Tower Oaks Cmty. Org. v. Ham, 01-16-00913-CV

• Decision Date: 17 May 2018
• Docket Number: NO. 01-16-00913-CV,01-16-00913-CV
• Parties: TOWER OAKS COMMUNITY ORGANIZATION, Appellant v. GREGORY D. HAM AND COLIN E. HAM, Appellees
• Court: Texas Court of Appeals

TOWER OAKS COMMUNITY ORGANIZATION, Appellant v. GREGORY D. HAM AND COLIN E. HAM, Appellees

NO. 01-16-00913-CV

Court of Appeals For The First District of Texas

May 17, 2018

On Appeal from the 61st District Court Harris County, Texas

Trial Court Case No. 2015-52753

MEMORANDUM OPINION

Appellant, Tower Oaks Community Organization ("TOCO"), is an unincorporated non-profit association comprised of eight residents of the Tower Oaks subdivision and formed for the purpose of monitoring the enforcement of restrictive covenants in the subdivision when the Tower Oaks Civic Club fails or refuses to do so. TOCO sued the appellees, Gregory D. and Colin E. Ham ("the Hams"), based on the Hams' alleged violation of the subdivision's restrictive covenants ("Covenants"), and the trial court rendered a take-nothing judgment against TOCO. TOCO argues, in relevant part, that the trial court erred in failing to find that the Hams violated the Covenants' "requirement" of one house per developed lot and, because the Hams allegedly violated this requirement, TOCO is entitled to injunctive relief and attorney's fees as a matter of law.¹ We conclude that TOCO's construction of the Covenants is not supported by their plain language and that the evidence demonstrates, as a matter of law, that TOCO failed to establish that the Hams violated the Covenants. Accordingly, we affirm the trial court's take-nothing judgment.

Background

The Tower Oaks community was originally developed in the 1950s and 1960s. The development included the creation, in 1968, of the Covenantsconcerning the use of property within the subdivision. The Covenants were to remain in effect initially for a period of fifty years and are automatically extended for ten-year terms following the initial effective period. The Covenants include the following relevant provisions:

3. It is expressly understood that all lots and land in this subdivision shall be known and described as residential lots and property and shall not during the effective dates and periods of this instrument be used or permitted to be used for any other purpose.

4. No more than one single family residential dwelling shall be built on any one lot. . . .

5. No building shall be erected, placed, or altered upon any building plot in this subdivision until the building plans, specifications and plot plans showing the location of such building have been approved in writing by the architectural committee as to quality of workmanship and materials and to conformity and harmony of external design with the existing structures in the subdivision and as to location of the building with respect to topography and finished ground elevation. . . .

. . . .

8. No animals, livestock, poultry, dogs, cats and such may be kept or permitted on the premises, except as pets or for domestic use. . . . In this connection it is further understood that all barns, stables, and outhouses must be placed and so situated that no part of them is closer to the front of said lot than a line parallel to the front property line lying at the rear of the principal dwelling situated on said lot. . . . All such structures and shelters for animals and pets shall conform to the structures in the neighborhood and shall not be maintained in any unsightly manner. . . .

9. No residential structure shall be erected or placed on any lot that has actual living space of less the 1,600 square feet, exclusive of porches and garages.

10. No trailer, basement, tent, shack, garage, barn or other building or outbuilding erected on any lot shall at any time be used for residential purposes, either temporarily or permanently. No structure of whatever character, including the structures built for residential purposes, shall ever be occupied or used for such residential purposes until the same is complete outside. No second-hand houses shall be moved on any lot.

. . . .

13. No building or structure shall be located closer than Fifty feet (50') to the front line of each residential lot or nearer to the side street lines than Twenty-Five feet (25'). Eaves, steps and open porches shall not be considered as part of a building, but this definition shall not permit any portion of a building, including the aforesaid, to encroach upon an adjoining lot, except when two or more adjacent lots are used as one building plot.

. . . .

19. The exterior of all residential structures shall be of at least 2/3 masonry construction and shall be completely and permanently finished, and if any part of such exterior is of wood or of material requiring painting, then same shall be finished. . . .

The Tower Oaks Civic Club generally oversees the enforcement of these Covenants, including by forming an Architectural Committee to approve construction as required by the Covenants. However, the Tower Oaks Civic Club does not impose mandatory membership fees on residents of the community, and thus it has limited resources with which to enforce the Covenants. Accordingly, a group of residents, currently including four married couples who reside in the neighborhood, decided to form TOCO for the purpose of enforcing the Covenants.

On August 29, 2014, the Hams purchased the property located at 11510 Mile Drive in Houston, Texas ("the Property"). The Property was comprised of two lots—Lots 5 and 6. The purchase price was for the combined lots, and the entire Property was conveyed in a single transaction.

In early 2015, the Hams contacted the Tower Oaks Civic Club's Architectural Committee to request permission to build an auxiliary building ("the Building") on Lot 6 of their Property. Their request was considered by the Architectural Committee, which requested that the Hams construct the Building toward the back of the Property and that they construct a privacy fence between the Building and the street. The Hams agreed to these conditions; and the Architectural Committee, and ultimately the Tower Oaks Civic Club Board, approved the Hams' request to construct the Building.

The Architectural Committee informed the Hams by phone of the approval to build in early April 2015, and on April 18, 2015, the Hams entered into a contract with Hawthorne Steel Buildings to construct the Building, paying it one-third of the contract price of $49,747.19 as a deposit. On April 28, 2015, the Hams obtained written approval from the Architectural Committee to build and the construction process began shortly after.

On July 22, 2015, Nancy McCreary, a member of TOCO—an organization the Hams had never heard of or had any dealings with—inquired into the activityon the Hams' property by contacting the Tower Oaks Civic Club's president, Dwayne Harthorn. Harthorn provided the requested information to McCreary and notified a member of the Architectural Committee of their interaction. He expressed a belief that McCreary was "going to go after" the Hams.

On July 23, 2015, the Hams paid $10,265.00 for land clearing services and construction of a foundation pad for the Building. By September 17, 2015, the foundation was complete and the Hams paid another third of the contracted cost for the Building.

On September 18, 2015, TOCO served the Hams with notice of this lawsuit, which had been filed ten days earlier. TOCO's suit against the Hams sought, among other things, injunctive relief compelling the Hams to replat their two lots into one.² The Hams testified that, after the filing of the suit, members of TOCO drove past their Property slowly to assess the progress of the construction and to take pictures of their Property. Construction of the Building was completed on October 14, 2015, and the Hams paid the final third of the contracted-for price.

At the bench trial, TOCO presented evidence that it is an unincorporated non-profit association formed under Chapter 252 of the Texas Business Organizations Code. It is comprised of eight members who reside in the Tower Oaks community. Both sides presented evidence establishing the location of theHams' home and other buildings and structures on their Property, as well as evidence of the procedures the Hams followed to obtain permission from the Tower Oaks Civic Club's Architectural Committee to construct the Building on the Property.

Gregory Ham testified that the way the septic system and well servicing his home on the Property are set up, he could not sell Lot 6 as a separate lot because "[i]t would be very challenging to build a home on lot six" in light of the mandatory offset around the well and the fact that his septic system discharges treated wastewater onto large portions of lot 6. He stated, "In order to live in my property and [in] my house, I have to have wastewater [treatment]; and I have to have water. And those cross the line [between Lot 5 and Lot 6]. Those are—lot six is essential in providing those services to our house."

Gregory Ham further testified that the Building is connected to his residence in the sense that it uses the same water and septic systems. He stated that the Building could be used as a garage, but it is more accurately considered a "utility building." He testified that he uses the Building as a place for his children—who compete in the sport of wrestling—to practice and a place where he and his wife exercise. The Building is also used for storage purposes. Ham testified that no one conducts business from the Building, and he never charges anyone any fees to use the Building.

The parties presented evidence that there are approximately 500 lots in the Tower Oaks subdivision and that approximately 50 of those lots are currently vacant with no buildings on them. The Hams also presented evidence that another homeowner—specifically James Deas, a member of TOCO—has a large metal structure on his lot similar to the one erected by the Hams and that he is operating a commercial operation out of this home in Tower Oaks. The Hams also presented evidence of a few other lots that contain sheds or other similar structures but no residence or dwelling.

The trial court found in favor of...