Jonathan Martindale, Marla Martindale, Johnny R. Woodard, and Joni L. Woodard v. Larry Alvarado ( 2001 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Jonathan Martindale, Marla Martindale,

Johnny R. Woodard, and Joni L. Woodard

Appellants

Vs.                   No.  11-01-00096-CV B Appeal from Jones County

Larry Alvarado et al

Appellees

This is an appeal from a summary judgment.  We affirm in part and reverse and remand in part.

In April 1999,  Jonathan and Marla Martindale moved into a mobile home on land they had previously purchased in the Quail Country Subdivision located in Jones County. Johnny R. and Joni L. Woodard had a mobile home moved onto property they had purchased in the same subdivision in January 2000.

In March 2000, appellees filed suit, seeking to have the two couples remove their movile homes from the subdivision because of deed restrictions which did not allow the placement of mobile homes in the subdivision.

Subdivision restrictions for the Quail Country Subdivision were recorded on February 3, 1978.  Section 4(d) of the restrictions provides as follows:

No mobile home, trailer, tent, shack, garage, barn or other outbuilding or structure of a temporary character, shall at any time ever be used as a residence, temporary or permanent; nor shall any structure of a temporary character ever be used in any way or moved onto or permitted to remain on any lot, except during construction of permanent structures.

The Martindales purchased their land, 20.2 acres, on or about August 4, 1995.  The Woodards purchased their property on or about September 20, 1999.

The Martindales stated that they had knowledge of the deed restrictions before they purchased their mobile home.  The Woodards were aware of the restrictions prohibiting mobile homes.

Appellees sent a notice to appellants which stated that appellants were violating the deed restrictions.  The letter demanded appellants to remove their mobile homes from the subdivision.  When the mobile homes were not removed, appellees filed suit for declaratory relief and injunctive relief to enjoin further violations of the restrictions.

Appellees filed a traditional motion for summary judgment on December 6, 2000.  Appellants filed a third-party petition on November 2, 2000, adding the sellers of the mobile homes to the suit. Appellees filed a motion to sever the third-party claims on February 5, 2001.  An order granting partial summary judgment was signed on February 19, 2001.  The order declared appellants to be in violation of the deed restrictions and ordered them to remove their mobile homes from the subdivision.  An order severing the third-party claims and making the partial summary judgment final and appealable as to the remaining parties was signed on February 26, 2001.

Appellants present the following issues on appeal: summary judgment was improper because there is a genuine issue of material fact with regard to (1) estoppel; (2) laches; and (3) waiver.

Where the plaintiff moves for summary judgment in an action in which the defendant has pleaded an affirmative defense, the plaintiff is entitled to have his summary judgment if he demonstrates by evidence that there is no material factual issue upon the elements of his claim, unless his opponent comes forward with a showing that there is such a disputed fact issue upon the affirmative defense.  Gulf, Colorado & Santa Fe Railway Company v. McBride, 322 S.W.2d 492, 497 (Tex.1958).

Appellants= second issue states that there is a material issue of fact regarding estoppel.  For estoppel, appellants must show that they were deceived by appellees.  Dempsey v. Apache Shores Property Owners Association, Inc., 737 S.W.2d 589, 595 (Tex.App. - Austin 1987, no writ).  The party relying on estoppel has the burden of proof, and the failure to prove any of the elements is fatal.  Dempsey v. Apache Shores Property Owners Association, Inc., supra at 596.  The elements of estoppel are:  (1) false misrepresentation or concealment of material facts; (2) made with actual or constructive knowledge of the facts; (3) to a party without knowledge or the means to obtain knowledge of the real facts; (4) made with the intention that such misrepresentation or concealment should be acted upon; and (5) the party to whom it was made must have relied upon or acted upon it to his detriment.  Dempsey v. Apache Shores Property Owners Association, Inc., supra at 595.

Appellants admitted that they had actual notice of the restrictions at the time they purchased the land.  Additionally, the restrictions had been on file since 1978, providing them with constructive notice.  Thus, the requirement for estoppel that the party claiming estoppel must have not had knowledge or the means to obtain knowledge of the real facts is lacking.  Appellants= second issue on estoppel is overruled.

Appellants= third issue on appeal involves laches.  Two essential elements of laches are:  (1) unreasonable delay by one having legal or equitable rights in asserting them, and (2) a good faith change of position by another to his detriment because of the delay.  City of Fort Worth v. Johnson, 388 S.W.2d 400, 404 (Tex.1964); City of Houston v. Muse, 788 S.W.2d 419 (Tex.App. - Houston [1st Dist.] 1990, no writ).  The burden of proof to establish laches is on the defendant. City of Houston v. Muse, supra. The Woodards did not meet the first element as they were given notice of the violation by a letter from appellees= attorney about one month after they moved the mobile home onto their property.  Additionally, Johnny Woodard admitted in his deposition that he had not done anything between the time he bought the property and the date the suit was filed which caused him harm because of the delay in the filing of the suit. 

Laches does not apply where the defendant has acted in open and known hostility to a plaintiff=s rights and has not been misled by the plaintiff=s apparent acquiescence.  City of Houston v. Muse, supra.  Additionally, a one-month delay was not considered an unreasonable delay in New Jerusalem Baptist Church, Inc. v. City of Houston, 598 S.W.2d 666 (Tex.Civ.App. - Houston [14th Dist.] 1980, no writ).

There is no proof in the record that supports the second element of laches for either the Woodards or the Martindales.  Both couples had actual and constructive notice of the restrictions prior to any improvements to the property after moving the mobile homes.    Thus, there could be no good faith change in their position based on the homeowners= failure to assert their rights. Appellants= third issue on appeal is overruled.

Appellants= first issue on appeal is that a genuine issue of material fact exists regarding waiver of the deed restrictions.  To establish waiver, appellants had the burden of proving that appellees voluntarily and intentionally relinquished their rights to enforce the restrictive covenants.  Dempsey v. Apache Shores Property Owners Association, Inc., supra at 595; Furr v. Hall, 553 S.W.2d 666 (Tex.Civ.App. - Amarillo 1977, writ ref=d n.r.e).

There are several factors to be considered in determining whether a waiver has occurred, including:  the number, nature and severity of existing violations; any prior acts of enforcement; and whether it is still possible to realize to a substantial degree the benefits sought to be obtained by way of the covenants. Finklestein v. Southampton Civic Club, 675 S.W.2d 271, 278 (Tex.App. - Houston [1st Dist.] 1984, writ ref=d n.r.e.).

In Texas, property owners are not precluded from enforcing deed restrictions which materially affect them because they have previously failed to complain of a violation which did not materially affect them.  Cox v. Melson-Fulson, 956 S.W.2d 791, 794 (Tex.App. - Austin 1997, no pet=n). The burden is on appellants to prove that prior violations were substantial and that they materially affected appellees= use of their land as a residence.  Stephenson v. Perlitz, 537 S.W.2d 287, 290 (Tex.Civ.App. - Beaumont 1976, writ ref=d n.r.e.).

While it is true that silence may indicate an intention to act in a certain manner, such silence or inaction must be coupled with knowledge of the right and with other circumstances, such as inaction for an unreasonable period of time, which evidences the intention to waive.  Furr v. Hall, supra at 674.

To establish waiver, appellants must show that the existing violations of the deed restrictions were so great as to lead the mind of the average man to reasonably conclude that the restrictions had been abandoned and enforcement waived.  Oldfield v. City of Houston, 15 S.W.3d 219, 226 (Tex.App. - Houston [14th Dist.] 2000, pet=n den=d). It is unclear how many existing violations would be enough to meet this standard.  Evidence of 4 nonconforming uses within 169 lots in a subdivision was not considered enough for the average man to consider the restriction to have been abandoned.  New Jerusalem Baptist Church, Inc. v. City of Houston, supra at 669.  Evidence of 11 nonconforming uses within 425 improved lots in a subdivision was not enough to conclude that the restrictions were abandoned.  Dempsey v. Apache Shores Property Owners Association, Inc., supra at 595.  In addition, the Dempsey court stated that the existing violations did not preclude the property owners from realizing to a substantial degree the benefits intended through the covenants.  Dempsey v. Apache Shores Property Owners Association, Inc., supra at 595.

Waiver is usually a fact issue.  There is some evidence that the deed restriction at issue has not consistently been enforced.  Attached to Jonathan Martindale=s deposition are copies of photographs of other mobile homes or manufactured homes in the subdivision.  Virginia Taylor, a resident of the subdivision and one of the appellees, stated in her deposition that she told others that she would not have done anything about the Martindales= mobile home if the Woodards had not moved in.  There is no set standard for how many violations it takes for the average man to reasonably conclude that the restrictions have been abandoned. Therefore, we find that appellants have raised a fact issue regarding waiver of the deed restrictions and sustain the first issue.

The judgment of the trial court is affirmed as to the issues of estoppel and laches and reversed and remanded as to the issue of waiver.

PER CURIAM

December 6, 2001

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.