Jerri Bates v. Kingspark and Whitehall Civic Improvement Association

• Court: Court of Appeals of Texas
• Decided: May 3, 2012
• Docket: 01-11-00487-CV
• Status: Published

Opinion

Opinion issued May 3, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00487-CV

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JERRI BATES, Appellant

V.

KINGSPARK AND WHITEHALL CIVIC IMPROVEMENT ASSOCIATION, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 10CV1434

MEMORANDUM OPINION

          Appellant, Jerri Bates, challenges the trial court’s rendition of summary judgment in favor of appellee, Kingspark and Whitehall Civic Improvement Association (“KWCIA”), in KWCIA’s suit against Bates for violations of restrictive covenants.  In two issues, Bates contends that the summary-judgment record contains disputed issues of material fact and the trial court’s permanent injunction is “overly broad” and improperly “references and relies upon another document.”

          We affirm in part and reverse and remand in part.

Background

          In its petition, KWCIA, the homeowner’s association for the subdivision in which Bates owns a home, alleged that Bates was in “substantial violation” of a number of restrictive covenants contained within the subdivision’s Declaration of Covenants, Conditions and Restrictions (the “Declaration”) by refusing to remove a “flatbed trailer” parked on the street in front of her home, an “inoperable vehicle” stored on the driveway of her home, and “miscellaneous items” stored on the driveway, side, and lawn of her home; refusing to “replace and repaint the fascia boards” on the front of the home and the trim surrounding the garage; and refusing to “maintain the lawn” of her home “by mowing, edging and weeding.”  KWCIA contended that the condition of Bates’s home constituted “a nuisance and annoyance” to the subdivision.  It also noted that it had sent Bates “numerous requests” to comply with the Declaration, Bates had refused to comply, the condition of Bates’s home adversely affected all other home owners, and KWCIA had no adequate remedy at law. 

In its prayer, KWCIA sought an injunction to order Bates to remove the flatbed trailer stored in the street; remove from public view the inoperable vehicle stored on the driveway and the miscellaneous items stored on the driveway, side, and lawn of the home; replace and repaint the fascia boards on the front of the home and the trim surrounding the garage; and maintain her lawn by mowing, edging and weeding on a “regular basis.”  KWCIA also sought statutory damages in an amount not to exceed $200 per day[1] for violations of the restrictive covenants as well as its attorney’s fees.[2] 

Bates filed, pro se, her answer in which she “dispute[d] the charges.”  KWCIA then filed a summary-judgment motion, to which it attached the affidavit of Vivian Martin, Vice President of KWCIA.  Martin testified that Bates had failed to maintain her property and Bates’s home constituted a nuisance.  Specifically, Martin testified that,

[Bates had] failed and refused (a) to remove the flatbed trailer stored in the street in front of the residence. . . ; (b) to remove from public view the inoperable vehicle stored on the driveway. . . ; (c) to remove from public view miscellaneous items stored on the driveway and side of said property, including but not limited to items stored under a tarp, exercise equipment, folding table, sawhorses, garbage cans and bags of trash; (d) to remove miscellaneous items stored upon the lawn. . . ; (e) to replace and repaint the fascia boards on the front of the house and the trim surrounding the garage of the property; and (f) to maintain the lawn, by mowing, edging and weeding.  These conditions are inconsistent with the Declaration governing [the subdivision], and such conditions are adversely affecting the attractiveness and value(s) of surrounding properties.

Martin attached to her affidavit a copy of Bates’s deed establishing her ownership of a home and the Declaration, which provided, among other things, that

(7)     No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the subdivision.

. . . .

(11)   No lot shall be used or maintained as a dumping ground for rubbish, trash, garbage or other waste shall not be kept except in sanitary containers . . . ,

(15)   No trucks, vans, trailers, boats, or any vehicle other than passenger cars will be permitted to park on streets or on drives in front of residences for longer than a 12 hour period.

Martin also attached to her affidavit the notices that KWCIA had sent to Bates regarding her violations of the subdivision’s restrictive covenants.  On May 2, 2009, KWCIA sent Bates a letter informing her that she was in violation of multiple covenants, including the covenant precluding her home from constituting an annoyance or nuisance to the subdivision.  KWCIA noted that the Declaration required Bates to “upkeep property . . . appearance” by keeping her grass trimmed and her walks and curbs in a “neat manner,” remove clutter, timely repair structural damage, and timely remove empty garbage cans.  KWCIA also cited the covenant precluding the parking of trucks and trailers on the streets or drives.  On June 22, 2009, KWCIA sent Bates a “final violation notice” informing her that she continued to be in violation of the same deed restrictions cited in its previous letter.  On October 16, 2009, KWCIA’s legal counsel sent Bates a letter informing her that the condition of her home violated the subdivision’s restrictive covenants and detailing the conditions of the property that violated the covenants, including the storage of a flatbed trailer in front of the home, the storage of an inoperable vehicle in the driveway, the storage of miscellaneous items on the driveway under a blue tarp, the storage of miscellaneous items on the side of the home and lawn, and the poor condition of the home’s fascia boards and yard.  On December 29, 2009, KWCIA’s legal counsel sent Bates a “final notice prior to lawsuit,” citing the previously reported conditions of the property as constituting violations of the restrictive covenants.  On January 19, 2010, KWCIA’s legal counsel sent Bates another letter regarding her “multiple deed restriction violations,” including the improper storage of a flatbed trailer, an inoperable vehicle, and miscellaneous items.  The letter detailed Bates’s inadequate exterior and lawn maintenance, and it referenced attached invoices that detailed the costs expended by KWCIA regarding Bates’s violations. 

Martin also attached to her affidavit multiple photographs of Bates’s home.  These photographs depict a large flatbed trailer parked in the front yard of the home and a large pop-up tent erected in the driveway in the front of the home under which various items, including a large wooden pallet, were being stored.   Finally, KWCIA attached to its summary-judgment motion an affidavit from its counsel in which he testified in support of his request for an attorney’s fees award in the amount of $1,700.

          In response to KWCIA’s summary-judgment motion, Bates sent a letter to the trial court informing it that she had a “situation” at her house and had “electrical work in progress since August.”   Bates subsequently obtained counsel and filed a response to KWCIA’s summary-judgment motion in which she asserted that the “facts in this case remain very much in dispute.”[3]  In her attached affidavit, Bates testified that “[n]o inoperable vehicle sits upon the [p]roperty”; “[n]o miscellaneous items are stored under a tarp out in the open on [her] driveway or on the side of the [p]roperty”; “[n]o exercise equipment, folding tables, sawhorses, or bags of trash are stored in the open on [her] driveway or on the side of the [p]roperty”; “in accordance with the residential covenants, [she] stores [her] garbage in sanitary containers at the side of the [p]roperty”; “no miscellaneous items are stored upon [her] front lawn at the [p]operty”; “[t]he fascia siding and trim surrounding [her] house and garage . . . are not in need of repair or paint”; “[a]fter a protracted fight with [her] insurance company, [she] repaired the fascia siding, which is presently in good condition”; and she “adequately maintain[s] [her] lawn.”  In regard to the flatbed trailer, Bates testified,

I have kept a flatbed trailer on my driveway at the Property out of necessity for the past several months. I normally keep the trailer stored in my backyard, but due to necessary and ongoing electrical work I have been forced to store it in front of the house.  I pledge under oath to remove this trailer to a permitted location by February 15, 2011.

Bates attached to her affidavit photographs of her home. She asserted that the photographs, dated February 3, 2011, demonstrated that her affidavit testimony is correct.  In one of the attached photographs, the pop-up tent remains fully erected in the driveway, with a motorcycle parked underneath.  It also reveals that the flatbed trailer remains parked in the lawn protruding beyond the side of the home and clearly visible from the street.  One of the photographs also appears to depict an unpainted trim board, or a board that is painted in a color in contrast with the other trim boards on the home.

In its reply to Bates’s response, KWCIA noted that the photographs attached to Bates’s response depict items stored on the driveway and a flatbed trailer parked on the lawn.  KWCIA also asserted that the photographs depict damaged siding.  KWCIA attached to its reply an additional photograph, dated February 16, 2011, which depicts the pop-up tent erected in the driveway near the street with a motorcycle parked underneath and a pile of dirt on the side yard of Bates’s home.  KWCIA noted that Bates had only “partially complied with the restrictive covenants,” and it complained that, for more than one year, Bates had done only “minimal cleanup” efforts.  KWCIA requested a permanent injunction to compel Bates to correct her violations. 

The trial court granted KWCIA’s summary-judgment motion, stating that Bates was contractually obligated to comply with the restrictive covenants and there was no fact issue regarding KWCIA’s claim against Bates.  The trial court enjoined Bates from violating the restrictive covenants and specifically ordered Bates

(a) to permanently remove the flatbed trailer stored upon the driveway and/or upon the street in front of the residence . . . from the . . . subdivision, within twenty (20) days of the date of this Order, and thereafter, [Bates] shall cease and refrain from storing any trailer upon such property and/or upon any street within such subdivision, for so long as [Bates] shall own and/or reside upon any property within the . . . subdivision; (b) to permanently remove from public view the inoperable vehicle stored on the driveway of the residence . . . within twenty (20) days of the date of this Order, and thereafter, [Bates] shall cease and refrain from storing any inoperable vehicle upon such property and/or upon any street within such subdivision unless stored in a location whereby such vehicle is completely concealed from public view, for so long as [Bates] shall own and/or reside upon any property within the . . .  subdivision; (c) to permanently remove from public view all miscellaneous items stored on the driveway and/or lawn of said property, including but not limited to items stored under a tarp, exercise equipment, folding table, sawhorses, garbage cans and bags of trash, within twenty (20) days of the date of the Order, and thereafter, [Bates] shall cease and refrain from storing any item, personal property, materials, debris or otherwise upon such property, unless such item is completely concealed from public view for so long as [Bates] shall own and/or reside upon any property within the . . . subdivision; (d) to fully and completely repair and/or replace and repaint the fascia boards on the front of the house and the exterior trim surrounding the garage of the property; and (e) to maintain the lawn, by mowing, edging and weeding such lawn at least two (2) times during each and every successive calendar month for so long as [Bates] shall own and/or reside upon any property within the . . . subdivision.

The trial court also awarded KWCIA $1,700 in attorney’s fees. 

Standard of Review

To prevail on a summary-judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and there is no genuine issue of material fact.  Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).  When a plaintiff moves for summary judgment on its claim, it must establish its right to summary judgment by conclusively proving all the elements of its cause of action as a matter of law.  Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Anglo–Dutch Petroleum Int’l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).  When deciding whether there is a disputed, material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).  Every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in its favor.  Id. at 549.

Although our review is governed by the traditional summary-judgment standards of review, we also note that we review a trial court’s decision to grant or deny a permanent injunction for an abuse of discretion.  Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 642 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).  Moreover, we note that, to obtain injunctive relief, a party must generally show (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).  However, when an injunction is sought to enforce a restrictive covenant, the movant is not required to show proof of irreparable injury, but instead need only show that the defendant intends to do an act that would breach the covenant.  Id.; Marcus v. Whispering Springs Homeowners Ass’n, Inc., 153 S.W.3d 702, 707 (Tex. App.—Dallas 2005, no pet.).

An injunction must be specific in its terms and describe in reasonable detail the acts sought to be restrained.  See Tex. R. Civ. P. 683.  An injunction should be broad enough to prevent a repetition of the “evil” sought to be corrected, but not so broad as to enjoin a defendant from lawful activities.  Webb v. Glenbrook Owners Ass’n, Inc., 298 S.W.3d 374, 384 (Tex. App.—Dallas 2009, no pet.).  An injunction that enjoins lawful as well as unlawful acts may constitute an abuse of discretion.  Id.

Summary Judgment

In her first issue, Bates argues that the trial court erred in granting KWCIA summary judgment because the “only evidence . . . consisted of two competing affidavits” in which the parties presented “factual claims” that were “at direct odds with one another.”

The restrictions contained in the Declaration are restrictive covenants concerning real property.  See Tex. Prop. Code Ann. § 202.001(4) (Vernon Supp. 2011). Restrictive covenants are subject to the general rules of contract construction.  Uptegraph v. Sandalwood Civic Club, 312 S.W.3d 918, 925 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998)).  Our primary duty in construing a restrictive covenant is to ascertain the parties’ intent from the language used in the instrument.  Bank United v. Greenway Improvement Ass’n, 6 S.W.3d 705, 708 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).  We must examine the covenant as a whole in light of the circumstances present when the parties made the agreement.  Pilarcik, 966 S.W.2d at 478.

We review a trial court’s interpretation of a restrictive covenant de novo. Uptegraph, 312 S.W.3d at 925; Air Park–Dallas Zoning Committee v. Crow–Billingsley Airpark, Ltd., 109 S.W.3d 900, 909 (Tex. App.—Dallas 2003, no pet.). Whether restrictive covenants are ambiguous is a matter of law for the court to decide.  Pilarcik, 966 S.W.2d at 478.  A covenant is unambiguous if, after appropriate rules of construction have been applied, the covenant can be given a definite or certain legal meaning.  Uptegraph, 312 S.W.3d at 925.  In contrast, if, after applying appropriate rules of construction, a covenant is susceptible of more than one reasonable interpretation, the covenant is ambiguous.  Uptegraph, 312 S.W.3d at 925.  

We first analyze the trial court’s permanent injunction related to the flatbed trailer parked on Bates’s lawn and driveway.  In support of KWCIA’s summary-judgment motion, Martin testified that Bates had refused to remove a flatbed trailer stored in the street in front of her home.  KWCIA also attached photographs demonstrating that Bates had parked a large flatbed trailer in the front lawn of her home, and one photograph reveals that the trailer spanned the width of the majority of Bates’s front lawn.  KWCIA also included copies of the multiple notices that it had sent to Bates regarding the flatbed trailer.  KWCIA sent Bates notices on May 2, 2009 and June 22, 2009 in which it cited the restrictive covenant that precluded the parking of trucks and trailers on the streets or driveways.  KWCIA’s legal counsel sent Bates additional notices on October 16, 2009, December 29, 2009, and January 19, 2010.  Each of these notices detailed KWCIA’s assertion that Bates remained in violation of the restrictive covenants by parking her large flatbed trailer in her lawn or driveway.   In her summary-judgment response, Bates did not dispute that she was violating the restrictive covenant by parking the flatbed trailer in her driveway.  In fact, although she requested additional time to move the trailer, she admitted to having parked the flatbed trailer in her driveway for “several months.”  Bates also submitted her own photographs further demonstrating her violation. 

The Declaration expressly provides that “[n]o trucks, vans, trailers, boats, or any vehicle other than passenger cars will be permitted to park on streets or on drives in front of residences for longer than a 12 hour period.”  Bates does not contend that this covenant is ambiguous, nor does she contest her violation of this covenant by parking the trailer in front of her home or on her driveway.  Bates also does not dispute that she received five separate notices from KWCIA regarding the parking of a large flatbed trailer in her lawn or driveway over a nine month period in 2009 and 2010.  Accordingly, we hold that the summary-judgment record establishes, as a matter of law, that Bates was in violation of this covenant for a substantial period of time. 

The trial court’s injunction, in regard to the flatbed trailer, orders Bates “to permanently remove the flatbed trailer stored upon the driveway and/or upon the street in front of the residence . . . from the . . . subdivision, within twenty (20) days of the date of this Order.”  It further orders her to “refrain from storing any trailer upon such property and/or upon any street within such subdivision, for so long as [Bates] shall own and/or reside upon any property within the . . . subdivision.”  This portion of the injunction is specific in its terms and describes in reasonable detail the conduct by Bates that is sought to be restrained.  See Tex. R. Civ. P. 683.  The injunction is also broad enough to prevent a repetition of the conduct sought to be corrected, i.e., Bates’s continued parking of a flatbed trailer in violation of the restrictive covenants, but it is not so broad that it enjoins Bates from lawful conduct.  Webb, 298 S.W.3d at 384.  The summary-judgment record establishes as a matter of law that Bates violated the restrictive covenants by parking a flatbed trailer on her driveway and lawn for a substantial period of time well in excess of the twelve-hour period contemplated by the restrictive covenants.  Accordingly, we hold that the trial court did not err in granting summary judgment in favor of KWCIA in regard to the portion of its injunction related to Bates’s parking of a flatbed trailer in her driveway and lawn.[4]

The remaining portions of the judgment and injunction relate to Bates’s storage of an inoperable vehicle and miscellaneous items on the driveway, lawn, and side of her property and her improper maintenance of her home’s fascia boards, trim boards, and lawn.  Although KWCIA presented testimony and photographs in support of its request for injunctive relief related to these alleged additional violations of the restrictive covenants, Bates presented conflicting testimony.   For example, Bates testified that there was no inoperable vehicle sitting upon her property, there were no miscellaneous items stored under a tarp on her driveway or on the side of the property, there were no miscellaneous items stored upon her front lawn at the property, the fascia siding and trim on her home were not in need of repair or paint, her fascia siding was in good condition, and she adequately maintained her lawn.  Although KWCIA’s photographs and Bates’s own photographs depict a large pop-up tent erected in Bates’s driveway, in light of the conflicting testimony, we cannot conclude that KWCIA established, as a matter of law, that Bates committed these additional violations of restrictive covenants.  The conflicting testimony presented in Martin’s and Bates’s affidavits presented a fact issue, which could not have been properly resolved by summary judgment.  Accordingly, we hold that the trial court erred in granting summary judgment in favor of KWCIA in regard to the remaining portions of its injunction.

We overrule the portion of Bates’s first issue pertaining to the trial court’s judgment and injunction ordering her to permanently “remove the flatbed trailer stored upon the driveway and/or upon the street in front” of her home from the subdivision and to “refrain from storing any trailer upon such property and/or upon any street within” the subdivision.[5]  We sustain the remaining portions of Bates’s first issue related to the remaining portions of the judgment and injunction.

Conclusion

          We affirm the portion of the trial court’s judgment ordering Bates to remove the flatbed trailer and enjoining her from continuing to store it on her driveway and property in violation of the restrictive covenants.  We reverse the remaining portions of the trial court’s judgment, including the trial court’s award of attorney’s fees to KWCIA.  We remand for further proceedings on KWCIA’s remaining claims, including its claims for attorney’s fees and statutory penalties.[6]  

                                                                    Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

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[1]           See Tex. Prop. Code Ann. § 202.004(c) (Vernon 2007) (“A court may assess civil damages for the violation of a restrictive covenant in an amount not to exceed $200 for each day of the violation.”).

[2]           See id. § 5.006(a) (Vernon 2004) (“In 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.”).

[3]           Bates also filed an amended answer in which she asserted a general denial and various affirmative defenses.  She also presented a “verified denial” in which she contended that KWCIA had no legal “capacity” to enforce the Declaration and bring the lawsuit.  Bates’s counsel attached to the answer an affidavit in which he testified that, based upon his review of the Declaration, KWCIA has “no authority” to bring the lawsuit.  Bates does not raise this “verified denial” on appeal.

[4]           Accordingly, we necessarily reject Bates’s suggestion in her briefing that this portion of the injunction was “mooted” because Bates has since “removed the flatbed trailer.”  First, this assertion is not supported by the record.  And, second, even if Bates has in fact removed the trailer, such action would not moot KWCIA’s request for injunctive relief, statutory penalties, or attorney’s fees.

[5]           When read in its totality, we consider this portion of the injunction to, consistent with the Declaration, enjoin Bates from storing the trailer in the subdivision’s streets or on her driveway and lawn.   

[6]           Having determined that there were fact issues that precluded the trial court’s granting of summary judgment on all matters other than Bates’s storage of the flatbed trailer on her driveway and lawn, we need not reach the other “alternative” issues presented by Bates in her brief.  Thus, we decline to express any opinion regarding whether any other portions of the trial court’s judgment were “overly broad” or “ambiguous” or provided more relief than permitted under the applicable law or covenants.  We note that, because we have affirmed only a portion of the trial court’s judgment, and because we have remanded the case to the trial court to conduct further proceedings, the trial court may be entitled to consider KWCIA’s request for attorney’s fees and statutory penalties following our remand.  See Tex. Prop. Code Ann. §§ 5.006(a), 202.004(c); see also Wiese v. Heathlake Community Ass’n, Inc., No. 14–11–00268–CV, 2012 WL 1009531, at *8 (Tex. App.—Houston [14th Dist.] Mar. 27, 2012, no pet. h.) (holding that trial court abused its discretion in entering permanent injunction that was based upon “undefined terms” and was not qualified by “any benchmark of time,” but remanding for further proceedings so trial court could consider association’s request for statutory penalties); Webb v. Glenbrook Owners Ass’n, Inc., 298 S.W.3d 374, 392 (Tex. App.—Dallas 2009, no pet.) (affirming in part, reversing and rendering in part, and reversing and remanding in part injunction entered against homeowner, and remanding for further proceedings on injunctive relief and association’s request for attorney’s fees).