Girsh v. St. John

• Decision Date: 29 March 2007
• Docket Number: No. 09-06-144 CV.,09-06-144 CV.
• Citation: 218 S.W.3d 921
• Parties: Leura Jean GIRSH and Charles S. Girsh, Sr., Appellants, v. Peggy ST. JOHN, Appellee.
• Court: Texas Court of Appeals

218 S.W.3d 921

Leura Jean GIRSH and Charles S. Girsh, Sr., Appellants, v. Peggy ST. JOHN, Appellee.

No. 09-06-144 CV.

Court of Appeals of Texas, Beaumont.

Submitted October 19, 2006.

Decided March 29, 2007.

COPYRIGHT MATERIAL OMITTED

Lester R. Buzbee, III, Humble, for appellants.

Dean Gehring, Conroe, for appellee.

Before McKEITHEN, C.J., KREGER and HORTON, JJ.

OPINION

CHARLES KREGER, Justice.

Leura Jean Girsh and her husband, Charles S. Girsh, Sr. ("the Girshes") appeal from a judgment entered by the trial court granting injunctive relief, and awarding civil damages along with attorney's fees to plaintiff, Peggy St. John to enforce a restrictive covenant running with residential property located in the Tall Timbers subdivision, Section Two, in Montgomery County, Texas. The Girshes answered by pleading St. John lacked standing to bring suit, and by pleading the defenses of laches, abandonment, and limitations. Trial was to the court, with both parties presenting testimony and physical evidence in their respective cases. The trial court ultimately ruled in favor of St. John, and issued findings of fact and conclusions of law. On appeal, the Girshes complain of the trial court's ruling that St. John had standing to file suit (issue two), and of the trial court's failure to find the Girshes established any of their defenses (issues one and three). Being a question of law, the standing issue must be addressed first.¹

"Standing is a constitutional prerequisite to maintaining suit." Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex.2004); see Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex.1993). It is also a component of subject matter jurisdiction, and, as such, cannot be waived and may be raised for the first time on appeal. See Tex. Ass'n of Bus., 852 S.W.2d at 445. Therefore, the issue of standing is reviewed de novo. See City of Sunset Valley, 146 S.W.3d at 646. To establish standing, a party must show a justiciable interest by alleging a threatened or actual injury. See Allstate Indem. Co. v. Forth, 204 S.W.3d 795, 796 (Tex.2006).

Generally, any person entitled to benefit under the terms of a restrictive covenant may enforce it. See Anderson v. New Property Owners' Ass'n of Newport, Inc., 122 S.W.3d 378, 384 (Tex.App.-Texarkana 2003, pet. denied) (citing Calvary Temple v. Taylor, 288 S.W.2d 868, 872-73 (Tex.Civ.App.-Galveston 1956, no writ)). This has been interpreted as meaning that an interested property owner may sue to enforce a restrictive covenant. See Anderson, 122 S.W.3d at 384-85 (citing Giles v. Cardenas, 697 S.W.2d 422, 427 (Tex.App.-San Antonio 1985, writ ref'd n.r.e.)). In Powell v. Tall Timbers Property Association, Incorporated, No. 09-01-495-CV, 2002 WL 1990930 (Tex.App.-Beaumont, Aug.29, 2002, no pet.) (not designated for publication), we examined certain provisions of the same restrictive covenant that is now before us in the context of a suit to collect unpaid maintenance fees. 2002 WL 1990930, at *1. The defendants there counterclaimed for, inter alia, breach of implied duty of good faith and fair dealing, and breach of fiduciary duty. Id. 2002 WL 1990930, at *1 n. 3. After examining paragraph "1" of the restrictions, we stated the following:

As explained in Simms v. Lakewood Village Property Owners Ass'n, Inc., 895 S.W.2d 779, 787 (Tex.App.-Corpus Christi 1995, no writ), "the terms `right' and `duty' are not synonymous, but even if they were, appellants, as owners, would have the same duty to enforce the covenants as the association. Thus, the association and appellants would each have the same cause of action against each other, and such a suit would have an absurd result and serve no useful purpose." 895 S.W.2d at 787. Here, the terms of the deed restrictions impose rights of enforcement, but not duties. We find, as a matter of law, that the Association had no duty to enforce the deed restrictions. The language of the deed restrictions is clear and unambiguous.

Powell, 2002 WL 1990930, at *2. As we found in Powell, the restrictive covenant authorizes property owners in the Tall Timbers, Section Two subdivision to enforce all provisions contained therein.

The record before us contains a copy of the plat and dedication instrument pertaining to the Tall Timbers, Section Two subdivision, a copy of the restrictive covenant pertaining to the Tall Timbers, Section Two subdivision filed with the Montgomery County Clerk's Office in 1965, as well as copies of deeds for certain numbered lots located in the Tall Timbers, Section Two subdivision purchased by St. John in 1976. Each of St. John's deeds explicitly states that the specifically numbered lot is conveyed subject to any and all "restrictions" or "valid covenants and/or restrictions." The covenant language is also quite explicit as it authorizes property owners to "prosecute any proceeding at law or equity" against violations or attempted violations of the enumerated restrictions. Notwithstanding that St. John's lots 150 and 151 were originally platted as "reserved area," her deeds to the numbered lots are expressly burdened with the limitations contained in the restrictive covenant in question.

To establish standing, a party must have a sufficient relationship with the lawsuit so as to have a justiciable interest in its outcome. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). "A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority. . . ." Id. at 848 (quoting Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996)). Based upon the pleadings and the evidence in the record before us, we find that St. John established her standing as a matter of law to file suit to enforce the provisions of the Tall Timbers, Section Two restrictive covenants. The Girshes' second issue is overruled.

In their first issue, the Girshes argue their evidence established that limitations had run on St. John's enforcement suit as a matter of law. With regard to St. John's invocation of the discovery rule, the Girshes note that St. John failed to establish the rule's applicability because she failed to show that the Girshes' violation was undiscoverable even when exercising reasonable diligence. The pertinent findings/conclusions on this point read as follows:

Findings of Fact

4. Sometime in late 1998 or early 1999 Plaintiff discovered a Mobile Home (the "Mobile Home") on the Property of the Defendants.

5. Such Mobile Home was undiscoverable until discovered by Plaintiff in the fall of 1997 or early 1998.

10. Defendants were aware of the Mobile Home located on the Property and that such Mobile Home was a violation of the Deed Restrictions of Tall Timbers, Section Two.

Conclusions of Law

5. The Statute of Limitations for enforcement of deed restrictions is four years.

6. The Statute of Limitations in this action was tolled until Plaintiff discovered the Mobile Home located on the Property.

The trial court correctly recognizes that the statute of limitations for suits to enforce deed restrictions is four years. See Tex. Civ. Prac. & Rem.Code Ann. § 16.051 (Vernon 1997); Air Park-Dallas Zoning Comm. v. Crow-Billingsley Airpark, Ltd., 109 S.W.3d 900, 911 (Tex. App.-Dallas 2003, no pet.); Malmgren v. Inverness Forest Residents Civic Club, Inc., 981 S.W.2d 875, 877 (Tex.App.-Houston 1st Dist. 1998, no pet.); Colton v. Silsbee State Bank, 952 S.W.2d 625, 630 (Tex.App.-Beaumont 1997, no writ); Buzbee v. Castlewood Civic Club, 737 S.W.2d 366, 368 (Tex.App.-Houston 14th Dist. 1987, no writ); Park v. Baxter, 572 S.W.2d 794, 795 (Tex.App.-Tyler 1978, writ ref'd n.r.e.). An enforcement action accrues upon breach of the restrictive covenant. See Colton, 952 S.W.2d at 630; Baxter, 572 S.W.2d at 795. In the instant case, the evidence established that the mobile home in question was purchased by the Girshes in 1984 and placed on their property on or about that same year. It was also established that paragraph "10" of the restrictive covenant in question contained the following pertinent provision: "No trailer house or covered trailer shall at any time be erected or placed on any lot or tract for any purpose whatsoever." The record evidence, therefore, establishes the Girshes breached the restrictive covenant when they moved the mobile home onto their property in 1984.

At trial, St. John presented evidence in an attempt to avoid her suit's being barred by the four-year statute of limitations. The essence of her position at trial was that she did not discover the existence of the mobile home in the Girshes' back yard until late 1998 or early 1999 because of an overgrowth of "forest or trees." St. John admitted she had no idea when the mobile home was placed on the Girshes' property. St. John introduced photographs of the mobile home with the photographer apparently standing on a public street in the subdivision. From that vantage point, a vacant lot is situated between the photographer and the view of the mobile home. St. John contended that until the Girshes' neighbor, Mark McClain, used a "dozer" to clear this vacant lot of "underbrush, trees, large trees, small trees and brush," the mobile home was not visible. St. John testified that McClain must have cleared off this vacant lot in late 1998 or early 1999 "because that's when we discovered the mobile home, we could see it." Because St. John's photographs were taken after the lot had been cleared, they do not depict any significant obstruction and the mobile home is plainly visible. St. John also testified that at some point in time McClain parked a "large Ryder rental truck" on the vacant lot that apparently obstructed the view of the mobile home. However, except for the testimony of St. John's husband, James, the testimony of St. John's other witnesses did not establish the trailer was completely invisible from view prior to late 1998 or early 1999, but...