George A. Moran Jr. and Susan K. Moran v. Memorial Point Property Owners Association, Inc. , 2013 Tex. App. LEXIS 9399 ( 2013 )

Affirmed and Opinion filed July 30, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00419-CV
GEORGE A. MORAN, JR. AND SUSAN K. MORAN, Appellants
V.
MEMORIAL POINT PROPERTY OWNERS ASSOCIATION, INC.,
Appellee
On Appeal from the 411th District Court
Polk County, Texas
Trial Court Cause No. CIV 24596
OPINION
In this appeal from the trial court’s judgment following a nonjury trial, the
defendant property owners challenge the trial court’s enforcement of a restrictive
covenant. They contend that the restriction prohibiting their construction of a
fence within twenty-five feet of the platted building set-back line was abandoned,
waived, or ambiguous, and that the trial court additionally erred in admitting the
testimony of an undisclosed witness. We conclude that the restriction is
unambiguous as a matter of law, and that the trial court did not err in concluding
that the restriction had not been abandoned or waived. We further conclude that
the Morans’ appellate complaint about the trial court’s evidentiary ruling does not
comport with the objection that they made at trial, and thus, the issue presented
was not preserved for review. We accordingly affirm the trial court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellants George A. Moran Jr. and Susan K. Moran own a residence on
two lots on Edgewater Drive in the Memorial Point Subdivision in Polk County,
Texas. Among the restrictive covenants imposed by the subdivision’s developer is
the requirement that “[n]o fence, wall or hedge shall be built nearer to any street
than the building set-back line indicated on [the] plat of this Subdivision filed in
the County Clerk’s Office of Polk County, Texas.” According to this plat,
Edgewater Drive was intended to be sixty feet wide, and the set-back line depicted
on the plat is twenty-five feet from the edge of the street. In reality, however, the
paved area of Edgewater Drive is only twenty feet wide.
To help in ensuring compliance with the restrictions, the developer required
plans for improvements to be submitted for review. The developer’s successor,
appellee Memorial Point Property Owners Association, Inc. (“the Association”),
performs this function through its architectural control committee.
In 2007, George sent the property-management company his proposal for
constructing a fence on his property. He stated in his proposal that the fence would
be designed and constructed in accordance with the covenants and restrictions
applicable to his two lots. He attached a copy of a portion of the plat that he had
revised to show the location of his driveway and the proposed location of the
fence. The drawing includes the notations indicating that Edgewater Drive is sixty
2
feet wide, and George drew the location of the proposed fence just inside the set-
back line. The request was forwarded to the Association, which formally approved
the request.1
Before the fence was built, Gloria Barber, a member of the Association’s
board, noticed that the holes for the fence posts appeared to be too close to the
street. She immediately emailed George, who responded that he believed the
building set-back line was twenty-five feet from the center of the road.
The Morans refused to move the fence, and the Association sued to enforce
the restriction. The case was tried without a jury. Evidence admitted at trial
included a drawing that George provided to the company that built the fence.
Unlike the drawing provided to the Association, the notation from the original plat
showing the street to be sixty feet wide has been cut off, and George added
notations indicating that (a) the distance between the center and the edge of the
street was only ten feet, (b) the set-back line was fifteen feet from the street’s edge,
and (c) the fence was to be built thirty feet from the center of the street. In sum,
the undisputed evidence showed that the Association had approved the
construction of a fence twenty-five feet from the edge of the street as platted, but
George’s instructions to the construction company called for the fence to be built
twenty feet from the edge of the street as paved.
Although George admitted at trial that the fence is built forward of the set-
back line, the Morans argued that the restriction had been abandoned or its
enforcement waived, or alternatively, that the restriction was ambiguous. The trial
court ruled in the Association’s favor and ordered the Morans to remove the
1
The approval was a formality because no action had been taken on the request within
thirty days after it was submitted, and thus, under the terms of the restrictive covenants, it
already had been deemed approved.
3
portion of the fence that is forward of the set-back line as shown on the recorded
plat. The trial court additionally ordered the Morans to pay the Association the
attorney’s fees it incurred in enforcing the restriction. At the Morans’ request, the
trial court also issued findings of fact and conclusions of law. The Morans’ motion
for a new trial was overruled by operation of law, and their appeal was transferred
to this court.
II. ISSUES PRESENTED
In their first issue, the Morans assert that the restriction was abandoned and
its enforcement waived because the Association acquiesced in many prior
violations of it. In their second issue, they contend that the restriction is
ambiguous. They argue in their third issue that the trial court erred in allowing the
Association to present trial testimony of an undisclosed expert.
III. STANDARD OF REVIEW
In an appeal from the judgment rendered after a nonjury trial, we review the
trial court’s findings using the same standards of review that apply to a jury’s
verdict. MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 663
n.3 (Tex. 2009) (citing Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994)). To
analyze the legal sufficiency of the evidence supporting a finding, we review the
record in the light most favorable to the factual findings, crediting favorable
evidence if a reasonable factfinder could and disregarding contrary evidence unless
a reasonable factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005). Evidence is legally sufficient if it “rises to a level that would
enable reasonable and fair-minded people to differ in their conclusions.” Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). We will conclude that
the evidence is legally insufficient to support the finding only if (a) there is a
complete absence of evidence of a vital fact, (b) the court is barred by rules of law
4
or evidence from giving weight to the only evidence offered to prove a vital fact,
(c) the evidence offered to prove a vital fact is no more than a mere scintilla, or
(d) the evidence conclusively establishes the opposite of the vital fact. City of
Keller, 168 S.W.3d at 810. On the other hand, a factfinder “may not simply
speculate that a particular inference arises from the evidence.” Serv. Corp. Int’l v.
Guerra, 348 S.W.3d 221, 228 (Tex. 2011). If the evidence does no more than give
rise to mere surmise or suspicion, then it is legally insufficient. Id.
To evaluate the factual sufficiency of the evidence, we consider and weigh
all of the evidence in a neutral light and set aside the challenged finding only if the
evidence is so weak or the finding is so against the great weight and preponderance
of the evidence that it is clearly wrong and unjust. See Dow Chem. Co. v. Francis,
46 S.W.3d 237, 242 (Tex. 2001) (citing Pool v. Ford Motor Co., 715 S.W.2d 629,
635 (Tex. 1986)). We defer to a trial court’s factual findings if they are supported
by evidence. Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex. 2008). We may not
pass upon the witnesses’ credibility or substitute our judgment for that of the
factfinder, even if the evidence clearly would support a different result. Mar.
Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998) (citing Pool, 715
S.W.2d at 634).
We review a trial court’s conclusions of law de novo to determine if the trial
court drew the correct legal conclusions from the facts. BMC Software Belg., N.V.
v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). If the trial court rendered the
proper judgment, we will not reverse it even if the trial court’s conclusions of law
are incorrect. Id.
IV. ANALYSIS
In construing a restrictive covenant, we first determine whether the
challenged restriction is ambiguous. See Am. Golf Corp. v. Colburn, 65 S.W.3d
5
277, 249–80 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). We therefore
begin our review by addressing the Morans’ second issue.2
A. Ambiguity
The Morans contend that the restrictive covenant is too ambiguous to
enforce. See Benard v. Humble, 990 S.W.2d 929, 930 (Tex. App.—Beaumont
1999, pet. denied) (“[S]hould there exist ambiguity or doubt as to intent or
meaning, the covenant is to be strictly construed against the party seeking to
enforce same, and favorably toward the free and unrestricted use of the premises.”)
(citing Wilmoth v. Wilcox, 734 S.W.2d 656, 657 (Tex. 1987)). They assert that
(1) the Association generally has measured the set-back line from the existing
street rather than from a survey; (2) some property owners and former Association
board members consider the restriction to be ambiguous; and (3) the words
“hedge,” “wall,” and “fence” are ambiguous. In support of these assertions, the
Morans cite evidence concerning the way different property owners or board
members have interpreted or applied the provision.
This approach fails because the determination that a restrictive covenant is
ambiguous is not a question of fact; it is a question of law. See Pilarcik v.
Emmons, 966 S.W.2d 474, 478 (Tex. 1998). A covenant is not ambiguous simply
because there may be disagreements about its interpretation. Air Park-Dall.
Zoning Comm. v. Crow Billingsley Airpark, Ltd., 109 S.W.3d 900, 909 (Tex.
App.—Dallas 2003, no pet.). Rather, a covenant is ambiguous only if it is
susceptible to more than one reasonable interpretation. See Pilarcik, 966 S.W.2d
at 478. If it can be given a definite or certain legal meaning, then it is
2
Because this case was transferred to this court from the Ninth Court of Appeals, we
decide the case in accordance with that court’s precedent to the extent of any conflict with our
own precedent. See TEX. R. APP. P. 41.3; Valdez v. Robertson, No. 14-10-00323-CV, 2011 WL
2566277, at *3 (Tex. App.—Houston [14th Dist.] June 30, 2011, no pet.) (mem. op.).
6
unambiguous. Id. To make this determination, a court must examine the
covenants as a whole in light of the circumstances present when the parties entered
the agreement. Id. We liberally construe the covenant’s language to ensure that its
provisions are given effect. Benard, 990 S.W.2d at 930 (citing TEX. PROP. CODE
ANN. § 202.003(a) (West 2007)). We will give the restriction’s language its plain
grammatical meaning unless doing so would defeat the parties’ intentions as
evidenced clearly in other parts of the document. Moore v. Smith, 443 S.W.2d
552, 555 (Tex. 1969).
The restriction at issue unambiguously describes the location of the
applicable set-back line: it is “the building set-back line indicated on [the] plat of
this Subdivision filed in the County Clerk’s Office of Polk County, Texas.” The
plat clearly shows this line’s location twenty-five feet from the edge of the platted
street, which is sixty feet wide. The fact that only twenty feet of the street’s platted
width has actually been paved does not render the set-back line’s location
ambiguous. See State v. NICO-WF1, L.L.C., 384 S.W.3d 818, 821, 823 (Tex.
2012) (explaining that “a street includes the whole width of the public right of
way” and “includes portions not previously used”).
The restriction also identifies the items—fences, walls, and hedges—that
must be behind this set-back line. We give these words their commonly accepted
meaning. See Air Park-Dall., 109 S.W.3d at 909. A “fence” is “a barrier intended
to prevent escape or intrusion or to mark a boundary; [especially] such a barrier
made of posts and wire or boards.” WEBSTER’S NINTH NEW COLLEGIATE
DICTIONARY 456 (1991). A “wall” can include “a masonry fence around a garden,
park, or estate” or “a structure that serves to hold back pressure (as of water or
sliding earth).” Id. at 1326. A “hedge” is commonly defined as “a fence or
boundary formed by a dense row of shrubs or low trees.” Id. at 561.
7
We conclude that the restriction is unambiguously directed to the placement
of a boundary or barrier within twenty-five feet of the edge of the platted street,
regardless of whether the barrier is made of masonry, boards, wire, or densely
planted shrubbery. We therefore overrule the Morans’ second issue.
B. Abandonment and Waiver
To determine whether a restrictive covenant has been abandoned or its
enforcement waived, we consider such factors as “the number, nature, and severity
of the existing violations, any prior enforcements of the restriction, and whether it
is still possible to realize to a substantial degree of the benefits of the restriction
despite the violations.” Architectural Control Comm. of Oak Terrace Estates v.
McCormick, No. 09-10-00495-CV, 2011 WL 5588733, at *1 (Tex. App.—
Beaumont Nov. 17, 2011, no pet.) (mem. op.) (citing Finkelstein v. Southhampton
Civic Club, 675 S.W.2d 271, 278 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d
n.r.e.)). To defeat enforcement of the restrictive covenant at issue, the property
user “‘must prove that violations then existing are so great as to lead the mind of
the “average man” to reasonably conclude that the restriction in question has been
abandoned and its enforcement waived.’” Martin v. Romero, No. 09-10-00496-
CV, 2011 WL 1304881, at *3 (Tex. App.—Beaumont Apr. 7, 2011, no pet.) (mem.
op.) (quoting Finkelstein, 675 S.W.2d at 278).
The Morans argue that the particular restrictive covenant at issue here has
been waived or abandoned, and they challenge the trial court’s factual finding that
(1) the Morans failed to conclusively establish the existence of other violations; or
(2) the other alleged violations were “de minimus in light of the number of lots in
the Subdivision” and would not lead an average person to reasonably conclude that
the Association had abandoned the restriction or waived its enforcement. Because
the Association admits to at least one other violation of the restriction, the evidence
8
is legally insufficient to support the portion of the finding in which the trial court
stated that the Morans failed to conclusively establish the existence of other
violations. In a civil case, however, we may not reverse the judgment due to the
trial court’s error of law unless the error probably (1) caused the rendition of an
improper verdict, or (2) prevented the appellant from properly presenting the case
on appeal. TEX. R. APP. P. 44.1(a). The Morans do not contend that the trial
court’s erroneous factual finding prevented them from properly presenting their
case on appeal, and because the judgment could be supported by an alternative
factual finding, it cannot be said that the error probably resulted in the rendition of
an improper judgment if the alternative finding is supported by the evidence. We
therefore determine if the evidence supports the trial court’s alternative finding that
the other alleged violations were not so great as to lead the average person to
reasonably conclude that the restriction had been waived or abandoned.
The Morans assert that the evidence they introduced at trial shows a
violation rate of at least 11.8% and possibly as high as 37.5%, depending on
whether one considers all lots in the subdivision or only the developed lots on the
street where the Morans’ property is located. At trial, they introduced photographs
and documents that they characterized as evidence of preexisting violations on
approximately twenty properties, including a prior alleged violation on their own
property. The Morans also introduced a “photograph index” assigning a number to
each property that was the site of an alleged preexisting violation.3 The Morans
identified their own property as Photo No. 1, and argued at trial that a preexisting
3
To enable the parties to identify each alleged violation to which we refer in our
discussion, we have included footnotes identifying each by the photograph number that the
Morans assigned to it. The number of properties and violations is not the same as the numbers
stated in the index; some numbers correspond to more than one photograph and other numbers
correspond to a single photograph in which more than one property or alleged violation is shown.
In addition, the Morans have conceded that Photo No. 10 was taken in a reserve area to which
the restrictive covenant does not apply.
9
hedge on their property and the alleged violations on other properties shown in
Photo Nos. 2 through 20 establish that the violations of the restrictive covenant are
so numerous, severe, and longstanding as to result in its waiver or abandonment.
1. Objects Other Than Fences, Walls, and Hedges
The evidence is legally and factually sufficient to support the trial court’s
implied findings that in seven photographs allegedly showing violations of the
deed restriction, the object depicted is not a “fence, wall, or hedge.” Three are
photographs of houses, which are subject to a different restrictive covenant.4 One
photograph is a picture of a set of lights and another is a photograph of a
footbridge.5 Two photographs are pictures of gardens.6 In one of the photographs
of a garden, a second alleged violation is visible on the adjacent property.7 This
alleged violation consists of some foliage partially camouflaging utility boxes at
the front of a residential lot. As previously discussed, however, a “hedge” is
commonly defined to consist of more than one plant. See also WEBSTER’S NEW
WORLD COLLEGE DICTIONARY 624 (3d ed. 1996) (defining “hedge” as “a row of
closely planted shrubs, bushes, or trees forming a boundary or fence”). It is
unclear from the photograph alone whether the foliage is a single plant or several;
however, the violation is identified on the photographic index not as a hedge but as
a “planting,” and in his testimony George Moran referred to it as a “bush” and as a
“plant.” On this record, the evidence is legally and factually sufficient to support
the trial court’s implied finding that this was a single plant rather than a hedge.
4
These were shown in Photo Nos. 12, 13, and 14.
5
The lights are shown in Photo No. 19 and the footbridge is in Photo No. 20.
6
These are in Photo Nos. 16 and 18.
7
The Morans contend that Photo No. 18 shows two violations.
10
2. Speculative Violations
Four of the remaining alleged violations consist of hedges, walls, or fences
that George Moran testified were at least twenty-five feet from the edge of the
paved street.8 As previously mentioned, however, the paved street is only twenty
feet wide, whereas the restrictive covenant provides that the set-back line is
twenty-five feet from the edge of the street as platted, and the plat shows a street
sixty feet wide. The edge of the paved street might or might not align with the
edge of the platted street; thus, if the fence, wall, or hedge is located at least
twenty-five feet from the edge of the paved street and the evidence does not show
the location of the edge of the platted street, the existence and extent of any
violation is a matter of speculation. Because there is no evidence showing the
distance between the platted street and the challenged hedge, wall, or fence on the
property, the record does not establish that they are forward of the set-back line.
3. Alleged Violations of a Different Nature
In determining whether a restriction has been abandoned or its enforcement
waived, courts consider the nature of other alleged violations. Of the alleged
violations on the remaining properties, four are of a different nature than that of the
fence erected by the Morans across the front of their property. These alleged
violations consist of fences enclosing utility equipment9 or of walls, fences, and
8
These include Photo Nos. 3, 4, 6, and 7. Photo No. 3 shows a hedge and retaining wall
that were said to be more than thirty-six feet from the edge of the paved street. Photo No. 4
concerns a fence that was originally thirty-five feet from the edge of the paved street, but was
later moved to be forty-five feet from the edge of the paved street. The fence in Photo No. 6 is
twenty-five feet from the edge of the paved street, and the retaining wall in Photo No. 7 is
twenty-seven feet from the edge of the street.
9
These are found on properties burdened by utility easements that are ten feet wide and
that cross the front of the properties, but because the record does not show the distance between
the platted street and the enclosures, it is unknown whether the enclosures pictured are located in
the utility easements.
11
hedges that are perpendicular to the street. These instances are so unlike the
erection of a fence along the street on the front of a residential lot that the average
man would not reasonably conclude from these instances that the restriction
barring the construction of such a fence was abandoned or its enforcement waived.
The evidence of the first of these alleged violations is a photograph of a
chain-link fence around utility boxes that are bordered on one side by a street and
on another side by a parking lot.10 The photograph shows that the chain-link fence
acts as a barrier between the utility boxes and the street and parking lot abutting the
sides of the equipment. Photographs of the second such alleged violation show a
board fence around the “MUD Pumping Station Utilities” at the edge of the paved
area of a private street.11 The photographs show that the paved area extends along
two sides of the pumping station,12 and just as in the first such alleged violation,
the fence encloses and protects the utility equipment from vehicles traveling on the
adjacent streets or parking areas. The alleged violations that consist of fences,
walls, or hedges perpendicular to the street include a preexisting hedge on the
Morans’ property13 and a retaining wall that separates a downward-sloping
driveway from the yard of a neighboring lot at a higher elevation.14
Even if the average man could reasonable conclude from these alleged
violations that the Association had waived enforcement of the deed restriction as to
fences enclosing utility equipment or regarding fences, walls, and hedges
10
This is identified as Photo No. 11.
11
Collectively, these two photographs were identified as Photo No. 9.
12
The paved area on one side of the fence is Heather Lane. It is not clear from the
photographs whether the paved area on the adjacent side is a parking area or just the point at
which Heather Line widens and terminates in a cul-de-sac.
13
This is shown in the set of photographs identified as Photo No. 1.
14
This is shown in Photo No. 8.
12
perpendicular to the street—questions that are not presented here—we conclude
that the nature of these alleged violations is so different that the average man
seeing these would not conclude that the restriction had been waived or abandoned
as to fences, walls, or hedges across the front of a residential lot, i.e., those that are
approximately parallel to the street.15 See Witmer v. McCarty, 566 S.W.2d 102,
103–04 (Tex. Civ. App.—Beaumont 1978, no writ) (considering a restriction’s
purpose and concluding that “self-contained recreational trailers, ‘barbeque
trailers,’ and boat trailers” did not violate a restriction “directed at immobilized
‘trailers’ designed and being used for residential purposes”).
4. Remaining Alleged Violations
The Association conceded that a combined fence and hedge on another
property violated the deed restriction, and the property owner complied with the
Association’s request to move it.16 In addition, four of the Morans’ set of twenty
photographs depict fences, walls, or hedges parallel to the street. One such
photograph shows a row of low trees planted close together so as to separate a yard
from a drainage ditch.17 Another shows a group of bushes or trees and is
accompanied by a copy of a letter to the property owner in which the Association
characterized the plants as a hedge and required their removal.18 Evidence of an
additional violation can be found in a photograph showing undeveloped lots into
which low stakes have been driven.19 Wire strung between the stakes forms a sort
15
The Morans’ property consists of two adjacent residential lots located in the curve of a
street. Because the fence consists of interconnected straight panels, each of which is several feet
wide, the fence is angular and does not exactly parallel the street.
16
This is shown in the set of photographs identified as Photo No. 2.
17
This is shown in Photo No. 17.
18
The Association treated the plants shown in Photo No. 15 as a violation of the
restriction.
19
This is shown in Photo No. 5.
13
of low fence, and testimony at trial established that this was done to create a barrier
to prevent people from driving across the property. Although it was not numbered
as a separate violation, both parties also introduced photographs of a retaining wall
that forms a right angle on a corner lot parallel to the intersecting streets. 20 These
photographs arguably show an additional violation.
The trial court reasonably could have concluded that these five instances do
not show such a severe and pervasive pattern of violations that an average person
would conclude that the restriction had been abandoned or that its enforcement had
been waived. Because the subdivision contains approximately 500 properties,
about 110 of which have been developed, the above alleged violations represent
1.00% of the entire subdivision and 4.55% of developed properties. Even if one
were to limit the area under review to the Morans’ block as they suggest, there is
only one violation on the thirty-six lots of Block 11, which represents a violation
rate of just 2.78%. Such a rate does not support the Morans’ argument that the
Association abandoned or waived the restriction. See Tanglewood Homes Ass’n,
Inc. v. Henke, 728 S.W.2d 39, 44 (holding that enforcement of restriction requiring
the main residence to be built behind the building set-back line was not waived
where the violations occurred in 5/56 of the homes—8.93%—and all violations
were minor); Stephenson v. Perlitz, 537 S.W.2d 287, 289–90 (Tex. Civ. App.—
Beaumont 1976, writ ref’d n.r.e.) (holding that there was no acquiescence in
existing violations where evidence showed that less than 9% of lots in the entire
subdivision had violations of the one-residence restriction). See also Uptegraph v.
Sandalwood Civic Club, 312 S.W.3d 918, 935–36 (Tex. App.—Houston [1st Dist.]
2010, no pet.) (“Texas courts have found that violation rates ranging from 1.9% to
8.9% were not sufficient to support waiver and abandonment . . . .” (quoting City
20
Photographs of this retaining wall are included in Photo No. 2 and in Plaintiff’s Exhibit
17.
14
of Houston v. Revels, No. 14-99-00139-CV, 2001 WL 699546, at *2 (Tex. App.—
Houston [14th Dist.] June 21, 2001, pet. denied) (not designated for publication))).
We overrule the Morans’ first issue.
C. Admission of Undisclosed Witness’s Testimony
Finally, the Morans contend that the trial court reversibly erred in permitting
the Association’s undisclosed expert witness to testify over their objection. We
review the trial court’s evidentiary rulings for abuse of discretion. See Serv. Corp.
Int’l, 348 S.W.3d at 235; Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 667 (Tex.
App.—Houston [14th Dist.] 2012, pet. denied). A trial court abuses its discretion
when it acts without regard to any guiding rules or principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). We will
reverse an evidentiary ruling only if it probably caused the rendition of an
improper judgment. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906
(Tex. 2000).
At trial, the Association introduced the testimony of surveyor Earline
McLeod, and the trial court overruled the Morans’ objection that the Association
had not identified McLeod as a witness with knowledge of relevant facts. On
appeal, however, the Morans challenge the trial court’s ruling on the ground that
the Association failed to designate McLeod as an expert witness. Because their
appellate complaint does not comport with the objection they raised at trial, this
issue has not been preserved for our review. See TEX. R. APP. P. 33.1(a); Jurek v.
Herauf, No. 14-07-00727-CV, 2009 WL 179204, at *2 (Tex. App.—Houston [14th
Dist.] Jan. 27, 2009, no pet.) (objection in trial court that person was not identified
as a fact witness does not preserve appellate complaint that person was not
identified as an expert witness); Kershner v. State Bar of Tex., 879 S.W.2d 343,
347 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (same). We accordingly
15
overrule the Morans’ third issue.
V. CONCLUSION
The restrictive covenant at issue is unambiguous; the record supports the
trial court’s findings that the restriction has not been waived or abandoned; and the
Morans’ evidentiary complaint was not preserved for review. We therefore affirm
the trial court’s judgment.
/s/ Tracy Christopher
Justice
Panel consists of Justices Brown, Christopher, and McCally.
16