Jamison v. Allen

377 S.W.3d 819, 2012 Tex. App. LEXIS 6511, 2012 WL 3194414
CourtCourt of Appeals of Texas
DecidedAugust 8, 2012
DocketNo. 05-11-00603-CV
StatusPublished
Cited by7 cases

This text of 377 S.W.3d 819 (Jamison v. Allen) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jamison v. Allen, 377 S.W.3d 819, 2012 Tex. App. LEXIS 6511, 2012 WL 3194414 (Tex. Ct. App. 2012).

Opinion

OPINION

Opinion By Justice LANG-MIERS.

This is an appeal from a judgment rendered after a trial to the court. Appellees Dale B. Allen and Mary Kay Allen sued their neighbors, appellants Michael D. Ja-mison and Dianne D. Jamison, alleging that the Jamisons violated their neighborhood’s Declaration of Covenants, Conditions and Restrictions by using an unapproved building material when they built their home. The Allens sought a declaratory judgment that the Declaration is valid and also sought to enforce the building restriction against the Jamisons. The trial court found in favor of the Allens, and the Jamisons filed this appeal. We reverse the trial court’s judgment and render judgment that appellees take nothing.

BACKGROUND

The Jamisons and the Allens live in a subdivision known as Cedar Oaks Phase Two, located in Hunt County, Texas. The subdivision is subject to a Declaration of Covenants, Conditions and Restrictions and provides that the “exterior walls” of the homes must be covered only in certain approved building materials. The Jami-sons selected a material known as “Hardi-Plank”1 for the siding on their home. HardiPlank was described as a fiber cement product that is difficult to distinguish [821]*821from wood; is fire resistant, rot resistant, and insect resistant; does not shrink, swell or absorb moisture; and has a fire rating that is equal to brick veneer.

Dale Allen saw workers installing Har-diPlank on the left front side of the Ja-misons’ home. He told the construction supervisor that the material was not an approved material. The next day, Mr. Allen talked to the builder about the use of HardiPlank on the Jamisons’ home and, a few days later, he talked to Dianne Jamison about it. Mrs. Jamison told Mr. Allen that he had also used Har-diPlank on a portion of his home — the gables. When the Jamisons continued to construct their home using HardiPlank, the Allens sued them to enforce the building restriction. The Jamisons answered, asserting, among other things, the affirmative defense of quasi-estoppel.

The parties tried the case to the court. The Allens testified, along with three of their neighbors, and they also called Mrs. Jamison as an adverse witness. The Jami-sons presented testimony from the builder, the developer, a real estate appraiser/broker, and three different neighbors. At the conclusion of the trial, the court ruled in favor of the Allens. The court issued a final judgment ordering the Jamisons to bring their home into compliance with the Declaration and awarding the Allens costs plus $4,578 in attorney’s fees. The trial court made findings of fact and conclusions of law.

The dispute on appeal involves the interpretation of “exterior walls” contained in the building restriction:

The exterior walls of any dwelling in the Addition must be composed entirely of some combination of: brick veneer; stone; commercially cut, milled and finished logs; redwood or cedar siding twelve inches or less in width of tongue in groove and lapped variety; or glass. When wood, or similar product that normally requires painting, is used on eaves, doors, trim, etc[.], painting must be properly applied, and when redwood or cedar are used on the exterior, such surfaces shall be painted, stained or preserved and may not remain unfinished wood....

It appears undisputed that HardiPlank is not an approved building material for the exterior walls. The Jamisons contended at trial, however, that the Allens were estopped from complaining about the Ja-misons’ use of HardiPlank because the Al-lens also used HardiPlank on their gables. In response, the Allens contended that gables are not “exterior walls,” that they did not violate the building restriction, and that they should not be estopped from suing the Jamisons. In ruling in the Al-lens’ favor, the trial court defined “exterior walls” to mean:

[T]he vertical structure on the outside of the home extending from the foundation to the plate line, being the top of the wall framing where the ceiling joist and roof sit.

The court also found that the “exterior walls” of the Allens’ home “are completely covered in specified approved materials for exterior walls” and that there was no evidence to support the Jamisons’ defense of quasi-estoppel. In two issues, the Jami-sons challenge the trial court’s findings and conclusions.

INTERPRETATION OF “EXTERIOR WALLS”

In issue one, the Jamisons contend that the trial court erred when it defined “exterior walls” to impliedly exclude gables.

Standard of Review

We review a trial court’s interpretation of a restrictive covenant de novo. [822]*822See Rakowski v. Comm. to Protect Clear Creek Village Homeowners’ Rights, 252 S.W.3d 673, 676 (Tex.App.-Houston [14th Dist.] 2008, pet. denied); Air Park-Dallas Zoning Comm. v. Crow Billingsley Airpark, Ltd., 109 S.W.3d 900, 909 (Tex.App.Dallas 2003, no pet.). Restrictive covenants are subject to the general rules of contract construction. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.1998). When construing an undefined term in a restrictive covenant, we determine the parties’ intent by giving the term its plain, everyday meaning unless the contract shows the parties used the term in a technical or different sense. See Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996); Bradford Partners II, L.P. v. Fahning, 231 S.W.3d 513, 520 (Tex.App.-Dallas 2007, no pet.).

Analysis

The trial court concluded that the building restriction was “clear and unambiguous” and the parties do not contend otherwise. The Jamisons contend that the term “exterior walls” in the building restriction should be defined to include gables. The Allens contend the term should exclude gables. They argue that the Jamisons’ definition of “exterior walls” would mean that “virtually any portion of a house that is perpendicular to the ground constitutes an exterior wall.” They contend that under the Jamisons’ definition, the reference to “eaves, doors, trim, etc.” in the building restriction would be rendered meaningless. We agree with the Jamisons.

“Wall” is defined as “a vertical architectural member used to define and divide space ... one of the sides of a room or building that connects the floor and ceiling or foundation and roof.” WebsteR’s Third New International Dictionary 2572 (1981). It is also defined as “a side of a building or room, typically forming part of the building’s structure.” The New Oxford American Dictionary 1898 (2001). “Gable” is defined as “the vertical triangular portion of the end of a building from the level of the cornice or eaves to the ridge of the roof,” and “the end wall of a building as distinguished from the front or rear side.” Webster’s Third New International Dictionary 927.

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Bluebook (online)
377 S.W.3d 819, 2012 Tex. App. LEXIS 6511, 2012 WL 3194414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jamison-v-allen-texapp-2012.