Forest Cove Property Owners Ass'n, Inc. v. Lightbody

• Decision Date: 28 May 1987
• Docket Number: No. 01-86-0734-CV,01-86-0734-CV
• Citation: 731 S.W.2d 170
• Parties: FOREST COVE PROPERTY OWNERS ASSOCIATION, INC., Appellant, v. Dee Lyle LIGHTBODY and Arlene Laverne Lightbody, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 170

731 S.W.2d 170

FOREST COVE PROPERTY OWNERS ASSOCIATION, INC., Appellant, v. Dee Lyle LIGHTBODY and Arlene Laverne Lightbody, Appellees.

No. 01-86-0734-CV.

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

May 28, 1987.

Bruce Ian Schimmel, Schimmel & Associates, P.C., Houston, for appellant.

Lynn Bradshaw-Hull, Humble, for appellees.

Before EVANS, C.J., and SAM BASS and LEVY, JJ.

Opinion

SAM BASS, Justice.

The appellant, Forest Cove Property Owners Association, Inc., appeals from a take-nothing summary judgment that determined, as a matter of law, that the plaintiff could not maintain its action for enforcement of the deed restrictions covering Forest Cove Country Club Estates, section 4 in Harris County.

We reverse the trial court's summary judgment, and remand the cause for further proceedings.

In its second amended original petition, Forest Cove Property Owners Association alleged that it was a Texas non-profit corporation that was "merged with, was the assignee of, or otherwise absorbed" Forest Cove Owners' Committee, and that it had assumed all of that committee's duties and responsibilities on or about April 11, 1973. It further alleged that the Committee was the entity entrusted with enforcing the restrictions and covenants running with the Forest Cove County Club Estates, section 4 land, and that by reason of its succession to the duties and responsibilities of the Forest Cove Owners' Committee, it was duly authorized to bring the action to enforce the restrictions.

The transcript contains a plea in abatement filed by the defendants, Dee Lyle Lightbody and wife, Arlene Laverne Lightbody, that asserts that the plaintiff, Forest Cove Property Owners Association, Inc., lacks the authority to enforce the restrictions in question and is not entitled to recovery in the capacity in which it sues. But the record does not reflect that this plea in abatement was ever ruled on by the trial court, and that issue is not before us here. Thus, the only issue presented by the summary judgment record is whether the proof established, as a matter of law, that the plaintiff did not have a justiciable interest, which would enable it to enforce the restrictions in question. See, e.g., Gulf C. & S.F. Ry. Co. v. Lester, 149 S.W. 841 (Tex.Civ.App.--Austin 1912, no writ).

In their motion for summary judgment, the defendants asserted that the plaintiff was an "outsider" with no standing to enforce the deed restrictions for the subdivision, because the restrictions provide in clear and unambiguous language that the Trustees of Forest Cove Owners' Committee are charged with the enforcement of all covenants and restrictions applicable to the subdivision. The motion also alleged that according to the restrictions, the lot owners could, after January 1, 1969, either elect a new ...