Giles v. Cardenas, 04-84-00061-CV

• Decision Date: 17 April 1985
• Docket Number: No. 04-84-00061-CV,04-84-00061-CV
• Citation: 697 S.W.2d 422
• Parties: Gerald E. GILES, et ux, Appellants, v. Ronald R. CARDENAS, et ux, Appellees.
• Court: Texas Court of Appeals

Page 422

697 S.W.2d 422

Gerald E. GILES, et ux, Appellants, v. Ronald R. CARDENAS, et ux, Appellees.

No. 04-84-00061-CV.

Court of Appeals of Texas,

San Antonio.

April 17, 1985.

Rehearing Denied Oct. 1, 1985.

Don Killingsworth, San Antonio, for appellants.

Jeb C. Sanford, San Antonio, for appellees.

Before BUTTS, TIJERINA and BISSETT, ^* JJ.

OPINION

BISSETT, Justice (Assigned).

This is a suit to enforce restrictive covenants in a residential subdivision. Ronald R. Cardenas and Irene J. Cardenas filed suit against Gerald E. Giles and Jacquelyn Giles seeking mandatory injunctive relief and attorney's fees. Trial was to the court. Judgment was rendered on October 27, 1983, which mandatorily ordered Gerald Giles and Jacquelyn Giles, defendants, to remove a portion of a fence on their property, and which permanently enjoined them from erecting any structures or fences beyond the side street building setback line. The judgment further awarded attorney's fees to plaintiffs, hereinafter referred to as "appellees." Defendants, hereinafter referred to as "appellants," have timely perfected an appeal from the judgment.

We first dispose of appellants' third point of error, wherein they claim that the trial court failed to accord them a full, fair and impartial trial. Specifically, they contend that the trial court did not allow them "the opportunity to present their evidence at the trial with regard to any defenses in rebuttal to the evidence ... put forth by the plaintiffs (appellees) in this cause."

Appellants did not present any evidence at the trial of this case. The evidence which they say they were not given the opportunity to present is the evidence which they presented in their purported bill of exceptions. The record conclusively shows that neither of the appellants were called to testify at the trial, although each was present throughout the trial. Appellants formally and at the proper times "rested" and "closed."

There is nothing in the record that indicates that the trial court prevented appellants from offering evidence in their behalf or that the trial court did not afford them an opportunity to present evidence. There is no evidence that the trial court coerced or required appellants to rest their case or close prematurely. Appellants did not move for a continuance, nor did they seek a postponement of trial in order to have their witnesses present to offer testimony.

If a litigant rests his case and closes without presenting evidence in support of his position, the failure to present evidence constitutes a waiver. Parkview General Hospital, Inc. v. Waco Construction, Inc., 531 S.W.2d 224 (Tex.Civ.App.--Corpus Christi 1975, no writ). Where evidence has not been offered, there can be no refusal to admit evidence. Hibbler v. Walker, 593 S.W.2d 398 (Tex.Civ.App.--Houston [14th Dist.] 1980, no writ). In the present case, appellants had an opportunity to present evidence in support of the affirmative defenses raised in their pleadings. No error is shown. Appellants were accorded a full, fair and impartial trial. Appellants' third point is overruled.

Ray Ellison Homes, Inc., the original owner of Babcock Place Subdivision, in San Antonio, Texas, subjected the subdivision to certain "Covenants, Conditions and Restrictions" by an instrument which it executed on April 17, 1978. These Covenants, Conditions and Restrictions, hereinafter called "Restrictions," were filed for record in the Official Public Records of Real Property of Bexar County, Texas, on April 26, 1978. They, along with a plat of the subdivision, were forthwith duly recorded in the Deed and Plat Records of Bexar County, Texas.

Appellees contracted with Ray Ellison Homes, Inc., to purchase a house on Lot 23, Block 25 NCB 16770, Babcock Place Subdivision, known as 12358 Capeswood Drive, San Antonio, Texas. They moved into the house in August, 1980. They received a deed from Ray Ellison Homes, Inc., which was dated October 8, 1980. Appellants are the owners of Lot 22, Block 25, NCB 16770 in the Subdivision, which is a corner lot located at the corner of Cloverwood and Capeswood Drives. Appellants' lot was conveyed to them by Ray Ellison Homes, Inc., by deed dated subsequent to the date of appellees' deed. Lots 22 and 23 are adjoining lots. The deeds to appellants and appellees, as well as all deeds executed by Ray Ellison Homes, Inc., which conveyed other lots in the subdivision to third parties, contained the following language:

This conveyance is made subject to restrictions and easements, if any, of record affecting the hereinbefore described property.

Paragraph 13 of the Restrictions provides:

No fence, wall or hedge on any lot shall be built forward of the front building setback line of the respective house, nor shall any fence, wall or hedge on any corner lot be built forward of the side street building setback line, except such as may be part of the house as originally constructed on said lot. [Emphasis added]

Paragraph 7 of the Restrictions, in pertinent part, provides:

No structure shall be altered, or any structure erected or placed, other than the original subdivision until its plans, specifications and plot plan specifically showing the proposed location of such structure have been approved in writing [by the Architectural Committee]. [Emphasis added]

Paragraph 23 of the Restrictions provides:

No fence, wall, hedge or shrub planting which obstructs site lines at elevations between 2 and 6 feet above the roadway shall be placed or permitted to remain on any corner lot within the triangular area formed by the street property lines and a line connecting them at points 25 feet from the intersection of the street lines, or in the case of a rounded property corner, from the intersection of the street property lines extended....

The side street building setback line for appellants' property is thirty feet from Capeswood Street or twenty feet from their property line along Capeswood Street. Appellants' fence, as it was constructed, is twenty feet in front of the building setback line, along their side yard property line, or ten feet from the street.

On or about January 24, 1981, Ray Ellison Homes, Inc., commenced the construction of a fence on Lot 22 (which, apparently, was conveyed to appellants on February 27, 1981). The construction was in front of the side street building setback line. Holes were dug and fence posts were "cemented in." Appellants notified representatives of Ray Ellison Homes, Inc., that the fence was being built in front of the side street building setback line and in violation of paragraphs 7, 13, and 23 of the Restrictions. On or about January 30, 1981, construction crews for Ray Ellison Homes, Inc., removed the fence posts that had been placed in front of the side street building setback line. Following appellants' purchase of Lot 22, they erected a fence on their property ten feet in front of the side street building setback line. Thereafter, the fence was removed by appellants, and another fence was subsequently built by them on their property twenty feet in front of the side street building setback line, on appellants' side yard property line.

The fence, about which complaint was made, was built by appellants in March, 1981. At appellees' request, James D. Bradley, director of Customer Relations for Ray Ellison Homes, Inc., wrote to appellants on or about April 17, 1981, and informed them that the fence was in violation of Paragraphs 13 and 23 of the subdivision's Restrictions. He also notified them that plans and specifications for building a fence by a home owner must be submitted to the architectural department at Ray Ellison Homes, Inc., for its consideration and approval prior to the building of a fence. On or about April 21, 1981, appellants wrote to Ray Ellison Homes, Inc., and requested approval of the location of the fence (which had already been built at that time). Ken Gancarczyk, Director of Architecture and Design for Ray Ellison Homes, Inc., wrote to appellants on or about July 17, 1981, informing them that their request for approval of the location of the fence has been denied.

On or about September 18, 1981, Gregory B. Grigsby of the law firm of Johnson & Christopher, attorneys for Ray Ellison Homes, Inc., wrote to appellants and informed them that the fence they had built on Lot 22 extended in front of the side street building setback line. The letter further informed them that the fence was in violation of the Restrictions.

Appellees' attorney wrote appellants in January, 1982, and again in February, 1982, wherein he requested that the fence be removed. The fence was not removed, and suit was filed.

On January 1, 1984, appellants purported to perfect a bill of exceptions addressed "to the failure of the Court to allow the defendants, Gerald E. Giles and wife, Jacquelyn Giles, the opportunity to present their evidence with regard to any defenses in rebuttal to the evidence ... put forth by plaintiffs in this cause." It was opposed by appellees who argued that

defendants have waived their right to a bill of exceptions in that judgment has already been entered in this cause, and that no recourse was made either prior to the judge's judgment or during trial for the preparation of a bill of review and that no offer of testimony was made by defendants at trial.

Appellants then called several witnesses whose testimony, had the same been before the trial court at the time of trial, would have created several issues of fact.

As already held by us, the trial judge did not fail to give appellants an opportunity to present their evidence at the trial of the case. The failure to present such evidence was due to the fault of appellants' trial counsel and no one else.

A bill of exceptions is not evidence, but is a statement of an occurrence in the trial court to which an exception is taken. STATE BAR OF TEXAS, APPELLATE PROCEDURE IN TEXAS § 11.3 (2d ed. 1971).

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