Densmore v. McCarley
| Decision Date | 19 March 2020 |
| Docket Number | No. 02-19-00287-CV,02-19-00287-CV |
| Parties | SHERRY DENSMORE, THOMAS J. LOUGHREY JR., ROBERT C. HANKINS II, AND MATTHEW L. GALLITON, Appellants v. J. HORACE MCCARLEY, DEBBY MCCARLEY, AND LONESTAR DOODLES, LLC, Appellees |
| Court | Court of Appeals of Texas |
On Appeal from County Court at Law No. 1 Parker County, Texas
Before Sudderth, C.J.; Gabriel and Bassel, JJ.
Appellants seek to reverse the trial court's denial of their request for a declaration and for an injunction barring Appellees' operation of a dog-breeding business on their property, which allegedly violated restrictive covenants applicable to the property. The trial court entered extensive findings of fact and conclusions of law, holding that Appellees' affirmative defenses to enforcement—specifically, waiver by abandonment—precluded Appellants' requested injunctive relief. Because the evidence, viewed through the appropriate prism, was legally and factually sufficient to support the trial court's findings and conclusions that enforcement of the restrictions had been waived by abandonment, we affirm the trial court's final judgment.
In January 2016, appellees J. Horace and Debbie McCarley bought a home on a fifteen-acre tract located in a Parker County housing subdivision (Southridge). Southridge contains forty-three lots and does not have a homeowner's association or an architectural committee. The McCarleys selected the property because they wanted to be able to operate appellee Lonestar Doodles, LLC—the McCarleys' licensed dog-breeding business—and to live on the same property. In March 2016, the McCarleys began building two climate-controlled buildings on the tract to house the dogs. By June 2016, the buildings were completed at a cost of $360,000, and the McCarleys began operating Lonestar Doodles on the property.
In October 2016, the McCarleys received two anonymous phone calls "informing them of the Restrictive Covenants." A month later, appellant Sherry Densmore, who lived in Southridge, sent the McCarleys a letter stating that Lonestar Doodles was in violation of three of the thirteen prohibitive deed restrictions (the Restrictions)—numbers 5, 6, and 13—governing all properties in Southridge:
Densmore attached a copy of the Restrictions, which had been recorded in the real-property records of Parker County in 1981. The Restrictions contained a severability paragraph: "Invalidation of any of these covenants by judgment or court order shall in no wise affect any of the other provisions which shall remain in full force and effect." The Restrictions also authorized any property owner to sue for injunctive relief toenforce the Restrictions. The McCarleys "tr[ied] to work with" Densmore to address her complaints and installed extensive soundproofing.1
But on December 30, 2016, Densmore filed suit against the McCarleys seeking a declaration that the Restrictions were valid and enforceable, a temporary and permanent injunction barring operation of Lonestar Doodles on the property, damages, and attorney's fees. She also raised a negligence claim based on the alleged nuisance nature of Lonestar Doodles. Other Southridge owners—appellants Thomas J. Loughrey Jr., Robert C. Hankins II, and Matthew L. Galliton (collectively, Intervenors)2—filed a petition in intervention against the McCarleys and LonestarDoodles seeking a declaration that the Restrictions were valid and enforceable, requesting a temporary and permanent injunction, raising a nuisance claim, and seeking the recovery of their attorney's fees. Densmore and Intervenors alleged that the McCarleys were violating Restrictions 5, 6, and 13. The McCarleys answered, raising several affirmative defenses, including waiver and abandonment. The McCarleys stipulated that they "are operating a 'dog kennel.'"
In January 2019, the trial court held a three-day bench trial and signed a nonfinal judgment, denying Densmore's and Intervenors' declaratory and injunctive requests, which sought enforcement of "the deed restrictions at issue," and denying their claims for negligence and nuisance. On May 2, 2019, the trial court entered extensive findings of fact, including express credibility findings, and concluded that the McCarleys' affirmative defenses precluded enforcement of the Restrictions. As it had done when orally pronouncing its verdict in January at the conclusion of the bench trial, the trial court specified that its findings and conclusions "only adjudicate and affect the rights of the parties to this suit and the McCarley Property." After a hearing on the McCarleys' attorney's fees, the trial court awarded attorney's fees and costs in a May 2, 2019 final judgment. This final judgment expressly incorporated the January 2019 judgment adjudicating the merits of Densmore's and Intervenors' claims.
In Intervenors' motion for new trial, they argued that the evidence was insufficient to establish waiver or abandonment; thus, the Restrictions wereenforceable as a matter of law against the McCarleys by permanent injunction based on the McCarleys' stipulation that they were operating a dog kennel. This motion was overruled by operation of law. See Tex. R. Civ. P. 329b(c).
In six issues on appeal, Densmore and Intervenors (collectively, Appellants) challenge the trial court's denial of their requests for a declaration and for a permanent injunction, contending that the evidence did not support the trial court's findings that the McCarleys had proven their affirmative defenses to Appellants' injunctive and declaratory requests, especially in light of the McCarleys' stipulation that they were operating a dog kennel. Appellants do not attack the trial court's take-nothing judgment regarding their negligence or nuisance claims, nor do they challenge the trial court's award of attorney's fees and costs to the McCarleys.
We pause to note that Appellants' issues are unnecessarily fractured, with some separately stated issues actually being subsidiary arguments relevant to a different issue, and their briefing fails to recognize the import of each issue to our ultimate disposition. See generally Tex. R. App. P. 38.1(f) (). The McCarleys' brief follows Appellants' lead by generally addressing the issues as Appellants presented them. We will consider all arguments necessary to address the core issues and necessary to a final disposition, but we will not attempt to attach a specific issue number to our conclusions. See Tex. R. App. P. 47.1; Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 480 (Tex. 2019) (). To do otherwise would unnecessarily complicate an opinion where the gist of Appellants' arguments is that the trial court abused its discretion, to the extent it had discretion, by denying their requests for declaratory judgment and for permanent injunctive relief. See, e.g., Garza v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004) (); El Paso Nat. Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 316 (Tex. 1999) (); cf. Medina v. Zuniga, No. 17-0498, 2019 WL 1868012, at *4 (Tex. Apr. 26, 2019) ().
The parties dispute whether an abuse-of-discretion or de novo standard of review applies and how each standard affects the trial court's findings, conclusions, and resulting judgment. In fact, the McCarleys and Appellants argue that the other ignores the proper standard of review.
In general, the denial of a permanent injunction is reviewed for a clear abuse of discretion. See Lee v. Downey, 842 S.W.2d 646, 649 n.9 (Tex. 1992) (orig. proceeding);Jamestown Partners, L.P. v. City of Fort Worth, 83 S.W.3d 376, 384 (Tex. App.—Fort Worth 2002, pet. denied). But a trial court has no discretion to enter a permanent injunction absent a pleaded and proven cause of action. See Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 625 n.2 (Tex. 2011) (per curiam); Livingston v. Livingston, 537 S.W.3d 578, 594 (Tex. App.—Houston [1st Dist.] 2017, no pet.). Appellants do not quibble with the dismissal of their negligence and nuisance claims; but under a liberal construction of their briefing, Appellants do take issue with the trial court's failure to enforce the Restrictions under their declaratory-judgment...
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