scott-r-leake-and-susan-e-leake-individually-and-on-behalf-of-the ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00278-CV
SCOTT R. LEAKE AND SUSAN E. APPELLANTS
LEAKE, INDIVIDUALLY AND ON
BEHALF OF THE
ARCHITECTURAL CONTROL
COMMITTEE OF THE SUNNY
MEADOWS ADDITION
V.
THERMAN M. CAMPBELL, JR. AND APPELLEES
SUSAN M. CAMPBELL
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FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
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OPINION
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Appellants Scott R. and Susan E. Leake, individually and on behalf of the
Architectural Control Committee of Sunny Meadows Addition, appeal from the
trial court’s summary judgment in favor of appellees Therman M. and Susan M.
Campbell. In two issues, the Leakes claim that the trial court reversibly erred by
denying their motion for summary judgment while granting the Campbells’ and by
awarding attorney’s fees to the Campbells. We reverse and remand.
Background Facts
The Campbells purchased their home at 3102 Sunny Meadows Court,
Dalworthington Gardens, Tarrant County, Texas, on December 27, 2007. The
Leakes are the Campbells’ neighbors and have lived at 3104 Sunny Meadows
Court since July 31, 1990. The housing community in which they all reside,
Sunny Meadows Addition, is subject to recorded deed restrictions. The part of
the restrictive covenants that are pertinent to this case are the following:
For the purpose of creating and carrying out a uniform plan for the
improvements and sale of the lots, blocks and homesite tracts to be
made from the land described herein, the following restrictions upon
the use of said property are hereby established and shall be referred
to, adopted and made a part of each and every contract and deed
executed. . . .
....
(3) No structure shall be erected, altered, placed or permitted to
remain on any lot carved from the above described property other
than one single family dwelling not to exceed (except by
Architectural Control Committee approval) two stories in height,
private attached or detached garage or carport for not more than
four (4) cars facing a direction other than the street, and reasonable
outbuildings for single family use. . . .
(4) No house, dwelling and/or other structure of any kind or
character whatsoever may be moved into any lot carved out of the
property described herein.
....
Architectural Control: No building shall be erected, placed or altered
on any lot until the construction plans, specifications, and a plan
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showing the location of the structure shall have been approved by
the Architectural Control Committee. . . . Approval shall be as
provided in Paragraph 3 below.
Procedure: Committee’s approval for [sic] disapproval as
required by this covenant shall be in writing. In the event the
committee or it’s [sic] designated representative fails to approve or
disapprove within 15 days after plans, specifications and plot plan
have been submitted to it or in any event if no suit to enjoin the
construction has been commenced prior to the completion thereof,
approval will not be required and the restrictive covenants herein
contained shall be deemed to have been fully complied with.
(4) These restrictions are for the benefit of and shall inure to each
and every property owner in this addition, and may be enforced by
anyone [sic] or more of such property owners and they shall be
allowed to recover from a violating party, all costs and attorney fees
and out-of-pocket expenses incurred in enforcement of any
covenants herein whether by judicial means or settlement.
[Emphasis added.]
The Campbells claim that they were unaware of the deed restrictions when
they purchased their property while the Leakes claim that they specifically chose
the community because of its deed restrictions.
After the Campbells purchased their home, they sought to make
improvements to the property. On January 8, 2008, Tuff Shed constructed a
storage shed on the Campbells’ property. According to Therman Campbell, Tuff
Shed employees constructed the shed on-site.1 In addition to the shed, Therman
wished to build a carport and shelter for his motor home. As a first step, he
began to pour a concrete pad and driveway on January 21, 2008; he completed
1
The Leakes claim that the shed was preassembled off-site and placed on
the Campbells’ property.
3
the work on January 26, 2008. Next, Therman purchased a spa, along with a
cabana to cover and enclose the spa, on February 4, 2008. The installation of
the spa and construction of the cabana both occurred on February 11, 2008.
Lastly, Therman sought to have an RV shelter installed. Before doing so,
Therman approached Scott Leake in April 2008 seeking approval for his plans.
Scott conveyed his disapproval with the plans and directed Therman’s attention
to the restrictive covenants barring this type of construction. According to Scott,
immediately after this conversation, he informed ACC member Mark Appling of
Therman’s plan to construct an RV shelter. According to Appling, he went to the
Campbells’ home that same day and informed Therman of the restrictive
covenants and the likelihood that the RV shelter would be in violation of those
restrictive covenants. Within a week Appling hand delivered a copy of the
restrictive covenants to Therman. Therman nevertheless had the RV shelter
constructed on May 5, 2008.
On May 10, 2008, Appling went to the Campbells’ home and informed
them that the shed, cabana, and RV shelter were not in compliance with the
restrictive covenants. On the following day, Therman wrote to the ACC
requesting a variance for the three structures. On or about May 20, 2008,
Therman received a letter from Kerry Moseley, a member of the ACC and one of
the developers of the subdivision, informing Therman that his request for a
variance was denied and instructing the Campbells to remove the shed, cabana,
and RV shelter at once. The letter went on to specify the reasons for denying the
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Campbells’ variance, which included not seeking the ACC’s approval before
installation and construction of the three structures. Campbell responded with
another letter, imploring the ACC to reconsider its findings. The ACC remained
unpersuaded, and the structures remained on the Campbells’ property.
The Leakes sued the Campbells on November 13, 2008, seeking a
declaratory judgment that the structures are in violation of the restrictive
covenants, a permanent injunction ordering the Campbells to remove the
structures, and attorney’s fees. The Campbells filed their first amended original
answer and counterclaim on November 30, 2009, in which they raised the
affirmative defenses of waiver, estoppel, and violation of section 202.004(a) of
the property code and also pled for attorney’s fees under the Uniform Declaratory
Judgments Act. Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2008); Tex.
Prop. Code Ann. § 202.004(a) (West 2007) (“An exercise of discretionary
authority by a property owners’ association or other representative designated by
an owner of real property concerning a restrictive covenant is presumed
reasonable unless the court determines by a preponderance of the evidence that
the exercise of discretionary authority was arbitrary, capricious, or
discriminatory.”). The Campbells then filed a traditional summary judgment
motion claiming that the structures were deemed approved under the deed
restrictions because the lawsuit had not been filed until after the completion of
construction. The Leakes filed a response and their own traditional and no-
evidence motions for summary judgment, claiming that the structures violate the
5
restrictive covenants as a matter of law and that the Campbells had not brought
forward any evidence of a waiver of a right to enforce the restrictive covenants or
a violation of property code section 202.004(a). At the conclusion of a hearing on
both motions, the trial court granted the Campbells’ motion for summary
judgment, denied the Leakes’ motion, and awarded the Campbells attorney’s
fees in the amount of $10,348 and costs of $305.32.
Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively
negates at least one essential element of a cause of action is entitled to
summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d
494, 508 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ. P.
166a(b), (c).
When both parties move for summary judgment and the trial court grants
one motion and denies the other, the reviewing court should review both parties’
summary judgment evidence and determine all questions presented. Mann
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Frankfort, 289 S.W.3d at 848; see Myrad Props., Inc. v. Lasalle Bank Nat’l Ass’n,
300 S.W.3d 746, 753 (Tex. 2009). The reviewing court should render the
judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d
at 848.
Propriety of Summary Judgment for the Campbells
In their first issue, the Leakes claim that the trial court erred in granting
summary judgment to the Campbells and denying their motion for summary
judgment because the court based its decision on an erroneous construction of
the restrictive covenants.
Interpretation of Restrictive Covenants
We review a trial court’s interpretation of a restrictive covenant de novo.
Raman Chandler Props, L.C. v. Caldwell’s Creek Homeowners Ass’n, 178
S.W.3d 384, 390–91 (Tex. App.––Fort Worth 2005, pet. denied); Air Park–Dallas
Zoning Comm. v. Crow Billingsley Airpark, Ltd., 109 S.W.3d 900, 909 (Tex.
App.––Dallas 2003, no pet.). We construe restrictive covenants in accordance
with general rules of contract construction. Pilarcik v. Emmons, 966 S.W.2d 474,
478 (Tex. 1998); Raman Chandler, 178 S.W.3d at 391. Whether restrictive
covenants are ambiguous is a question of law. Raman Chandler, 178 S.W.3d at
391; Dyegard Land P’ship v. Hoover, 39 S.W.3d 300, 308–09 (Tex. App.––Fort
Worth 2001, no pet.). A covenant is unambiguous as a matter of law if it can be
given a definite or certain legal meaning. Pilarcik, 966 S.W.2d at 478; Raman
Chandler, 178 S.W.3d at 391. Mere disagreement over the interpretation of a
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restrictive covenant does not render it ambiguous. Air Park–Dallas, 109 S.W.3d
at 909. An unambiguous restrictive covenant should be liberally construed to
give effect to its purpose and intent. Tex. Prop. Code Ann. § 202.003(a) (West
2007); Dyegard Land P’ship, 39 S.W.3d at 308–09.
Analysis
Here, both motions for summary judgment hinge on the proper
interpretation of the “in any event” deemed approval provision found under the
right to enforce section of the restrictive covenants:
In the event the committee or its [sic] designated representative fails
to approve or disapprove within 15 days after plans, specifications
and plot plan have been submitted to it or in any event if no suit to
enjoin the construction has been commenced prior to the completion
thereof, approval will not be required and the restrictive covenants
herein contained shall be deemed to have been fully complied with.
[Emphasis added.]
While each party agrees that the language is unambiguous, each interprets it
differently. The Leakes contend that the deemed approval language is effective
only after plans and specifications have been submitted to the ACC in writing by
a homeowner. Thus, under the Leakes’ interpretation, the “in any event”
language does not apply to situations in which the homeowner fails to seek
approval before beginning and completing construction. On the other hand, the
Campbells claim that in conformance with this court’s opinion in Buckner v.
Lakes of Somerset Homeowners Ass’n, 133 S.W.3d 294 (Tex. App.––Fort Worth
2004, pet. denied), the phrase allows for deemed approval of violations in any
situation other than those in which the ACC has given its approval or has failed to
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disapprove of plans, e.g., when the ACC disapproves but fails to enjoin
construction of violating structures before their completion. According to the
Campbells, it does not matter whether plans are submitted before construction
because a plain reading of “in any event” suggests an acceptance of all
scenarios. The Leakes claim Buckner should not control here.
As both parties make clear in their respective briefs, our decision turns on
our prior opinion in Buckner. In Buckner, a homeowner sought approval of a
roofing material from the subdivision’s ACC but began installing the roof without
waiting for the ACC’s decision. Id. at 295. The ACC eventually disapproved the
roofing materials, but the homeowner continued to complete the roof with the
disapproved materials. Id. Although communications between the homeowner
and ACC took place over the course of at least a month, the homeowners’
association did not file suit until after the homeowner had completed the roof. Id.
at 295–96, 298. The “deemed approval” language in that case stated as follows:
[N]or shall any exterior addition to or change or alteration therein be
made until the details . . . shall have been submitted to and
approved in writing . . . by [the ACC]. . . . In the event the [ACC] fails
to approve or disapprove any such detail, design, plan, specification
or location within thirty (30) days after submission to it, or in any
event if no suit to enjoin has been commenced prior to the
completion thereof, approval will not be required and this Article will
be deemed to have been fully complied with.
Id. at 296–97.
We held that the above language
is unambiguous. After describing one manner in which approval will
be deemed, in the event the ACC fails to approve or disapprove
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submitted plans within 30 days after submission, the article
continues by describing another manner of deemed approval:
LSHOA’s failure to file suit before the roof is complete. The use of
the word “any” shows an intent to describe all scenarios other than
those in which the ACC gives its explicit approval or fails to
disapprove submitted plans within 30 days: when the homeowner
has not complied with Article VI by requesting preapproval or when
the ACC has denied approval and the homeowner continues making
alterations in accordance with the disapproved plans. LSHOA’s
proposed interpretation would render the “in any event” language
meaningless; if the ACC does not approve or disapprove of the
submitted plans within 30 days, the plans are deemed approved in
accordance with Article VI. Thus, a subsequent suit to enjoin
activities completed in accordance with such plans would be
pointless because LSHOA would lose.
LSHOA contends that Pilarcik v. Emmons controls this issue
because the supreme court construed the same language in that
case and determined that “the covenants [in that case] dictate
default consequences in the event the ACC does not act swiftly
enough.” 966 S.W.2d at 480. The covenant in Pilarcik is almost
identical to the covenant in this case. LSHOA contends that the
quoted language indicates that “default consequences” should occur
only if the ACC does not approve or disapprove of a homeowner’s
plans timely enough. However, in Pilarcik a group of individual
homeowners, rather than the homeowners association, sued the
nonconforming homeowner, and the issue was whether the ACC
could grant approval of nonconforming materials after the 30 day
period had expired. Id. at 476, 479–80. The homeowners filed suit
when the roof was 98 percent complete; thus, the second part of the
covenant, which is at issue in this case, was not at issue in that
case. Id. at 477. Further, the quoted language from Pilarcik
supports our conclusion: by not filing suit before the Buckners
completed construction of their new roof, i.e., by not acting swiftly
enough, LSHOA may suffer default consequences, i.e., the
nonconforming roofing materials being deemed approved.
Id. at 297–98 (underlining added).
We agree that if we were bound to follow the underlined language above in
Buckner, we would affirm the summary judgment for the Campbells. However, a
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more careful reading of the restrictive covenants in Buckner and in this case
compels us to conclude that the underlined language above was not necessary
to the disposition in Buckner and was, therefore, dictum. In addition, that
underlined language conflicts with another provision of the restrictive covenants
in this case and in Buckner. In the present case, the provision reads,
[T]he owner or owners of any of the above land shall have the
right to sue for and obtain an injunction, prohibitive or mandatory, to
prevent the breach of or to enforce the observance of the
restrictions, in addition to ordinary legal actions for damages, and
failure to of the parties or owner or owners of any of the lot or
lots . . . to enforce any of the restrictions herein set forth at the time
of its violation shall in no event, be deemed to be a waiver of a right
to do so thereafter.
[Emphasis added.] The covenants in Buckner contained substantially similar
language. See Moore v. Zeller, 153 S.W.3d 262, 264 (Tex. App.––Beaumont
2004, pet. denied) (holding that appellate court may judicially notice its own
records); Stroud v. VBFSB Holding Corp., 917 S.W.2d 75, 78 (Tex. App.––San
Antonio 1996, writ denied) (holding same).
In the present case, the no-waiver language is found in the first section of
the Right to Enforce section of the restrictions. The language about deemed
approval is found two sections later in the Architectural Control Committee
section that discusses the procedure for approval or disapproval of plans that are
actually presubmitted to the ACC for review. To construe these seemingly
conflicting provisions in a way that does not render the covenants meaningless
compels only one conclusion: the “in any event” deemed approval language
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applies only when a homeowner actually submits plans to the ACC for matters
which require preapproval by the ACC and the ACC fails to act within the
specified time period. See Pavecon, Inc. v. R-Com, Inc., 159 S.W.3d 219, 222
(Tex. App.––Fort Worth 2005, no pet.) (“We are to interpret a contract in such a
manner that none of its provisions will be rendered meaningless.”); see also MCI
Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex. 1999).2 In
other words, the no-waiver language applies generally, and the “in any event”
language is a carveout that applies only if the ACC has been put on notice that a
homeowner is seeking to make alterations that require approval under the
applicable restrictions. This is not to say that the analysis or result in Buckner
was incorrect, but only that the statement that the “in any event” deemed
approval language applies even “when the homeowner has not complied with
Article VI by requesting preapproval” was unnecessary and not applicable to the
facts before the court in that case. Therefore, we now limit the holding in
Buckner to apply only to scenarios in which a property owner subject to
restrictions that contain substantially similar “in any event” language seeks
2
Courts in other states have come to the same conclusion. See Bramlett v.
Dauphin Island Prop. Owners Ass’n, 565 So. 2d 216, 218 (Ala. 1990); Carriage
Hills Golf and Country Club, Inc. v. Hertz, 305 So. 2d 287, 288–89 (Fla. Dist. Ct.
App. 1974); Emonet v. Tomlinson, 163 So. 2d 382, 384–85 (La. Ct. App.), writ
ref’d, 246 La. 591 (1964); Keller v. Branton, 667 P.2d 650, 652–53 (Wyo. 1983).
But see Garden Quarter I Ass’n v. Thoren, 394 N.E.2d 878, 880–81 (Ill. 1979);
Aurora Shores Homeowners Ass’n v. Hardy, 37 Ohio App. 3d 169, 69–70 (Ohio
Ct. App. 1987). The Illinois and Ohio cases do not say whether the restrictive
covenants in those cases contained saving “no waiver” language as did the
restrictive covenants here.
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preapproval from the ACC as required by the restrictions and nevertheless
completes the construction without the ACC’s approval before the ACC files a
suit to enjoin the construction.3
Here, unlike in Buckner, the Campbells never sought the ACC’s approval
before commencing construction of the shed, cabana, and RV shelter. Only after
construction was completed, and after the ACC sent a letter demanding removal
of the three structures, did the Campbells seek a variance. Thus, the “in any
event” language was never triggered in this case, and the ACC was not required
to file suit to enjoin the Campbells’ construction before that construction was
completed.
Accordingly, we conclude and hold that the trial court erred by granting the
Campbells’ summary judgment. We sustain the Leakes’ first issue in part.
Propriety of Denial of Leakes’ Motion for Summary Judgment
The Leakes also contend in their first issue that the trial court erred by
denying their traditional and no-evidence motions for summary judgment.
In their traditional motion for summary judgment, the Leakes claim that
they conclusively proved that the RV shelter, cabana, and shed violate the
restrictive covenants. Specifically, they argue that the RV shelter is a private
carport facing the street in violation of article 1, section 3 of the restrictions, that
3
We also note that Buckner did not involve a scenario in which construction
was begun or completed in a clandestine manner or in which construction was
capable of completion within a day or a few hours. See Riordan v. Hale, 212
S.E.2d 65, 67–68 (Va. 1975).
13
the cabana covering the spa and the Tuff Shed are not “reasonable outbuildings
for single family use” as allowed by article 1, section 3, and that the cabana and
shed were preassembled off-site and moved onto the property in violation of
article 1, section 4 of the restrictions. In addition, they also claim that the Tuff
Shed violates article 1, section 9’s prohibition against roofs having asphalt
composition shingles.4
The Leakes contend that the shed, cabana, and RV shelter violate article
1, section 3 of the covenants, which provide as follows:
No structure shall be erected, altered, placed or permitted to remain
on any lot carved from the above described property other than one
single family dwelling not to exceed (except by Architectural Control
Committee approval) two stories in height, private attached or
detached garage or carport for not more than four (4) cars facing a
direction other than the street, and reasonable outbuildings for single
family use.
According to the Leakes, the shed and cabana are not “reasonable outbuildings,”
and the RV shelter is an impermissible carport or garage facing the street. The
Leakes did attach a photograph to their motion for summary judgment, which
appears to be of the side of the RV shelter and which appears to show that it is
partially enclosed about halfway down the sides and that at least part of the
structure is open to the street; the shelter, however, according to the Leakes’
own summary judgment evidence is on the back quarter of the Campbells’
4
The Leakes did not move for summary judgment on the ground that the
structures were in violation of paragraph 2 of the Right to Enforce section of the
restrictive covenants.
14
property, is separated from the street by a private driveway and is further
separated from the driveway by an open metal fence.
The Leakes did not present any evidence that a storage shed or cabana
would not be a “reasonable outbuilding[] for single family use.” Black’s Law
Dictionary defines an outbuilding as “[a] detached building (such as a shed or
garage) within the grounds of a main building.” Black’s Law Dictionary 1211 (9th
ed. 2009). The Leakes attached to their motion a drawing showing that the shed
and cabana are located directly behind the residence such that it is unlikely that
they are visible from the majority of the street frontage. But they did not provide
any photographs of the shed or cabana, and, thus, no evidence that their size is
inherently unreasonable; neither did they bring forward any evidence that those
buildings would be used for any purpose other than “single family use.”
Furthermore, they have not provided any evidence that use of a cabana to cover
a spa or a shed for storing personal belongings is a per se unreasonable use for
a residence.
As to the RV shelter, the restrictive covenants provide that any detached
garage or carport must not face the street. Article 1, section 17 of the restrictive
covenants provides that a “motor home or any recreational vehicle . . . . must be
stored or parked in a fenced or enclosed area in the back 1/4 of the property or
the garage as space will allow.” Thus, the restrictions allow a homeowner to
place a “fenced or enclosed area” separate from a garage on the back one-fourth
of the homeowner’s property for the purposes of parking a recreational vehicle.
15
Article 1, section 17 does not contain the same prohibition on facing the street as
to the “fenced or enclosed area” used for parking an RV as it does for a detached
garage or carport. Thus, although the Leakes do not specifically state their
argument this way, they must be contending that because the shelter more
resembles a carport than a “fenced or enclosed area,” it is subject to the
restriction that it not face the street.
The restrictive covenants do not define “enclosed area.” Black’s Law
Dictionary defines an “enclosure” as “[l]and surrounded by some visible
obstruction” or “[a]n artificial fence around one’s estate.” Black’s Law Dictionary
607 (9th ed. 2009). It defines “enclose” as “[t]o surround or encompass; to fence
or hem in on all sides.” Id. Webster’s Dictionary defines “enclosure” as “the act
or action of enclosing: the quality or state of being enclosed; something that
encloses; something enclosed.” City of Alamo Heights v. Boyar, 158 S.W.3d
545, 551 (Tex. App.––San Antonio 2005, no pet.) (quoting Webster’s Ninth New
Collegiate Dictionary 409 (9th ed. 1991)). It further defines “enclose” as “to close
in: surround; to fence off (common land) for individual use; to hold in: confine.”
Id.
In Boyar, the San Antonio Court of Appeals held that homeowners who
erected screens over the top and sides of their backyard sufficiently enclosed the
backyard so that the screens could be considered an “enclosure” for city
ordinance purposes even though wind, rain, and sunlight could still enter their
yard. 158 S.W.3d at 548 & n.1, 551–52. However, in a criminal case construing
16
the meaning of “enclosed area” for purposes of the burglary statute, the court of
criminal appeals held that a structure made of concrete blocks with three
doorways that were incapable of being closed was not an “enclosed area.” See
Day v. State, 534 S.W.2d 681, 684–85 (Tex. Crim. App. 1976) (“To hold that a
structure of the design shown here is a building within the definition in Sec.
30.01, . . . would expand the scope of structures which may be the object of
burglary to include open air stages with three walls and a roof, or open carports
with walls on both sides but none on the ends, or even four-columned pavilions
with no walls. The structure here is no more an enclosed structure than the
examples just listed.”); see also Hudson v. State, 737 S.W.2d 838, 839–40 (Tex.
App.––Dallas 1987, pet. ref’d) (holding that open walkway between two buildings
was not enclosed area for purposes of solicitation of a minor statute).
Here, like the building in Day, the RV shelter appears to be designed for
the purpose of protecting the RV from the elements rather than enclosing it so
that it is not readily visible from the street. See Day, 534 S.W.2d at 684–85.
Thus, we conclude and hold that it is not an “enclosed area” for purposes of
article 1, section 17. Accordingly, we conclude and hold that the shelter is more
in the nature of a detached carport, which according to article 1, section 3, may
not face the street. The Campbells did not present any evidence contraverting
the Leakes’ evidence that the RV shelter faces the street. We therefore further
conclude and hold that the Leakes proved that the RV shelter violates the
restrictive covenants as a matter of law. However, as we discuss below, the
17
Leakes were not entitled to the injunctive relief they sought in their motion for
summary judgment because the Campbells brought forward evidence to defeat
the Leakes’ no-evidence summary judgment on their affirmative defenses.
As evidence that the cabana and shed violate article 1, section 4, the
Leakes presented a letter from the ACC to the Campbells objecting to the
cabana and shed because they were moved onto the property. However, the
Campbells presented affidavit evidence that the cabana and shed were both
assembled and installed on the property. Accordingly, we conclude and hold that
there is a fact issue as to whether the cabana and shed violate article 1, section
4 of the restrictive covenants.
Regarding the shed’s violating article 1, section 9, the Leakes presented
no evidence that the roof of the shed is composed of asphalt composition
shingles. Accordingly, we conclude and hold that they were not entitled to
summary judgment that the shed violates article 1, section 9.
The Leakes also claim that the Campbells failed to raise any evidence in
support of their affirmative defenses of waiver and violation of section 202.004(a)
of the property code. However, the Campbells responded with affidavit evidence
from Therman that at least four other homes in the subdivision, which consists of
only fifteen homes and two streets, have garages or carports facing the street.
Article 1, section 3 does not state that a garage or carport may not face the street
unless the ACC first gives its approval; thus, this is at least some evidence that
the ACC has abandoned enforcement of that particular provision. See
18
Tanglewood Homes Ass’n v. Henke, 728 S.W.2d 39, 43–44 (Tex. App.––
Houston [1st Dist.] 1978, writ ref’d n.r.e.).
Additionally, the Campbells presented affidavit evidence from Therman
that when he first approached Scott Leake about the RV shelter, Scott stated, “It
won’t matter, I won’t like it anyway . . . . do what ever you want.” Although there
is no evidence that Scott is a member of the ACC, the ACC did authorize him
and his wife to sue to enforce the restrictive covenants. Therman also averred in
his affidavit that he was never notified of any hearing on the request for a
variance; that no one ever came to inspect the shed, cabana, and RV shelter;
and that no one ever called him to discuss the dimensions or cost of the cabana,
shed, and shelter. Taken together, this evidence––along with the evidence
above about the other homes with garages and carports facing the street and the
fact that the Leakes have not conclusively proven that the shed or cabana violate
the restrictive covenants––is at least some evidence that the ACC’s decision was
“arbitrary, capricious, or discriminatory.” See Tex. Prop. Code Ann. §
202.004(a); Whittier Heights Maint. Ass’n v. Colleyville Home Owners’ Rights
Ass’n, No. 02-10-00351-CV, 2011 WL 2185699, at *4 (Tex. App.––Fort Worth
June 2, 2011, no pet.) (mem. op.). We therefore conclude and hold that the trial
court did not err by denying the Leakes’ motion for summary judgment.
Attorney’s Fees
In their second issue, the Leakes claim that the trial court erred when it
awarded attorney’s fees to the Campbells in the amount of $10,348 plus $305.32
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in costs. Having determined that the trial court erred by granting summary
judgment for the Campbells, we reverse the award of attorney’s fees and costs.
Although the Leakes also challenge the trial court’s refusal to grant them their
attorney’s fees, we overrule that complaint because we have held that the trial
court did not err by denying their motion for summary judgment. We thus sustain
their second issue in part and overrule it in part.
Conclusion
Having sustained the Leakes’ first and second issues in part, we reverse
the trial court’s summary judgment and award of attorney’s fees to the Campbells
and remand this case for further proceedings in accordance with this opinion.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
GABRIEL, J. concurs without opinion.
DELIVERED: August 31, 2011
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