Miller v. Sandvick

• Decision Date: 30 April 1996
• Docket Number: No. 07-95-0118-CV,07-95-0118-CV
• Citation: 921 S.W.2d 517
• Parties: Judy MILLER, et al., Appellants, v. Robert J. SANDVICK, et al., Appellees.
• Court: Texas Court of Appeals

Page 517

921 S.W.2d 517

Judy MILLER, et al., Appellants, v. Robert J. SANDVICK, et al., Appellees.

No. 07-95-0118-CV.

Court of Appeals of Texas,

Amarillo.

April 30, 1996.

Rehearing Overruled May 29, 1996.

Crenshaw, Dupree & Milam, L.L.P., Cecil Kuhne and Jack McCutchin, Jr., Lubbock, for appellants.

Carr Fouts Hunt & Wolfe L.L.P., Donald M. Hunt and Gary M. Bellair, Lubbock, for appellees.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

REYNOLDS, Chief Justice.

This appeal tests the efficacy of a summary judgment declaring effective the restrictive covenants impressed upon residential lots in the Pine Grove Estates in Lubbock, and pronouncing void and of no effect an instrument purporting to cancel the restrictions as to some of the lots. We will affirm.

The appeal is brought by Judy Miller a/k/a Judy R. Miller f/k/a Judy Proctor and Anthony Romond Miller a/k/a A.R. Miller, two of the parties who attempted to cancel the restrictions. The homeowners opposing the attempted cancellation and securing the judgment validating the covenants are Robert J. Sandvick and wife, Shirley A. Sandvick; JoAnn L. Smith; Rickey Lyon and wife, Bettina J. Lyon; J. Edward Johnson and wife, Colleen Johnson; Steve Pitts; Steve Holland and wife, Sherri Holland; John Glenn and wife, Mary Glenn; T.J. Clemmons, M.D., and wife, Cuylene Clemmons; Alfred Velasquez and wife, Jan J. Velasquez, who are collectively referred to as the homeowners.

The events underlying the litigation began when J.D. Badly, as owner of Section 35, Block A-K, Lubbock County, Texas, carved out Pine Grove Estates and, on 2 April 1979 imposed certain restrictive covenants, as evinced by an instrument recorded in volume 1638, page 7 of the Lubbock County deed records, upon the use, occupancy and construction of Lots 1 through 61 and Lots 71 through 106 (the covenants). As pertinent to the litigation, a part of the restrictions were that:

(1) No building plot or site or part of said premises shall be used for business or commercial purposes, all lots, plots, sites and premises being restricted to single family residential purposes only....

(2) No building or structure shall be erected, altered, placed or permitted to remain on any part of the property, except one single detached family dwelling and outbuildings used in connection therewith, on each building plot....

(4) The following minimum construction requirements must also be complied with:

* * * * * *

(c) No residence, garage or servants quarters shall be built on any part of the property that has a roof of crushed stone, marble, gravel, or composition shingles. It is required that said roofs shall be built with wood shingles, clay tile, or other life-time materials....

The covenants were designed to run with the land until 2 April 2019; nevertheless, the following provision was included:

These covenants may be amended at any time by an instrument signed by two-thirds ( 2/3) of the then owners of building sites or building plots, (each building site or building plot to have one vote) and such instrument is recorded in the office of the County Clerk of Lubbock County, Texas.

This language is referred to as the amendment provision.

Purporting to invoke the amendment provision, Dewayne Proctor and his then wife Judy Proctor, Judy's sister Carolyn Jane Sanderson and her husband Bob Sanderson, who collectively owned 71 of the 96 lots in Pine Grove Estates, and exclusively owned Lots 51, 61, 71, 72, 73, and 74, filed on 8 October 1986, in volume 2331, page 278 deed records of Lubbock County, an instrument entitled "Cancellation of Restrictions Lots 51, 61, 71, 72, 73 and 74" (the cancellation instrument). The cancellation instrument professed to "release, relinquish, cancel, terminate and hold for naught all of ... [the covenants] ... so that the same shall hereafter be of no further force or effect," as they pertained to the six lots described. None of the homeowners was given an opportunity to vote on the cancellation, nor were they notified of the filing of the cancellation instrument.

Judy Proctor's marriage to Dewayne Proctor dissolved and she married Anthony Romond Miller, but retained her ownership of Lot 51 in Pine Grove Estates. In February of 1992, the Millers began construction of a building on Lot 51.

The homeowners averred that on 1 June 1992, they realized the Millers were building a duplex, and had placed upon it a composition roof, in direct violation of the covenants. On 6 June, 1992, they met with the Millers and Sandersons and requested the building be brought into compliance. Relying upon the effect of cancellation instrument, the Millers refused.

Discord between the homeowners and the Millers and the Sandersons resulted in legal filings, and negotiations ensued. The end result of those negotiations was an agreement which provided, among other things, that to compromise the claims of all the parties, the Sandersons and the Millers would execute and file of record a ratification and reaffirmation of the covenants, and the Millers would convert the duplex to a single family residence with a wood-shingle or other life-time material roof placed thereon.

The ratification agreement was signed by the Sandersons and 60 others of the 74 listed lot owners who claimed some ownership interest in the 96 lots of Pine Grove Estates. However, the Millers did not sign the agreement and have not complied with its terms. Alleging the duplex violated the covenants, the homeowners brought the underlying suit, seeking enforcement of the covenants by temporary and permanent injunction, and recovery of damages for the Millers' breach of the covenants together with attorney's fees for the necessity of enforcement.

The Millers answered with a general denial and alleged affirmative defenses. The Millers maintained that the cancellation instrument was valid, and the homeowners had no authority to interfere with their right to build a duplex on Lot 51. Further, the homeowners had constructive knowledge of the cancellation instrument prior to the construction of the duplex and did nothing about it until after its completion; thus, they waived or were estopped from asserting the right to complain, and the doctrine of laches prevented any action by the homeowners. The Millers denied any right of the homeowners to an injunction because no bond was filed, and denied their right to attorney's fees because the action was not one for enforcement of restrictions, but to set aside the cancellation instrument.

The homeowners moved for summary judgment. They alleged that Lot 51 was subject to the covenants, and the duplex was in violation thereof. They sought a permanent injunction against (1) the Millers erecting any structure other than a single family dwelling on Lot 51, and (2) permitting the duplex to remain in noncompliance. Their supporting affidavits averred that the four signatures on the cancellation instrument did not constitute two-thirds of the then owners in Pine Grove Estates. They also asserted that they had no opportunity to vote on the cancellation instrument and had no knowledge of its filing until construction of the duplex was underway, and then they promptly acted; therefore, they contended, the equitable doctrines did not prevent them from enforcing the covenants.

The Millers responded that the homeowners' supporting evidence was not probative or sufficient summary judgment proof, and that issues of fact precluded the motion. Nevertheless, they asserted that the validity of the cancellation instrument was the crucial issue and was a question of law for the court's determination.

The Millers reasoned there was no need to notify the homeowners or afford them an opportunity to vote on the cancellation instrument since "those persons owning two-thirds ( 2/3) of the lots within the subdivision agreed to the Cancellation of Restriction." Moreover, the homeowners' failure to complain until after the construction of the duplex was almost completed invoked the doctrines of waiver, estoppel and laches; or alternatively, there were questions of fact concerning the application of the equitable doctrines which would preclude summary judgment.

Contained within their response was the Millers' own motion for summary judgment requesting the court to uphold the validity of the cancellation instrument and award them attorney's fees against the homeowners. In this regard, the Millers asserted that the equitable doctrines were established as a matter of law, and the homeowners were precluded from action.

The trial court denied the Millers' motion, and granted the homeowners' motion. By its judgment, the trial court decreed that the covenants impressed upon Lots 1 through 61 and Lots 71 through 106, were effective from their date of inception to the present, and that the cancellation instrument was void and of no force or effect, and ordered the Millers to bring the structure on Lot 51 into compliance with the restrictive covenants. The issues of damages and attorney's fees were severed from the present action, resulting in a final judgment from which the Millers perfected this appeal, presenting five points of error.

Initially, the Millers contend that the covenants were cancelled with respect to Lot 51, and secondly, that the trial court's judgment of injunctive relief with respect to Lot 51 was not supported by legally or factually sufficient evidence. By their third point of error, they contend that the homeowners were precluded from seeking injunctive relief by "the doctrines of waiver and/or estoppel and/or laches." In the alternative, the Millers contend the summary judgment should be reversed to resolve fact issues concerning (4) the method of the cancellation provisions of the covenants, and (5) whether the homeowners were precluded from seeking injunctive relief by "the doctrines of waiver and/or estoppel and/or laches." The contentions of error will be discussed in logical sequence.

In this...