Scoville v. SpringPark Homeowner's Ass'n, Inc.

• Decision Date: 11 January 1990
• Docket Number: No. 05-89-00019-CV,05-89-00019-CV
• Citation: 784 S.W.2d 498
• Parties: David H. SCOVILLE and Alice Faye Scoville, et al., Appellants, v. SPRINGPARK HOMEOWNER'S ASSOCIATION, INC., Appellee.
• Court: Texas Court of Appeals

Page 498

784 S.W.2d 498

David H. SCOVILLE and Alice Faye Scoville, et al., Appellants, v. SPRINGPARK HOMEOWNER'S ASSOCIATION, INC., Appellee.

No. 05-89-00019-CV.

Court of Appeals of Texas Dallas.

Jan. 11, 1990.

Rehearing Denied Feb. 16, 1990.

Michael E. Robinson, Bruce Baldwin, Dallas, for appellants.

S. Eric Ragir, Debra R. Smith, Dallas, for appellee.

Before WHITHAM, BAKER and OVARD, JJ.

OPINION

WHITHAM, Justice.

In this declaratory judgment action, the homeowner-appellants, David H. and Alice Faye Scoville, Billy G. and Ruth W. Hannah, Jim E. and Carla S. Brown, Arthur Ray, Jr. and Sherry Rhodes, Gary and Linda L. Pinkham, Gary L. and Nancy Meinershagen, James E. and Barbara R. Brogan, Alan P. and Jordanna P. Whitheiler, Jack and Kathryn Vincent, Robert A. and Kyoko O. Mallon, Richard F. and Mary K. Handley, Stephen L. and Gwen N. Hanni, Jerry L. and Mary Margaret Taylor, Charles Robert and Ruth Ellen Hewes, Arthur Ray, Jr. and Karon Collier, James G. and Linda Burkhart, James S. and Wanda J. Harrison, Lloyd G. and Sue K. Magee, Bertram C. and Francis B. Jones, Vernon Ran and Betty L. Swearingen, Gregory Bruce Pulcini Joseph P. and Darlene Sircely, Aurelious A. and Diane Wiora, Jean F. Phipps Vielock, Rudy and Diana L. Melendez, Edward and Janet Sweda, Edward F. and Geraldine Kohlhaas, Larry L. and Marilyn L. Nulf, William Mendoza, Neal H. and Rita B. Ishman, Ramon Eugene and Janie Patricia Helms, Janet L. Walton, Bobby L. and Reva E. Smith, Neal P. and Evelyn L. Watts, Elton and Elisa Powers, Bruce R. and Sylvia K. Miller, Thomas C. and Deborah J. Connors, Kathleen V. Johnson, Paul R. and Tanya K. Engle, John M. and Carol A. Betty, Hui-Hsin Liu, Joseph C. Foster, Walter Y. and Grace Wen, John E. and Elizabeth H. Holderman, Robert and J. Leola Jolly, John H. and Donna L. Parker, Michael C. and Susan A. Bulkely, Richard D. and Rosemary J. DuMais, Robert E. and Nadine S. Lee, appeal from a summary judgment in favor of appellee, SpringPark Homeowner's Association, Inc. Both the homeowners and the association filed motions for summary judgment. The trial court granted the association's motion and denied the homeowners' motion. In their first and fifth points of error, the homeowners contend that the trial court erred in granting the association's motion and in denying the homeowners' motion. We agree. The principal issue is whether the homeowners can vacate certain use restrictions binding their properties and thereby escape payment of assessments. We conclude that the homeowners can do so. We conclude further that the trial court did not abuse its discretion in the award of attorney's fees to David and Mary Ann Somers. Accordingly, we affirm the trial court's judgment insofar as it awards the Somers attorney's fees, and we reverse the remainder of the trial court's judgment and render judgment that the association take nothing against the homeowners.

SpringPark is a planned residential community which lies partially in both Dallas and Collin Counties. The community was created in 1973 and was subdivided and platted as SpringPark West First Addition. The owner of the property filed a "Master Declaration" which set forth a general administrative scheme, covenants, restrictions and a statement of purposes. SpringPark was formed to acquire, improve and maintain common areas for the benefit of its members and to promote the health, safety, and welfare of its residents. The parks, playgrounds, open spaces and other amenities which were envisioned were acquired and maintained through the collection of annual assessments. The power to oversee the community, which included enforcing covenants and restrictions as well as collecting and disbursing assessments, was vested in the association.

The Master Declaration provided the developer with the right to annex and merge additional properties in future stages of development of SpringPark. These future additions were to be developed according to a general plan which was required to contain "a statement that the proposed additions, if and when completed, shall become subject to assessments for their just share of Association expenses." Every purchaser was to be apprised of the general plan prior to sale. SpringPark and any future additions to it were specifically subject to all the terms, provisions, covenants and conditions of the Master Declaration. Article II of the Master Declaration provided:

PROPERTY SUBJECT TO THIS DECLARATION:

ADDITIONS THERETO

* * * * * *

The additions ... authorized under this and the succeeding subsection shall be made by filing of record a supplementary Declaration of Covenants and Restrictions with respect to the additional property which shall extend the scheme of the covenants and restrictions of this Master Declaration to such property.

Any such Supplementary Declaration may contain such complementary additions and modifications of the covenants and restrictions contained in this Master Declaration as may be necessary to reflect the different character, if any, of the added properties as are not inconsistent with the scheme of this Master Declaration. In no event, however, shall any such Supplementary Declaration revoke, modify or add to the covenants established by this Master Declaration as to the Existing Property.

Every owner of a lot subject to assessment by the Master Declaration was required to be a member of the association. Each owner agreed by covenant to pay and to be personally liable for assessments which were secured by a continuing lien upon the lot. Upon conveyance, the grantee automatically became a member of the association and subject to all the terms of the Master Declaration.

Amendments to the Master Declaration are governed by the following provisions:

Section 11.01 Binding Effect. The covenants and restrictions of this Master Declaration shall run with and bind the Properties subject to this Master Declaration, and shall inure to the benefit of and be enforceable by the Association and/or the Owner of any Lot or Living Unit subject to this Master Declaration, their respective legal representatives, heirs, successors, and assigns, for a term of thirty (30) years from the date that this Master Declaration is recorded, after which time this Master Declaration shall be automatically extended for successive periods of ten (10) years unless an instrument signed by the Members entitled to cast seventy-five percent (75%) of the votes of the Association has been recorded changing this Master Declaration in whole or in part.

Section 11.02 Amendments by Developer. Until such time as the first portion of the Properties is sold by Developer, Developer, at its discretion, may abolish, amend, restate or supplement this Master Declaration in whole or in part.

Section 11.03 Amendments by Members. Except as provided in Sections 11.01 and 11.02, this Master Declaration may be abolished, amended and/or changed in whole or in part only with the consent of seventy-five percent (75%) of the total number of Members of each Class of the Association evidenced by a document in writing bearing each of their signatures.

(emphasis added).

In 1977, the SpringPark West Second Addition (Second Addition), consisting of fifty-seven lots, was annexed and merged into the association through a requisite supplementary declaration entitled "DECLARATION OF USE RESTRICTIONS RESTATED" (Use Restrictions). Both the Use Restrictions and the Master Declaration were prepared and signed on behalf of the Aren Corporation--the "Developer." Article II of that document governs assessments and provides that each Second Addition homeowner covenants and agrees to pay and be personally liable for the assessments and fees provided for in the Master Declaration. It also states that assessments levied pursuant to the Master Declaration are secured by a continuing lien upon the Second Addition lots.

Article III which follows is entitled "PERMITTED USES AND RESTRICTIONS" and encompasses twenty-two areas of concern to the owners of the Second Addition lots. Its sections variously regulate and restrict considerations such as exterior cladding materials and colors, set-back requirements, garage door location, and roofing materials and colors. Immediately following these enumerated use restrictions is the provision which the homeowners invoke in their effort to secede from the association.

Section 3.01 Duration and Amendment. The covenants and restrictions contained in these Use Restrictions shall run with and bind the Properties subject to these Use Restrictions and shall inure to the benefit of and be enforceable by the Owners of the Lots subject to these Use Restrictions, their respective legal representatives, heirs, successors, and assigns, for a term of thirty (30) years from the date that these Use Restrictions are recorded. Thereafter, these Use Restrictions shall be automatically extended for successive period of ten (10) years provided, however, that the Owners of seventy-five percent (75%) of the Lots may, at the end of such thirty (30) year term or at the end of any successive ten (10) year period thereafter by a written instrument recorded in the Deed Records, Dallas County, Texas, vacate or modify all or part of these Use Restrictions; provided, however, no such vacation or change shall be effective unless made and recorded at least one (1) year prior to the effective date thereof. During the initial thirty (30) year term a vacation or modification hereof shall be effective if a written instrument be signed by ninety percent (90%) of the Owners of the Lots. Any such vacation or modification shall be filed of record in the Dallas County Deed Records promptly when executed.

(emphasis added).

During the ten years that followed the Second Addition annexation, discord developed culminating in the Second Addition homeowners' attempt to form a new homeowner's association. In 1987, the Second Addition homeowners filed a document entitled "SECOND...