Charles Murray v. C.I.A. Hidden Forest, Inc. and Nancy Cramer ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00013-CV
__________________
CHARLES MURRAY, Appellant
V.
C.I.A. HIDDEN FOREST, INC. AND NANCY CRAMER, Appellees
__________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 17-09-11342-CV
__________________________________________________________________
MEMORANDUM OPINION
Appellant Charles Murray (“Murray”) appeals the trial court’s judgment in
favor of Appellees C.I.A. Hidden Forest, Inc. (“the Property Owners Association”)
and Nancy L. Cramer (“Cramer”) (collectively “Appellees”), granting a permanent
injunction and ordering Murray to remove a mobile home from certain property. We
affirm.
1
Procedural Background
In September 2017, the Property Owners Association and Cramer filed an
original petition seeking a permanent injunction against Murray. The petition
explained that Cramer was a property owner in Section 5 of the Hidden Forest
Estates Subdivision (“the subdivision”). According to the petition, in February 2014,
Murray made an “Affidavit to the Public” regarding Lots 136 through 139 in Section
5 of the subdivision for an onsite wastewater treatment system to be installed.
Murray also made an “Affidavit Acknowledging Need to Join Properties” seeking
to join the four lots because the onsite sewage system was located on all four lots.
Murray subsequently moved a double-wide mobile home onto the four lots, which
were then owned by Lester Ruthstrom.
According to the plaintiffs, Lots 136 through 139 were subject to
(1) restrictions recorded in Volume 776, Page 484 through Page 487 of the Deed
Records of Montgomery County, Texas; and (2) restrictions recorded in Volume
963, Page 95 of the Deed Records of Montgomery County, Texas. 1 Plaintiffs alleged
that the relevant restrictions stated:
1
The parties stipulated that a document titled “Restrictions” was recorded in
Volume 776, Pages 484 through 487 of the Deed Records of Montgomery County
on June 15, 1972, which states in part “No trailer houses, mobile homes, or kindred
structures will be permitted.”
2
1. b. Only a residence, garage, or tool house may be built on residential
lots, and they must conform in appearance and construction generally
to other dwellings in the Hidden Forest Estates subdivision. No trailer
houses, mobile homes, or kindred structures will be permitted.
Plaintiffs alleged that a deed restriction letter was sent to Ruthstrom and to Heather
Lininger2 in March 2014. In April 2014, the Property Owners Association president
spoke with Ruthstrom, and the next month, the president told the attorney for the
Property Owners Association that Lininger was willing to have the mobile home
moved out, however the mobile home was not removed. In September 2014, a
second attorney (and the plaintiffs’ attorney in this proceeding) sent another deed
restriction letter to Ruthstrom, but neither Ruthstrom nor Murray removed the
mobile home.
In October 2014, Ruthstrom deeded all four lots to Murray and the Property
Owners Association sent a “Notice of the Opportunity to Meet with the Board” letter
to Ruthstrom, Murray, and Lininger. According to the petition, in the meeting,
Murray told the Property Owners Association that “there was no way a court would
enforce these restrictions because there were other mobile homes in the subdivision.”
The petition asserted that although there were some mobile homes in the subdivision,
they were in sections where there are no specific restrictions against trailers and
2
Murray testified at trial that he and Lininger have a child and live together
and that Lininger had Murray’s “proxy[.]”
3
mobile homes. According to the plaintiffs, Murray had told the Property Owners
Association Board and Board members that he had no intention of complying with
the restrictions against mobile homes. Plaintiffs sought a court order requiring
Murray to remove the mobile home from Lots 136 through 139 and sought a
permanent injunction prohibiting Murray from moving a “trailer house, mobile
home, or kindred structure” on any lot in Sections 4 or 5.3
In October 2017, Murray filed an answer asserting a general denial. In July
2018, Murray filed an amended answer, asserting the affirmative defenses of waiver
and estoppel and asserting that “Plaintiffs’[] attempt to enforce against him the
covenants and regulations at issue violates Texas law as arbitrary, capricious, and
discriminatory.”
Evidence at Trial
Testimony of Doug Walker
Doug Walker testified that he was on the Board of the Property Owners
Association and described how the Board dealt with requests for variances:
Q. What process did the [Property Owners Association] file for
approval of a variance to the deed restrictions?
A. We would ask people to follow the process of bringing in their plans,
making sure they had all the permits in place, and then sit down and
3
Plaintiffs also sought to recover certain costs and fees, which are not at issue
in this appeal.
4
discuss a timeline, and we asked for updates as far as what they were
doing.
Q. Okay. So would the [Property Owners Association] consider
allowing somebody to bring in a trailer or a mobile home if they had
plans, a timeline, and, of course, a septic system, and their water and
electrical?
A. Correct, we would.
Walker testified that he had a conversation with Heather Lininger at a Board meeting
about what Lininger and Murray needed to show in order to temporarily have a
trailer on the property: a sewer permit; water installed; and a plan for what they
wanted to build, how long it would take to build, and how long they would want a
trailer on the property.
According to Walker, the Property Owners Association was not well-funded
and sometimes could barely cover basic expenses, and the Board did not have funds
to hire attorneys for lawsuits on trailer violations. Walker recalled that, when he left
the Board, there were three trailers in Section 5. Walker testified that one trailer had
been modified so that it did not look like a trailer. One of the trailers was on the
Warren property, and Walker explained that the statute of limitations barred any
action against that violation. Walker testified that the Property Owners Association
had successfully sued another property owner who moved five travel trailers onto
his lot.
5
Testimony of Laura Warren
Laura Warren testified that her family obtained permission from the land
developer to put a mobile home on their lots in 1984. She also testified that in 1996
they obtained permission from the developer to replace the original mobile home
with a newer one.
Testimony of Nancy Cramer
Plaintiff Nancy Cramer testified that she had lived in the subdivision for about
fourteen years, and she joined this lawsuit because she did not want “to live in a
trailer park.” Cramer testified that the Property Owners Association had not filed a
lot of lawsuits on deed restriction violations because it does not have very much
money.
Testimony of Tammy Parker
Tammy Parker, the president of the Property Owners Association, testified
that she had lived in the subdivision for eleven years. Exhibit 21 was admitted into
evidence, which Parker explained was a map of Section 5 and which identified
houses by a pink mark and mobile homes or travel trailers by an orange mark. Parker
testified that the Warren trailer had been there for thirty years and was “[d]eveloper
excluded.” Parker further testified that the Weidner home was a single-wide mobile
home that had been modified and was about four-fifths a two-story home: Parker
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also identified a travel trailer in Section 5 which the Property Owners Association
has referred to the Montgomery County Health Department for failure to install a
septic system. Parker testified that there are twenty-five “nontrailer” homes in
Section 5. According to Parker, the Property Owners Association was asking the
trial court to order Murray to remove the mobile home from Section 5 within nine
months.
According to Parker, Murray moved his mobile home into Section 5 in March
or April 2014. Parker testified that the attorney for the Property Owners Association
sent a letter to Ruthstrom about the violation because Ruthstrom owned the property
at that time. Parker recalled that they notified Ruthstrom, Lininger, and Murray that
they could meet with the Board about the matter, and when a meeting occurred,
Murray said no one could make him move his trailer or mobile home out of Section
5.
Testimony of Arvella Dancaster
Arvella Dancaster testified that she had lived in the subdivision for over ten
years and she is the acting secretary and treasurer of the Property Owners
Association. Dancaster testified that when a property owner wants to move a mobile
home onto a lot, the Property Owners Association requires them “to have electric, a
septic system, and water, and a timeline, plans of some sort, and reports to the
7
board[]” and that Murray never brought the Board plans or a timeline for his
anticipated construction. According to Dancaster, Murray told the Board that
“nobody can make him move his trailer.”
Testimony of Charles Murray
Murray testified that he contracted with Ruthstrom in 2012 to purchase four
lots in Section 5. Murray recalled that, in the sales contract, he agreed to abide by
the deed restrictions for the property, but that Ruthstrom did not know what the deed
restrictions were, and Ruthstrom told Murray he would have to find them out
himself. Murray testified that he moved a mobile home onto the property in 2014
and told a member of the Board he wanted a trailer on the property temporarily until
he could build a house. Murray testified that he had complied with the deed
restriction because he asked permission to bring in his mobile home and he obtained
permits and utilities. According to Murray, the Property Owners Association told
him it would not have a problem with his mobile home if he got permits and utilities
and that Lininger presented that information to the Board. Murray agreed that he did
not present plans or a timeline to the Board, but that he did not know what he was
going to build, and he did not obtain anything in writing from the Property Owners
Association permitting him to move in a mobile home. When asked whether anyone
8
gave him permission to move a trailer onto his property, he replied “[t]he State of
Texas.”
Plaintiffs offered numerous documents into evidence. Among the exhibits
were the Board meeting minutes from February 2012, regarding a request for a
waiver to put a mobile home on a lot in Section 5, which stated “[a]fter some
discussion it was decided that if they bring proof they have water, septic and
electricity to the property it would be taken under consideration.” A margin note
read “Heather[.]” Minutes from a June 2013 Board meeting were admitted, which
read in relevant part:
Heather asked about putting a trailer on her lot while they are building
a house. It would take about a year. She was asked to put her plans in
writing with a time frame. Would have to have electric and septic
installed first. Then she would be required to make progress reports to
the board.
On October 10, 2018, the trial court signed an order rendering judgment for
the plaintiffs, finding that Murray had placed a trailer or mobile home on his property
in violation of the deed restrictions, and ordering Murray to remove the trailer or
9
mobile home. 4 Murray filed a motion for new trial, which was overruled by
operation of law. Murray then appealed.5
Issues
On appeal, Murray argues that the trial court erred in entering judgment
because Appellees had waived the right to enforce the deed restriction at issue.
According to Murray, the Property Owners Association had “frequently” declined
to enforce the deed restriction and had knowingly permitted mobile homes in
Sections 4 and 5, thereby waiving the right to enforce that restriction against Murray.
Murray also argues that principles of estoppel prevented enforcement of the deed
restriction at issue against him. Murray argues that the Property Owners Association
had permitted him to put a mobile home on the property until he could install a
permanent structure, and that by taking such a position, the Property Owners
Association is estopped from taking a contrary position and enforcing the deed
restrictions against him. The parties do not dispute that the deed restrictions for
Section 5 prohibit mobile homes.
4
The judgment also awarded attorney’s fees to the plaintiffs; however,
attorney’s fees are not challenged in this appeal.
5
We note that the clerk’s record includes “Plaintiffs’ Cross-Notice of
Appeal[,]” but Appellees’ brief does not raise any separate issues.
10
Standard of Review
Injunctive relief is appropriate upon a showing of the following elements:
(1) the existence of a wrongful act, (2) the existence of imminent harm, (3) the
existence of irreparable injury, and (4) the absence of an adequate remedy at law.
Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass’n, 25 S.W.3d 845, 849 (Tex.
App.—Houston [14th Dist.] 2000, pet. denied). “Because an injunction is an
equitable remedy, a trial court weighs the respective conveniences and hardships of
the parties and balances the equities.” Computek Computer & Office Supplies, Inc.
v. Walton, 156 S.W.3d 217, 220 (Tex. App.—Dallas 2005, no pet.); see also
Triantaphyllis v. Gamble, 93 S.W.3d 398, 401-02 (Tex. App.—Houston [14th Dist.]
2002, pet. denied). A party must substantially violate a deed restriction before the
trial court may issue a permanent injunction. See Tien Tao Ass’n, Inc. v. Kingsbridge
Park Cmty. Ass’n, Inc., 953 S.W.2d 525, 529-30 (Tex. App.—Houston [1st Dist.]
1997, no pet.).
We review an order granting a permanent injunction for an abuse of
discretion. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Glattly
v. Air Starter Components, Inc., 332 S.W.3d 620, 642 (Tex. App.—Houston [1st
Dist.] 2010, pet. denied). A trial court abuses its discretion when it acts without
reference to any guiding rules and principles. See Worford v. Stamper, 801 S.W.2d
11108, 109 (Tex. 1990). The reviewing court must not substitute its judgment for the
trial court’s judgment unless the trial court’s action was so arbitrary that it exceeded
the bounds of reasonable discretion. Butnaru, 84 S.W.3d at 204 (citing Johnson v.
Fourth Ct. of Appeals, 700 S.W.2d 916, 918 (Tex. 1985); Davis v. Huey, 571 S.W.2d
859, 861-62 (Tex. 1978)). We defer to the trial court’s determination of credibility
because, as the factfinder in a bench trial, the trial court is the exclusive judge of the
facts, the witnesses’ credibility, and the weight given to testimony. See Turner v.
KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex. 2000); Woods v. Woods, 193
S.W.3d 720, 726 (Tex. App.—Beaumont 2006, pet. denied).
A party seeking an injunction has the burden of showing that a clear equity
demands the injunction. See Christensen v. Integrity Ins. Co., 719 S.W.2d 161, 163
(Tex. 1986); Bridas Corp. v. Unocal Corp., 16 S.W.3d 887, 890 (Tex. App.—
Houston [14th Dist.] 2000, pet. dism’d w.o.j.). Ordinarily, injunctive relief may only
be granted upon a showing of (1) a wrongful act; (2) imminent harm; and
(3) irreparable injury, and (4) the absence of an adequate remedy at law. See Jim
Rutherford, 25 S.W.3d at 849. When an injunction is sought to enforce a deed
restriction, however, the burden of proof is altered, and the movant “‘is only required
to prove that the defendant intends to do an act that would breach the restrictive
covenant.’” Southwyck, Section VI Homeowners’ Ass’n, Inc. v. Southwyck Cmty.
12
Ass’n, Inc., No. 14-16-00139-CV, 2017 Tex. App. LEXIS 9789, at *14 (Tex. App.—
Houston [14th Dist.] Oct. 19, 2017, no pet.) (mem. op.) (quoting Jim Rutherford, 25
S.W.3d at 849); Nash v. Peters, 303 S.W.3d 359, 362 (Tex. App.—El Paso 2009, no
pet.).
Waiver
“Waiver is the intentional relinquishment of a known right and is either made
expressly or indicated by conduct that is inconsistent with an intent to claim the
right.” Reytec Constr. Res., Inc. v. Baptist Hosps. of Se. Tex., No. 09-15-00085-CV,
2016 Tex. App. LEXIS 12534, at *23 (Tex. App.—Beaumont Nov. 23, 2016, no pet.
(citing Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003)). Waiver is an
affirmative defense on which the defendant bears the burden of proof. See Phila.
Indem. Ins. Co. v. White, 490 S.W.3d 468, 485 (Tex. 2016) (explaining that a
defendant bears the burden of proof on affirmative defenses); Tenneco Inc. v. Enter.
Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996) (citing Sun Expl. & Prod. Co. v.
Benton, 728 S.W.2d 35, 37 (Tex. 1987)).
To defeat enforcement of the restrictive covenant at issue, the nonconforming
property user must prove that existing violations are so great as to lead the mind of
the average person to reasonably conclude that the restriction in question has been
abandoned and its enforcement waived. See Martin v. Romero, No. 09-10-00496-
13
CV, 2011 Tex. App. LEXIS 2531, at **6-7 (Tex. App.—Beaumont Apr. 7, 2011, no
pet.) (mem. op.) (citing Finkelstein v. Southampton Civic Club, 675 S.W.2d 271,
278 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.)). 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 Tex. App. LEXIS 9114, at **3-4 (Tex. App.—Beaumont Nov. 17,
2011, no pet.) (mem. op.) (citing Finkelstein, 675 S.W.2d at 278). A property
owner’s actual notice that he is in violation of a deed restriction weighs against
waiver. See Jim Rutherford, 25 S.W.3d at 851-52.
In support of his argument, Murray points out that plaintiff Cramer admitted
she had not made any attempt to sue other property owners who had trailers or
mobile homes on their property. Parker, the President of the Property Owners
Association testified that since she had been on the Board, the Property Owners
Association has not had an attorney send a letter to any other property owners with
mobile homes on their lots in Section 5.
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The evidence also showed that one of the mobile homes in Section 5—on the
Warren property—was placed with express permission of the developer. Another of
the mobile homes in Section 5 had been modified to look like a two-story house.
And, the Property Owners Association had referred the only other mobile home in
Section 5 (other than Murray’s) to the Montgomery County Health Department.
Walker, a member of the Property Owners Association Board, also testified that the
Property Owners Association had previously successfully sued another property
owner who had moved five travel trailers onto his lot.
On this record, we cannot say that the trial court abused its discretion. The
trial court could have reasonably concluded that the other alleged violations of the
deed restriction were different in nature and not so prevalent, and that the average
person would not reasonably conclude that the Property Owners Association had
waived enforcement of the restriction. See Martin, 2011 Tex. App. LEXIS 2531, at
**6-7 (citing Finkelstein, 675 S.W.2d at 278). We overrule Murray’s first issue.
Estoppel
Equitable estoppel is an affirmative defense that “generally prevents one party
from misleading another to the other’s detriment or to the misleading party’s own
benefit.” Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008).
The defendant bears the burden of proof. See Phila. Indem. Ins. Co., 490 S.W.3d at
15
485; Barfield v. Howard M. Smith Co., 426 S.W.2d 834, 838 (Tex. 1968). “The
elements required for equitable estoppel are: ‘(1) a false representation or
concealment of material facts; (2) made with knowledge, actual or constructive, of
those facts; (3) with the intention that it should be acted on; (4) to a party without
knowledge or means of obtaining knowledge of the facts; (5) who detrimentally
relies on the representations.’” Stanley v. CitiFinancial Mortg. Co., 121 S.W.3d 811,
820 (Tex. App.—Beaumont 2003, pet. denied) (quoting Johnson & Higgins of Tex.,
Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515-16 (Tex. 1998)).
Murray argues that the Property Owners Association indicated it would permit
Murray’s mobile home and it is estopped from taking a contrary position. Although
Murray testified at trial that the Property Owners Association told him it would not
have a problem with his mobile home if he got permits and utilities, Dancaster
testified that the Property Owners Association informed Murray that, to have a
mobile home on his property, he must comply with the requirements for
consideration of a mobile home, and that Murray never presented plans or a timeline
as requested. Parker testified after the Property Owners Association’s attorney
notified Ruthstrom that the mobile home violated a deed restriction, the Property
Owners Association offered to meet with Ruthstrom, Lininger, and Murray, and in
the meeting that occurred, Murray said that no one could make him move his mobile
16
home. Certain Board meeting minutes were admitted into evidence showing the
Property Owners Association had informed Murray (through his “proxy” Lininger)
what was required for the Board to consider granting a variance for Murray’s mobile
home. Murray testified that he had approached the director for Section 1, who told
him that “they could possibly allow” Murray to put a trailer on his property or give
“temporary permission[.]” Murray also testified that the Board informed him that if
he got permits and utilities, “they would not have a problem” with his mobile home.
The trial court as factfinder could have believed the Property Owners
Association’s witnesses and disbelieved Murray. See Turner, 38 S.W.3d at 120;
Woods, 193 S.W.3d at 726. On this record, the trial court could have reasonably
concluded that the Property Owners Association advised Murray it would consider
granting Murray a variance if he submitted proof of utilities and a written plan, but
that Murray did not present the required proof or plans to the Property Owners
Association. Accordingly, the trial court did not abuse its discretion in concluding
that Murray had not met his burden to prove equitable estoppel, as the evidence did
not reflect that Murray had relied on a false representation by the Property Owners
Association. See Stanley, 121 S.W.3d at 820. We overrule Murray’s second issue.
Having overruled both Murray’s issues, we affirm the trial court’s judgment.
17
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on December 3, 2019
Opinion Delivered January 9, 2020
Before Kreger, Horton and Johnson, JJ.
18