Crispin v. Paragon Homes, Inc., 01-92-01253-CV

• Decision Date: 31 August 1994
• Docket Number: No. 01-92-01253-CV,01-92-01253-CV
• Citation: 888 S.W.2d 78
• Parties: Andre CRISPIN, Chris Brown and Edward Podoba, Appellants, v. PARAGON HOMES, INC., Deutser-Weil, Inc., NFM, Inc. & Arthur M. Deck & Assocs., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 78

888 S.W.2d 78

Andre CRISPIN, Chris Brown and Edward Podoba, Appellants, v. PARAGON HOMES, INC., Deutser-Weil, Inc., NFM, Inc. & Arthur

M. Deck & Assocs., Appellees.

No. 01-92-01253-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Aug. 31, 1994.

Rehearing Overruled Dec. 8, 1994.

Russell D. Weaver, Houston, for appellants.

Paul J. Dobrowski, Jennifer R. Tillison, Houston, for appellees.

Before DUGGAN, MIRABAL and O'CONNOR, JJ.

OPINION

DUGGAN, Justice.

This is an appeal from a declaratory judgment rendered upon cross-motions for summary judgment, interpreting and declaring the meaning of three provisions of a residential subdivision's deed restrictions. Appellants, Andre Crispin, Chris Brown, and Edward Podoba, and appellees, Paragon Homes, Inc., Deutser-Weil, Inc. and Arthur M. Deck & Associates, are all property owners in Crestwood Acres, a residential subdivision in Houston.

The original deed restrictions for Crestwood Acres were recorded in the Harris County deed records in 1940; the restrictions were amended in 1983, and filed in the deed records on December 30, 1983. It is undisputed that the amended restrictions were validly adopted.

Appellants and appellees each sought declaratory judgments in the district court as to the proper meaning and interpretation of three provisions of the amended restrictions. Both filed motions for summary judgment seeking rulings that, as a matter of law, their own interpretations of the three provisions were correct. The evidence considered by the trial court consisted of the original restrictions, the amended restrictions, and the original plat of the subdivision.

The parties' conflicting interpretations of the three provisions present three questions:

(1) Can the lots be subdivided to build single family residences on the subdivided portions without the consent of other lot owners?

(2) When can the owners amend the restrictions?

(3) How are the votes of owners of subdivided portions of lots to be calculated?

The conflicts involve the following provisions of the amended restrictions:

1. All lots in CRESTWOOD ACRES shall be used only for single or multi-family residences, or condominiums, and the usual accessory outbuildings used in connection with such land uses....

....

4. Lots may be subdivided to provide building sites for multi-family residences or for condominiums, without the joinder of the owners of other lots within CRESTWOOD ACRES, so long as the other applicable provisions of these restrictions are complied with. Nothing herein shall prevent the construction or use of a structure on or covering more than one lot. The owners of subdivided portions of lots shall together have but one vote per portion as if each subdivided portion were one lot.

....

6. All of the restrictions and covenants herein set forth shall become effective on the date one or more copies of this instrument are filed of record in the office of the County Clerk of Harris County, Texas, bearing together the signatures of the owners of record of a majority of the lots in CRESTWOOD ACRES, and shall be effective until January 1, 1994, and shall automatically be extended thereafter for successive periods of ten (10) years; provided however, that should the owners of a majority of the lots in CRESTWOOD ACRES desire to change, modify or eliminate said restrictions, they may do so by executing and acknowledging an appropriate agreement ... and filing the same for record ... within the one year period prior to January 1, 1994, or within the one year period prior to the expiration of any ten (10) year period thereafter. Provided further, however, that amendments or modifications to permit broader land uses (except strip shopping center, restaurant, service station or retail use) may be effected by the filing of record of an instrument executed by the owners of a majority of the lots (and subdivided portions thereof) in CRESTWOOD ACRES at any time. No future amendment or modification of these restrictions shall have the effect of prohibiting or preventing a use of any lot or portion thereof lawfully commenced in conformity with the valid restrictions in force at the time of commencement of construction of structures intended for such land use.

(Emphasis added.)

The district court held that: (1) the lots could be subdivided to construct single family residences on the subdivided portions of such lots without joinder of the owners of the other lots of Crestwood Acres (granting appellees' motion and denying appellants' cross-motion); (2) a majority of lot owners could change, modify or eliminate the Amended Restrictions upon filing within the one year period prior to January 1, 1994 (denying appellees' motion and granting appellants' cross-motion); and (3) the subdivided portions of lots together have only one vote (denying appellees' motion and granting appellants' cross-motion).

On appeal, appellants seek reversal and rendition of part one of the district court's order, and affirmance of parts two and three; appellees seek affirmance of part one, and reversal and rendition on parts two and three.

Subdivision of lots without joinder of other property owners

The trial court's first declaration in its judgment was that subdivision of original lots to provide building sites for single family residences on the subdivided portions is permitted under the amended restrictions without the joinder of other property owners. Because appellants had sought the district court's declaration to the contrary, they urge, in two points of error, that the trial court erred in failing to grant summary judgment in their favor on this point, and in granting summary judgment to the contrary.

The pertinent portions of provisions one and four of the amended provisions, set out above, state that lots "shall be used only for single or multi-family residences, or condominiums ..." and that lots "may be subdivided to provide building sites for multi-family residences or for condominiums, without the joinder of the owners of other lots...."

In considering the parties' arguments, our "primary concern ... is to ascertain and to give effect to the intentions of the parties ..." and to "examine and consider the entire instrument so that none of the provisions will be rendered meaningless." R & P Enter. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518-19 (Tex.1980). In Wilmoth v. Wilcox, 734 S.W.2d 656 (Tex.1987), the supreme court discussed the interpretation of restrictive covenants:

[C]ovenants restricting the free use of land are not favored by the courts, but when they are confined to a lawful purpose and are clearly worded, they will be enforced. All doubts must be resolved in favor of the free and unrestricted use of the premises, and the restrictive clause must be construed strictly against the party seeking to enforce it.

Id. at 657 (citations omitted). ¹

The restrictions contain no prohibition against subdividing to construct single family residences. Appellants contend that the first sentence of section four has meaning only if it is construed to mean that subdivision for any reason other than for multi-family and condominiums is prohibited without the joinder of the other lot owners. However, this interpretation imposes a prohibition not contained in the plain language of the restrictions. It further conflicts with the principles announced in Wilmoth. We will not create implied prohibitions restricting the free use of land. In interpreting sections one and four of the amended deed restrictions, it is apparent the majority of Crestwood Acres owners intended to broaden the potential use of the original 18 lots by allowing: (1) subdivision, and (2) multi-family housing, where neither was previously allowed.

The amended deed restrictions contain no provision that would render the appellees' intended use (to subdivide to construct single family residences) impossible. The fact that the amended restrictions contain language specifically authorizing subdivision "to provide building sites for multi-family residences or for condominiums, without the joinder of the owners of other lots," does not create any inferred prohibition against subdividing for other purposes.

Essentially, the first sentence of section four is not a restriction--it is an authorization allowing a certain use. Moreover, nothing in the deed restrictions prohibits subdivision for single family residences. In fact, provision one provides that "[a]ll lots in CRESTWOOD ACRES shall be used only for single or multi-family residences, or condominiums...." The use of the plural "residences" shows an intent to permit more than a single residence on the lots. See MacDonald v. Painter, 441 S.W.2d 179, 183 (Tex.1969) (finding that the use of the plural term " 'residences' shows an intent to permit more than a single residence.")

In Finkelstein v. Southampton Civic Club, 675 S.W.2d 271, 275 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.), this Court examined a set of deed restrictions and held that where no provision expressly prohibited subdivision but, by the manner of subdividing, a party violated three other deed restrictions such subdivision was prohibited. Finkelstein, 675 S.W.2d at 275-78. Unlike the Finkelstein restrictions, subdividing and building single family homes does not violate any of the other restrictions.

As a matter of law, the trial court correctly granted summary judgment on this issue to the appellees while at the same time denying relief to the appellants. We overrule the appellant's first and second points of error. We affirm part one of the trial court's judgment.

Effective date of amendments to deed restrictions

The trial court's second declaration in its judgment was that a majority of lot owners could amend the amended restrictions, effective immediately, upon filing amendments within the one year period prior to January 1, 1994. Because appellees sought a declaration to the contrary, they assert in...