Village of Pheasant Run Homeowners v Kastor

• Decision Date: 10 May 2001
• Docket Number: No. 14-99-01208-CV,14-99-01208-CV
• Citation: 47 S.W.3d 747
• Parties: <!--47 S.W.3d 747 (Tex.App.-Houston 2001) VILLAGE OF PHEASANT RUN HOMEOWNERS ASSOCIATION, INC., Appellant v. ROSS L. KASTOR and LISA WEISEMANN, Appellees Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 747

47 S.W.3d 747 (Tex.App.-Houston [14th Dist.] 2001)

VILLAGE OF PHEASANT RUN HOMEOWNERS ASSOCIATION, INC., Appellant v ROSS L. KASTOR and LISA WEISEMANN, Appellees

No. 14-99-01208-CV

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

May 10, 2001.

On Appeal from the County Civil Court At Law No. 2 Harris County, Texas Trial Court Cause No. 708,766

[Copyrighted Material Omitted] Panel consists of Justices Fowler, Edelman, and Cannon^*.

OPINION

William B. Cannon, Justice(Assigned).

This is an appeal from a summary judgment in favor of appellee, Ross L. Kastor, et. al. ("Homeowners"), involving the enforcement of deed restrictions. The appellants, the Village of Pheasant Run Homeowners Association, Inc. ("Association"), filed suit against Homeowners, for painting a home in colors that allegedly violated deed restrictions. In granting the Homeowners' summary judgement and denying the Associations' partial summary judgment, the trial court ordered the Association to take nothing, and to pay all courts costs.

In two points of error, the Association asserts that the trial court erred by granting summary judgment in favor of the Homeowners. First, the Association argues that the Architectural Control Committee of the Association has the express power through the deed restrictions to approve color changes of existing structures within the subdivision. Second, the Association claims the deed restrictions give it the power to adopt architectural guidelines that interpret the provisions of the deed restrictions. We reverse and remand.

FACTUAL BACKGROUND

The Association is a homeowners association empowered to enforce the deed restrictions in the Village of Pheasant Run subdivision. Homeowners Ross Kastor and Lisa Weisermann, are the owners and occupants of lot 44, block two, section two, located at 13514 Dripping Springs in Houston, Texas. The Homeowners' property is located within the Village of Pheasant Run subdivision and subject to the deed restrictions. It is undisputed that the Homeowners, without the approval of the Architectural Control Committee, changed the color of their front door and their garage door to a bright blue color. The guidelines established by the committee, however, specifically disapproved of the use of bright blue colors because the color is out of harmony with surrounding structures.

I. Summary Judgment

The underlying purpose of Texas' summary judgment rules is a narrow one, which allows for the elimination of "patently unmeritorious claims and untenable defenses." Casso v. Brand, 766 S.W.2d 551, 556 (Tex. 1989); City of Houston v. Clear Lake Basin Auth., 589 S.W.2d 671, 678 n.5 (Tex. 1979). Pursuant to Rule 166a(c), a summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that he or she is therefore entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Swilley v. Huges, 488 S.W.2d 64, 67 (Tex. 1972). Thus, the question on appeal is not whether the summary judgment proof raises a fact issue, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970).

A trial court should grant a defendant's motion for summary judgment if the defendant disproves at least one essential element of the plaintiff's cause of action, or if the defendant establishes all the elements of an affirmative defense as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). Significantly, the usual presumption that the judgment is correct does not apply to summary judgments. Montgomery v. Kennedy, 699 S.W.2d 309, 311 (Tex. 1984); see also Torres v. Caterpillar, Inc., 928 S.W.2d 233, 239 (Tex. App. San Antonio 1996, writ denied) (stating that Texas law generally considers summary judgment to be a harsh remedy). Moreover, when both parties file a motion for summary judgment, and one is granted and one is denied, "the reviewing court should review the summary judgment evidence presented by both sides and determine all questions presented and render such judgment as the trial court should have rendered." Commissioners Court v. Agan, 940 S.W.2d 77, 80 (Tex. 1997); Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988).

II. Restrictive Deed Interpretation

It is the duty of this Court, as it was the duty of the trial court, to review the wording of the restrictive language and determine therefrom, the intent of the drafter. Wilmoth v. Wilcox, 734 S.W.2d 656, 658 (Tex. 1987). Most importantly, however, in our effort to determine such intent, we must give liberal construction to the covenant's language, seeking to insure that its provisions are given effect. Tex. Prop. Code Ann. § 202.003(a) (Vernon 1995); see, e.g., Crispin v. Paragon Homes, Inc., 888 S.W.2d 78, 81 (Tex. App. Houston [1st Dist.] 1994, writ denied).

Restrictive clauses concerning real estate must be strictly construed. Normally, the construction will favor the grantee, as against the grantor. All doubts should be resolved in favor of the free and unrestricted use of the premises. MacDonald v. Painter, 441 S.W.2d 179, 183 (Tex. 1969). The language used to create a restriction will be given the meaning by which the words are ordinarily understood and interpreted and that upholds and enforces the contract as it was understood and intended by the parties. Green v. Gerner, 283 S.W. 615, 616 (Tex. Civ. App. Galveston 1926, writ granted), affirmed, 289 S.W. 999 (Tex. 1927). It is the objective, not the subjective, intent of the parties that must be ascertained. The intent that is expressed or apparent in the writing controls. Travis Heights Imp. Ass'n v. Small, 662 S.W.2d 406, 409 (Tex. App. Austin 1983, no writ). In ascertaining the intent of the parties, the entire instrument should be considered, so that none of its provisions is rendered meaningless. Imperial Interplaza II v. Corrections Corp., 717 S.W.2d 422, 424 (Tex. App. Houston [14th Dist.] 1986, ref. n.r.e.). Further, the meaning of the words used must be determined as of the date the covenant was written, not as of the date it is being enforced. Wilmoth v. Wilcox, 732 S.W.2d 656, 657-58 (Tex. 1987).

If there are ambiguities, the circumstances and conditions surrounding the parties and the property must also be considered, together with the clear goals of the restrictive grant, so that the intent of the parties governs. York v. Howard, 521 S.W.2d 334, 347 (Tex. Civ. App. Waco 1975, no writ). In the alternative, if there is no ambiguity, the intentions of the parties must be determined from the language of the covenant itself, construed in connection with the surrounding circumstances. Hoye v. Shepherds Glen Land Co., Inc. 753 S.W.2d 226, 229 (Tex. App. Dallas 1988, writ denied).

There is a statutory exception, however, to the common law rule that restrictive covenants are to be strictly construed. Restrictive covenants contained in instruments governing the establishment, maintenance, and operation of a residential subdivision, planned unit development, condominium or townhouse regime, or any similar planned development are to be liberally construed to give effect to their purposes and intent. Tex. Prop. Code Ann. § §§ 202.003(a); (Vernon Supp. 2001). This restrictive covenant falls within Section 202.003(a) and is unambiguous, therefore, we construe it liberally. Ashcreek Homeowner's Ass'n v. Smith, 902 S.W.2d 586, 588-89 (Tex. App. Houston [1st Dist.] 1995, no writ). Therefore, in ascertaining the intent of the parties, we will consider the entire instrument, so that none of its provisions is rendered meaningless. Imperial Interplaza II v. Corrections Corp., 717 S.W.2d 422, 424 (Tex. App. Houston [14th Dist.] 1986, writ ref. n.r.e.).

III. Architectural Control Committee

In the first point of error, the Association asserts that the trial court erred in granting summary judgment because the Association proved that the committee has the express power through the deed restrictions to approve color changes of existing structures within the subdivision. Two provisions of the deed restrictions are at issue here:

Article III

Use and Building Restrictions

Section 2. Architectural Control. No building or other structure shall be erected, placed or altered on any Lot until the construction plans and specifications therefor and a plot plan showing the location of the structure thereon have been approved by the Architectural Control Committee as to harmony with existing structures, with respect to exterior design and color with existing structures, as to location with respect to topography and finished grade elevation, and as to compliance with minimum construction standards, all as more fully provided for in Article IV hereof.

Article VII

Architectural Control Committee

Section 1. Approval of building plans. No building shall be erected, placed, or altered on any Lot until the construction plans and specifications and a plot plan showing the location of the structure, have been approved in writing as to harmony of exterior design and color with existing structures . . . a copy of the construction plans and specifications and a plot plan, together with such information as may be deemed pertinent, shall be submitted to the Architectural Control Committee, or designated representative, prior to commencement of construction. The Architectural Control Committee may require the submission of such plans, specifications, and plot plans, together with such other documents as it deems appropriate, in such form and detail as it may elect at its entire discretion.

The Homeowners contend that these two sections simply refer to the building of a new structure or the re-design or...