Jaimie Martinez and Jennie Martinez v. JBIC, Inc. Doing Business as Jamaica Beach Improvement Committee ( 2015 )

Opinion issued August 13, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00717-CV
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JAIMIE MARTINEZ AND JENNIE MARTINEZ, Appellants
V.
JBIC, INC. DOING BUSINESS AS JAMAICA BEACH IMPROVEMENT
COMMITTEE, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Case No. 14-CV-0201
MEMORANDUM OPINION
JBIC, Inc., which does business as the Jamaica Beach Improvement
Committee and enforces the Jamaica Beach subdivision’s restrictive covenants,
sued Jaimie and Jennie Martinez, who own property in the subdivision, for
violations of restrictive covenants. JBIC obtained an order permitting substituted
service of the citation and petition. When the Martinezes did not answer the suit,
the trial court entered a default judgment against them. The judgment contains
various injunctions regarding the Martinezes’ use and upkeep of their property.
In this restricted appeal, the Martinezes contend that (1) the trial court did
not have jurisdiction to enter judgment against them because the affidavit
submitted in support of JBIC’s motion for substituted service failed to comply with
Texas Rule of Civil Procedure 106(b) in that it did not contain a specific averment
that the address listed in the affidavit was the Martinezes’ usual place of abode or
where they probably could be found and (2) the injunction failed to adequately
inform them of the acts that it prohibits and, thus, is impermissibly vague in
violation of Civil Procedure Rule 683.
We reverse.
Background
Jaimie and Jennie Martinez own property in the Jamaica Beach subdivision
in Galveston. Their property is subject to various restrictive covenants. Many of
the properties in the subdivision—including the Martinezes’—were damaged by
Hurricane Ike in 2008. JBIC, which enforced the subdivision’s restrictive
covenants, notified the Martinezes in 2012 that they needed to address various
deficiencies on their property to bring it into compliance with the restrictive
covenants. Specifically, they needed to (1) repair or replace the pilings; (2) add all
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necessary handrails to the outside stairs on the residential house; (3) add all
necessary railings to the entire upstairs deck; (4) repair or replace the siding on the
house; (5) repair or replace the roof; (6) “paint the entire residential house on the
Lot to preserve the attractiveness thereof”; (7) resolve the temporary connection of
electricity to the home; (8) “remove all of the materials and equipment which are
stored on the Lot in a manner that is not for normal residential requirements”; and
(9) “abate all of the characteristics of the residential house on the Lot that cause it
to be an annoyance or a nuisance to the neighborhood.” When the property was not
brought into compliance, JBIC filed suit against the Martinezes.
JBIC was unable to obtain service on the Martinezes and moved for
substituted service. In support of its motion, it attached affidavits from a process
server detailing his past attempts to effect service at 5423 Timbers Trail Drive,
Humble, TX 77346 and listing the license plate numbers for each vehicle observed
at the residence on each attempted service. JBIC also attached various documents
to the affidavits and motion indicating that the Martinezes reside at that address
and that the license plate numbers observed there are assigned to vehicles
registered to the Martinezes. The trial court granted the motion, and JBIC served
the Martinezes by substituted service at the Humble address by leaving a copy of
the citation and petition with a person over the age of 16.
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When the Martinezes failed to answer suit, a default judgment was entered
against them. The order permanently enjoins the Martinezes as follows:
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that
. . . Defendants, JAIME MARTINEZ and JENNIE MARTINEZ . . .
be, and hereby are, commanded to desist and refrain from, directly or
indirectly, (a) failing to keep in good repair, and failing to keep
painted when necessary to preserve the attractiveness of, the
residential house located on said Lot, (b) storing material and
equipment on said Lot except for normal residential requirements, and
(c) carrying on a noxious or offensive activity upon said Lot; and that
Defendant, JAIME MARTINEZ and JENNIE MARTINEZ . . . be,
and hereby are, mandated to (1) promptly and properly repair, keep in
good repair, paint to preserve the attractiveness of, and keep painted
when necessary to preserve the attractiveness of, the residential house
located on said Lot, (2) promptly cease to use said Lot for storage of
material and equipment except for normal residential requirements,
and (3) promptly abate the noxious or offensive activity carried on
upon said Lot.
Through a restricted appeal, the Martinezes challenge both the substituted service
and the specificity of the injunction.
Specificity of Injunction
In their second issue, the Martinezes argue that the trial court erred by
issuing an injunction against them that lacks the necessary specificity and precision
to be enforced by contempt.
A. Standard of review
The standard of review when a trial court grants a permanent injunction is
whether the trial court abused its discretion. Glattly v. Air Starter Components,
Inc., 332 S.W.3d 620, 642 (Tex. App.—Houston [1st Dist.] 2010, pet. denied);
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Morris v. Collins, 881 S.W.2d 138, 139 (Tex. App.—Houston [1st Dist.] 1994,
writ denied). A trial court abuses its discretion if it (1) acts arbitrarily and
unreasonably without reference to guiding rules or principles or (2) misapplies the
law to the established facts of the case. Indian Beach Prop. Owners’ Ass’n v.
Linden, 222 S.W.3d 682, 691 (Tex. App.—Houston [1st Dist.] 2007, no pet.);
Butler v. Arrow Mirror & Glass, Inc., 51 S.W.3d 787, 791 (Tex. App.—Houston
[1st Dist.] 2001, no pet.).
B. Specificity requirement for permanent injunction
A person who violates a trial court’s injunction may be held in contempt;
therefore, the language enjoining the party should be clear so that the party
subjected to the prohibitions is not misled. See TEX. R. CIV. P. 692 (permitting trial
court to have violator arrested and committed to jail without bail); Ex parte
Padron, 565 S.W.2d 921, 924 (Tex. 1978) (“Civil contempt in Texas is the process
by which a court exerts its judicial authority to compel obedience to some order of
the court.”); In re Coppock, 277 S.W.3d 417, 419 (Tex. 2009).
Civil Procedure Rule 683 contains the specificity requirement: “Every order
granting an injunction . . . shall be specific in terms [and] shall describe in
reasonable detail and not by reference to the complaint or other document, the act
or acts sought to be restrained . . . .” TEX. R. CIV. P. 683. The rule’s purpose is to
ensure that enjoined parties are given adequate notice of the acts they are
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prohibited from doing. Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 552
(Tex. App.—Dallas 1993, no writ). As the Texas Supreme Court has explained:
An injunction decree must be as definite, clear and precise as possible
and when practicable it should inform the defendant of the acts he is
restrained from doing, without calling on him for inferences or
conclusions about which persons might well differ and without
leaving anything for further hearing. But obviously the injunction
must be in broad enough terms to prevent repetition of the evil sought
to be stopped, whether the repetition be in form identical to that
employed prior to the injunction or (what is far more likely) in
somewhat different form calculated to circumvent the injunction as
written.
San Antonio Bar Ass’n v. Guardian Abstract & Title Co., 291 S.W.2d 697, 702
(Tex. 1956).
Thus, for example, an injunction prohibiting a homeowner from “playing
excessively loud music that can be heard outside of the dwelling located on the
Property” is not impermissibly vague because the common meaning of
“excessively loud”—which the appellate court stated meant “so loud it exceeds
what is usual, proper, necessary, or normal”—provides sufficient guidance
regarding which acts are prohibited. Webb v. Glenbrook Owners Ass’n, Inc., 298
S.W.3d 374, 388 (Tex. App.—Dallas 2009, no pet.). However, another provision
in that same injunction prohibiting the property owner from playing “obscene
music” was held to be impermissibly vague. See id. at 388–89. The court stated
that the term “obscene” is “highly subjective” and, as a result, held that the
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injunction “lacks sufficient specificity required for an enforceable order of the
court.” Id.
Other examples of vague injunctions include prohibitions against contacting
clients or selling products to individuals without adequately identifying the clients
and individuals who may not be contacted. See Computek Computer & Office
Supplies, Inc. v. Walton, 156 S.W.3d 217, 222–23 (Tex. App.—Dallas 2005, no
pet.) (injunction failed to specify clients company could not contact); Heat Shrink
Innovations, LLC v. Med. Extrusion Technologies-Texas, Inc., No. 02-12-00512-
CV, 2014 WL 5307191 (Tex. App.—Fort Worth Oct. 16, 2014, pet. denied)
(injunction enjoined sales to “Farm” and “Calypso” without providing any further
clues to their identities). Additionally, an injunction that sought to enjoin activity
related to a roadway but failed to sufficiently describe the particular roadway at
issue was held unenforceable. See Wood v. Walker, 279 S.W.3d 705, 714 (Tex.
App.—Amarillo 2007, no pet.).
C. JBIC’s injunction against the Martinezes
The three Jamaica Beach restrictive covenants at issue provide as follows:
7. No noxious or offensive activity shall be carried on upon any lot
nor shall anything be done thereon which may be or may become
an annoyance or a nuisance to the neighborhood.
. . . .
11. The owners or occupants of all lots in this subdivision shall . . . in
no event use any lot for storage of material and equipment except
for normal residential requirements . . . .
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. . . .
15. All residences and other buildings must be kept in good repair,
and must be painted when necessary to preserve the
attractiveness thereof.
JBIC informed the Martinezes, by letter, that to comply with the restrictive
covenants they needed to: (1) repair or replace the pilings; (2) add all necessary
handrails to the outside stairs on the residential house; (3) add all necessary railings
to the entire upstairs deck; (4) repair or replace the siding on the house; (5) repair
or replace the roof; (6) “paint the entire residential house on the Lot to preserve the
attractiveness thereof”; (7) resolve the temporary connection of electricity to the
home; (8) “remove all of the materials and equipment which are stored on the Lot
in a manner that is not for normal residential requirements”; and (9) “abate all of
the characteristics of the residential house on the Lot that cause it to be an
annoyance or a nuisance to the neighborhood.” These same deficiencies were
included in JBIC’s petition without additional detail.
The permanent injunction issued by the court following default, requires the
Martinezes to abide by covenants 7, 11, and 15. These requirements are stated both
as prohibitions and mandates. First, the injunction prohibits the Martinezes from
(a) failing to keep in good repair, and failing to keep painted when
necessary to preserve the attractiveness of the residential house
located on said Lot, (b) storing material and equipment on said Lot
except for normal residential requirements, and (c) carrying on a
noxious or offensive activity upon said Lot . . . .
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It then requires that they
(1) promptly and properly repair, keep in good repair, paint to
preserve the attractiveness of, and keep painted when necessary to
preserve the attractiveness of, the residential house located on said
Lot, (2) promptly cease to use said Lot for storage of material and
equipment except for normal residential requirements, and
(3) promptly abate the noxious or offensive activity carried on upon
said Lot.
D. The injunction is vague
The Martinezes contend that the injunction is impermissibly vague because
it fails to adequately inform them of the acts for which they are subject to contempt
for violation. JBIC responds that the injunction is not vague because it tracks the
language of the subdivision’s restrictive covenants, to which the Martinezes
knowingly agreed to be bound. JBIC points out that the covenants have been in
effect since 1964, without amendment, and, thus, are “clear and unambiguous . . .
guidelines to property owners” in the Jamaica Beach subdivision.
To the extent the covenants are not specific, JBIC asserts that the nine
deficiencies listed in its petition and above “describe[ ] specific acts by Defendants
that have resulted in violations of the deed restrictions” and, therefore, adequately
“define what actions are required to comply with the restrictions and have a
definite and certain legal meaning for the purpose of notice to Defendants.” We do
not agree for several reasons.
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First, incorporation of the restrictive-covenant terms into the injunction does
not insulate the injunction from a vagueness challenge. See Johnson v. Linton, 491
S.W.2d 189, 196 (Tex. App.—Dallas 1973, no writ) (holding that phrases used in
injunction which were same phrases used in restrictive covenants—including that
structures “shall not exceed one and one-half story in height,” “all garages must be
not less than two car size,” and “conformity and harmony of external design with
existing structures in the subdivision” is required—were too vague and uncertain to
meet requirements of Rule 683).
Second, the specificity required of the order cannot be met by reference to
another more detailed document. See TEX. R. CIV. P. 683 (requiring injunction
order to “describe in reasonable detail and not by reference to the complaint or
other document, the act or acts sought to be restrained . . . .” (emphasis added));
Computek, 156 S.W.3d at 222 (“[T]he injunction itself must provide the specific
information . . . without inferences or conclusion, or, in this case, implied
references to other records [the enjoined party] might have.”).
And third, even if JBIC could refer back to these documents to find the
necessary specificity, the documents did not describe the materials or equipment
being stored on the Martinezes’ property that JBIC viewed as “not for normal
residential requirements.” Nor did they define the activities taking place on the
Martinezes’ property that JBIC considered “noxious or offensive.”
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Because the order, itself, is required to specifically describe the acts sought
to be restrained, we consider each of the three provisions in the Martinezes’
permanent injunction to determine whether they meet the requirements of Rule
683.
1. Painting to preserve attractiveness
The injunction incorporates the language of covenant number 15 to require
the Martinezes to keep their home in good repair and to “keep [it] painted when
necessary to preserve the attractiveness of the residential house.”
An injunction “must spell out the details of compliance in clear, specific and
unambiguous terms so that such person will readily know exactly what duties or
obligations are imposed upon him.” Lasser v. Amistco Separation Prods., Inc., No.
01-13-00690-CV, 2014 WL 527539, at *4 (Tex. App.—Houston [1st Dist.] Feb. 6,
2014, no pet.) (mem. op.) (quoting Drew v. Unauthorized Practice of Law Comm.,
970 S.W.2d 152, 156 (Tex. App.—Austin 1998, pet. denied)); Hellenic Inv., Inc. v.
Kroger Co., 766 S.W.2d 861, 866 (Tex. App.—Houston [1st Dist.] 1989, no writ).
An injunction order “should not be framed so broadly as to prohibit the enjoyment
of lawful rights.” Hellenic Inv., Inc., 766 S.W.2d at 866.
Under these guidelines, applying a subjective “attractiveness” standard to a
requirement that homeowners paint their home is impermissibly vague. See Webb,
298 S.W.3d at 388–89 (holding that prohibition against playing “obscene music” is
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impermissibly vague because obscenity is “highly subjective.”). This injunction
could subject the Martinezes to contempt based on a newly painted home under an
allegation that their color choice detracted from the subjective “attractiveness” of
the home.
We conclude that this injunction is impermissibly vague.
2. Storing non-residential materials
The next injunction incorporates language from covenant 11 and prohibits
the Martinezes from storing materials and equipment on their property except
“normal residential requirements.”
We give restrictive covenants’ words and phrases their commonly accepted
meaning. Uptegraph v. Sandalwood Civic Club, 312 S.W.3d 918, 925 (Tex.
App.—Houston [1st Dist.] 2010, no pet.). “Residential” is defined as “of or
connected with residence” or “characterized by, or suitable for residences, or
homes.” WEBSTER’S NEW WORLD COLLEGE DICTIONARY 1236 (5th ed. 2014).
“Normal” means “conforming with or constituting an accepted standard, model, or
pattern . . . .” WEBSTER’S NEW WORLD COLLEGE DICTIONARY 998. Black’s Law
Dictionary states that “normal” “describes not just forces that are constantly and
habitually operating but also forces that operate periodically or with some degree
of frequency. In this sense, its common antonyms are unusual and extraordinary.”
BLACK’S LAW DICTIONARY 1160 (9th ed. 2004).
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Nowhere in the order does the trial court provide the Martinezes with any
guidance regarding what they have stored that violates this provision. Again, JBIC
refers back to specific deficiencies listed in its petition but, as discussed earlier,
reference to another pleading does not supply the definiteness and specificity
required by Rule 683. See Computek, 156 S.W.3d at 222. Even if it did, the petition
does not list which items have been stored on the property that are not properly
considered “normal residential” materials, particularly in the context of an on-
going repair project.
We conclude that this broadly worded injunction is impermissibly vague and
fails to inform the Martinezes of the acts it prohibits and for which they could be
subject to contempt.
3. Noxious or offensive activities
The final injunction incorporates language from covenant 7 and prohibits the
Martinezes from “carrying on a noxious or offensive activity” on their property.
“Noxious” means “harmful to the health” and “injurious.” WEBSTER’S NEW
WORLD COLLEGE DICTIONARY 1002; BLACK’S LAW DICTIONARY 1170. “Injurious”
means “harmful; tending to injury.” BLACK’S LAW DICTIONARY 856. It also has
been defined as “offensive or abusive.” WEBSTER’S NEW WORLD COLLEGE
DICTIONARY 749. “Offensive” means “unpleasant or disagreeable to the sense;
obnoxious.” BLACK’S LAW DICTIONARY 1188. Another definition is “giving
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painful or unpleasant sensations.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY
861 (11th ed. 2003).
Again, the order fails to provide the Martinezes with any guidance regarding
the acts that would violate this particular injunction. JBIC may not refer back to
another pleading to provide the specificity required under Rule 683. See Computek,
156 S.W.3d at 222. But even if it could, the petition does not detail which activities
have been considered noxious or offensive in the past to guide the Martinezes’
future conduct. We conclude that this injunction provision is impermissibly vague
and fails to inform the Martinezes of the acts it prohibits and for which they could
be subject to contempt.
Having found that all three injunction provisions are impermissibly vague,
we sustain the Martinezes’ second issue. Because the judgment against them is
being reversed and the Martinezes have appeared, we do not address their first
issue. See McKanna v. Edgar, 388 S.W.2d 927, 930 (Tex. 1965); see also TEX. R.
CIV. P. 123.
Conclusion
We reverse the trial court’s injunction and remand the cause for further
proceedings consistent with this opinion.
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Harvey Brown
Justice
Panel consists of Justices Jennings, Bland, and Brown.
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