Pilarcik v. Emmons, 2-94-241-CV
| Decision Date | 13 June 1996 |
| Docket Number | No. 2-94-241-CV,2-94-241-CV |
| Citation | 938 S.W.2d 473 |
| Parties | Frank and Deborah PILARCIK, Appellants, v. James R. and Susie EMMONS, Preston and Fern Hasty, Doug Johnson, Jim Kern, Kelly and Susan Jones, Mike and Kathy Kobos, and Troy and Nell Radford, Appellees. |
| Court | Texas Court of Appeals |
L. Kelly Jones, Bryan, Thomas and Cannon, Arlington, for appellants.
G. Dennis Sheehan, Matthew D. Goetz, Craig M. Price, Fort Worth, for appellees.
Before RICHARDS, J., and RON CARR and CARLOS CADENA, JJ., (retired), Sitting by Assignment.
Appellants' motion for rehearing is denied. However, our opinion and judgment of January 11, 1996 are withdrawn and the following opinion is substituted in its place.
This is an appeal from a summary judgment in a restrictive covenant enforcement 1 case, which arose out of a lawsuit over the replacement by appellants Frank and Deborah Pilarcik of the roof on their residence with a composition-type shingle roof. Appellees James R. and Susie Emmons, Preston and Fern Hasty, Doug Johnson, Jim Kern, Kelly and Susan Jones, Mike and Kathy Kobos, and Troy and Nell Radford sued the appellants alleging that their installation of a composition shingle roof on their residence was a violation of the Waterwood Estates roofing restrictions. The appellants counterclaimed against appellees pointing to appellees' alleged multiple violations of the restrictions. The appellants filed a motion for partial summary judgment seeking a declaration by the trial court that the installation by the appellants of the composition shingle roof was approved by the subdivision's Architectural Control Committee and was, therefore, not a restriction violation. The trial court denied the appellants' motion for partial summary judgment. Appellees filed a motion for summary judgment as to their claim against the appellants for violation of the restrictions. The trial court granted appellees' motion and entered a partial summary judgment in favor of appellees. Appellees then filed a motion for summary judgment as to the appellants' counterclaim. The trial court granted appellees' motion and entered a final summary judgment in favor of appellees. From this final summary judgment appellants raise three points of error contending that the trial court erred (1) in granting appellees' motion for summary judgment as to their claim against the appellants; (2) in granting appellees' motion for summary judgment as to the appellants' counterclaim; and (3) in denying the appellants' motion for partial summary judgment.
Because we find that the appellants violated the restrictive covenant when they installed a composition roof, we affirm the trial court's judgment.
The summary judgment evidence shows that all of the parties reside in Waterwood Estates, a residential subdivision in the City of Arlington, Tarrant County, Texas. Waterwood Estates is subject to certain restrictive covenants regarding roofing on Waterwood Estates residences. Waterwood Estates was built-out, or completely developed, with all but one of the eighty-nine residences in the subdivision being completed in the early 1980's.
The subdivision covenants provide for an Architectural Control Committee ("ACC") consisting of five members. The ACC was given specific authority relating to approval of construction plans, specifications, and site locations for homes within the Waterwood Estates, as well as enforcement, application, and waiver of the restrictive covenants. The ACC is long dormant, having not met since at least early 1980. In 1992, no quorum existed for the ACC to take action because only two of the ACC members originally named in the covenants contended that they still served on the ACC and no successors had been designated. All members of the ACC named in the original covenants were employees of Dallas Federal Savings and Loan Association.
Appellants purchased an "existing home" in Waterwood Estates in February of 1992. Appellants' deed to their property makes specific reference to the restrictive covenants. After a 1992 hail storm damaged the neighborhood, several homeowners in the Waterwood Estates openly proposed the use of composition-type roofing materials to replace their damaged roofs.
The Waterwood Estates Homeowners Association held a meeting on May 21, 1992 for the sole purpose of discussing the proposed use of composition roofing materials. Appellant Deborah Pilarcik attended this meeting. At this meeting, appellee Kelly Jones, among others, advised the assembled homeowners, including the appellant, that the use of composition-type roofing materials violated the restrictive covenants and that he would seek to enforce the covenants' prohibition against composition-type roofing materials. Further, on or about May 22, 1992, appellee Jones prepared a letter to each Waterwood Estates homeowner concerning composition-type roofing materials, his interpretation of the applicable law, and his intent to enforce the restrictive covenants. Appellants' actual knowledge of the amended covenants' prohibition is shown by their attempt to amend the amended covenants to allow the use of composition-type shingles when they signed a petition to that effect that was circulated in the Waterwood Estates neighborhood during the summer of 1992. The petition was rejected by the Waterwood Estates homeowners.
On September 3, 1992, appellants mailed a letter to each of the five ACC members named in the original covenants, seeking permission to use composition-type roofing materials on their residence. These letters were mailed to the 14-year-old addresses shown on the 1978 covenants. Appellants received no response to these letters because they were returned as undeliverable. Appellants undertook no further efforts to obtain approval from the ACC prior to beginning their installation of the composition-type shingles on January 5, 1993. Contrary to the restrictive covenants, appellants did not submit any plots, plans, or specifications to the ACC for review and approval.
Appellees first became aware of appellants' use of composition-type shingles on January 7, 1993. That same evening, appellee Jones contacted appellants to discuss their use of composition-type shingles, and his intent to enforce the amended covenants. In this discussion, appellant Frank Pilarcik indicated to appellee Jones that he knew litigation would result from his actions. The underlying lawsuit in this action was filed and served upon appellants on January 8, 1993. After appellants were served with process, appellant Frank Pilarcik forwarded a second letter of request for permission to the old ACC members named in the original covenants. Appellants received no responses to their letters, as all five letters were again returned as undeliverable.
Approximately one week after having been sued and served with process, appellants called one of the old ACC members, and received from that member approval for their use of composition-type shingles.
The purpose of summary judgment is not to deprive litigants of their right to trial by jury, but to permit the trial court to dispose of patently unmeritorious claims and untenable defenses. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex.1979); Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). Because summary judgment is a harsh remedy, the presumptions weigh heavily in favor of the nonmovant on appeal. This is evidenced by the standards of review for a summary judgment case:
1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.
Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).
A movant is entitled to summary judgment if it established that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993).
The specific language from the amended covenants at issue is as follows:
[I.]
9. Roofs of composition type shingles will not be permitted. All roofs and dwellings or accessory buildings shall be constructed with wood shingles, unless an alternate roofing material is approved by the Architectural Control Committee.
....
II. RIGHT TO ENDORSE RESTRICTIONS
1.... The Architectural Control Committee shall have the right to waive any restrictions herein provided insofar as the same pertains to type of roof or quality of masonry to be used provided that the appraised value of the proposed house is not less than $50,000.00.
[2.] Procedure: Committee's approval or disapproval as required by this covenant shall be in writing. In the event the Committee or its designated representative fails to approve or disapprove within 30 days after plat, 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. [Emphasis added.]
Texas courts will construe an entire document so that none of its provisions is rendered meaningless. Imperial Interplaza II, Inc. v. Corrections Corp. of Am., Inc., 717 S.W.2d 422, 424 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.); Memorial Hollow Architectural Control Committee v. Mapes, 610 S.W.2d 230, 232 (Tex.Civ.App.--Houston [14th Dist.] 1980, no writ)....
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Pilarcik v. Emmons
...granted summary judgment requiring the Pilarciks to remove the composition shingles from their home, and the court of appeals affirmed. 938 S.W.2d 473. We conclude that the Architectural Control Committee created by the restrictive covenants had the authority to waive a covenant prohibiting......