Dyegard Land Partnership v. Hoover

• Decision Date: 11 January 2001
• Citation: 39 S.W.3d 300
• Parties: (Tex.App.-Fort Worth 2001) DYEGARD LAND PARTNERSHIP, APPELLANT v. ROBERT L. HOOVER, JR., JACKIE HOOVER, DONALD TYE, AND CYNTHIA TYE, APPELLEES NO. 2-99-361-CV
• Court: Texas Court of Appeals

Page 300

39 S.W.3d 300 (Tex.App.-Fort Worth 2001)

DYEGARD LAND PARTNERSHIP, APPELLANT v. ROBERT L. HOOVER, JR., JACKIE HOOVER, DONALD TYE, AND CYNTHIA TYE, APPELLEES

NO. 2-99-361-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

January 11, 2001

FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

PANEL A: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.

OPINION

ANNE GARDNER, JUSTICE

Owners of lots in a rural, residential subdivision sued the developer for a declaratory judgment that restrictive covenants applicable to their lots did not prohibit drilling wells for water. The developer appeals from a summary judgment in favor of the lot owners, contending that amended covenants, which it unilaterally executed and filed after the dispute arose, expressly prohibit the proposed water wells. Alternatively, the developer contends that the original covenants on file when the lots were purchased prohibit the proposed water wells. We affirm in part and reverse and remand in part.

STATEMENT OF FACTS

1. The Original Covenants

In May 1994, Appellant Dyegard Land Partnership obtained approval of a plat and filed deed restrictions for Oak View Estates, a single-family residential subdivision in rural Parker County, Texas. In October 1994, Dyegard filed "Covenants, Conditions and Restrictions" ("original covenants") applicable to the subdivision in the records of the county clerk of Parker County, Texas. By the original covenants, Dyegard adopted a plan for subdivision of the tract described on the plat and impressed upon the property some thirty-eight restrictive covenants, "which shall run with the title to said land and shall be binding upon all parties and persons claiming said land or any part thereof until December 21, 2015, at which time said covenants shall be automatically extended in successive periods of (10) years, unless by agreement [of] a majority of the owners of the lots comprising said subdivision it is then agreed to change said covenants in whole or in part."

The original covenants provided for an architectural control committee, limited the use of lots to single family residences with living areas of at least 3,000 square feet, and prescribed numerous, specific building restrictions including: a requirement for wood shingle or 240 pound composition roofs; a prohibition against flat roofs; limitation of building materials to stone, masonry, brick, or glass; a prohibition of television or other antennae exceeding thirty feet in height; a requirement that mailboxes be of materials matching the residence; a requirement that garage doors open to the rear or side of the house, with all garage doors to be equipped with automatic garage door openers; and a requirement for curtains on garage windows to screen cars and equipment from outside view.

The original covenants also prohibited a number of activities on the lots, including use or discharge of firearms; keeping of chickens, hogs, goats, horses or any animals other than dogs or cats or other pets (specifically requiring vaccination and records to be kept of pets' vaccinations); and a prohibition of commercial activities for any purpose whatsoever. Covenant Number 18 of the original covenants provided:

(18) No drilling, development, refining, quarrying, mining or prospecting for minerals of any kind shall be permitted on any lot, nor shall any wells, tanks, tunnels, mineral excavations or shafts be permitted to remain thereon. No derrick or other structure designed for use in boring for any minerals shall be erected, maintained or permitted to remain on any lot.

2. Water Problems

Appellees Robert and Jackie Hoover purchased a lot in Oak View Estates in August 1997. Appellees Donald and Cynthia Tye purchased a lot in the subdivision in the same month. All of the Appellees purchased their lots with notice of and reliance on the original covenants. Their lots were made subject to the original covenants as provided in the deeds for both lots. Their homes were constructed on the lots they purchased and conformed to the original covenants.

As part of the plan for developing Oak View Estates, Dyegard installed water lines and provided water to the subdivision from a related company, Dyegard Water Company. During the summer months of 1997, however, Appellees began experiencing problems with quantity, volume, and pressure of the water they were being provided and investigated the possibility of drilling water wells on their respective lots.

On August 5, 1998, Robert Hoover requested permission from Dyegard to put a private water well on his lot. Dyegard denied permission and hired an attorney who wrote the Hoovers on August 12, 1998, advising them that the restrictions on their property were "very clear" and, specifically, that Covenant Number 18 of the original covenants prevented drilling "any well, water, mineral or otherwise." Dyegard's attorney threatened to seek an injunction if the Hoovers did not immediately cease any action to drill a water well.

3. The Amended Covenants

In addition to the provision allowing amendment of the original covenants by a majority of the lot owners at the end of the stated period ending December 21, 2015, Covenant Number 37 provided that any term or provision of the restrictions regarding improvements and use of lots "may be amended by an instrument in writing, duly executed and acknowledged by the owners owning not less than ninety percent of all the lots to which they are applicable." In still another provision, the instrument setting forth the covenants and restrictions stated, "The Developer further reserves the right to alter or amend these restrictions in writing and which alteration or amendment when duly recorded shall be binding upon all owners of all lots shown on said plat." On August 31, 1998, Dyegard executed and filed of record "Amended Covenants, Conditions and Restrictions" ("amended covenants"). The amended covenants changed Covenant Number 18 to provide:

(18) No drilling, development, refining, quarrying, mining or prospecting for minerals of any kind or water shall be permitted on any Lot, nor shall any wells, tanks, tunnels, mineral excavations or shafts be permitted to remain thereon. No derrick or other structure designed for use in boring for any minerals shall be erected, maintained or permitted to remain on any Lot. No individual water-supply system or any personal water well shall be permitted on any Lot. [Emphasis added].

In early December of 1998, counsel for Dyegard sent copies of the amended covenants to all of the homeowners in the subdivision. On December 12, 1998, he forwarded a copy of the amended covenants to Appellees' attorney.

4. Procedural Background

Appellees responded by filing suit for a declaratory judgment, requesting the court to declare that the "Covenants, Conditions and Restrictions applicable to the lots owned by [Appellees] in Oak View Estates, do not prohibit [them] drilling a water well on their property." After filing suit, Appellees moved for summary judgment against Dyegard on their "entire cause of action," asserting that "the Covenants, Conditions and Restrictions filed of record at the time that [Appellees] purchased their residential real estate lots do not prohibit [Appellees] from drilling a water well on their real property owned in OAK VIEW ESTATES PHASE I."

Appellees' motion further asserted that their affidavits, their deeds, and the original as well as the amended covenants, established that they purchased their lots in 1997 while the original covenants were filed of record; that the original covenants "are the restrictions that effects [sic] the lots [Appellees] purchased;" and that Dyegard "attempted to unilaterally amend" those original covenants by filing the Covenants, Conditions and Restrictions on August 31, 1998, evidencing Dyegard's attempt to prohibit Appellees from drilling a water well on their respective property. Therefore, Appellees asserted the summary judgment evidence conclusively showed that there are no genuine issues of material fact regarding their right to drill a water well on their property without interference from Dyegard, entitling them to judgment as a matter of law.

Dyegard filed a written response, objecting to statements in Appellees' affidavits as conclusory and to the use of requests for admissions to Dyegard as improper summary judgment evidence and raising two substantive issues: (1) that the motion should be denied because the original covenants were amended to provide specifically that water wells were prohibited, pursuant to the provision reserving Dyegard's right to amend or alter the covenants; and, (2) in the alternative, that the original covenants prohibited the drilling of water wells by Appellees.

Following a hearing, the trial court signed a Final Summary Judgment overruling Dyegard's objections to Appellees' summary judgment evidence, granting Appellees' motion for summary judgment, and specifically declaring:

IT IS FURTHER ORDERED that the Covenants, Conditions and Restrictions of Oak View Estates filed of record in the Parker County Clerk Real Property Records do not prohibit [Appellees] from drilling an individual private water well on [Appellees'] lots within the subdivision, Oak View Estates.

IT IS FURTHER ORDERED that the Covenants, Conditions and Restrictions do prohibit [Appellees] from drilling a water well for service to more than a single residence.

IT IS FURTHER ORDERED that the Covenants, Conditions and Restrictions prohibit [Appellees] from drilling a water well for the distribution to other property owners in Oak View Estates.¹

STANDARD OF REVIEW

We review a summary judgment under well-established rules. The movant has the burden to show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Calvillo v. Gonzalez, 922 S.W.2d 928, 929 (Tex. 19...