Bob Hubenak, Individually and as President of Tidewater Oaks Owners Assoc. v. Robert Cromeens

• Court: Court of Appeals of Texas
• Decided: August 30, 2005
• Docket: 13-04-00390-CV
• Status: Published

Opinion

                             NUMBER 13-04-00390-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

BOB HUBANEK, INDIVIDUALLY

AND AS PRESIDENT OF TIDEWATER

OAKS OWNERS ASSOCIATION,                                                     Appellant,

                                                             v.

ROBERT CROMEENS,                                                                      Appellee.

On appeal from the 130th District Court of Matagorda County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

Appellant, Bob Hubanek, individually and as president of Tidewater Oaks Owners Association, sued appellee, Robert Cromeens, to enforce the residential subdivision=s restrictive covenants.  Hubanek claimed that Cromeens had violated deed restrictions by erecting a metal outbuilding on his property without first obtaining approval from the owners association.  After a bench trial, the trial court rendered a take-nothing judgment against Hubanek.  In four issues, Hubanek asserts the trial court erred in refusing to enforce the restrictive covenants and in finding that Cromeens had established the affirmative defenses of waiver and laches.  We affirm.

Because the issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and facts in this opinion except as necessary to advise the parties of the Court=s decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

In his second issue, Hubanek asserts the trial court erred in failing to file requested findings of fact and conclusions of law.  We consider this issue to be without merit.  The record shows that the trial court filed findings of fact and conclusions of law on August 11, 2004.  Appellant=s second issue is overruled.

In his first issue, Hubanek contends the trial court erred in refusing to enforce the subdivision deed restrictions requiring that (1) any sheet metal or metal panels used in any outbuilding have factory-applied paint or be factory anodized, and (2) the construction of any outbuilding be approved by the Architectural Control Committee.  Hubanek asks us to (1) reverse the trial court=s judgment and (2) render judgment in his favor.  We construe this as a challenge to the legal sufficiency of the evidence.  See Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex. 1990); Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982) (AIt is our practice to liberally construe the points of error in order to obtain a just, fair and equitable adjudication of the rights of the litigants.@); see also Tex. R. App. P. 38.1(e), 38.9.

The standard of review when a party attacks the legal sufficiency of an adverse finding on an issue on which he had the burden of proof at trial is well established.  See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).

When an appellant challenges a trial court=s findings of fact for legal sufficiency, we review those findings under the same legal standard that we apply to the review of jury findings.  BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).  We review a challenge to the trial court=s conclusions of law as a legal question, reviewing de novo the trial court's application of the law to the facts.  BMC Software Belg., 83 S.W.3d at 794; Commonwealth Gen. Corp. v. York, 141 S.W.3d 840, 844 (Tex. App.BCorpus Christi 2004, pet. filed).

The trial court found that the material composing Cromeens=s building was not in violation of the subdivision restrictions and that any failure to submit plans to an architectural committee was not a violation of established subdivision restrictions because the committee did not exist. Therefore, the trial court concluded Hubanek failed to prove that Cromeens had violated any restrictive covenants.

Hubanek testified that, although he had no definite knowledge regarding the composition of Cromeens=s building, in his opinion it did not comply with the deed restrictions.  Hubanek also testified that he believed there was an architectural committee in place at the time the building was constructed, although no records of the membership of the committee existed.

Cromeens testified that the outbuilding was made of galvanized sheet metal, which to his knowledge was factory anodized.  Thus, he argued, the building was in compliance with the subdivision deed restrictions.  Cromeens also testified that he had no knowledge of the existence of an architectural committee at anytime. 

As fact-finder, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony.  McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 770 (Tex. App.BCorpus Christi 2001, no pet.).  Where there is conflicting evidence, the trial court's determination on such matters is generally regarded as conclusive.  Adams, 41 S.W.3d at 770 (citing Montgomery Ward & Co. v. Scharrenbeck, 204 S.W.2d 508, 512 (Tex. 1947)).

After examining the record for evidence that supports the findings and ignoring all evidence to the contrary, we conclude that there is some evidence to support the findings of the trial court.  See Dow Chem., 46 S.W.3d at 241.  Therefore, we hold the evidence is legally sufficient to support the trial court=s findings that (1) the material used in Cromeens=s building did not violate the subdivision restrictions, and (2) any failure to submit plans to the architectural committee was not a violation of established subdivision restrictions because the committee did not exist. 

Having held the trial court=s findings of fact to be legally sufficient, we conclude the trial court correctly applied the law to the facts by finding that Hubanek had failed to prove that Cromeens was in violation of the deed restrictions.  Appellant=s first issue is overruled.  In light of our disposition of appellant=s first issue, it is unnecessary to address his remaining issues.  See Tex. R. App. P. 47.1.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 30th day of August, 2005.