Keenan v. River Oaks Prop. Owners
| Decision Date | 17 March 2022 |
| Docket Number | 01-20-00493-CV |
| Court | Court of Appeals of Texas |
| Parties | CAROLYN FROST KEENAN, Appellant v. RIVER OAKS PROPERTY OWNERS, INC., Appellee |
On Appeal from the 133rd District Court Harris County, Texas Trial Court Case No. 2014-03190
Panel consists of Chief Justice Radack and Justices Kelly and Landau.
Appellant Carolyn Frost Keenan ("Keenan"), challenges the trial court's summary judgments in favor of appellee River Oaks Property Owners, Inc. ("ROPO"), in ROPO's suit against Keenan for a violation of a restrictive covenant and for declaratory judgment, and on Keenan's counterclaims to quiet title and for violations of the Fair Housing Amendments Act of 1988 ("FHAA"), the Texas Fair Housing Act ("TFHA"), and the City of Houston Fair Housing Ordinance ("HFHO").[1] In two issues, Keenan contends that the trial court erred in granting summary judgment and in striking portions of her summary-judgment evidence. We affirm.
River Oaks is a residential subdivision located near downtown Houston that was developed in the 1920's. According to the record, in 1926, the developer, "River Oaks Corporation" ("ROC"), adopted the "Section One (1) Reservations, Restrictions and Covenants in the River Oaks Addition" (the "Original Restrictions"). They were made part of "each and every contract, deed or conveyance" and made "binding upon the successors, heirs, assigns and legal representatives of [ROC] and of the grantee in every such contract or deed."
Thereafter as the River Oaks area grew, supplemental sets of restrictions were adopted for each section. In 1929, as pertinent here, ROC adopted the "Section Five (5) Additional Reservations, Restrictions and Covenants in River Oaks Addition Supplementing Resolutions of [various dates]" (the "Supplemental Restrictions"). The Original and Supplemental Restrictions (collectively, the "Restrictions") set out a series of General Restrictions on the use of property in River Oaks and authorized ROC to enter property and to "summarily abate or remove" any violation. The Restrictions provided that their term expired on January 1, 1955, but that they could be extended for successive additional ten-year periods, as follows:
These restrictions shall be effective until January 1, 1955, but at any time within five years before January 1, 1955, the then owners of a majority of the square foot area of the lots in this Addition may, by written declaration, signed and acknowledged by them, and recorded in the deed records of Harris County, Texas, extend these restrictions, conditions and covenants, (or any others hereafter adopted with reference to this property in accordance herewith) for a period of ten years additional, and then similarly, for successive additional periods of ten years as often and as long as the owners of the majority of the square feet of the property may desire.
In 1954, ROPO was formed. Its corporate charter states that its purpose included "the protection of properties and rights." In 1963, ROC assigned to ROPO "all of the rights relative to the restrictions."
The record shows that the River Oaks property owners extended and re-adopted the Restrictions in 1955, 1965, 1975, 1985, and 1995. At each renewal, the property owners expressly authorized ROPO, as successor to ROC, to act in their names and on their behalf.
In 2004, ROPO's Board of Directors (the "Board") formed a Restrictions Restatement Committee (the "Committee") to modernize and consolidate the 23 sets of restrictions governing the different sections of River Oaks into one set of restrictions and to provide for their automatic renewal. The Committee held various town hall meetings. In October 2004, ROPO sent a letter to all of the River Oaks property owners, presenting a list of proposed amendments and inviting them to a meeting. In March 2005, ROPO mailed letters to the property owners, along with the final version of the proposed amended restrictions, a summary of the amendments, and a ballot seeking affirmative votes.
It is undisputed that, in August 2005, a River Oaks resident, Bert Langdon, formed a group to protest the proposed amended restrictions. Langdon created and circulated to each property owner a false ballot and letter asking them to vote against the proposed amendments and to return their vote to him. He also circulated a false rescission form, purporting to allow any property owner who had previously submitted an affirmative vote to ROPO to rescind their vote.
In January 2006, ROPO determined that the official ballots that it had circulated to property owners did not include a date by which the property owner had to return the ballot for it to be counted, as required under the Texas Property Code. In February 2006, ROPO returned each of the ballots that had been submitted, with a stamp asking for a re-affirmation of the vote and directing that it be returned to ROPO by December 1, 2006. ROPO also sent a corrected ballot to each of the property owners who had not previously voted.
On June 2, 2006, ROPO, having determined that it had a sufficient number of votes to approve the amendments, filed in the real property records a "Certification of Receiving and Counting Ballots on Amendments to Reservations, Restrictions, and Covenants Applicable to All Properties Located Within River Oaks Additions." ROPO's Certification stated that it had circulated to each of the property owners in River Oaks a copy of the proposed "Amendments to Reservations, Restrictions and Covenant Applicable to All Properties Located within River Oaks Additions, Including Tall Timbers Section and Country Club Estates Addition" (the "Amended Restrictions"), a summary of the amendments, and a ballot, containing the date by which it had to be returned to be counted. And, as required by Property Code section 204.005, the owners of at least 75 percent of the real properties in River Oaks had voted in favor of and to approve the Amended Restrictions. ROPO certified that:
According to the ownership records maintained by the Association, the total square footage within all properties in the Subdivision [all sections of River Oaks] is 32, 602, 253, and the owners of the properties in the Subdivision containing a total square footage of 24, 735, 885 voted in favor of and to approve the Amended Restrictions (75.87%). The Ballots are and will be kept in the files of the Association.[2]
Thereafter, the Amended Restrictions became effective unless terminated by a vote.
On November 11, 2011, ROPO recorded its updated "Policies and Procedures with Architectural Review and Approval Process" (the "Policies and Procedures"), which governed the procedures for obtaining the required approval from the Board for proposed designs and the construction of improvements on an owner's lot.
At some point in or prior to 2011, Keenan, who lived in River Oaks and had voted in favor of the Amended Restrictions, inherited another River Oaks property. She became the sole owner of a lot with an existing house in the River Oaks Addition, Section 5, at 2940 Chevy Chase, Houston, Texas (the "Property"). Keenan had plans drawn up for the construction of a new house on the Property.
In its petition, ROPO alleged that, on November 15, 2011, Keenan submitted a proposed plan ("Proposal 1") to the Board for the construction of a new house and landscaping on the Property. Keenan's Proposal 1 included: (1) a parking area adjacent to the front door and off of the main driveway that was approximately 22 feet long and 17 feet wide; (2) a concrete wheelchair ramp, sloping up to a landing outside the front door of the residence; and (3) a concrete walkway from the city sidewalk to the front-door landing.
As pertinent here, paragraph 14 of the Amended Restrictions limited the impermeable area of a lot to a specific percentage of the total building area:
After the effective date of this instrument, the total area of the footprints of a residential dwelling, garage, outbuilding and other improvement on a lot which has a foundation, and any impermeable hardscape on the lot, including by way of example and not in limitation, synthetic grass, driveways, walkways, swimming pools and tennis courts, shall not exceed one hundred percent (100%) of the total building area of the lot within the front, side and rear setbacks applicable to the lot, or, in the case of a lot with a total area less than 15, 000 square feet, one hundred ten percent (110%) of the total building area of the lot within the front, side and rear setbacks applicable to the lot, in addition to any other limitations on size, dimension or area. . . .
The stated purpose of this provision is to "preserve permeable areas for surface water, minimize the diversion of surface water to streets and adjacent lots, and preserve the historical character of River Oaks as a subdivision with substantial vegetation and open spaces." The Restrictions provide that plans for all walkways and driveways must be submitted to the Board "prior to installation or construction."
In Proposal 1, Keenan represented that the area of her lot was 12, 472 square feet, that the allowable impermeable cover under the terms of the Amended Restrictions totaled 6, 618 square feet, and that her proposed impermeable cover totaled 6, 615 square feet.
On December 15, 2011, the Board granted Keenan preliminary approval of Proposal 1. Keenan then submitted a slightly revised version of Proposal 1 to the City of Houston (the "City"), who approved it and issued a building permit. On July 23, 2012, the Board, having determined that Keenan's changes were not material and that she was still within limitations, authorized her to commence construction.
On ...
To continue reading
Request your trial