City of Pasadena v. Gennedy

• Decision Date: 08 December 2003
• Docket Number: No. 01-02-00324-CV.,01-02-00324-CV.
• Citation: 125 S.W.3d 687
• Parties: CITY OF PASADENA, William R. Ridgway, Vanessa Morgan, and Joe Dow, Appellants, v. Gurges GENNEDY, Appellee. Gurges Gennedy, Appellant, v. City of Pasadena, William R. Ridgway, Vanessa Morgan, and Joe Dow, Appellees.
• Court: Texas Court of Appeals

125 S.W.3d 687

CITY OF PASADENA, William R. Ridgway, Vanessa Morgan, and Joe Dow, Appellants, v. Gurges GENNEDY, Appellee.

Gurges Gennedy, Appellant, v. City of Pasadena, William R. Ridgway, Vanessa Morgan, and Joe Dow, Appellees.

No. 01-02-00324-CV.

Court of Appeals of Texas, Houston (1st Dist.).

December 8, 2003.

Lee A. Clark, Greenville, Richard E. Risinger, Pasadena, for Appellant.

Ronald G. Wiesenthal, Bellaire, for Appellee.

Panel consists of Justices TAFT, JENNINGS, and HANKS.

OPINION

TIM TAFT, Justice.

The City of Pasadena ("the City") and William R. Ridgway, Vanessa Morgan, and Joe Dow (collectively, "the enforcing parties") sued Gurges Gennedy to enforce the deed restrictions of the Pasadena River Oaks Subdivision. After a bench trial, the trial court rendered judgment that the enforcing parties take nothing, declared that Gennedy had not violated the subdivision's deed restrictions, and denied attorney's fees to both sides. All parties appealed. We determine (1) whether the evidence was legally sufficient to show that the deed restrictions had expired or, alternatively, that they had been validly amended and, if so, (2) whether we should remand attorney's fees issues when we remand the cause with instructions. We reverse the judgment and remand the cause with instructions.

Facts and Procedural History

In April 1996, the enforcing parties sued Gennedy to enforce the subdivision's deed restrictions ("the [original] deed restrictions"), alleging that his front-yard fence, which was fewer than 40 feet from the street, violated Section II, Paragraph 19 of the deed restrictions, which paragraph provided that "[n]o fence or wall of any character shall be erected nearer to the front lot line than 40 feet therefrom...." See Tex. Loc. Gov't Code Ann. § 212.133(a) (Vernon Supp.2004) (allowing eligible municipality to sue to enjoin or to restrain violations of deed restrictions). The enforcing parties requested permanent injunctive relief, damages, and attorney's fees. See id. § 212.153 (Vernon Supp. 2004) (allowing municipality to seek injunction or abatement in suit to enforce restriction's violation); id. § 212.156(b) (Vernon Supp.2004) (allowing municipality, in enforcement suit based on ordinance, to recover civil penalty for restriction's violation); Tex. Prop.Code Ann. § 5.006(a) (Vernon 1984) (providing for award of attorney's fees in action based on breach of restrictive covenant pertaining to real property).

The trial court initially rendered summary judgment in favor of the enforcing parties, granting a permanent injunction against Gennedy and awarding attorney's fees to the enforcing parties. Gennedy appealed. By unpublished opinion, this court reversed the summary judgment because material fact issues existed and remanded the cause. See Gennedy v. City of Pasadena, 1999 WL 771522 at *3-5 (Tex. App.-Houston [1st Dist.] Aug. 6, 1998, pet. denied) (not designated for publication).

Upon remand, Gennedy counterclaimed, seeking a declaration that his fence did not violate the deed restrictions because the restrictions had either been modified in writing or because the subdivision's architectural control committee ("ACC") had allowed the variation. Gennedy also requested attorney's fees. The enforcing parties then supplemented their petition, contesting the validity of the modification and the ACC's approval and seeking declaratory relief. At trial, Gennedy argued alternatively that the original deed restrictions had expired entirely by their own terms in January 2000.

After a bench trial, the trial court rendered judgment that the enforcing parties take nothing, declared Gennedy's fence to be "lawfully located and ... not in violation of" the subdivision's deed restrictions, and denied attorney's fees to both sides. The trial court entered fact findings and legal conclusions concerning the original deed restrictions' expiration and amendment, but did not do so with respect to attorney's fees or the ACC's approval. Both parties have appealed.

Legal Sufficiency

In part of issues one and two in their appeal, the enforcing parties argue that the evidence is legally insufficient to show that the deed restrictions expired by their own terms in January 2000 or, alternatively, that the restrictions were validly amended in 1997. In issue three, the enforcing parties argue that the trial court erred in not ordering Gennedy to remove his fence because the amendment was invalid, the deed restrictions had not expired, and Gennedy had stipulated that his fence did not comply with the original deed restrictions' 40-foot-set-back provision. We construe the enforcing parties' challenges to be to the pertinent fact findings and legal conclusions supporting these aspects of the judgment.

A. Standard of Review

We review legal conclusions de novo. See In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994) ("[Q]uestions of law are always subject to de novo review.").

When, as here, we have a complete reporter's record on appeal, we review the trial court's fact findings under the same standards for legal sufficiency as govern the review of jury findings. Min v. Avila, 991 S.W.2d 495, 500 (Tex. App-Houston [1st Dist.] 1999, no pet.). Thus, when the complaining party challenges the legal sufficiency of the evidence underlying an adverse finding on which the party did not have the burden of proof, the party must demonstrate on appeal that there is no evidence to support the finding. Love v. State Bar of Tex., 982 S.W.2d 939, 943-44 (Tex.App.-Houston [1st Dist.] 1998, no pet.). In such a review, we consider all evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor, and disregard all evidence and inferences to the contrary. See Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998). If more than a scintilla of evidence supports the finding, the no-evidence challenge fails. See Formosa Plastics Corp. USA. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). When the complaining party challenges the legal sufficiency of the evidence underlying an adverse finding on which it had the burden of proof, the party must demonstrate on appeal that the evidence conclusively established all vital facts in support of the issue. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001). We employ a two-part test in reviewing such a challenge. Pac. Employers Ins. Co. v. Dayton, 958 S.W.2d 452, 455 (Tex.App.-Fort Worth 1997, pet. denied). We first look for evidence supporting the finding, ignoring all evidence to the contrary. Francis, 46 S.W.3d at 241. If there is no evidence supporting the finding, we then examine the entire record to see if the contrary proposition is established as a matter of law. Id.

"The judgment may not be supported upon appeal by a presumed finding upon any ground of recovery or defense, no element of which has been included in the findings of fact; but when one or more elements thereof have been found by the trial court, omitted unrequested elements, when supported by evidence, will be supplied by presumption in support of the judgment." Tex.R. Civ. P. 299.

B. Rules Governing the Construction of Restrictive Covenants

The subdivision's deed restrictions were restrictive covenants concerning real property. See Tex. Prop.Code Ann. § 202.001(4) (Vernon 1995) (defining restrictive covenant). Restrictive covenants are subject to the general rules of contract construction. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.1998); Bank United v. Greenway Improvement Ass'n, 6 S.W.3d 705, 707 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). As when interpreting any contract, the court's primary duty in construing a restrictive covenant is to ascertain the drafter's intent from the instrument's language. Bank United, 6 S.W.3d at 708. In ascertaining the drafter's intent, we must examine the covenant as a whole in light of the circumstances present when the covenant was made. Pilarcik, 966 S.W.2d at 478. We must give a restrictive covenant's words and phrases their commonly accepted meaning. Truong v. City of Houston, 99 S.W.3d 204, 214 (Tex.App.-Houston [1st Dist.] 2002, no pet.). We review a trial court's interpretation of a restrictive covenant de novo. Air Park-Dallas Zoning Comm. 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; Samms v. Autumn Run Cmty. Improvement Ass'n, Inc., 23 S.W.3d 398, 402 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). A covenant is unambiguous if, after appropriate rules of construction have been applied, the covenant can be given a definite or certain legal meaning. Pilarcik, 966 S.W.2d at 478; Pitman v. Lightfoot, 937 S.W.2d 496, 517 (Tex.App.-San Antonio 1996, writ denied) (holding same concerning contracts generally). In contrast, if, after appropriate rules of construction have been applied, a covenant is susceptible of more than one reasonable interpretation, the covenant is ambiguous. Pilarcik, 966 S.W.2d at 478; Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951). Mere disagreement over a restrictive covenant's interpretation does not necessarily render the covenant ambiguous. Air Park-Dallas Zoning Cmte., 109 S.W.3d at 909.

At common law, covenants restricting the free use of land are not favored, but will still be enforced when they are confined to a lawful purpose and are clearly worded. E.g., Wilmoth v. Wilcox, 734 S.W.2d 656, 657 (Tex.1987). Accordingly, under the common law, a restrictive covenant's words cannot be enlarged, extended, stretched, or changed by construction. Id. All doubts concerning a restrictive covenant's terms are resolved in favor of the free and unrestricted use of the land, and any ambiguity must be strictly construed against the party seeking to enforce...