Sherry Densmore v. Scott Poster, Angela Poster, and Jason Robb ( 2024 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-24-00038-CV
SHERRY DENSMORE, APPELLANT
V.
SCOTT POSTER, ANGELA POSTER , AND JASON ROBB, APPELLEES
On Appeal from the 415th District Court
Parker County, Texas
Trial Court No. CV22-0801, Honorable Graham Quisenberry, Presiding
July 8, 2024
MEMORANDUM OPINION 1
Before QUINN, C.J., and PARKER and DOSS, JJ.
This appeal involves effort to use as controlling precedent the earlier disposition of
a dispute regarding deed restrictions. See Densmore v. McCarley, No. 02-19-00287-CV,
2020 Tex. App. LEXIS 2304 (Tex. App.—Fort Worth Mar. 19, 2020, no pet.) (mem. op.).
Only Sherry Densmore was a party in that proceeding, unlike Scott Poster, Angela Poster,
and Jason Robb. In reviewing the final order denying enforcement of a particular
1 Because this appeal was transferred from the Second Court of Appeals, we apply its precedent
should it conflict with that of the Seventh Court of Appeals. TEX. R. APP. P. 41.3.
restrictive covenant in that suit, the Second Court of Appeals noted and acknowledged
that the trial court expressly limited its decision to the particular parties and controversy
there encompassed. Nevertheless, Densmore now attempts to make it applicable, via
the machinations of some shade of res judicata, to each of the 40 plus tracts of land
encumbered by the deed restrictions. The trial court rebuffed that effort. So, she
appealed and contends either that 1) res judicata barred enforcement of the deed
restrictions at issue or 2) the deed restrictions were abandoned and unenforceable. The
Posters and Robb also appealed the denial of their request for attorney’s fees. We affirm
in part and reverse in part.
Background
Densmore lives in a housing subdivision that consists of 449 acres and over 40
lots. The lots were the subject of deed restrictions imposed in 1981. The underlying
dispute is not the first Densmore has had regarding the deed restrictions of the division.
Several years ago, Densmore sued the McCarleys to prohibit them from operating a
licensed dog-breeding business on their lot. The Fort Worth Court of Appeals upheld the
trial court’s denial of enforcement of restrictions and denial of permanent injunctive relief
based on the affirmative defense of waiver by abandonment.
Following the disposition of the appeal in that matter, the Posters and Robb moved
into their respective properties in the subdivision. In the spring of 2022, Scott Poster
became aware that Densmore was constructing something on her property. When he
realized 15 RV pads were being constructed on the 7.9-acre tract of land, he sought
injunctive relief based on the deed restrictions. It is undisputed that, if the restrictions still
apply, the development of a commercial RV park is prohibited. Consequently, the Posters
and Robb brought a breach of restriction claim, sought injunctive relief and later,
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requested specific performance. They also sought to recover attorney’s fees. Densmore
asserted the affirmative defense of waiver by abandonment and argued the restrictions
were unenforceable based on the court’s decision in Densmore v. McCarley.
The matter was tried to the bench. The court entered a final judgment finding
Densmore breached the restrictions and granted a permanent injunction against her,
prohibiting her from “installing or maintaining mobile homes, house-cars, or other
moveable structures, placed temporarily or otherwise, that are utilized as residences” on
her property. The trial court also entered findings of fact and conclusions of law
supporting its judgment. It denied recovery of attorney’s fees. Densmore appealed and
the Posters and Robb cross-appealed.
Densmore Appeal
ISSUE ONE—RES JUDICATA
By her first issue, Densmore argues the ruling in McCarley determined the
enforcement of the deed restrictions and therefore, that issue cannot be relitigated.
Conversely, the Posters and Robb contend the ruling in McCarley adjudicated only the
rights between McCarley and Densmore as to the McCarley property. As such, res
judicata does not prohibit the litigation at issue here. We overrule the issue.
Res judicata, also known as claim preclusion, is an affirmative defense that
prevents the relitigation of a finally adjudicated claim and related matters that should have
been litigated in a prior suit. Peterson, Goldman & Villani, Inc. v. Ancor Holdings, LP, 584
S.W.3d 556, 562-63 (Tex. App.—Fort Worth 2019, pet. denied); State & Cty. Mut. Fire
Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001). The elements of the res judicata
defense are 1) a prior final determination on the merits by a court of competent
jurisdiction; 2) identity of parties, or those in privity with them, in the prior and subsequent
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actions; and 3) the subsequent action is based on claims or causes of action that were or
should have been raised in the first action. Peterson, Goldman & Villani, Inc., 584 S.W.3d
at 563. We review the applicability of res judicata under a de novo standard of review.
In re L.M., No. 02-22-00277-CV, 2023 Tex. App. LEXIS 3983, at *11 (Tex. App.—Fort
Worth June 8, 2023, no pet.) (mem. op.).
Here, Densmore argues the McCarley judgment acted to render the deed
restrictions unenforceable against her, even as to neighbors who were not parties to that
proceeding. 2 But, the trial court specified that its findings and conclusions “only
adjudicate and affect the rights of the parties to this suit and the McCarley Property.”
Likewise, the court of appeals’s opinion in McCarley very clearly limited the decision,
stating relief under the Declaratory Judgments Act vested the trial court with jurisdiction
to declare rights “as between the parties before it—Appellants and the McCarleys” as to
the McCarley property. McCarley, 2020 Tex. App. LEXIS 2304, at *24. It elaborated,
stating the trial court did not have the power to declare the rights of parties who had not
been joined. Id. Further, the court did not state it adjudicated the restrictions as to
Densmore’s property.
Moreover, the claims of the Posters and Robb did not accrue until 2022, years after
the opinion in McCarley issued. They were neither parties to the action nor in privity to
any such parties. See Amstadt v. United States Brass Corp., 919 S.W.2d 644, 653 (Tex.
1996) (defining privity for purposes of res judicata as parties who share an identity of
interests in the basic legal right that is the subject of litigation). For these reasons, res
judicata did not bar the underlying litigation.
2 Densmore does not argue the Posters and Robb were in privity with any party.
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Densmore also broaches, for the first time, the theory of “quasi-estoppel.” Quasi-
estoppel is an affirmative defense that “precludes a party from asserting, to another’s
disadvantage, a right inconsistent with a position previously taken. The doctrine applies
when it would be unconscionable to allow a person to maintain a position inconsistent
with one to which he acquiesced, or from which he accepted a benefit.” Clark v. Cotten
Schmidt, L.L.P., 327 S.W.3d 765, 770 (Tex. App.—Fort Worth 2010, no pet.). Densmore
did not raise this defense below, however, and is barred from raising for the first time on
appeal.
ISSUE TWO—WAIVER BY ABANDONMENT
Through her second issue, Densmore argues the evidence is legally insufficient to
support the trial court’s findings that the Posters and Robb did not waive by abandonment
the deed restrictions as to the RV park. We overrule the issue.
In an appeal from a bench trial, the trial court’s findings of fact and conclusions of
law have the same weight as a jury verdict. Stevens v. Avent, No. 07-20-00265-CV, 2022
Tex. App. LEXIS 961, at *8 (Tex. App.—Amarillo Feb. 9, 2022, no pet.) (mem. op.).
Consequently, challenges to the sufficiency of the evidence to support a trial court’s
findings of fact are reviewed under the same standards used to review a jury's
findings. Id. The standard for reviewing sufficiency is set forth in Anderson v. Seven
Points, 806 S.W.2d 791, 794 (Tex. 1991). We apply it here.
Waiver is the voluntary relinquishment of a known right; it may be either express
or implied. Location, Location, Location, Ltd. v. Home Depot USA, Inc., No. 07-21-00036-
CV, 2022 Tex. App. LEXIS 501, at *11-12 (Tex. App.—Amarillo Jan. 25, 2022, no pet.)
(mem. op.). No express waiver of the nonwaiver provision exists here. An implied waiver
occurs when one party engages in intentional conduct inconsistent with the right allegedly
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being waived. Id. An implied waiver can also occur by inaction when the party to whom
the right accrues fails to act in a prompt and efficient manner. Id.The restrictions here include a severability paragraph, which is intended to prevent
claims of waiver by abandonment. However, that clause does not conclusively negate
the possibility that waiver has occurred. McCarley, 2020 Tex. App. LEXIS 2304, at *13.
To establish waiver by abandonment of a restrictive covenant running with the land,
where there is a nonwaiver provision, a property owner must prove that the existing
violations are so great and the violations so pervasive, that they have destroyed the
fundamental purpose of the restrictions and have caused the average person to conclude
that the entire set of restrictions in question have been abandoned. Location, Location,
Location, Ltd., 2022 Tex. App. LEXIS 501, at *11-12 (emphasis in original); McCarley,
2020 Tex. App. LEXIS 2304, at *12-13.
So too must we remember waiver is inherently a question of fact dependent on the
facts of each case. McCarley, 2020 Tex. App. LEXIS 2304, at *14. Those facts include
the number, nature, and severity of the existing violations, any prior acts of enforcement,
and the possibility of realizing to a substantial degree the benefits sought to be obtained
through the restrictions. Id.Densmore argues that the claims of the Posters and Robb are barred by waiver.
In support of her position, Densmore relies on the evidence set forth in McCarley
regarding waiver. There, the court noted that over 75 percent of the lots contained some
form of restriction violation. McCarley, 2020 Tex. App. LEXIS 2304, at *24. It stated that
“[a]ppellants acquiesced in extensive and material violations of the Restrictions so as to
amount to an abandonment of the Restrictions as a whole, including the nonwaiver
provision, resulting in waiver of the right to enforce them.” Id. at *13. Many, if not all, of
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those violations still exist today. However, the appellants in that case did not include the
Posters and Robb. The appellants there, i.e., Densmore and three other people in the
subdivision, were all knowingly in violation of one or more deed restrictions and had been
for some years. And, no owner had sought to enforce the restrictions for 35 years. 3 Id.
at 20. As such, their actions were inconsistent with claiming the right to enforce the
restrictions and therefore, the evidence there supported the trial court’s waiver finding.
The same is not true of the Posters and Robb. The Posters bought their land in
2017 but did not move in until several years later. Robb bought his property in 2021.
They relied on the deed restrictions in place when they purchased their properties. The
record shows they sought injunctive relief within days of discovering Densmore was
placing individual pad sites on her land for development of an RV park. Robb joined the
Posters in the suit in July 2022.
Further, the Posters and Robb testified they were not specifically aware of
violations other than the McCarley’s dog breeding business and Densmore’s
development of an RV park. They claimed no knowledge of the various other businesses
allegedly operating in violation of the restrictions in the subdivision. The Posters had an
agricultural exemption allowing cattle to graze on their property4 and Robb ran an Airbnb
out of his home for a few months. 5 These did not necessarily appear to be in violation of
the deed restrictions.
3 Densmore testified the subdivision had been in place since approximately 1981.
4 Poster testified they have seven Longhorns on their property. They also noted they had an oil
and gas lease on their property that predated their purchase. The trial court said it was not “deeming [the
oil and gas lease] the operation of a business for purposes of these restrictions.”
5The restrictions allowed businesses of a limited nature such as those contained within the
residence.
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Additionally, most of the pre-existing violations consisted of building set-back
transgressions. Some involved the animal breeding and the operation of small business
activities. Generally elemental to each was the fact of the property remaining under the
permanent possession and control of the landowner. Those activities, though violative of
the restrictions, could be characterized as somewhat trivial in comparison to Densmore’s
desire to convert a portion of her land to a trailer park for itinerants or transients. Indeed,
we find it ironic that Densmore attempts that which she decried in McCarley. There, she
testified if the restrictions were not enforced, then “the character of Southridge would be
destroyed . . . ‘[M]obile homes could move in. Gun ranges could come in. Just
anything, actually. Junk cars. Other businesses and stuff.’” McCarley, 2020 Tex. App.
LEXIS 2304, at *20-21. (emphasis added). This is quite the departure from her stance in
the current litigation.
In short, the trial court had before it evidence of historic violations going generally
unenforced. Yet, it also had evidence of effort by some, e.g., Densmore, Robb and the
Posters, to enforce them. So too did the nature of the past violations differ in kind and
quality than those attempted by Densmore. Thus, we cannot say that evidence supported
a finding that the existing violations were so great and pervasive as to destroy the
fundamental purpose of the restrictions and cause the average person to conclude that
all the restrictions had been abandoned.
The Posters and Robb Appeal
Through their appeal, the Posters and Robb seek their reasonable and necessary
attorney’s fees. They argue they are entitled to those fees under the applicable restriction
and the Property Code. Densmore disagrees, arguing the trial court’s determination that
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she violated the restrictions is not supported by the evidence or the law and thus, the
Posters and Robb are not entitled to seek attorney’s fees. We sustain the issue.
We typically review a trial court’s award of attorney’s fees under an abuse of
discretion standard. See Ridge Oil Co., Inc. v. Guinn Invs., Inc., 148 S.W.3d 143, 163
(Tex. 2004). But, when the issue is whether a legal basis exists for the recovery of
attorney’s fees, we are faced with a question of law that we review de novo. See Eldorado
Homeowners’ Ass’n v. Clough, No. 05-22-00198-CV, 2024 Tex. App. LEXIS 5, at *37
(Tex. App.—Dallas Jan. 2, 2024, no pet.) (mem. op.); see also In re M.M., No. 05-21-
00992-CV, 2023 Tex. App. LEXIS 242, at *27-28 (Tex. App.—Dallas Jan. 13, 2023, no
pet.) (mem. op.) (“Though we generally review a trial court’s award of attorney’s fees
under an abuse of discretion standard, the issue of whether Texas law recognizes a basis
for the recovery of attorneys’ fees is a question of law we review de novo.”).
The Posters and Robb presented evidence, without objection, of their reasonable
and necessary attorney’s fees. That evidence included expert testimony and billing
statements. They requested fees in the amount of $17,580.00. The trial court found the
Posters and Robb incurred attorney’s fees and expenses in prosecuting the suit against
Densmore. It found also that the restrictive covenants (No. 16) and the Texas Property
Code provided for recovery of attorney’s fees and costs. It nevertheless denied recovery
of those fees.
Restriction No. 16 provided:
The owner or owners of any tract of land out of the 449.0 acres shall have
the right to sue for and obtain injunctive relief to enforce any of the
restrictions or covenants herein set forth, and the party or parties in violation
of any of the restrictions or covenants shall pay any and all court costs,
including expert witness testimony and attorneys fees paid or agreed to be
paid by the parties bringing suit for such injunctive relief.
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Section 5.006 of the Property Code provided that “[i] n an action based on breach
of a restrictive covenant pertaining to real property, the court shall allow to a prevailing
party who asserted the action reasonable attorney’s fees in addition to the party’s costs
and claim.” TEX. PROP. CODE ANN. § 5.006. Thus, “[i]f breach of a restricted covenant is
properly pleaded and proved, then the award of fees under section 5.006 is mandatory.”
Garden Oaks Maint. Org. v. Chang, 542 S.W.3d 117, 140 (Tex. App.—Houston [14th
Dist.] 2017, no pet.).
Breach of a restricted covenant was properly pleaded and proved here, and the
Posters and Robb prevailed on their cause of action. As such, they were entitled to
reasonable and necessary attorney’s fees. Id. In denying their award, the trial court erred
in a harmful manner.
We reverse that portion of the judgment denying attorney’s fees to the Posters and
Robb and remand that issue to the trial court. In all other things, we affirm the trial court’s
judgment.
Brian Quinn
Chief Justice
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