Sanchez v. Southampton Civic Club, Inc.

• Decision Date: 30 May 2012
• Docket Number: Nos. 14–11–00228–CV, 14–11–00257–CV.,s. 14–11–00228–CV, 14–11–00257–CV.
• Citation: 367 S.W.3d 429
• Parties: Patricio D. SANCHEZ, Appellant, v. SOUTHAMPTON CIVIC CLUB, INC., Appellee.
• Court: Texas Court of Appeals

367 S.W.3d 429

Patricio D. SANCHEZ, Appellant,

v.SOUTHAMPTON CIVIC CLUB, INC., Appellee.

Nos. 14–11–00228–CV, 14–11–00257–CV.

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

March 27, 2012.

Rehearing Overruled May 30, 2012.

Paul J. McConnell, III, Ben A. Baring, Jr., Houston, for appellant.

Sandford L. Dow, Houston, for appellee.

Panel consists of Justices BROWN, BOYCE, and McCALLY.

OPINION

JEFFREY V. BROWN, Justice.

This court withdraws its opinion of March 15, 2012, and issues a corrected opinion in its place to include the number of the consolidated appeal.

I

This is an appeal over the proper interpretation of deed restrictions. The trial court granted a partial summary judgment for appellee Southampton Civic Club, Inc., and denied appellant Patricio D. Sanchez's cross-motion for summary judgment. The trial court also denied Southampton's request for damages under section 202.004 of the Texas Property Code though it did order Sanchez to pay Southampton's attorney's fees. We affirm.

This case concerns the three-foot-wide strip of land between Sanchez's house and the public alleyway behind it. The alleyway itself is eight feet wide and part of an alleyway system established in 1923 in the Southampton Place subdivision in Houston. The trust agreement creating both the subdivision and the alleyway establishes deed restrictions throughout the subdivision. It provides in relevant part:

Each and every deed or other instrument which may vest in any person or corporation any title or interest in any lot, lots or other property in said project or addition, shall expressly reserve to the Trustee and its successors a right of easement and the right of ingress to a strip of land three (3) feet in width over, along and across the extreme rear end of each and all said lots and tracts. Such easement to be used by the Trustee and its successors and assigns for the laying of gas mains, water mains, storm and sanitary sewer laterals and connections, and electric light poles, telephone poles and other proper or necessary public utility other than railroad, street railway, and other transportation lines. And this right of easement and use is hereby expressly reserved to the Trustee and its successors in this tract, and when this trust shall have been fully executed and terminated, then such easement and right shall vest in the City of Houston, and it shall have full authority to permit the use of such right-of-way for proper municipal purposes as herein stipulated and no permanent improvements or buildings shall ever be erected thereon which will interfere with the use of said easement for the purposes for which it is reserved.

The alleyway has served residents in myriad ways; for many residents, it is the only route to enter their garages. Most importantly for this appeal, the alleyway has continuously been used for garbage collection throughout the subdivision. The side-loading garbage trucks the City of Houston currently uses are too large to traverse the alleyway, so the city allows Southampton to contract with a private garbage-collection company. The company Southampton has chosen uses eight-foot-wide back-loading garbage trucks with garbage collectors who ride on the back of the trucks and empty residents' garbage directly into the trucks by hand.

In 2007, prompted by the steady accretion of obstructions in the alleyway, Southampton undertook a new enforcement policy regarding residential use of the three-foot tracts of land on either side of the alleyways. It had traditionally allowed residents to encroach into those tracts, but reversed that policy to ensure that garbage collection could continue within the alleyways. Southampton grandfathered in all existing encroachments at that point on the basis that they had been made in good-faith reliance on the old enforcement policy, but it banned all future construction from the three-foot tracts. Sanchez moved into the subdivision in 2009 and immediately began constructing a new fence within the three-foot tract on his property. After several meetings with Southampton representatives, in which they told him about the 2007 enforcement policy and asked him to stop, Sanchez continued to build the fence.

Southampton sued Sanchez, seeking a permanent injunction ordering him to demolish and remove all parts of the fence and certain elements of his landscaping that encroached on the three-foot tract. Southampton also sought to collect attorney's fees and civil damages under section 202.004 of the Texas Property Code. Sanchez filed a motion to dismiss for lack of standing ¹ and a motion for summary judgment. Southampton responded with its own motion for summary judgment. The trial court ruled:

(i) Southampton Civic Club, Inc. has standing to assert the claim in Plaintiff's Original Petition and Application for Permanent Injunction that Patricio D. Sanchez is in violation of the 1923 Restrictions of the Southampton Place subdivision and the alley easement/right of way contained therein and further has standing to enforce the 1923 Restrictions, including the alley easement/rights of way therein;

(ii) Patricio D. Sanchez has violated the 1923 Restrictions of Southampton Place subdivision by erecting a fence and landscaping that intrude into the three-foot (3 § ) easement/right of way adjoining the eight-foot (8 § ) alley;

(iii) The request of Southampton Civic Club, Inc. for civil damages from

Patricio D. Sanchez under [section 202.004(c) of] the Texas Property Code is DENIED; and

(iv) Patricio D. Sanchez is hereby ordered to demolish and remove all parts of the fence and landscaping that intrude into the easement/right of way described hereinabove which were constructed or planted by or at the direction of Patricio D. Sanchez behind his residential real property....

The trial court postponed enforcement of its order until after Sanchez had exhausted his appeals, and ordered Sanchez to pay Southampton's attorney's fees. Both parties timely appealed.

II

A

We review a trial court's grant of summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex.2004); Weingarten Realty Mgmt. Co. v. Liberty Mut. Fire Ins. Co., 343 S.W.3d 859, 861 (Tex.App.-Houston [14th Dist.] 2011, pet. denied). A movant must establish its right to summary judgment by showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985); Weingarten Realty, 343 S.W.3d at 861. We take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Joe, 145 S.W.3d at 157;Weingarten Realty, 343 S.W.3d at 861. We review a summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. Wal–Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.2006) (per curiam); Weingarten Realty, 343 S.W.3d at 861. When we review cross-motions for summary judgment, we consider both motions and render the judgment that the trial court should have rendered. Coastal Liquids Transp., L.P. v. Harris Cnty. Appraisal Dist., 46 S.W.3d 880, 884 (Tex.2001); Weingarten Realty, 343 S.W.3d at 862.

B

We review a trial court's failure to assess section 202.004 damages under an abuse-of-discretion standard. See Air Park–Dallas Zoning Comm. v. Crow Billingsley Airpark, Ltd., 109 S.W.3d 900, 912 (Tex.App.-Dallas 2003, no pet.). That section of the Property Code provides: “A trial court may assess civil damages for the violation of a restrictive covenant in an amount not to exceed $200 for each day of the violation.” Tex. Prop.Code § 202.004(c) (emphasis added). Use of the word “may” in a statute creates discretionary authority. Tex. Gov't Code § 311.016(1).

We may not conclude that a trial court abused its discretion merely because it committed an error of judgment or if, in the same circumstances, we would have ruled differently. See E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). The test is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Id. Instead, a trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985).

III

The parties presented little evidence in the trial court. This is because, though the parties disagree how the law should apply to the facts of this case, the facts themselves are undisputed.

A

Initially, we note that the language used in the 1923 trust agreement sets out a restrictive covenant, and we reject Sanchez's argument to the contrary. The Texas Property Code defines a restrictive covenant as “any covenant, condition, or restriction contained in a dedicatory instrument, whether mandatory, prohibitive, permissive, or administrative,” and it requires that a restrictive covenant “shall be liberally construed to give effect to its purposes and intent.” Tex. Prop.Code §§ 202.001(4), 202.003(a).²

In construing a restrictive covenant, our primary task is to determine the intent of the framers of the covenant. Oldfield v. City of Houston, 15 S.W.3d 219, 223 (Tex.App.-Houston [14th Dist.] 2000, pet. denied),superseded by statute on other grounds as recognized in Truong v. City of Houston, 99 S.W.3d 204 (Tex.App.-Houston [1st Dist.] 2002, no pet.). In that regard, we must decide whether the restrictive covenant is ambiguous, which is a question of law. Id. at 224. If it is unambiguous, then its construction is also a question of law. Id. Like any contract, a restrictive covenant is unambiguous as a matter of law if it can be given a definite or certain legal meaning. Id.

We think the restrictive covenant is unambiguous. The trust agreement provides that the three-foot tracts are “to be used by the Trustee and its successors and assigns...