Leake v. Campbell

• Decision Date: 31 August 2011
• Docket Number: No. 02–10–00278–CV.,02–10–00278–CV.
• Citation: 352 S.W.3d 180
• Parties: Scott R. LEAKE and Susan E. Leake, Individually and on Behalf of the Architectural Control Committee of the Sunny Meadows Addition, Appellants, v. Therman M. CAMPBELL, Jr. and Susan M. Campbell, Appellees.
• Court: Texas Court of Appeals

352 S.W.3d 180

Scott R. LEAKE and Susan E. Leake, Individually and on Behalf of the Architectural Control Committee of the Sunny Meadows Addition, Appellants,

v.Therman M. CAMPBELL, Jr. and Susan M. Campbell, Appellees.

No. 02–10–00278–CV.

Court of Appeals of Texas, Fort Worth.

Aug. 31, 2011.

W.T. Skip Leake, Donald R. Miller, W.T. Skip Leake, P.C., Arlington, for Appellants.

Paul C. Goetz III, David L. Pratt, II, Decker, Jones, McMackin, McClane, Hall & Bates, P.C., Fort Worth, for Appellees.

Panel: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

OPINION

TERRIE LIVINGSTON, Chief Justice.

Appellants Scott R. and Susan E. Leake, individually and on behalf of the Architectural Control Committee of Sunny Meadows Addition, appeal from the trial court's summary judgment in favor of appellees Therman M. and Susan M. Campbell. In two issues, the Leakes claim that the trial court reversibly erred by denying their motion for summary judgment while granting the Campbells' and by awarding attorney's fees to the Campbells. We reverse and remand.

Background Facts

The Campbells purchased their home at 3102 Sunny Meadows Court, Dalworthington Gardens, Tarrant County, Texas, on December 27, 2007. The Leakes are the Campbells' neighbors and have lived at 3104 Sunny Meadows Court since July 31, 1990. The housing community in which they all reside, Sunny Meadows Addition, is subject to recorded deed restrictions. The part of the restrictive covenants that are pertinent to this case are the following:

For the purpose of creating and carrying out a uniform plan for the improvements and sale of the lots, blocks and homesite tracts to be made from the land described herein, the following restrictions upon the use of said property are hereby established and shall be referred to, adopted and made a part of each and every contract and deed executed....

....

(3) No structure shall be erected, altered, placed or permitted to remain on any lot carved from the above described property other than one single family dwelling not to exceed (except by Architectural Control Committee approval) two stories in height, private attached or detached garage or carport for not more than four (4) cars facing a direction other than the street, and reasonable outbuildings for single family use....

(4) No house, dwelling and/or other structure of any kind or character whatsoever may be moved into any lot carved out of the property described herein.

....

Architectural Control: No building shall be erected, placed or altered on any lot until the construction plans, specifications, and a plan showing the location of the structure shall have been approved by the Architectural Control Committee.... Approval shall be as provided in Paragraph 3 below.

Procedure: Committee's approval for [sic] disapproval as required by this covenant shall be in writing. In the event the committee or it's [sic] designated representative fails to approve or disapprove within 15 days after plans, specifications and plot plan have been submitted to it or in any event if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the restrictive covenants herein contained shall be deemed to have been fully complied with.

(4) These restrictions are for the benefit of and shall inure to each and every property owner in this addition, and may be enforced by anyone [sic] or more of such property owners and they shall be allowed to recover from a violating party, all costs and attorney fees and out-of-pocket expenses incurred in enforcement of any covenants herein whether by judicial means or settlement. [Emphasis added.]

The Campbells claim that they were unaware of the deed restrictions when they purchased their property while the Leakes claim that they specifically chose the community because of its deed restrictions.

After the Campbells purchased their home, they sought to make improvements to the property. On January 8, 2008, Tuff Shed constructed a storage shed on the Campbells' property. According to Therman Campbell, Tuff Shed employees constructed the shed on-site.¹ In addition to the shed, Therman wished to build a carport and shelter for his motor home. As a first step, he began to pour a concrete pad and driveway on January 21, 2008; he completed the work on January 26, 2008. Next, Therman purchased a spa, along with a cabana to cover and enclose the spa, on February 4, 2008. The installation of the spa and construction of the cabana both occurred on February 11, 2008. Lastly, Therman sought to have an RV shelter installed. Before doing so, Therman approached Scott Leake in April 2008 seeking approval for his plans. Scott conveyed his disapproval with the plans and directed Therman's attention to the restrictive covenants barring this type of construction. According to Scott, immediately after this conversation, he informed ACC member Mark Appling of Therman's plan to construct an RV shelter. According to Appling, he went to the Campbells' home that same day and informed Therman of the restrictive covenants and the likelihood that the RV shelter would be in violation of those restrictive covenants. Within a week Appling hand delivered a copy of the restrictive covenants to Therman. Therman nevertheless had the RV shelter constructed on May 5, 2008.

On May 10, 2008, Appling went to the Campbells' home and informed them that the shed, cabana, and RV shelter were not in compliance with the restrictive covenants. On the following day, Therman wrote to the ACC requesting a variance for the three structures. On or about May 20, 2008, Therman received a letter from Kerry Moseley, a member of the ACC and one of the developers of the subdivision, informing Therman that his request for a variance was denied and instructing the Campbells to remove the shed, cabana, and RV shelter at once. The letter went on to specify the reasons for denying the Campbells' variance, which included not seeking the ACC's approval before installation and construction of the three structures. Campbell responded with another letter, imploring the ACC to reconsider its findings. The ACC remained unpersuaded, and the structures remained on the Campbells' property.

The Leakes sued the Campbells on November 13, 2008, seeking a declaratory judgment that the structures are in violation of the restrictive covenants, a permanent injunction ordering the Campbells to remove the structures, and attorney's fees. The Campbells filed their first amended original answer and counterclaim on November 30, 2009, in which they raised the affirmative defenses of waiver, estoppel, and violation of section 202.004(a) of the property code and also pled for attorney's fees under the Uniform Declaratory Judgments Act. Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (West 2008); Tex. Prop.Code Ann. § 202.004(a) (West 2007) (“An exercise of discretionary authority by a property owners' association or other representative designated by an owner of real property concerning a restrictive covenant is presumed reasonable unless the court determines by a preponderance of the evidence that the exercise of discretionary authority was arbitrary, capricious, or discriminatory.”). The Campbells then filed a traditional summary judgment motion claiming that the structures were deemed approved under the deed restrictions because the lawsuit had not been filed until after the completion of construction. The Leakes filed a response and their own traditional and no-evidence motions for summary judgment, claiming that the structures violate the restrictive covenants as a matter of law and that the Campbells had not brought forward any evidence of a waiver of a right to enforce the restrictive covenants or a violation of property code section 202.004(a). At the conclusion of a hearing on both motions, the trial court granted the Campbells' motion for summary judgment, denied the Leakes' motion, and awarded the Campbells attorney's fees in the amount of $10,348 and costs of $305.32.

Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.2008). A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 1017, 178 L.Ed.2d 829 (2011); see Tex.R. Civ. P. 166a(b), (c).

When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both parties' summary judgment evidence and determine all questions presented. Mann Frankfort, 289 S.W.3d at 848; see Myrad Props., Inc. v. LaSalle Bank Nat'l Ass'n, 300 S.W.3d 746, 753 (Tex.2009). The reviewing court should render the judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d at 848.

Propriety of Summary Judgment for the Campbells

In their first issue, the Leakes claim that the trial court erred in granting summary judgment to the Campbells and denying their motion for summary judgment because the court based its decision on an erroneous construction of the restrictive covenants.

Interpretation of Restrictive Covenants

We review a trial court's interpretation of a restrictive covenant de novo. Raman Chandler Props., L.C. v. Caldwell's Creek Homeowners Ass'n, 178 S.W.3d 384, 390–91 (Tex.App.-Fort Worth 2005, pet. denied); Air Park–Dallas Zoning Comm. v....