante

and Dyer as well. The trial court in its findings and conclusions said that the Recap’s offer of

two-thirds voting rights over certain matters was a part of an overall transaction that also included

the sale from JLR Mansions to RivenRock. That connection itself shows that the Recap and LOI

should be tied together—both documents address terms of that overall transaction. See Griffith

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Techs., Inc. v. Packers Plus Energy Servs. (USA), Inc., No. 01-17-00097-CV, 2017 WL 6759200,

at *1, *5 (Tex. App.—Houston [1st Dist.] Dec. 28, 2017, no pet.) (mem. op.) (stating that

“guaranty was signed as part of the entire deal” partly because guaranty said that it existed to

induce party into other agreement that was part of same deal).

Adkins and RivenRock also rely on testimony from Adkins and Ballard of their

beliefs about what the LOI accomplished separate from the Recap. But we may construe

contract-related documents together as a matter of law, and witnesses’ subjective beliefs about

contract formation do not supplant the objective manifestations of the parties’ intent in the

writings’ terms and in the parties’ actions. See, e.g., Texas Disposal Sys. Landfill, Inc. v. Waste

Mgmt. Holdings, Inc., 219 S.W.3d 563, 589 (Tex. App.—Austin 2007, pet. denied) (stating that

decision about whether contract was formed “is based on the objective standard of what the parties

said and how they acted, not on their subjective state of mind”).

We conclude that the Recap and LOI must be construed together when analyzing

any contract, binding or not, between the parties. The trial court erred to conclude otherwise.

The LOI imposes a condition precedent to any binding contract obligations, so because the

condition did not occur, Addante and Dyer cannot be liable for breach of contract

The LOI includes language creating an important condition—in the

definitive-agreement language quoted in full above. Among that language is the provision that

“[l]egally binding obligations with respect to the contemplated transaction will only arise upon

execution of a definitive agreement and related agreements with respect to the transaction.”5

5

Contract-related language may be construed as a matter of law to decide whether it

creates a condition. See Sun Expl. & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987); Freeman

v. Magnolia Petrol. Co., 171 S.W.2d 339, 342 (Tex. 1943). Trial courts’ decisions on questions

of law are not entitled to deference. Custer v. Wells Fargo Bank, N.A., No. 03-15-00362-CV,

16

Contract-related conditions come in different forms, including conditions precedent to the

formation of binding contractual obligations. See, e.g., Chalker Energy Partners III, 595 S.W.3d

at 673. Conditions precedent can emerge from parties’ concluded agreements, and if such a

condition benefiting a contracting party does not occur, then that party is not liable for its lack of

performance under the agreement. See id. at 673–76. A party seeking to recover under a contract

bears the burden of proving that all conditions precedent have been satisfied. Id. at 673.

Here, we conclude that the LOI’s definitive-agreement condition was a condition

precedent to binding contractual obligations. See id. Adkins assented to the definitive-agreement

condition by signing the LOI, and he signed it before he took any of the actions that together, the

trial court ruled, constituted his acceptance by performance of the Contract offer.6 We assume

without deciding that the trial court correctly ruled that the offer of the Contract was accepted

by Adkins and RivenRock’s performance of three undertakings: (1) RivenRock’s buying

JLR Mansions’ 50% membership interest, (2) RivenRock’s paying Camino Real’s then-existing

financial obligations as they came due, and (3) Adkins’s replacing Dikoff as the personal guarantor

of Camino Real’s land note.

In both the trial court and this Court, Adkins and RivenRock have asserted that the

definitive-agreement condition was satisfied by the sale documents effecting the sale of the

50% membership interest from JLR Mansions to RivenRock. But those sale documents involved

2016 WL 1084165, at *2 (Tex. App.—Austin Mar. 18, 2016, pet. dism’d w.o.j.) (mem. op.).

Adkins and RivenRock’s challenges to the LOI are that it is inapplicable to the Contract or

nonbinding, but they do not challenge whether this LOI language creates a condition so long as

the LOI is indeed applicable to the Contract and binding.

6

We assume without deciding that the Recap and LOI when construed together state a

legally valid offer of contract to Adkins and RivenRock that they accepted.

17

as parties only JLR Mansions and RivenRock. Satisfying the LOI’s definitive-agreement

condition had to have involved Addante and Dyer as well, based on construing the Recap and LOI

together as one. That is because the Contract, if binding, would have required performance by not

only JLR Mansions but also Addante and Dyer, specifically concerning the two-thirds voting

rights, and because nothing in the Recap and LOI when construed together allows for reading the

definitive-agreement condition as one benefitting JLR Mansions alone. Addante and Dyer were

covered by that condition as well.

Because there is no evidence that any definitive agreement was signed between

Addante, Dyer, Adkins, and RivenRock, the definitive-agreement condition precedent did not

occur. Thus, Addante and Dyer cannot have been liable for breach of the Contract. See id. at 673–

76; Emmons v. Ingebretson, 279 F. Supp. 558, 570, 572–73 (N.D. Iowa 1968) (citing and applying

“nearly universal rule,” and collecting case-law and treatise support for same rule, “that

enforceable obligations cannot originate if one party does not intend to be bound prior to the

execution of a written document and such intent is manifested in any way to the other party”);

Conditions precedent, 13 Williston on Contracts § 38:7 (4th ed.) (detailing case in which court

dismissed contract claim because of failure of condition precedent to formation of sublease

contract that required written consent from prime landlord (quoting Oppenheimer & Co. v.

Oppenheim, Appel, Dixon & Co., 660 N.E.2d 415, 416–21 (N.Y. 1995))).

Adkins and RivenRock argue that the LOI as a whole was nonbinding, but that is

untrue under the LOI’s definitive-agreement language. That language says that though the rest of

the LOI is nonbinding, the definitive-agreement condition binds the parties.

Adkins and RivenRock otherwise argue that the LOI was not supported by

consideration, but it was, in that it and the Recap are to be construed together as one instrument.

18

The trial court ruled that the Recap-alone Contract supplied mutual consideration for Addante and

Dyer on one side and Adkins and RivenRock on the other, and we assume that ruling to be correct

without deciding the issue.7 Construing the LOI together with the Recap does not drain the Recap

of its mutual consideration. Thus, any contract to be formed based on the Recap and LOI was not

lacking consideration.

Adkins and RivenRock last argue that we should apply the estoppel rule of Central

Power and Light Co. v. Del Mar Conservation District: that a party is estopped to avoid obligations

under a transaction when the party retains benefits under that transaction. See 594 S.W.2d 782,

791 (Tex. App.—San Antonio 1980, writ ref’d n.r.e.). This brand of estoppel—acceptance of

benefits—“is a species of quasi-estoppel.” Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d

857, 864 (Tex. 2000). As such, it requires proof that the party sought to be estopped is

“maintain[ing] a position inconsistent with one to which he acquiesced, or from which he

accepted a benefit.” Id.; see also Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 548 (Tex.

App.—Austin 1999, pet. denied) (“[Quasi-estoppel] precludes a party from accepting the benefits

of a transaction and then subsequently taking an inconsistent position to avoid corresponding

obligations or effects.”).

Here, there is no evidence of any inconsistent action by Addante and Dyer toward

the Contract. Their consistent position before this suit, while litigating this suit, and on appeal has

been that there is no enforceable contract for two-thirds voting rights in Camino Real but that by

RivenRock’s closing on its agreement to buy the 50% membership interest, RivenRock was

brought under the Camino Real Company Agreement, whose terms provide that transfers of

7

If it is not correct, then the Contract lacks consideration, and Adkins and RivenRock

could not recover on it for that reason.

19

membership interests are subject to the Company Agreement’s terms and that all assignees of

membership interests are bound by the Company Agreement. Their position has been that Adkins

and RivenRock were to perform the three undertakings mentioned above because Adkins and

RivenRock were assuming Dikoff and JLR Mansions’ role under the Company Agreement as the

LLC member mainly responsible for funding the project. This was a consequence, Addante and

Dyer say, of the terms of the Company Agreement and not of the Contract, the latter of which they

challenge. Of course, Adkins and RivenRock dispute this position, and the trial court ruled

inconsistently with it, but this still has been Addante and Dyer’s consistent position. The only

evidence that Adkins and RivenRock raise to support their assertion of estoppel is that Addante

and Dyer have acted as if Adkins or RivenRock must make the payments mentioned or offer the

personal guaranty. But this is no evidence of inconsistency—Addante and Dyer consistently acted

in accordance with their belief that those acts were required under the Camino Real Company

Agreement and that there was no formed contract for the two-thirds voting rights. See Gano v.

Diaz, No. 03-17-00119-CV, 2018 WL 3150988, at *6 (Tex. App.—Austin June 28, 2018, no pet.)

(mem. op.) (evidence did not raise fact issue on inconsistent action by party sought to be estopped);

cf. In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 739 (Tex. 2005) (orig. proceeding) (party’s

actions are inconsistent when party seeks to avoid contract’s arbitration provision while seeking

benefits of same contract). Addante and Dyer thus were not accepting benefits under the Contract.

See Lawson v. Keene, No. 03-13-00498-CV, 2016 WL 767772, at *6 (Tex. App.—Austin Feb. 23,

2016, pet. denied) (mem. op.) (collecting authorities that show that acceptance-of-benefits estoppel

depends on party’s assertion of benefits under terms of contract); Skelton v. Washington Mut. Bank,

F.A., 61 S.W.3d 56, 61 (Tex. App.—Amarillo 2001, no pet.) (applying estoppel rule of Central

Power and Light when party to be estopped was “claiming rights under” instrument at issue).

20

In all, we conclude that because the LOI’s definitive-agreement condition precedent

did not occur, Addante and Dyer were not bound by any obligation to perform under the Contract.

The trial court thus erred to render judgment on the Contract for Adkins and RivenRock. See

Chalker Energy Partners III, 595 S.W.3d at 673 (party seeking to recover under contract bears

burden of proving that all conditions precedent have been satisfied). We sustain the portions of

Addante and Dyer’s appellate issues that advance the LOI to attack the judgment on the Contract,

and we need not reach their other issues that attack the judgment on the Contract for other reasons.8

See Tex. R. App. P. 47.1.

Because of our conclusions, Adkins and RivenRock cannot recover on the Contract.

Breach of contract was, aside from their requests for declaratory relief, the only one of their claims

that was not denied by the trial court’s judgment. Relatedly, much of the relief awarded by the

judgment depends on the existence and enforceability of the Contract. Therefore, in addition to

reversing the portion of the judgment granting judgment on the Contract, we also reverse the

portions of the judgment that (a) declare that RivenRock “is entitled to a 2/3 dictating vote over

financial and larger operational matters of” Camino Real; (b) order that Addante and Dyer

must use their authority as Members and Managers of Camino Real . . . to take

whatever actions necessary, including, but not limited to, executing an amended

operating agreement for Camino Real . . . to admit RivenRock . . . as a Member and

Manager of Camino Real . . . with a 2/3 dictating vote over financial and larger

operational matters of Camino Real;

8

For example, as alternative reasons for why Adkins and RivenRock could not recover in

contract, Addante and Dyer have argued on appeal that the Recap is inadmissible parol evidence

of a contract, they had revoked any offer of the Contract before Adkins and RivenRock accepted

it by performance, their purported offer included more terms than the trial court concluded were

part of the Contract, the Contract was not supported by sufficient consideration, and they lacked

sufficient intent to form the Contract.

21

(c) declare that RivenRock’s “2/3 dictating vote over financial and larger operational matters of

Camino Real . . . will give it the sole power to control the financial and larger operational matters

of Camino Real . . . , regardless of any vote or act of either or both of” Addante and Dyer; and

(d) declare that RivenRock “shall be admitted as a Member and Manager of Camino Real . . . with

a 2/3 dictating vote over financial and larger operational matters of Camino Real . . . without

agreement to be bound by the Company Agreement.” See Craig v. Tejas Promotions, LLC,

550 S.W.3d 287, 297–98 (Tex. App.—Austin 2018, pet. denied) (“While sometimes termed a

‘cause of action’ colloquially, declaratory relief under the UDJA is more precisely a type of remedy

that may be obtained with respect to a cause of action or other substantive right.”). This result is

much like the one explained by our sister court in Clear Lake City Water Authority v. Kirby Lake

Development, Ltd.:

[A] declaratory judgment action is not necessarily an action for affirmative relief.

The relief provided under the Declaratory Judgments Act is remedial only, and it

serves only “to settle and to afford relief from uncertainty and insecurity with

respect to rights, status, and other legal relations.” Here, [Appellant] has requested

that we reverse “the judgment,” which subsumes the declaratory judgment, because

appellees’ contract claims are infirm. The viability of the trial court’s declaration

is wholly dependent upon the existence of the contract liability [Appellant]

challenges. Because we have found [Appellant] is not liable under its contracts

with appellees, the relief granted pursuant to the Act cannot be sustained.

See 123 S.W.3d 735, 755 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (internal citations

omitted) (quoting Republic Ins. Co. v. Davis, 856 S.W.2d 158, 164 (Tex. 1993) (orig. proceeding)).

Camino Real’s appellate issues

As for Camino Real’s appellate issues, it contends in its first two issues and in a

portion of its third that the trial court erred by awarding the relief that RivenRock should be

22

admitted as a Member and Manager of Camino Real under the LLC’s Company Agreement.9 This

relief depends, Adkins and RivenRock’s appellate briefing confirms, on the existence and

enforceability of the Contract—it was sought by Adkins and RivenRock as specific-performance

relief on the Contract. Thus, because we have reversed the judgment on the Contract, we also

reverse the portions of the judgment that order that RivenRock be admitted as a Member and

Manager of Camino Real under the Company Agreement.

In the remainder of its third issue, Camino Real contends that the trial court erred

by awarding relief declaring that RivenRock is not bound by the Camino Real Company

Agreement. We reverse this declaratory relief for the same reasons we reversed the others above—

without a successful underlying claim, Adkins and RivenRock are not entitled to any of the

other declaratory relief awarded by the judgment and that is challenged in this appeal. See Craig,

550 S.W.3d at 297–98; Clear Lake City Water Auth., 123 S.W.3d at 755.

In its final issue, Camino Real contends that the trial court erred by ordering that

the $5-million capital call for Camino Real voted on by Addante and Dyer is void. The court in

its findings and conclusions confirmed that it ordered this relief because by the time of their vote

Addante and Dyer “had already granted RivenRock a 2/3 dictating vote of financial and larger

operational matters of Camino Real” and RivenRock opposed the capital call. But because we

have reversed the judgment on the Contract, Adkins and RivenRock no longer have any successful

claim on which they could base this request for declaratory relief. Thus, this portion of the

9

“A company agreement is enforceable by . . . the limited liability company, regardless

of whether the company has signed or otherwise expressly adopted the agreement.” See Act

of May 9, 2017, 85th Leg., R.S., ch. 74, § 8, sec. 101.052(f), 2017 Tex. Gen. Laws 153, 155

(amended 2023) (version of Tex. Bus. Orgs. Code § 101.052(f) applicable to this suit).

23

judgment voiding the capital call must be reversed.10 See Craig, 550 S.W.3d at 297–98; Clear

Lake City Water Auth., 123 S.W.3d at 755.

We sustain all of Camino Real’s appellate issues.

CONCLUSION

We affirm the portions of the trial court’s judgment that declare “that RivenRock

LLC owns a 50% membership interest in Camino Real Developers, LLC”; deny Adkins and

RivenRock’s claims on which the judgment did not award relief; deny Addante and Dyer’s

counterclaims and Camino Real’s counterclaims; and that order that each side bear their own fees

and costs because no one challenges those portions of the judgment. We reverse the judgment in

all other respects and render judgment that Adkins and RivenRock take nothing on their contract

and declaratory claims.

__________________________________________

Chari L. Kelly, Justice

Before Chief Justice Byrne, Justices Kelly and Theofanis

Dissenting Opinion by Justice Theofanis

Affirmed in part; Reversed and Rendered in part

Filed: April 30, 2025

10

Beyond reversing this item of declaratory relief about the capital call, we express no

opinion one way or the other about the propriety of the capital call.

24