Radney v. Clear Lake Forest Community Ass'n, Inc., A14-83-511-CV

Citation681 S.W.2d 191
Decision Date27 September 1984
Docket NumberNo. A14-83-511-CV,A14-83-511-CV
PartiesW. Marvin RADNEY, et ux., Appellants, v. CLEAR LAKE FOREST COMMUNITY ASSOCIATION, INC., et al., Appellees. (14th Dist.)
CourtCourt of Appeals of Texas

Eugene J. Pitman, DeLange, Hudspeth, Pitman & Katz, Houston, for appellants.

David A. Carp, Michael W. McCoy, Winters, Deaton & Briggs, Jack D. Nolan, Law Offices of Jack D. Nolan, Houston, for appellees.

Before J. CURTISS BROWN, C.J., and DRAUGHN and ROBERTSON, JJ.

OPINION

ROBERTSON, Justice.

This is an appeal from judgment finding a violation of a deed restriction, granting a mandatory injunction and awarding attorneys fees. Appellants raise fifty-one points of error arguing that: the restrictive covenant in question was ambiguous; appellee, Clear Lake Forest Community Association, Inc., was not a proper party to enforce the restrictive covenant; appellees were estopped from enforcing the restriction; the Texas Fraudulent Conveyance statute is not applicable to this case; there was legally and factually insufficient evidence to support the finding that there was a fraudulent conveyance; it is impossible for appellants to perform in conformity with the mandatory injunction; the trial court erred in failing to balance the equities between the parties; there was an improper award of attorneys fees; and Special Issue No. Four contained a comment on the weight of the evidence. We affirm.

Appellants were the owners of a one story home located on Lot 48, Block 4, Section I of Clear Lake Forest Subdivision. In February of 1977, they wished to add a second story above their detached garage. They submitted their plans and request for a building permit to the City of Taylor Lake Village. Allen Heidbreder issued the building permit for the City and returned the plans to appellants. After receiving the building permit and plans, appellants began work on the addition to the garage.

The deed restrictions applicable to Section I of Clear Lake Forest Subdivision contained a specific restriction that:

No building shall be erected, altered or permitted to remain on any lot other than one detached single-family residential dwelling not to exceed two stories in height, and a private garage for not more than three cars and bona fide servants quarters, which structure shall not exceed the main dwelling in height or number of stories.

Heidbreder notified appellee, Logan Haycraft, Jr., President of the Community Association, that the garage addition was a possible deed restriction violation. Haycraft also received a complaint about the garage construction from a Mr. Hazebriggs. Haycraft testified that he sent a letter in March of 1977 instructing the Radneys to cease the construction because it was in violation of the deed restrictions. Mr. Radney testified that he never received the March 1977 letter. Haycraft never received any indication that the letter was returned.

Appellants continued the work on the garage. In June, 1977, the community association sent another letter, by certified mail, to appellants, complaining that the construction of a second story on the garage was in violation of the deed restrictions. Haycraft and Ms. Jane Webb testified that the letter was returned unclaimed to the Association. Radney testified that his wife claimed the letter at the post office.

After the certified letter was returned unclaimed, Ms. Webb went to the Radney home to personally deliver a copy of the letter. Webb was met at the door of the home by Mrs. Radney. Webb was told that Mr. Radney could not talk with her because he was busy working on the roof of the garage. Because Radney continued to work on the garage and failed to make any effort to bring the garage in conformity with the deed restrictions, the community association retained legal counsel. The association's attorney sent additional notice to appellants that the association considered the garage construction to be in violation of the deed restrictions. Appellants continued with and finished the construction. Appellees, Clear Lake Forest Community Association, Inc. and Logan Haycraft Jr., filed suit against appellants seeking to enforce the restriction.

Shortly before the case was called for trial in April, 1982, appellants' counsel informed the appellees' attorney that the property had been sold by the Radneys to Intercontinental Engineering and Management Consultants, S.A. (Intercontinental), a corporation registered in the Caymen Islands. The conveyance was by an unrecorded deed. A continuance was granted. Appellees thereafter amended their petition to include Intercontinental as a party and added a fraudulent conveyance cause of action.

The case proceeded to trial in February, 1983. It was stipulated by counsel for the respective parties that the subject garage exceeds in height or is higher than the main dwelling, that the garage is two stories while the main dwelling is one story, and that the Radneys, at the time of the transfer of the subject property to Intercontinental, were on notice that the association and Haycraft had filed suit to obtain an injunction and recover attorney's fees. In response to Special Issue No. 1, the jury found that the conveyance of the property from the Radneys to Intercontinental was intended to delay or hinder appellees from obtaining an injunction or collecting attorney's fees. The jury found, in response to Special Issue No. 2, that Intercontinental purchased the property with notice of the intent of the Radneys to delay or hinder the appellees from obtaining an injunction or collecting attorney's fees. The jury failed to find that the appellees were estopped from enforcing the restriction at issue. The fourth special issue asked the jury to find the sum of money that should be awarded to appellees "as reasonable attorney's fees, for the services rendered by Plaintiff's attorney in relation to the amount of time expended in asserting a breach of the restrictive covenants or deed restrictions at issue." The jury awarded: six thousand dollars ($6,000) for the legal services rendered prior to March 19, 1982; twenty-nine thousand dollars ($29,000) for the legal services rendered in the preparation of the trial of this cause after March 19, 1982; five thousand dollars ($5,000) for legal services if the case is appealed to the court of appeals and two thousand five hundred dollars ($2,500) for legal services if application for writ of error is made to the supreme court.

The trial court entered judgment that: the restriction in question was valid and enforceable; the addition of a second story to the garage was a violation of the deed restriction which continued after the conveyance to Intercontinental; the conveyance from the Radneys to Intercontinental was declared null and void; the Radneys were ordered to remove the second story from the garage within sixty days of the date of the signing of the judgment; and attorney's fees were awarded to appellees in accordance with the jury verdict.

In point of error thirty-seven, appellants argue the trial court erred in rendering judgment that the second story of the garage be removed, as the restrictive covenant in question is ambiguous as a matter of law, and should be construed in favor of freer use of the land. We cannot agree that the restriction is ambiguous as a matter of law.

The restriction is that:

No building shall be erected, altered or permitted to remain on any lot other than one detached single-family residential dwelling not to exceed two stories in height, and a private garage for not more than three cars and bona fide servants quarters, which structure shall not exceed the main dwelling in height or number of stories.

Appellants argue that this restriction can be reasonably interpreted in two different ways. Appellants concede that the restriction can be interpreted to mean that each lot may be improved with only two structures: 1) one detached single-family residential dwelling not exceeding two stories in height; and 2) a private garage for not more than three cars and bona fide servants quarters, which structure shall not exceed the main dwelling in height or number of stories. However, Appellants believe the restriction can also be interpreted to allow each lot to be improved with three structures: 1) one detached single-family residential dwelling not exceeding two stories in height; 2) a three car garage; and 3) bona fide servants quarters, which structure shall not exceed the main dwelling in height or number of stories. Appellants believe that since the restriction can reasonably be construed in two different ways, it is ambiguous as a matter of law and must be construed in favor of freer use of the land. The interpretation that the restriction allows three separate structures on each lot is not a reasonable interpretation. Looking at the wording and punctuation of the specific restriction and all of the deed restrictions, the only reasonable interpretation is that the restriction allows only two structures: 1) a residential dwelling and (2) a private garage with servants quarters, which structure shall not exceed the main dwelling in height or number of stories. Since there is only one reasonable interpretation, the restriction is not ambiguous as a matter of law. Appellants' point of error thirty-seven is overruled.

In points of error thirty-eight through forty-three, appellants argue that the Clear Lake Forest Community Association was not a proper party to enforce the restriction or recover attorney's fees. Assuming that the association was not a proper party, an issue we do not decide, any error by the trial court was harmless. Appellants do not challenge the standing of Mr. Haycraft to enforce the restriction. Since Haycraft was a proper party to enforce the restriction and recover attorney's fees, any error by the trial court in allowing the association to remain as a plaintiff in this action was harmless. Tex.R.Civ.P. 434. Appell...

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