Opinion

Monzer Hourani and Carlton Park Owner's Association v. Jonathan Katzen

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Nov 25, 2009
Status: Published
Cited by: 0 cases
Authority: More cited than 35.3%

reviewing record for required support

How later courts described this case

reviewing record for required support
concluding that property owner not required to seek approval for construction of driveway from homeowners' association that lacked authority under section 204.011

Written by the judges who cited it.

The opinion

Opinion issued November 25, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00971-CV

MONZER HOURANI AND CARLTON PARK OWNER'S ASSOCIATION,

INC., Appellants

JONATHAN KATZEN, Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 2005-04491

O P I N I O N

In this suit for declaratory relief, which concerns a dispute over restrictive

covenants in a residential subdivision, appellants, Monzer Hourani and Carlton Park

Owner's Association, Inc. ("Hourani"), challenge the trial court's rendition of

summary judgment in favor of appellee, Jonathan Katzen.

In six issues, Hourani contends that the trial court erred by (1) declaring

Section 2.4(o) of the deed restrictions invalid, (2) not finding that Katzen was barred

by the doctrines of estoppel and waiver from challenging Section 2.4(o) of the

restrictions, (3) granting relief beyond that requested in Katzen's motion for summary

judgment, (4) awarding attorney's fees that were inequitable and unjust, (5)

disregarding the construction pre-approval process set out in the restrictions at

Section 2.2, and (6) appointing a Special Master without "good cause."

We affirm.

BACKGROUND

Carlton Park is a residential subdivision in Harris County comprised of 11

acres, divided into 9 lots, each abutting Carlton Park Street. Hourani owns Lots 1

through 5; Michael Urban and Barbara Duganier own Lot 6; Katzen owns Lot 7;

Mool and Kim Nigam own Lot 8; and Lucy Cruce owns Lot 9. A lake extends across

the front portions of Lots 7 and 8.

Calton Park became, at its inception in 1984, governed by a "Declaration of

Covenants, Conditions, and Restrictions" ("Restrictions"). The purpose of the

Restrictions was to "create and carry out a general and uniform plan for the

improvement, development, sale and use of Lots . . . in the Subdivision." The

Restrictions provided that they were to be administered by the "Carlton Park Owner's

Association" ("Association") through a Board of Directors ("Board").

Section 2.1 of the Restrictions provides that, "[e]ach Owner shall use his

Lot . . . for single family residential purposes only."

Section 2.2 requires the written approval of the Board prior to the construction

of any building or improvement.

Section 2.4(o) specifies that "[n]o building or other structure or improvement

shall be constructed within the lake located on a portion of Lot 7 and a portion of Lot

8, or within fifteen (15) feet of the edges of such Lake, without the prior approval of

the Board."

Section 2.6(g) grants the owners of Lots 7 and 8 reciprocal easements for the

exclusive use of the lake, as follows:

Reciprocal easements of use and enjoyment are hereby granted in favor

of the Owners of Lots 7 and 8 with respect to the lake located on a

portion of Lot 7 and a portion of Lot 8 (the "Lake"), such that the Owner

of Lot 7 shall be entitled to reasonably use and enjoy the surface of the

Lake within the boundaries of Lot 8 (but not the Lake bottom or

shoreline or any other portion of Lot 8), and the Owner of Lot 8 shall be

entitled to reasonably use and enjoy the surface of the Lake within the

boundaries of Lot 7 (but not the Lake bottom or shoreline or any other

portion of Lot 7). Nothing contained in this Section 2.6(g) or elsewhere

is this Declaration shall be construed as granting or bestowing rights of

use and enjoyment of the Lake to any party other than the Owners of

Lots 7 and 8 as provided for in this Section 2.6(g).

Section 2.7 provides that the lake is the sole property of the owners of Lots 7

and 8 and that the Carlton Park Owner's Association ("Association") disclaims any

rights or ownership in the lake, as follows:

The Lake located on a portion of Lot 7 and a portion of Lot 8 is the sole

property of the respective Owners of such Lots as shown on the Plat and

Declarant and Association hereby disclaim any property rights or

ownership interest in the Lake and further disclaim any obligation of

maintenance of security with regard thereto. Maintenance of the Lake

shall be the joint responsibility of the Owners of Lots 7 and 8 . . . .

In 1989, the Association, a nonprofit corporation, "forfeited existence," having

failed to pay its franchises taxes to the Secretary of State.

Katzen purchased Lot 7 in 1993. The deed provides that Katzen accepted the

conveyance "subject to any and all restrictions, liens, covenants, conditions and

easements, if any, relating to [the property], but only to the extent they are still in

effect." The lot remained unimproved until 2004, when Katzen contracted with

Sprouse House Custom Homes to build a single family residence on the lot.

Lot 7 is surrounded, on the sides and rear, by property owned by others. The

lake extends almost completely across the front of Lot 7. Hence, a narrow path of

approximately 15 feet, situated between the eastern edge of the lake and the eastern

boundary line of the property, provides the only street access to the dry portion of the

lot behind the lake. There is also a 15-foot setback (1) line along the eastern boundary

line, which comes near to or touches the edge of the lake. Katzen sought to either

build a bridge over the edge of the lake or to obtain a variance to pour a driveway.

Katzen was granted a special variance from the City of Piney Point Village to

build "a driveway/bridge" within 15 feet of the edge of the lake and within the

setback zone. The record shows that the City concluded that Katzen would be

allowed to construct "an engineered driveway/bridge" along the eastern edge of the

property. (2)

Because the Association had "forfeited existence," Katzen submitted his

construction plans to the other property owners in the subdivision. Urban and

Duganier responded by letter that they disapproved of the plans; Hourani responded

by letter that, if Katzen moved forward with his plans, Hourani would sue.

On January 19, 2005, Katzen sued Hourani, Urban, Duganier, the Nigrams, and

Cruce, alleging that the Restrictions were preventing him from accessing his property.

Katzen sought declaratory relief from the trial court, as well as attorney's fees.

Katzen expressly identified his suit as a declaratory judgment action brought under

the Uniform Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code Ann.

§ 37.001 -.011 (Vernon 2008) ("DJA"). (3)

On October 28, 2005, Katzen moved for summary judgment, seeking a

declaration that the Restrictions were invalid to the extent that they prevented him

from accessing his property. To support his motion, Katzen attached as evidence

various documents and affidavits, which are discussed in detail below.

On November 1, 2005, Katzen supplemented his motion for summary

judgment, seeking a declaration that this case be deemed "exceptional," under Rule

of Civil Procedure 171, in that Hourani "arbitrarily and capriciously" sought to

prevent Katzen from obtaining access to his property, and asking that the trial court

appoint a special master with a background in engineering to make a binding decision

with regard to the means and implementation of reasonable access to Lot 7.

On December 27, 2005, in their response to the motion for summary judgment,

Urban, Duganier, and Cruce (4) contended that fact issues precluded summary judgment,

namely, the lack of engineering testing and structural studies of the lake and soil

necessary to support Katzen's contention that his proposed access was safe.

On December 29, 2005, in his response to Katzen's motion for summary

judgment, Hourani contended that Katzen was not entitled to summary judgment

because Katzen had failed to submit any plans for approval; Katzen's proposed

driveway or bridge would damage the lake; Katzen had failed to establish that the

restrictions should be invalidated; Katzen had offered no evidence that the restrictions

were "arbitrary, capricious, or discriminatory"; "Katzen offered no evidence that the

Lake could not be preserved or that the owners had abandoned the Lake-related

restrictions"; and that Katzen had failed to prove that he was entitled to an easement

by necessity.

To support his motion, Hourani attached as evidence various documents and

affidavits, which are discussed in detail below.

On February 15, 2006, in his reply to Hourani's response, Katzen asserted that,

pursuant to the Restrictions, Hourani did not have any right to "use and enjoyment"

of the lake.

On April 6, 2006, Hourani obtained reinstatement of the Association by the

Secretary of State. The Association then intervened in this suit.

Also in April 2006, the trial court asked the parties to submit the names of

proposed engineering experts to serve as master. Urban, Duganier, and Cruce

submitted a proposal that Eric C. Green, Professional Engineer, be appointed to serve

as master. On April 20, 2006, the trial court ruled, "In accordance with Rule 171 and

the parties' recommendations, the Court appoints Eric C. Green, P.E., as a special

master on the engineering issues in this case." The court later ordered that Green's

fees be split equally amongst each of the homeowners and the Association.

In his report, Green indicates that he found that "[t]he construction of a

driveway along the pond side of the berm, with some filling of the pond adjacent to

the berm, is the most reasonable location concerning engineering and construction

limitations posed by the site." In addition, based on his review, Green stated that "the

construction of the driveway along the edge of the pond will increase the stability of

the existing berm, and will not impact the watertight integrity of the pond."

On October 15, 2007, after a hearing, the trial court granted a "Final Summary

Judgment" in favor of Katzen, declaring, as follows:

1. That Section 2.4(o) of the "Declaration of Covenants, Conditions,

and Restrictions for Carlton Park" recorded at . . . is declared

invalid only to the extent such Restriction prevents the property

owner from access to Lot 7 . . . .

2. That the Master's Report of Findings dated August 29, 2007 is

hereby adopted by the Court and incorporated by reference in this

Judgment.

3. That [Katzen] or his designee shall have the right to access Lot 7

of the Subdivision by construction of a driveway in conformance

with the Report of Findings of the Master dated August 29, 2007.

Further, that [Katzen] or his designee shall submit the

construction plans of the driveway to the Special Master to

confirm their conformance with the Report of Findings.

4. Intervenor or any reconstructed or formed Carlton Park

Homeowners Association or Board of Directors is hereby bound

by this Judgment.

5. That [Hourani] take nothing by his counterclaim against [Katzen].

6. That pursuant to Tex. Civ. Prac. & Rem. Code 37.009 [Hourani]

pay [Katzen] the sum of $38,251.25 for attorney fees incurred by

[Katzen].

7. That [Hourani] pay [Katzen] the additional sum of $25,000 for

attorney fees in the event this case is successfully appealed to the

court of appeals and the additional sum of $10,000 in the event

this case is successfully appealed to the Texas Supreme Court.

8. That all costs for the Master shall be split between the parties as

previously agreed by the parties. All other costs shall be taxed

against [Hourani].

9. The court denies all relief not granted in this judgment. This

judgment finally disposes of all parties and claims. Hourani filed a "Motion to Reconsider and/or New Trial," which was

overruled. This appeal by Hourani ensued.

ANALYSIS

In six issues, Hourani contends that the trial court erred by (1) declaring

Section 2.4(o) of the deed restrictions invalid, (2) not finding that Katzen was barred

by the doctrines of estoppel and waiver from challenging Section 2.4(o) of the

restrictions, (3) granting relief beyond that requested in Katzen's motion for summary

judgment, (4) awarding attorney's fees that were inequitable and unjust, (5)

disregarding the construction pre-approval process set out in the restrictions at

Section 2.2, and (6) appointing a Special Master without "good cause."

Appointing a Special Master

In his sixth issue, Hourani contends that the trial court erred by appointing a

special master without "good cause." Specifically, Hourani contends that, although

the trial court stated in its order that it was acting in accordance with Rule 171, it

failed to recite in its order "any explanation as to how this case fits the criterion of

Rule 171." Hourani directs us to Simpson v. Canales for support. 806 S.W.2d 802,

810 (Tex. 1991).

The appointment of a master lies within the sound discretion of the trial court

and should not be reversed except for a clear abuse of that discretion. Id. at 811 .

Rule of Civil Procedure 171, which governs the appointment of a special master,

provides, in relevant part:

The court may, in exceptional cases, for good cause appoint a master in chancery, . . . who shall perform all of the duties required of him by the

court, and shall be under orders of the court, and have such power as the

master in chancery has in a court of equity.

Tex. R. Civ. P. 171 (emphasis added). The "exceptional case" and "good cause"

standards are "not susceptible [to] precise definition." Simpson , 806 S.W.2d at 811 .

Although the trial court may consider the complexity of the case, the rule's standards

may not be satisfied merely by showing that a case is time-consuming or complicated.

Id.

In Simpson , the trial court appointed a master based on the complexity of the

toxic-tort case before it, which involved one plaintiff and 18 defendants. Id. Over the

course of 10 months, 8 discovery motions were filed, but the trial court did not hear

any of the pending discovery disputes before appointing the master. Id. The supreme

court concluded that the appointment of the master constituted a clear abuse of

discretion by the trial court because, although the case may have been more

complicated than others on the trial court's docket, it could "hardly be said to be

exceptional, at least at this point in its development." Id . The supreme court

explained that "[e]ven if this were an exceptional case, based upon the allegations in

the pleadings, the number of parties, or the amount of activity it generated, we would

be reluctant to approve the trial court's delegation of the supervision of all discovery

to be conducted in the case to the master." Id. at 811-12 .

Here, Katzen moved for the appointment of a special master to assist the trial

court with the complex issues of soil stability and lake retention. The trial court

asked the parties to submit the names of proposed engineering experts to serve as

master. Urban, Duganier, and Cruce proposed that Eric C. Green, P. E., be appointed.

The trial court's order states, "In accordance with Rule 171 and the parties'

recommendations, the Court appoints Eric C. Green, P.E., as special master on the

engineering issues in this case." In its final judgment, the trial court states that it

found that good cause existed to appoint a professional engineer as a Master

in Chancery pursuant to Tex. R. Civ. P. 171. The Court, by order dated

April 20, 2006, appointed Eric C. Green, P.E. as Master to provide a

report recommending the engineering design for the access to the

property.

Unlike Simpson , the record before us supports the trial court's conclusion that

this is an "exceptional case" and that "good cause" existed for supervision by a

master. See Simpson , 806 S.W.2d at 811-12 (reviewing record for required support).

The highly technical nature of the case, which involves the feasibility of constructing

a driveway or bridge along the edge of a lake without damaging the lake, and the

assistance which may be provided to the trial court by a special master with

engineering training and expertise constitutes a sufficiently exceptional condition to

justify the present appointment. See Transamerican Natural Gas Corp. v. Mancias ,

877 S.W.2d 840, 843 (Tex. App.--Corpus Christi 1994, orig. proceeding); see also

Texas Bank and Trust Co. v. Moore , 595 S.W.2d 502, 510-11 (Tex. 1980).

We conclude that the trial court did not abuse its discretion by appointing a

master.

Accordingly, Hourani's sixth issue is overruled.

Summary Judgment

A. Standard of Review

Katzen sought relief under the Uniform Declaratory Judgments Act. Tex. Civ.

Prac. & Rem. Code Ann. § 37.001 -.011 (Vernon 2008). Texas Rule of Civil

Procedure 166a states, in pertinent part, that a party seeking to recover on a

declaratory judgment may, at any time after the adverse party has appeared or

answered, move with or without supporting affidavits for a summary judgment in his

favor upon all or any part thereof. Tex. R. Civ. P. 166a(a).

Declaratory judgments rendered by summary judgment are reviewed under the

same standards as govern summary judgments generally. Bowers v. Taylor , 263

S.W.3d 260, 264 (Tex. App.--Houston [1st Dist.] 2007, no pet.). We review a trial

court's granting of a traditional summary judgment de novo . Provident Life &

Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003). A summary judgment

under Rule of Civil Procedure 166a(c) is properly granted only when a movant

establishes that there are no genuine issues of material fact and that he is entitled to

judgment as a matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v.

Harrison County Hous. Fin. , 988 S.W.2d 746, 748 (Tex. 1999). A plaintiff moving

for summary judgment must prove that he is entitled to summary judgment as a matter

of law on each element of his cause of action. MMP, Ltd. v. Jones , 710 S.W.2d 59,

60 (Tex. 1986); Rizkallah v. Conner , 952 S.W.2d 582, 582 (Tex. App.--Houston [1st

Dist.] 1997, no pet.). In deciding whether there is a disputed material fact precluding

summary judgment, evidence favorable to the non-movant will be taken as true, every

reasonable inference must be indulged in favor of the non-movant, and any doubts

resolved in its favor. Knott , 128 S.W.3d at 215 . The movant must conclusively

establish its right to judgment as a matter of law. See MMP, Ltd. , 710 SW.2d at 60 .

A matter is conclusively established if reasonable people could not differ as to the

conclusion to be drawn from the evidence. City of Keller v. Wilson , 168 S.W.3d 802,

816 (Tex. 2005).

B. The Restrictions

In his first issue, Hourani contends that the trial court erred by declaring

Section 2.4(o) invalid. In his fifth issue, Hourani contends that the trial court

erroneously directed "that any plans be submitted to the Master, instead of the Board

as required by Restriction 2.2." Hourani contends that "Sections 2.2 and 2.4(o) are

plain and unambiguous and thus, must be enforced as written." We will address

these related points together.

1. "Preemptive violation" of Section 2.2

Hourani first contends that, by its summary judgment, the trial court necessarily

disregarded the pre-construction approval process mandated by Section 2.2 of the

Restrictions. Conversely, Katzen contends that he was not required to seek Board

approval because the Association had forfeited its charter and that there was no Board

in existence to grant or withhold the approval of his construction plans, citing Texas

Property Code section 204.011. See Tex. Prop. Code Ann. § 204.011 (Vernon Supp.

2009).

In granting summary judgment in favor of Katzen, the trial court struck through

the language in the judgment regarding invalidation of the pre-approval Restriction,

Section 2.2, as it concerned the "construction of the access and the Katzen residence,"

pursuant to Property Code sections 204.0011(b) and (c). Hence, the trial court did not

expressly declare Section 2.2 invalid on the basis of Property Code section 204.011.

We address this point, nevertheless, because Hourani complains on appeal that

the trial court implicitly disregarded the pre-approval process mandated by Section

2.2 when it declared Section 2.4(o) invalid and that "Katzen's entire challenge is

predicated on his preemptive violation of the restrictions." The analysis of his point

is governed by Property Code section 204.011(c)(3). See id.

Section 2.2 mandates, in pertinent part, "No building or improvement of any

kind shall be erected, placed, constructed, maintained or altered on any portion of the

Land until the Plans for such building or improvement have been submitted to and

approved in writing by the Board . . . ."

In his petition, Katzen asserted that he was not required to seek Board approval

because the Association had forfeited its charter and that there was no Board in

existence to grant or withhold the approval of his construction plans. Katzen

contended that Section 2.2, which required him to seek approval from a body that no

longer existed as a precondition to construction, effectively prohibited him from

making use of his property. Katzen stated that, in the absence of a Board or

Association, his builder, Sprouse, submitted the construction plans to all of the

property owners in the subdivision. Sprouse received letters from Hourani (the owner

of Lots 1-5) and Urban and Duganier (the owners of Lot 6), stating that they did not

approve of the driveway. Hourani threatened to sue Katzen if construction

commenced. Katzen sought a declaratory judgment that the restrictions requiring pre-approval of construction plans by an entity that was not in existence at the time the

suit was filed, were invalid.

In his motion for summary judgment, dated October 28, 2005, Katzen asserted

that he was entitled to summary judgment because, as a matter of law, there was no

Board in existence, as the Association had ceased to exist as a legal entity, pursuant

to Property Code Section 204.011 and Anderson v. New Property Owners'

Association of Newport , 122 S.W.3d 378, 389 (Tex. App.--Texarkana 2003, writ

denied) (holding that property owners' association not in existence at time of suit had

no authority to enforce pre-approval restriction regarding driveway construction).

Katzen appended to his motion, as evidence pertinent to this point, certified

copies of the subdivision plat and his deed; the Restrictions; the letter and

construction plans sent by Sprouse to the property owners; the letters received from

Hourani and Urban/Duganier; and a certification from the Office of the Secretary of

State, reflecting that the Association had "forfeited existence" and had been inactive

since 1989.

In his response, Hourani contended, as pertinent to this issue, that "Katzen and

Sprouse failed to submit any plans for approval . . . ." Hourani also contended that,

because he was personally entitled to enforce a restrictive covenant, "the issue of the

approval of the Board is irrelevant." Hourani attached, as evidence to support his

response, the following: the Restrictions; the Lot 7 deed; Sprouse's letter to

homeowners regarding the proposed construction; the Urban/Duganier letter to

Sprouse; the Association's certificate of incorporation and its by-laws; notice of an

annual meeting; minutes from a 1994 Board meeting; and the affidavit of engineer

Richard Gay and that of Hourani.

In his own affidavit, Hourani attested that Katzen failed "to provide the

Association with design, drawings and specifications by registered professional

engineers and hydrologic engineers . . . ." (Emphasis added.) Gay attested that

[t]he construction of a bridge such as the one suggested by Katzen and

Sprouse with its proximity to the lake and the dam would have the

potential to damage the lake if not properly designed. . . . Improper

design and/or construction could result in leakage which could

substantially impair the aesthetic functionality of the lake.

The conceptual layout of the bridge as depicted on the site plan and the

perspective is not sufficient to make a determination regarding the

adequacy of the bridge design with regard to safeguarding the integrity

of the existing lake. In order to make such a determination, detailed

plans and specifications with respect to the proposed bridge would need

to be provided by the owner or builder and his/their engineer . . . . An

evaluation of such plans and specifications could then be made by

qualified professionals with specific knowledge of structural and

geotechnical engineering.

Section 2.2 expressly mandates that a property owner is not permitted to

undertake any construction "until the Plans for such building or improvement have

been submitted to and approved in writing by the Board. " (Emphasis added.) The

Board is the sole entity provided in the Restrictions with architectural control over

the subdivision. See Tex. Prop. Code Ann. § 204.011 (a) (Vernon Supp. 2009).

Property Code Section 204.011 provides that the authority of an architectural control

committee, that is, as here, vested by virtue of the Restrictions in the property owners'

association, will expire when, inter alia, the property owners' association "ceases to

exist." See id. § 204.011(c)(3).

The record shows, and it is undisputed, that the Association, a non-profit

corporation which had failed to pay its franchise taxes to the Secretary of State, had

"forfeited existence" fifteen years prior to 2004--when Katzen sought to build his

driveway access to Lot 7. When a corporation forfeits its charter, it forfeits its right

to do business and is dissolved. See Tex. Bus. Corp. Act Ann. art. 7.12A, F

(Vernon 2003) (explaining that dissolved corporation may not continue its corporate

existence for purpose of continuing business or affairs for which it was organized);

Emmett Props., Inc. v. Halliburton Energy Servs., Inc. , 167 S.W.3d 365, 369 (Tex.

App.--Houston [14th Dist.] 2005, pet. denied).

Once a corporation pays delinquent taxes and is reinstated, the payment relates

back and revives the corporate rights that were forfeited. See Tex. Tax Code Ann.

§ 171.312 ; Halliburton , 167 S.W.3d at 369 ; Mello v. A.M.F., Inc. , 7 S.W.3d 329, 331

(Tex. App.--Beaumont 1999, pet. denied) (stating that if corporation files its

delinquent reports and pays its delinquent franchise taxes, its corporate privileges and

charter are retroactively reinstated); Bluebonnet Farms, Inc. v. Gibraltar Sav. Ass'n ,

618 S.W.2d 81, 85 (Tex. Civ. App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.).

Generally, an entity is afforded three years from the date of dissolution to cure its

corporate status, before it begins to lose certain rights. See Halliburton , 167 S.W.3d

at 369 .

We need not determine the effect of any retroactive reinstatement or limitations

in this case, however. The record shows that the Association "forfeited existence"

in 1989 and was not reinstated April 4, 2006. Hence, in 2004, when Katzen sought

to begin construction of his driveway, he could not have complied with Section 2.2,

which required the written approval of an entity that had forfeited its existence. See

Anderson , 122 S.W.3d at 389-90 (concluding that property owner not required to

seek approval for construction of driveway from homeowners' association that lacked

authority under section 204.011).

We recognize that, notwithstanding the status of the Board, any person entitled

to benefit under a restrictive covenant is entitled to enforce it. See Ski Masters of

Tex., L.L.C. v. Heinemeyer , 269 S.W.3d 662, 668 (Tex. App.--San Antonio 2008, no

pet.). Hence, here, any one or more of the property owners could have compelled

Katzen to seek pre-approval of the Board, in accordance with Section 2.2, had it

existed . Nothing in the Restrictions, however, requires Katzen to submit certain plans

to, or obtain written approval from, each of the individual property owners in the

subdivision, in the absence of a board.

We conclude that the trial court did not err by disregarding a "preemptive

violation" of Section 2.2.

2. Section 2.4(o)

Next, Hourani contends that the trial court erred by declaring Section 2.4(o)

invalid. Specifically, Hourani contends that, as in any other contract, the language

in a restriction must be construed in accordance with the intention expressed by the

language therein. See Herbert v. Polly Ranch Homeowners Ass'n , 943 S.W.2d 906,

907-08 (Tex. App.--Houston [1st Dist.] 1996, no writ). Hourani contends that the

trial court lacked authority to "alter, modify, or invalidate the Restriction--as such

action was tantamount to rewriting the parties' contract."

Restrictive covenants are subject to the general rules of contract construction.

City of Pasadena v. Gennedy , 125 S.W.3d 687, 692 (Tex. App.--Houston [1st Dist.]

2003, pet. denied). Words used in a restrictive covenant may not be enlarged,

extended, stretched, or changed by construction. Wilmoth v. Wilcox , 734 S.W.2d 656,

657 (Tex. 1987); Pebble Beach Prop. Owners' Assoc. v. Sherer , 2 S.W.3d 283, 288

(Tex. App.--San Antonio 1999, pet. denied). Rather, words and phrases used in the

covenant must be given their commonly accepted meaning. Wilmoth , 734 S.W.2d at

657 .

In construing a restrictive covenant, the court's primary task is to determine the

intent of its framers. See Tex. Prop. Code Ann. § 202.003 (a) (Vernon 2007) ("A

restrictive covenant shall be liberally construed to give effect to its purposes and

intent."); Wilmoth , 734 S.W.2d at 657 ; Wilchester W. Concerned Homeowners LDEF,

Inc. v. Wilchester W. Fund, Inc. , 177 S.W.3d 552, 563 (Tex. App.--Houston [1st

Dist.] 2005, pet. denied); Samms v. Autumn Run Comty. Improvement Ass'n , 23

S.W.3d 398, 402 (Tex. App.--Houston [1st Dist.] 2000, pet. denied). Covenants

restricting the free use of land are not favored by the courts, but when they are

confined to a lawful purpose and are clearly worded, they are generally enforceable.

Wilmoth , 734 S.W.2d at 657 . "All doubts must be resolved in favor of the free and

unrestricted use of the premises, and the restrictive clause must be strictly construed

against the party seeking to enforce it." Highlands Mgmt. Co. v. First Interstate

Bank , 956 S.W.2d 749, 753 (Tex. App--Houston [14th Dist.] 1997, pet. denied); see

Ashcreek Homeowner's Ass'n v. Smith , 902 S.W.2d 586, 588-89 (Tex.

App.--Houston [1st Dist.] 1995, no writ) (explaining that Property Code section

202.003 does not does not conflict with doctrine that restrictive covenants be

construed either to favor free and unrestricted use of land or against party seeking

enforcement).

Section 2.4(o) specifies that "No building or other structure or improvement

shall be constructed within the lake located on a portion of Lot 7 and a portion of Lot

8, or within fifteen (15) feet of the edges of such Lake, without the prior approval of

the Board."

It is undisputed that Section 2.4(o) unambiguously prohibits the construction

of any improvement within the lake or within 15 feet of its edge. We construe an

unambiguous deed restriction as a matter of law. Am. Golf Corp. v. Colburn , 65

S.W.3d 277, 280 (Tex. App.--Houston [14th Dist.] 2001, pet. denied). The trial

court's judgment reflects that it "declared invalid" Section 2.4(o) "only to the extent

such Restriction prevents the property owner from access to Lot 7."

In his motion for summary judgment, Katzen contended that his lot is useless

for any purpose if the Restrictions are applied to preclude him from access to his lot.

As his evidence, pertinent to this point, Katzen attached a certified copy of the plat;

a certified copy of Katzen's deed; a map of Lots 7 and 8; and a certified copy of the

Restrictions. The plat shows Lot 7 abutting Carlton Park Street. The map reflects the

position of the lake across the front of Lot 7, and a 15-foot setback line along the

property boundary that touches the edge of the lake. The summary judgment

evidence shows that Lot 7 is land-locked on three sides and that its only means of

ingress and egress to Carlton Park Street is over the 15-foot strip of land that lies

between the lake and the property boundary. Katzen obtained a variance from Piney

Point Village to build in the setback zone. However, Section 2.4(o) prohibits the

construction of any improvement in the same 15-foot space because it also lies within

15 feet of the edge of the lake.

We construe section 2.4(o) liberally to give effect to its purposes and intent,

resolve all doubt in favor of the free and unrestricted use of the premises, and strictly

construe the provision against Hourani, who seeks enforcement. See Tex. Prop.

Code Ann. § 202.003 (a); Highlands Mgmt. Co. , 956 S.W.2d at 753 ; Smith , 902

S.W.2d at 588-89 .

First, the drafters' stated purpose in the Restrictions was to "create and carry

out a general and uniform plan for the improvement, development, sale and use of

Lots . . . in the Subdivision." Section 2.1 of the Restrictions provides that, "Each

Owner shall use his Lot . . . for single family residential purposes only." Hence, first

and foremost, the intent of the drafters was to create a residential subdivision, each

lot to be improved and developed as a single family residence.

By purchasing Lot 7 in Carlton Park subdivision, pursuant to a recorded plat

depicting that Lot 7 abuts Carlton Park Street, Katzen has, as a matter of law, a right

of ingress and egress along Carlton Park Street. "Abutting property owners have

private rights in existing streets and alleys in addition to their rights in common with

the general public." GAR Assocs. III, L.P. v. State ex rel. Tex. Dept. of Transp. , 224

S.W.3d 395, 402 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (citing City of San

Antonio v. Olivares , 505 S.W.2d 526, 530 (Tex. 1974)). "This right is in effect a

private right of ingress and egress and is a right of passageway to and from the

property." Id. "Conveyance of land by reference to a map or plat, upon which lots and

streets are laid out, results in the purchaser or one holding under him, acquiring by

implication a private easement in the alleys or streets shown on the plat." Id. ; see also

Town of Palm Valley v. Johnson , 17 S.W.3d 281, 288 (Tex. App.--Corpus Christi

2000, pet. denied) ("A private easement in a street may be acquired either as a

purchaser in a subdivision with reference to a recorded plat or map . . . or as an

abutting property owner.")).

Liberally construing Section 2.4(o), which specifies that "[n]o building or other

structure or improvement shall be constructed within the lake located on a portion of

Lot 7 and a portion of Lot 8, or within fifteen (15) feet of the edges of such Lake,"

the obvious intent of the drafters was to prohibit the building of a home directly on

the lake, or a dock within the lake, because Lots 7 and 8 share reciprocal easements.

It belies logic that the developers of the nine-lot residential subdivision intended,

when they drafted Section 2.4(o), to render one of those lots worthless as a residential

building site.

Hourani contends that "the undisputable and legitimate purpose and intent of

the Restriction is to preserve the beautiful lake, its appearance, and the ambiance and

value it provides to the Piney Point and Carlton Park neighborhoods and residents."

Section 2.7, however, provides that the lake is the sole property of the owners

of Lots 7 and 8, and that the Association expressly disclaims any rights, ownership,

or obligations with regard to the lake, as follows:

The Lake located on a portion of Lot 7 and a portion of Lot 8 is the sole

property of the respective Owners of such Lots as shown on the Plat and

Declarant and Association hereby disclaim any property rights or

ownership interest in the Lake and further disclaim any obligation of

maintenance of security with regard thereto. Maintenance of the Lake

shall be the joint responsibility of the Owners of Lots 7 and 8 . . . . (Emphasis added.) Further, Section 2.6(g) expressly excepts any party, other than the

owners of Lots 7 and 8, from having any rights of use or enjoyment in the lake, as

follows: