Floyd Segrest, James Griffin & Charlotte Griffin v. Michael Haseltine ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-01-524 CV ____________________

FLOYD SEGREST, JAMES GRIFFIN and CHARLOTTE GRIFFIN, Appellants

V.

MICHAEL HASELTINE, ET AL, Appellees

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On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 00-09-05746 CV

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OPINION

Several owners of real property in Woodland Forest Estates subdivision, in Montgomery County, plaintiffs, ⁽¹⁾ filed this suit against Floyd Segrest, and James and Charlotte Griffin, defendants, to enforce restrictive covenants forbidding the use of a trailer as a temporary or permanent residence. Defendants responded that the restrictions sought to be enforced were waived by prior non-enforcement. Plaintiffs moved for summary judgment as a matter of law. Defendants' response included affidavits and other materials. Plaintiffs objected to defendants' summary judgment evidence, contending that the affidavits contained conclusions, argument and opinions rather than facts, and that other materials had not been properly authenticated. The trial court ruled that defendants' actions violated the subdivision's restrictive covenants, and entered a permanent injunction prohibiting the violations.

In their first issue, appellants contend the trial court erred in disregarding the affidavits submitted in response to plaintiffs' motion for summary judgment, which they contend support their waiver defense. In their second issue, they contend the trial court erred in granting plaintiffs' motion for summary judgment. In the third issue, appellants argue that the trial court erred in disregarding the affirmative defense of waiver raised in their original answer. We address the issues together.

The affirmative defense of waiver was pleaded. However, simply pleading an affirmative defense without proof does not defeat an otherwise conclusively established, meritorious motion for summary judgment by a plaintiff. See C.S.R., Inc. v. Mobile Crane Inc., 671 S.W.2d 638, 643 (Tex. App.--Corpus Christi 1984, no writ); see also Yarbrough's Dirt Pit, Inc. v. Turner, 65 S.W.3d 210, 214 (Tex. App.--Beaumont 2001, no pet.). Essentially, in filing a motion for summary judgment on plaintiff's claim, the plaintiff may ignore pleaded affirmative defenses unsupported by summary judgment evidence. See generally Brownlee v.Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); see also Tag Resources, Inc. v. Petroleum Well Servs., Inc., 791 S.W.2d 600, 604 (Tex. App.--Beaumont 1990, no writ).

In support of their motion, plaintiffs submitted summary judgment evidence establishing that the restrictive covenants of Woodland Forest Estates subdivision were filed for record in the public records of Montgomery County, and that the restrictions provide that "(n)o temporary structures such as a trailer, tent, shack, storage room or garage shall be used at any time on any building site in this subdivision as either temporary or permanent residence." Plaintiffs' summary judgment evidence established that the Griffins own Block One, Lots 2 and 3 of Woodland Forest Estates, that a mobile home or similar structure, owned by Segrest, is located on the property, and that Segrest resides in the mobile home. Defendants do not contest this summary judgment evidence or that the evidence is sufficient to establish a violation of the restrictive covenant as a matter of law. Instead, defendants argue the restrictive covenant has been waived and is therefore unenforceable.

To be entitled to a trial on the issue of waiver and defeat plaintiffs' motion for summary judgment, Segrest and the Griffins had the burden of raising a fact issue as to whether the homeowners seeking to enforce the restrictive covenant previously intentionally and voluntarily relinquished their right to enforce the covenant. To carry that burden, they had to raise a fact issue as to whether the violations then existing were so extensive and material as to reasonably lead to the conclusion that the restrictions had been abandoned. Among the factors to be considered are the number, nature and severity of the existing violations, any prior acts of enforcement, and whether it is still possible to realize to a substantial degree the benefits sought to be obtained by way of the covenant. The previous failure to object to trivial violations does not preclude enforcement of the covenants. See Dempsey v. Apache Shores Property Owners Assn, Inc., 737 S.W.2d 589, 595 (Tex. App.--Austin 1987, no writ); see also Cox v. Melson-Fulsom, 956 S.W.2d 791, 794 (Tex. App.--Austin 1997, no pet.).

In attempting to meet their burden on summary judgment, defendants submitted their own affidavits. The format of their affidavits is essentially the same. In its order granting plaintiffs' motion for summary judgment, the trial court found substantial portions of the affidavits to be conclusory statements of law or fact, and ordered them stricken. The objectionable portions of the affidavits stricken by the trial court include statements of legal conclusions, factual conclusions, irrelevant factual statements, and statements that are purely argumentative, such as the "lawsuit is not fair" and that plaintiffs "do not have the right to a summary judgment as a matter of law."

We find that the trial court correctly sustained plaintiffs' objections to these portions of the affidavits. Affidavits submitted in support of or in opposition to summary judgment must set forth facts as would be admissible in evidence. See United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). Legal conclusions in affidavits opposing summary judgment are not considered by a reviewing court. See Schull v. Lower Neches Valley Auth., 416 S.W.2d 505, 510 (Tex. Civ. App.--Beaumont 1967, writ ref'd n.r.e.). Factual matters not relevant to the issue of the alleged violation of the restrictive covenant and pure argument in affidavit form are likewise not proper summary judgment evidence. Plaintiffs also objected to photographs and to a plat of the subdivision submitted as summary judgment evidence. Plaintiffs contend that neither the photos nor the plat are authenticated in any manner that would make them admissible evidence.

The admissibility of a photograph is conditioned upon its identification as an accurate depiction of relevant facts and verification by a person with knowledge as correctly representing those facts. See Davidson v. Great Nat'l Life Ins.Co., 737 S.W.2d 312, 314-15 (Tex. 1987). Nothing in defendants' responsive summary judgment evidence provides authentication of the photographs. Also, the plat submitted contains nothing on its face that would make it self-authenticating. See Tex. R. Evid. 902. The affidavits filed with the response to the motion do not establish the plat's authenticity. On this record, the trial court properly sustained plaintiffs' objections to the photographs and the plat.

Plaintiffs established by proper summary judgment evidence a violation of restrictive covenants on the property owned by the Griffins and occupied by Segrest. Defendants' pleading of an affirmative defense is not sufficient by itself to avoid summary judgment. They were required to present proper summary judgment evidence to raise a fact issue on the pleaded defense. The trial court properly determined that defendants did not do so. Issues one, two, and three are overruled.

The judgment of the trial court is affirmed.

AFFIRMED.

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DAVID B. GAULTNEY

Justice

Submitted on November 18, 2002

Opinion Delivered December 19, 2002

Do Not Publish

Before Walker, C.J., Burgess and Gaultney, JJ.

DISSENTING OPINION

As noted by the majority, the trial court struck portions of the affidavits filed by James Griffin, Charlotte Griffin, and Floyd Segrest. ⁽²⁾ Appellants claim the trial court erred in striking the following statements:

1. "To my knowledge there has never been a civic association that I have been aware of because prior to purchasing this property I tried to find the same."
2. "There are numerous violations including homes not built in compliance with the building set back lines, there is another manufactured home in the subdivision and there are many violations of the deed restrictions as set forth in the attachments to this response."
3. "I am asking that the Court deny the motion for summary judgment because . . . there is a garbage dump in the middle of this subdivision, Further, I have not ever paid maintenance fees and the same have been waived as far as I am aware."

In statements numbered two and three, appellants averred facts within their personal knowledge which, if true, constitute past and ongoing violations of the covenants and restrictions and are probative evidence that support appellants' claim the restrictions have been waived. I would find the trial court erred in striking these facts and the conclusions derived therefrom. Consequently, appellants' affidavits set forth specific facts that raise a fact issue on their affirmative defense of waiver. See Allen v. W.A. Virnau & Sons, Inc., 28 S.W.3d 226, 231 (Tex. App.--Beaumont 2000, pet. denied). Appellants' summary judgment evidence was therefore sufficient to defeat plaintiffs' motion and I would sustain issues one and two, reverse the trial court's order granting plaintiff's motion for summary judgment, and remand the cause for further proceedings.

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DON BURGESS

Justice

Dissent Delivered

December 19, 2002

Do Not Publish

1.

Michael Haseltine, Carla Haseltine, Danny Austin, Dianna Austin, Willie Cousins, Henry Dyer, Carol Dyer, Larry Graham, Pam Graham, Virginia Hyland, Tommy Jones, Karen Jones, Amon Kinkaid, Brenda Kinkaid, Doug Loomis, Gena Loomis, Randy Lopez, Debra Lopez, J.D. Mabry, Liz Mabry, Benny Macaluso, Regina Macaluso, Don Martin, Norma Martin, James Scott, Cindy Scott, Harmon Tucker, Haroldene Tucker.

2.

We note the trial court's order striking appellants' affidavits was contained in the order granting plaintiffs' motion for summary judgment. Consequently, appellants were not permitted an opportunity to amend the alleged defects. See generally Ridgway's, Inc. v. Payne, 853 S.W.2d 659, 662-63 (Tex. App.--Houston [14th Dist.] 1993, no writ).