Hawkins v. Morrison
| Decision Date | 19 October 2010 |
| Docket Number | NO. 03-09-00364-CV,03-09-00364-CV |
| Parties | Ray Hawkins, Appellant v. John Morrison and Sharon Morrison, Appellees |
| Court | Texas Court of Appeals |
NO. 35.001, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING
The issue presented concerns the interpretation of language in restrictive covenants of the Northwest Oaks subdivision, an unrecorded subdivision located in Burnet County. Facing competing motions for summary judgment, the trial court rendered judgment in favor of appellees John Morrison and Sharon Morrison, property owners in the subdivision, that the restrictions expired in May 2003 and that a subsequent declaration filed in the public records of Burnet County in March 2004 by appellant Ray Hawkins purporting to amend and extend the restrictions was void. The trial court also granted the Morrisons' request to remove cloud on their title and for attorney's fees in the amount of $2,600. In three issues, Hawkins contends that the trial court erred in its summary judgment rulings and its award of attorney's fees to the Morrisons. For the reasons that follow, we affirm the trial court's judgment.
BACKGROUND
The developer of the Northwest Oaks subdivision, Mark Fox, filed a declaration of covenants, conditions, and restrictions in May 1978 in the public records of Burnet County. The restrictive covenants included use restrictions for the tracts of land in the subdivision such as limiting the tracts to residential purposes and setting minimum floor areas and tract size. The "Duration and Amendment" provision states that the "restrictions shall be effective for a period of twenty-five years" and that they may be extended for successive periods of ten years. Pursuant to this provision, the parties agree that the restrictions expired on May 2, 2003. The provision also provides the procedure for altering, cancelling, or extending the restrictions.
John and Sharon Morrison purchased their property in the subdivision in December 2003. Around the same time, Hawkins, who was president of the Northwest Oaks Property Owners' Association, Inc., sent ballots to members of the association and other property owners in the subdivision entitled "Ballot for the Renewal of Covenants and Restrictions, Northwest Oaks Subdivision" requesting the owners to vote whether "to keep the restrictions for ten more years" and whether to amend two provisions of the use restrictions. The Morrisons did not receive a ballot.
After receiving executed ballots from purported property owners in the subdivision voting to extend the restrictions, Hawkins filed a document on March 9, 2004, titled "Declaration of Covenants, Conditions, and Restrictions for Northwest Oaks" in the public records of Burnet County. The document substantially tracks the language of the original restrictions filed in 1978, including the whereas clause reciting that Mark Fox owns all of the real property in the subdivision.
The document differs from the original restrictions by incorporating the two proposed amendments to the use restrictions and changing the language of the "Duration and Amendment" provision. The provision was changed by substituting "10 years" for "25 years" as the duration period for the restrictions. This document purports to be effective for ten years from March 9, 2004.
Disputes arose between the parties concerning the validity of the original restrictions and the declaration filed by Hawkins. The Morrisons filed suit in April 2008 against Hawkins, individually and as the purported president of the association, to remove the declaration filed by Hawkins in 2004 as a cloud on their property's title and for declaratory relief and attorney's fees. They contended that the 2004 declaration was fraudulent and not valid.
The Morrisons, along with other property owners in the subdivision, also filed a document in the public records of Burnet County in October 2008 entitled "Declaration of the Expiration of Covenants, Conditions, and Restrictions for North West Oaks Subdivision." This declaration states that the "undersigned... compose 28%... of the present owners of property located in the... unrecorded subdivision" and declare that "they do not agree to the extension" of the original restrictions, their property "is not subject to any subdivision restrictions of any kind," and the association "has no right to take any action to enforce any subdivision restrictions or claimed assessments against them or their property."
Hawkins answered the suit, asserting estoppel as one of his affirmative defenses. He also counterclaimed for a declaratory judgment that the declaration that he filed in 2004 was valid and that the declaration filed by the Morrisons and other property owners in 2008 was void and/or invalid.
The parties thereafter filed competing motions for summary judgment, joining issue with the validity of the declaration filed by Hawkins in 2004 and the declaration filed by the Morrisons along with other property owners in 2008. Hawkins contended that: (i) the plain language of the original restrictions allowed for extension and amendment within a reasonable time after expiration of the initial period of 25 years, that the time period between May 2003 and March 2004 was a reasonable time, and that the procedure followed by the association—voting by ballot—was valid; (ii) the declaration that Hawkins filed in 2004 applied to the Morrisons' property; and (iii) the Morrisons' claims were barred by estoppel because they ratified the association's actions. Hawkins also filed a supplemental motion concerning the Morrisons' claim that the declaration filed in 2004 was fraudulent. In the supplemental motion, he contended that this claim was frivolous.
In addition to the declarations filed in 2004 and 2008, Hawkins's summary judgment evidence included the articles of incorporation and bylaws of the association, an affidavit from Hawkins, letters sent by John Morrison to the association, and minutes from association meetings. Hawkins averred that he was the president of the association from August 2003 to August 2004, that ballots were sent in December 2003 to the members of the association as well as to other property owners in the subdivision "to vote for or against the renewal and amendment" of the original restrictions, and that "[o]ver 75% of the property owners voted in writing and by their signature to extend the [original restrictions] for a period of ten years." Copies of the executed ballots were attached to Hawkins's affidavit. The minutes from the association meetings reflect that John Morrison was present and participated in the meetings.
The Morrisons responded and sought summary judgment that the declaration filed by Hawkins in 2004 was not valid because it "purports to be restrictions placed on property by the sole owner of said property" at a time when the property was no longer owned by the developer and, specifically as to their property, because when they purchased their property, the original restrictions had terminated and nothing was on file in the public records to show that the restrictions were or would be extended. They further challenged the voting procedure utilized to purportedly extend the restrictions and the significance of John Morrison's involvement with the association. Their summary judgment evidence included affidavits from John Morrison and their attorney on attorney's fees, the deed for the Morrisons' property, and correspondence sent by the Morrisons to Hawkins and the trial court in which they challenge the validity of the 2004 declaration. John Morrison averred that he and his wife purchased their property in December 2003 and that he has "continuously been informing each and every President, Secretary and Treasurer of the Northwest Oaks Property Owners Association that the Restrictions were not valid," including communicating in writing with the association as well as with the trial court, concerning the validity of the declaration filed by Hawkins in 2004.
After a hearing, the trial court granted the Morrisons' motion for summary judgment and their request for attorney's fees in the amount of $2,600. In its judgment, the trial court found the declaration filed by Hawkins in 2004 was a "void document" and that it was "hereby removed as a cloud on the Plaintiffs' title together with any recorded documents filed to supplement said document." The trial court also found that the original restrictions "expired under their own terms on May 2, 2003 and that any attempted extension of these restrictions after said expiration is void."
The trial court further found that the declaration filed by the Morrisons and other property owners in 2008 "correctly establishes the law pertaining to the restrictions and should not be cancelled and should remain in the Official Public Records of Burnet County, Texas." This appeal followed.
ANALYSIS
In three issues, Hawkins contends that the trial court erred in granting the Morrisons' motion for summary judgment and their request for attorney's fees. Hawkins urges that the trial court should have granted his motion for summary judgment and his request for attorney's fees.
Standard of Review
We review the trial court's decision to grant summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a summary judgment motion, the movant must demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). When both parties move for summary judgment on the same issues and the trial court grants one motion and denies the other, the reviewing court considers the summary judgment evidence presented by both sides, determines all questions presented and, if the reviewing court determines that the trial court erred,...
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