Colton v. Silsbee State Bank

• Decision Date: 28 August 1997
• Docket Number: No. 09-96-084,09-96-084
• Citation: 952 S.W.2d 625
• Parties: Mike COLTON, Appellant, v. SILSBEE STATE BANK, Appellee. CV.
• Court: Texas Court of Appeals

Page 625

952 S.W.2d 625

Mike COLTON, Appellant, v. SILSBEE STATE BANK, Appellee.

No. 09-96-084 CV.

Court of Appeals of Texas Beaumont.

Submitted March 13, 1997.

Decided Aug. 28, 1997.

Thomas J. Sibley, Beaumont, for appellant.

Jacqueline M. Stroh, Benckenstein, Norvell & Nathan, Beaumont, Russell W. Heald, Hilliard & Heald, Beaumont, for appellee.

Before WALKER, C.J., and STOVER and HILL ¹, JJ.

OPINION

HILL, Justice (Assigned).

Mike Colton appeals from a summary judgment declaring that certain restrictive covenants in a document entitled "Easement and Covenants Restricting Land" (ECRL) are unenforceable and granting reasonable and necessary attorney's fees to Silsbee State Bank, the party seeking the declaratory judgment. Colton presents five points of error in which he contends the trial court erred by granting the summary judgment because there are genuine issues of material fact and because he is not barred by limitations from enforcing the covenants contained in the ECRL.

We reverse the judgment and remand this cause for trial because there is a genuine issue of material fact with respect to every basis upon which the Bank relies in its motion for summary judgment.

Silsbee State Bank brought this action seeking a declaratory judgment that certain of the restrictive covenants in the ECRL entered into between its predecessor in interest, Hardin County Savings and Loan Association, and Colton's predecessor in interest, GSV Properties, are unenforceable, based upon waiver, estoppel, laches, and the statute of limitations. The Bank then filed its motion for summary judgment, asserting it had established its right to the declaratory judgment as a matter of law. Colton filed his response to the Bank's motion, urging genuine issues of material fact exist that preclude summary judgment in favor of the Bank.

The movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts resolved in its favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985).

The Bank's motion for summary judgment urges that as a matter of law it is entitled to declaratory judgment that the restrictive covenants in the ECRL are unenforceable based upon waiver, estoppel, laches, and the statute of limitations. In support of its motion, the Bank presents the affidavit of Randy Stuart, President of the Bank. He relates that the Bank's predecessor in title had made previous improvements in violation of the ECRL. He indicates these improvements consisted of a drive-thru facility north of the restrictive covenant boundary and an addition to its building extending fourteen feet west of the boundary. He says in 1994 the Bank apprised Colton of its contemplated expansion, including extension of the drive-thru facilities on the north side and extension of the conference room on the west side.

The affidavit indicates that, shortly thereafter, Colton participated in negotiations with the City of Lumberton and Wal-Mart in which all parties, based upon the proposed expansion, were planning on constructing a roadway between the Bank's tract and Colton's tract that would lead into Wal-Mart's property. According to Stuart, Colton and the Bank were contributing a portion of their land for the roadway, Wal-Mart was paying for it, and the City was going to pave it.

Stuart further states that a few months later, when the Bank was preparing to submit its plans for bidding, the Bank asked Colton if he would like to be placed on the bid list, and he responded in the affirmative. At that time, according to Stuart, Colton made no objection to the Bank's plans to expand its facilities. Stuart indicates Colton first objected on March 14, 1995, when he, through his attorney, sent correspondence to the Bank advising that Colton did not approve of the expansion plans.

Stuart says in his affidavit the proposed expansion by the Bank consists of tearing down a Teller 24 ATM building and, in its stead, constructing a drive-thru that would allow greater visibility of Colton's property than would have existed had the drive-thru not been erected. Also, Stuart advises the Bank intends to construct an addition to the existing facility extending fifteen feet west of its current facility and also construct an addition to the existing facility extending south thirty-five feet. He indicates the westerly expansion would be considered in violation of the restrictive covenants if they were enforceable and that the southerly expansion would not be in violation of the restrictions contained in the ECRL, except to the extent that it extends fourteen feet west of the restrictive covenant boundary. He concludes by stating the only expansions that extend beyond the restrictive covenant boundaries include the northerly expansion of the drive-thru facility and the westerly expansion of the building facility, neither of which results in decreased visibility of Colton's property.

Colton, in answer to the Bank's request for admissions, acknowledges he was shown a rough sketched plan of the Bank's expansion plan, but otherwise denies he was informed by someone with the Bank, prior to 1994, of the Bank's plan to extend its facilities. He further states he was shown no diagram depicting any detail of elevation, scale, interior plans, front, or other detail. With respect to any proposed roadway between the Bank's tract and his, Colton states there were negotiations among Wal-Mart, the City of Lumberton, the Bank, and himself, but that he never gave such an easement because Wal-Mart, the City, and the Bank were unable to construct such a roadway "in conformity with the currently existing conditions." He insists that the City, Wal-Mart, and the Bank refused to reduce any agreement to writing, and he refused to enter into any agreement that might violate the applicable restrictive covenants. With respect to being placed on the bid list for the Bank's expansion, Colton states in answer to an interrogatory that he told the Bank there was a possibility he would like to be placed on the bid list. Colton acknowledges by admission he was aware, from the date he learned of the Bank's proposed expansion, that the Bank was incurring substantial expense in architectural fees for formalizing its expansion plans.

As previously noted, Colton asserts in his response to the Bank's Motion for Summary Judgment that there are material fact issues precluding summary judgment for the Bank. In his affidavit attached to his response, Colton acknowledges the Bank's existing building is in violation of the ECRL, stating neither he nor the Bank owned the property at the time of the expansion and were not aware of the violation. He indicates he was informed by a Bank official of the Bank's expansion plan on November 28, 1994, but was unable to determine the extent of the Bank's proposed addition to its building, and therefore could not determine whether there was a violation of the ECRL, because the only information the Bank gave him was a rough sketch that did not have physical measurements or dimensions on it.

Colton further states in his affidavit that from November 30, 1994, through early March, 1995, he visited with the Bank's branch manager, calling to his attention on at least three occasions that there were restrictive covenants on the property. He said he highlighted areas of the restrictions that were of concern to him and gave the branch manager a copy. He insists the first time he was able to determine the extent of violations of the ECRL was on March 1, 1995, when he received a copy of the recently-prepared site plan. He says he objected to the addition to the Bank's facilities as noted on the site plan, except for expansion to the south that would not violate the ECRL. He states he received a bid package on or about March 8, 9, or 10, 1995, and that subsequently, on March 14, 1995, his attorney notified the Bank of his objections to certain of the additions as violating the ECRL.

Finally, Colton states in his affidavit that the Bank's proposed expansion on the north side of its property will substantially hamper the visibility of his property from Highway 96, as will the increase in height of the Bank's building to eighteen feet. He indicates the increase in height is also a violation of the ECRL.

Before we can determine whether the summary judgment evidence raises material fact issues, we must determine what the issues in this case are. The first issue is whether the restrictive covenants remain enforceable despite the violations of the ECRL by the Bank's predecessors. We believe this issue is determined by whether the prior expansion by the Bank is significant or insignificant when compared to the proposed or new use. See Sharpstown Civic Ass'n v. Pickett, 679 S.W.2d 956, 958 (Tex.1984).

As previously noted, there is summary judgment evidence that the previous improvements consisted of the construction of a two-lane drive-thru facility north of the ECRL boundary and an addition to the bank building of fourteen feet west of the boundary. The summary judgment also shows the proposed expansion exists of tearing down a Teller 24 ATM building, adding three new drive-thru lanes, and adding fifteen feet to the west side of the Bank building. There is also, according to the evidence, a proposed addition to the south side of the building that does not appear to be a subject of dispute. There is also summary judgment evidence that the height of the building is going to be raised to eighteen feet, but our attention has not been called to evidence as to what the current height of the building is. There is no indication that it is higher than allowed by the ECRL.

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