Rakowski v. Comm., Prot. Clear Creek Vill.

• Decision Date: 03 April 2008
• Docket Number: No. 14-05-01143-CV.,14-05-01143-CV.
• Citation: Rakowski v. Comm., Prot. Clear Creek Vill., 252 S.W.3d 673 (Tex. App. 2008)
• Parties: Robert A. RAKOWSKI, Appellant, and Clear Creek Civic Association, Inc., Appellants/Cross-Appellee, v. COMMITTEE TO PROTECT CLEAR CREEK VILLAGE HOMEOWNERS' RIGHTS and Preserve Our Park, Appellee/Cross Appellant.
• Court: Texas Court of Appeals

252 S.W.3d 673

Robert A. RAKOWSKI, Appellant, and Clear Creek Civic Association, Inc., Appellants/Cross-Appellee, v.COMMITTEE TO PROTECT CLEAR CREEK VILLAGE HOMEOWNERS' RIGHTS and Preserve Our Park, Appellee/Cross Appellant.

No. 14-05-01143-CV.

Court of Appeals of Texas, Houston (14th Dist.).

April 3, 2008.

Darren R. Rice, Michael Dennis Wisdom, Charles A. Daughtry, Houston, for appellants/cross-appellee.

A.G. Crouch, Alvin, Ervin A. Apffel, Jr., Galveston, for appellee/cross-appellant.

Panel consists of Justices FOWLER, FROST, and EDELMAN.^*

SUBSTITUTE PLURALITY OPINION

RICHARD H. EDELMAN, Senior Justice(Assigned).

Appellants' motion for rehearing is overruled, the Plurality Opinion issued in this case on December 20, 2007 is withdrawn, and the following Substitute Plurality Opinion is issued in its place.

In this subdivision property dispute, the parties each appeal a summary judgment entered for the other on the grounds that the trial court erred in ruling that: (1) the Clear Creek Village Subdivision's (the "Subdivision") restrictive covenants attached to the Claiborne Park property (the "Park") and (2) the Clear Creek Village Civic Association(the "Association") was the record title holder to the Park.We affirm.

Background

In 2004, the Committee to Protect Clear Creek Village Homeowners' Rights and Preserve Our Park (the "Committee") filed suit to prevent the Association from selling the Park to Robert Rakowski, who intended to use it for commercial purposes.The parties filed cross motions for summary judgment, and the trial court granted separate summary judgments declaring, respectively, that: (1) the Association is the lawful record title holder of the Park and thereby has the right to convey it; but (2)the Subdivision's Restrictions, Covenants, and Conditions(the "restrictions") apply to the Park, prohibit its use for any commercial purpose, and require the Association to maintain it solely for recreational use.

Standard of Review

When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant's favor.Sudan v. Sudan,199 S.W.3d 291, 292(Tex.2006).Where, as here, both sides move for summary judgment and the trial court grants one motion and denies the other, we review both sides' summary judgment evidence, determine all questions presented, and render the judgment the trial court should have rendered.Valence Operating Co. v. Dorsett,164 S.W.3d 656, 661(Tex.2005).

We review a trial court's interpretation of a restrictive covenant de novo.Buckner v. Lakes of Somerset Homeowners Ass'n, Inc.,133 S.W.3d 294, 297(Tex.App.-Fort Worth2004, pet. denied).Restrictive covenants are subject to the general rules of contract construction.Pilarcik v. Emmons,966 S.W.2d 474, 478(Tex.1998).Therefore, in construing a restrictive covenant, our primary task is to determine the drafter's intent and to liberally construe the language of the restrictions to give effect to their purposes and intent and to harmonize all of the provisions so that none are rendered meaningless.¹

Application of Restrictions

The Association and Rakowski ("appellants") challenge the summary judgment, holding that the restrictions apply to the Park, on the grounds that: (1) the Park is not included within the platted boundaries of the Subdivision; (2) the restrictions are not specifically set forth in the deed that purports to convey the Park from Bill Williams to the Association's predecessor; (3) the restrictions' enabling language states that they apply only to Subdivision lots; and (4) the restrictions allow subsequent owners to take without the restrictions.

The restrictions include a provision titled "Recreational Area" that references a "Recreation Area" labeled on the recorded plat for Section 1 of the Subdivision.The parties do not dispute that this "Recreational Area" in the restrictions, and this "Recreation Area" on the plat, each refer to the Park.The restrictions reserve this area for the use and enjoyment of those owning or occupying residential lots in all current and future sections of Clear Creek Village, of which at least six were added in the ensuing years, with the deed of trust and restrictions, covenants, and conditions for each referencing the Park as a recreational area and requiring dues be spent for its maintenance.

In support of their contention that the Park is not included in the Subdivision boundaries, appellants rely on Sills v. Excel Servs., Inc.,617 S.W.2d 280, 284(Tex. Civ.App.-Tyler 1981, no writ).There, homeowners in a subdivision sought to enjoin the construction of an apartment complex by enforcing a restrictive covenant that allowed lots to be used only for single family residences.Id. at 281-82.The court held that the restrictive covenants did not apply to the tract in question because: (1) the tract was not within the dark line delineating the subdivision's outer boundaries; (2) inclusion of the tract in the subdivision would have required flood plain data to be submitted, which was not done; and (3) the restrictions referred only to the subdivision lots and failed to show any scheme or plan of development imposing the restrictions on property not encompassed within the subdivision's boundaries.Id. at 283-84.

In contrast to Sills, and applying part of its rationale, the restrictions in this case demonstrate "a scheme or plan of development imposing restrictions on property not encompassed within the subdivision's boundaries."Id.(noting the property at issue was not only "clearly outside" the subdivided tract, but "the record completely negates the existence of any scheme or plan of development").The appurtenant property is arguably outside the dark line that demarcates the lots of the subdivision, but the restrictions specifically reference it, and a review of the recorded map of the subdivision clearly marks that section as Recreation Area, putting any person on notice that it is part of a plan or scheme of development.Any would-be purchaser could only determine the nature of this designation by reading the subdivision's restrictions.

While appellant contends that there is no indication of these restrictions on the map of Braskora Gardens, the record reveals only a map of an area too large to show the necessary level of detail, and does not show any of the subdivisions into which Braskora Gardens was subsequently parsed, including Clear Creek Village.The record contains no other map of sufficient detail showing the Recreation Area as anything but that, and that would fail to put a would-be purchaser on notice that he must look to the restrictions.SeeAnderson v. McRae,495 S.W.2d 351, 359(Tex.App.-Texarkana 1973, no writ.)(noting that an easements or other appurtenant right is conveyed when shown or referred to on a plat, and that "all of the appurtenances ascertainable by the map" are conveyed).The fact that the Park was not described in detail by metes and bounds is immaterial.Id.(delineating some of the areas in contest as "area reserved for recreation and roadway");see alsoSpencer v. Levy,173 S.W. 550, 557(Tex.App.-Austin1914, writ ref'd).²

In this case, our record contains a general plan of development expressly imposing the restrictions on the Park.³Therefore, even if the Park is outside the platted boundaries of the Subdivision, that alone does not preclude the application of the restrictions, and appellants' first contention is overruled.

Appellants' second contention, that the restrictions are not recited in the deed, fails to note that a property may become subject to the restrictions and covenants of a general plan of development under a number of scenarios, including: (1) by grant; (2) by an express reference to the restrictions and covenants in the conveyance documents, which are duly recorded;⁴ and/or (3) when the parties otherwise have constructive knowledge of the restrictions through the recorded property records.⁵As such, even if the Association and Rakowski are correct about the deed, an attack on the deed is insufficient to find that the restrictions and covenants are inapplicable to the Park.Therefore, appellants' second contention is overruled.

Regarding appellants' third contention, the restrictions' enabling language specifies that the uniform plan of development shall govern "the use, development, improvement and sale of lots" and "does hereby place and impose the following restrictions, covenants, and conditions upon and against the lots."The Association argues that this language limits the application of the restrictions only to actual subdivision lots.However, this fails to read the restrictions as a whole and fails to give meaning to every provision, particularly those expressly referring to the Park.⁶Therefore, appellant's third contention is overruled.

Contrary to appellants' fourth contention, the restrictions allow future owners of the Park to take it free and clear of the restrictions only if the property is sold at a foreclosure sale in the event of default on a loan used to improve or beautify the Park for the benefit and enjoyment of the persons entitled to use it.Therefore, this clause is not evidence that the restrictions do not apply, as appellants argue, but merely a mechanism to enable the Subdivision to obtain debt to improve the Park by allowing such debt to be secured by a lien.Because appellants' issue does not demonstrate that the trial court erred by granting summary judgment that the restrictions apply to the Park, it is overruled.⁷

Ownership

The Committee challenges the trial court's ruling, that the Association was the lawful title holder to the Park, because its purported transferor, Bill Williams, possessed no conveyable interest in the Park property, having conveyed it earlier to Bill Williams Construction Company.⁸The Association responds that the Committee does not...