country-community-timberlake-village-lp-charles-and-judith-cayley ( 2014 )

Opinion issued April 15, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00825-CV
———————————
COUNTRY COMMUNITY TIMBERLAKE VILLAGE, L.P., CHARLES
AND JUDITH CAYLEY, DENNIS AND TIFFANY DILLARD, JIM AND
TINA DILLARD, TODD AND SAMANTHA DOWNING, KENNETH AND
PENNY EDWARDS, STEWART AND KELLI GUSS, RICK AND DONNA
HAWRYLAK, LEONARD AND ROBBIE HIGGINS, ET AL., Appellants
V.
HMW SPECIAL UTILITY DISTRICT OF HARRIS AND MONTGOMERY
COUNTIES, Appellee
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Case No. 912,608
OPINION
This appeal concerns the acquisition of a piece of real property outside a
gated subdivision by a special utility district for use as a utility site and the
condemnation of a deed restriction affecting that property. At trial, a jury awarded
various individual homeowners, including the developer, in the adjacent
subdivision damages for the reduction in value each suffered due to the
condemnation. The homeowners and the developer appeal, and the utility district
cross-appeals. We hold that the homeowners and the developer lack standing and
therefore vacate the judgment of the trial court and dismiss the case.
Background
This appeal concerns Timberlake Village, a gated subdivision in northwest
Harris County, Texas, developed by Country Community Timberlake Village, L.P.
(“Country Community”). Country Community created the subdivision in May
2002 by subdividing a 143.5-acre tract of land. Timberlake Village consists of
eighty-five residential lots to the north of the entry gate, where each of the
individual Appellants resides, and fourteen lots outside the entry gate along
Loblolly Lane, the entry road to Timberlake Village, the owners of which did not
participate in the lawsuit. The subdivision is subject to a variety of covenants,
conditions, and restrictions, which were set forth in a declaration recorded by
Country Community (the “Subdivision Declaration”). To help administer the
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covenants, conditions, and restrictions, Country Community created a homeowners
association, Timberlake Village Homeowners Association, Inc. (“TVHA”).
In addition to the 143.5-acre tract that became Timberlake Village, Country
Community also owned a 3.9332-acre tract on Loblolly Lane. This smaller tract
(the “Small Tract”) was not subdivided or made part of Timberlake Village,
although Country Community imposed certain covenants, conditions, and
restrictions on the Small Tract (the “Small Tract Declaration”) in October 2002.
The Small Tract Declaration includes the following recitals, which inform
much of the parties’ argument in this appeal:
WHEREAS, Declarant [Country Community] desires to provide and
adopt a set of conditions, covenants, and restrictions designed to
govern, control, and preserve the value of the Property and to preserve
the value of property located within Timberlake Village; for the
development, improvement, sale, use, and enjoyment of the Property
and property located within Timberlake Village; and
WHEREAS, Declarant desires to subject the Property to the
conditions, covenants, and restrictions hereinafter set forth, for the
benefit of the owners of the Property and for the benefit of owners of
property located within Timberlake Village; and
NOW, THEREFORE, Declarant hereby declares that the Property
shall be developed, improved, sold, used, and enjoyed in accordance
with, and subject to the following conditions, covenants, and
restrictions herein set forth, all of which are hereby adopted for, and
placed upon said Property and shall run with the Property and be
binding on all parties, now and at anytime [sic] hereinafter, having or
claiming any right, title, or interest in the Property or any part
thereof, their heirs, executors, administrators, successors, and assigns,
regardless of the source of, or the manner in which any such right,
title, or interest is or may be acquired, and shall inure to the benefit of
each Owner of any part of the Property.
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(emphasis added). The Small Tract Declaration defines “Property” to mean the
3.9332-acre tract, which it describes by metes and bounds. It defines “Owner” as
“an owner of any portion of the Property.” It also defines “Timberlake Village” as
“TimberLake [sic] Village Subdivision located in Harris County, Texas, and
described by Declaration of Covenants[,] Conditions, and Restrictions for
TimberLake Village filed of record at Clerk’s File No. V896592, Real Property
Records, Harris County, Texas.”
The Small Tract Declaration restricts use of the 3.9332-acre tract to
residential purposes. Article III, Section I, captioned “Deed Restriction
Enforcement,” provides:
(1) Remedies:
Every Owner shall comply with all provisions of this Declaration, and
any amendments or supplements to any of the foregoing. Failure to
comply shall be grounds for an action to recover sums due, for
damages or injunctive relief, or for any other remedy available at law
or in equity.
(2) Enforcement by Owners:
Each Owner is empowered to enforce this Declaration.
The Small Tract Declaration also provides that, if the smaller tract was subdivided,
any subdivided portions of the Small Tract would become subject to additional
covenants, conditions, and restrictions, such as subjecting any proposed
construction on the subdivided portions to review by the subdivision’s
Architectural Review Committee. Even after subdivision of the Small Tract,
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however, only owners of the Small Tract or lots subdivided from it would have
power to enforce these additional covenants, conditions, and restrictions.
HMW Special Utility District of Harris and Montgomery Counties, a Texas
water district, provides retail water service to customers in Harris and Montgomery
Counties, including residents of Timberlake Village and adjacent subdivisions.
In 2008, HMW purchased 0.2105 acres of the Small Tract from Donald and
Nancy Tucker, who owned the Small Tract at the time. HMW intended to use this
0.2105-acre tract as a utility site and has since constructed a small water plant on
the site. Because this use would have violated the residential-use restriction in the
Small Tract Declaration, HMW filed a petition to condemn that restriction as it
applied to the 0.2105 acres that HMW had purchased. As defendant, HMW named
TVHA.
The trial court appointed special commissioners pursuant to Section 21.014
of the Texas Property Code. The special commissioners held a hearing to
determine the value of the condemned deed restriction, at which TVHA did not
appear, and awarded TVHA $4,600 as compensation. See TEX. PROP. CODE ANN.
§ 21.015 (West Supp. 2013); id. § 21.016 (West Supp. 2013). TVHA appealed
that decision to the trial court, pursuant to Section 21.018 of the Property Code.
TVHA also sought the joinder of all of the property owners in the subdivision,
which the trial court ordered. The trial court eventually dismissed the
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counterclaims of eighty of the defendants for want of prosecution, but did not
dismiss the declaratory judgment claims against those defendants. The remaining
defendants were Country Community (the developer), TVHA (which did not own
any property in Timberlake Village), and 30 homeowners; between them, Country
Community and the homeowners owned a total of 33 tracts in Timberlake Village.
The homeowners and Country Community own properties located at varying
distances of approximately 1,800 feet to one mile from the utility site.
By the time of trial, the parties had amended their pleadings multiple times.
HMW sought a declaratory judgment (1) that neither the homeowners nor TVHA
held any deed restriction or other property interest permitting the recovery of
condemnation damages under Section 21.042(d) of the Texas Property Code or
other applicable law and (2) that, pursuant to the Property Code, TVHA was the
designated representative of the homeowners and had acted for them in that
capacity.
By their counterclaims, the defendants each sought damages for the
diminution in market value of their respective properties. The trial court submitted
only one question to the jury: “What is the difference, if any, between the fair
market value of the property in Timberlake Village owned by the individuals
named below immediately before HMW condemned the deed restrictions at issue
and immediately after HMW condemned the deed restrictions at issue? Answer in
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‘Dollars and Cents’ for each of the following owners.” The jury awarded $1,000
in damages for each of the subject properties.
Both sides appealed. The homeowners and Country Community appealed,
arguing that the trial court erred in admitting the testimony of HMW’s real estate
appraisal expert and that the jury’s verdict of $1,000 per property owner was
manifestly inadequate and not supported by the evidence at trial or, alternatively,
was against the great weight and preponderance of the evidence presented.
In its cross-appeal, HMW raises five issues: (1) whether the homeowners
and Country Community have standing to recover damages for condemnation of
deed restrictions on property in which they have no property interest; (2) whether
the damages are precluded by law; (3) whether the homeowners’ expert’s
testimony was properly admitted; (4) whether any evidence supports the judgment;
and (5) whether legally and factually sufficient evidence supports the judgment.
Standing
Because standing is a threshold issue, we address it first. Douglas v. Delp,
987 S.W.2d 879, 883 (Tex. 1999).
A. Standard of Review
“Whether a party has standing to maintain a suit is a question of law, which
we review de novo.” Hobbs v. Van Stavern, 249 S.W.3d 1, 3 (Tex. App.—
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Houston [1st Dist.] 2006, pet. denied) (citing Tex. Dep’t of Transp. v. City of
Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004)).
B. Substantive Law
“Standing is a prerequisite to subject-matter jurisdiction, and subject-matter
jurisdiction is essential to a court’s power to decide a case.” Bland Indep. Sch.
Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000) (citation omitted). “In order for
any person to maintain a suit it is necessary that he have standing to litigate the
matters in issue.” Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984). “Standing
consists of some interest peculiar to the person individually and not as a member of
the general public.” Id. Standing may be raised by a party for the first time on
appeal or may be considered by the court sua sponte. Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 445–46 (Tex. 1993). Standing cannot be waived or
conferred by agreement. Id.; Green Tree Servicing, LLC v. Woods, 388 S.W.3d
785, 790 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
A party seeking affirmative relief must allege facts in his or her pleading that
“affirmatively demonstrate the court’s jurisdiction to hear the cause.” Tex. Ass’n
of Bus., 852 S.W.2d at 446 (citing Richardson v. First Nat’l Life Ins. Co., 419
S.W.2d 836, 839 (Tex. 1967)); see also In re S.M.D., 329 S.W.3d 8, 13 (Tex.
App.—San Antonio 2010, pet. dism’d) (“The burden of proof on the issue of
standing is on the party asserting standing.”). Courts must consider evidence
8
relevant to jurisdiction, however, when doing so is necessary to resolve a challenge
to the trial court’s jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 223 (Tex. 2004); Bland, 34 S.W.3d at 555.
In disputes over deed restrictions, a person has standing to enforce the
restriction only upon showing that the restriction was intended to inure to his or her
benefit. Calvary Temple v. Taylor, 288 S.W.2d 868, 870 (Tex. Civ. App.—
Galveston 1956, no writ); see also Wasson Interests, Ltd. v. Adams, 405 S.W.3d
971, 974 (Tex. App.—Tyler 2013, no pet.) (where city leased parcel of land to
lessee and conveyed second parcel across road from first parcel subject to
restrictions, restriction was for city’s benefit, and lessee of first parcel lacked
standing to enforce restriction against owner of second parcel); Ski Masters of Tex.,
LLC v. Heinemeyer, 269 S.W.3d 662, 668–69 (Tex. App.—San Antonio 2008, no
pet.) (standing depends on privity of contract or existence of a common plan or
scheme applicable to restricted property and property owned by party seeking
enforcement); McCart v. Cain, 416 S.W.2d 463, 465 (Tex. Civ. App.—Fort Worth
1967, writ ref’d n.r.e.) (party claiming restriction must show that restriction exists
and is for the benefit of his land).
The seminal case regarding enforcement of restrictive covenants by persons
who were not party to the covenants at issue is Hooper v. Lottman, 171 S.W. 270
(Tex. Civ. App.—El Paso 1914, no writ). See Evans v. Pollock, 796 S.W.2d 465,
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466 (Tex. 1990) (describing Hooper as “[t]he leading Texas case” in this area);
Curlee v. Walker, 244 S.W. 497, 498 (Tex. 1922) (quoting Hooper at length as
correctly stating the law). When a grantor subdivides his land, imposing covenants
and restrictions that run with the land, and conveys it to various grantees, each
grantee may enforce those covenants if they were part of a general plan or scheme
of development for the entire parcel that was part of the inducement for purchasers
to obtain land within the restricted area. Hooper, 171 S.W. at 272; see also Ski
Masters, 269 S.W.3d at 669. “Such a plan may be established in various ways,
such as by express covenant, by implication from a filed map, or by parol
representations made in sales brochures, maps, advertising, and oral statements on
which the purchaser relied in making his purchase.” Lehmann v. Wallace, 510
S.W.2d 675, 680 (Tex. App.—San Antonio 1974, writ ref’d n.r.e.).
On the other hand, it is well settled that a restriction on a piece of property
may not be enforced by one who owns land not subject to the restriction, absent
privity of contract or a general plan or scheme of development applicable to the
land that the plaintiff does own. Wasson Interests, 405 S.W.3d at 974 (restrictive
covenant is not enforceable solely due to common source of title, but requires
either privity of contract or a general plan or scheme of development); Sills v.
Excel Servs., Inc., 617 S.W.2d 280, 284 (Tex. App.—Tyler 1981, no writ) (tract
outside of subdivision was not subject to restrictive covenants imposed on
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subdivision); Nelson v. Flache, 487 S.W.2d 843, 846 (Tex. App.—Amarillo 1972,
writ ref’d n.r.e.) (“It is well settled that property owners of one subdivision of an
addition have no standing to enforce the restrictive covenants applicable to
separate and distinct subdivisions.” (citation omitted)); Jobe v. Watkins, 458
S.W.2d 945, 948 (Tex. App.—Fort Worth 1970, writ ref’d n.r.e.) (“property
owners in one subdivision of an addition have no standing in court to enforce deed
restrictions imposed on property located in a separate and distinct subdivision”);
Moody v. City of Univ. Park, 278 S.W.2d 912, 923 (Tex. App.—Dallas 1955, writ
ref’d n.r.e.) (“Property owners in another subdivision have no standing to enforce
deed restrictions imposed upon property in a separate and distinct subdivision.”);
Russell Realty Co. v. Hall, 233 S.W. 996, 999 (Tex. Civ. App.—Dallas 1921, writ
dism’d w.o.j.) (when developer subdivided a single parcel of land in two sections
by filing two plats, imposing deed restrictions on first section, buyers of lots in
second section had no standing to enforce deed restrictions on first section).
To establish the existence of a general plan or scheme of development, the
party seeking to enforce deed restrictions must establish that
[1] a common grantor [2] develop[ed] a tract of land [3] for sale in
lots and [4] pursue[d] a course of conduct which indicates that he
intends to inaugurate a general scheme or plan of development [5] for
the benefit of himself and the purchasers of the various lots, and [6]
by numerous conveyances [7] inserts in the deeds substantially
uniform restrictions, conditions and covenants against the use of the
property . . . .
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Evans, 796 S.W.2d at 466 (quoting Minner v. City of Lynchburg, 129 S.E.2d 673,
679 (Va. 1963)); see also Burns v. Wood, No. B–3537, 1973 WL 142567, at *2
(Tex. 1973) (identifying “the elements of a general scheme or plan” as the
requirement that “each conveyance of a lot . . . contain or carry adequate reference
to the recorded restrictions,” the burdening of each lot with the restrictions for the
benefit of each other lot, and the right of each lot owner to enforce the restrictions
against the other lots). When the developer’s actions satisfy all of these
requirements, “the grantees acquire by implication an equitable right, variously
referred to as an implied reciprocal negative easement or an equitable servitude, to
enforce similar restrictions against that part of the tract retained by the grantor or
subsequently sold without the restrictions to a purchaser with actual or
constructive notice of the restrictions and covenants.” Evans, 796 S.W.2d at 466
(quoting Minner, 129 S.E.2d at 679) (emphasis added). “The most common test of
the existence of a general building or neighborhood scheme is an intent that the
protection of the restrictive covenant inure to the benefit of the purchasers of the
lots in the tract.” Lehmann, 510 S.W.2d at 680. “Such an intent is said to arise
from representations as to the restrictions made for the purpose of inducing the
purchaser of the several lots to pay higher prices because of the restrictions.” Id.
We analyze restrictive covenants in a deed by applying the general rules of
contract interpretation. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex. 1998). If
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a restrictive covenant is unambiguous, a court may not subject it to further judicial
interpretation. Id.; Monsanto Co. v. Tyrrell, 537 S.W.2d 135, 137 (Tex. Civ.
App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.). Whether a restrictive covenant
is ambiguous is a question of law, which we must resolve by examining the
covenants as a whole in light of the circumstances present when the parties entered
the agreement. Pilarcik, 966 S.W.2d at 478.
Recitals in a contract do not control the operative clauses of the contract
unless the latter are ambiguous. Furmanite Worldwide, Inc. v. NextCorp, Ltd., 339
S.W.3d 326, 336 (Tex. App.—Dallas 2011, no pet.); McMahan v. Greenwood, 108
S.W.3d 467, 484 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (quoting
BLACK’S LAW DICTIONARY 1270 (6th ed. 1990)) (defining “recital” as “[t]he
formal statement or setting forth of some matter of fact in any deed or writing, in
order to explain the reasons upon which the transaction is founded”); Gardner v.
Smith, 168 S.W.2d 278, 280 (Tex. Civ. App.—Beaumont 1942, no writ).
Whenever possible, the recitals should be reconciled with the operative clauses and
given effect, unless they cannot be so harmonized, in which case unambiguous
operative clauses will prevail. Gardner, 168 S.W.2d at 280. “In other words,
recitals, especially when ambiguous, cannot control the clearly expressed
stipulations of the parties; and where the recitals are broader than the contract
13
stipulations, the former will not extend the latter.” Id.; see also Furmanite
Worldwide, 339 S.W.3d at 336.
C. Analysis
HMW asserts that Country Community and the homeowners lack standing
to sue for damages for the condemnation of the residential-use restriction in the
Small Tract Declaration, because none of them owns any part of the Small Tract or
has any property right in it. Country Community and the homeowners argue that
they have standing because recitals in the Small Tract Declaration reflect that the
Small Tract’s restrictions “were created for their benefit.”
The parties do not dispute that the 143.5-acre parcel that became Timberlake
Village and the 3.9332-acre parcel adjacent to Timberlake Village are distinct
pieces of property and that each is subject to certain deed restrictions, including a
residential-use restriction. But different instruments impose the restrictions on
each parcel, and the restrictions are substantively different in myriad ways. The
Subdivision Declaration gives TVHA and all owners of property within the
subdivision the right to enforce the deed restrictions applicable to the subdivision.
The Small Tract Declaration gives only owners of the Small Tract or a portion
thereof the power to enforce the restrictions applicable to the Small Tract. Neither
Country Community nor any of the homeowners owns any portion of the Small
Tract. Rather, their properties are located within the subdivision.
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To establish the existence of a general plan or scheme applicable to both the
Small Tract and the subdivision, Country Community and the homeowners bear
the burden of showing, among other facts, that Country Community “develop[ed] a
tract of land for sale in lots . . . and by numerous conveyances insert[ed] in the
deeds substantially uniform restrictions, conditions and covenants against the use
of the property.” Evans, 796 S.W.2d at 466 (quoting Minner, 129 S.E.2d at 679).
Country Community and the homeowners have not met this burden in their
pleadings, or in the evidence presented at trial. Tex. Ass’n of Bus., 852 S.W.2d at
446; Miranda, 133 S.W.3d at 223; Bland, 34 S.W.3d at 555; In re S.M.D., 329
S.W.3d at 13. On the contrary, the pleadings and evidence at trial established the
opposite of these elements of a general plan or scheme. Country Community did
not develop “a tract of land,” but two tracts of land. One such tract, the Small
Tract, was never subdivided into lots. And the restrictions, conditions, and
covenants governing the Small Tract and the subdivision were not “substantially
uniform,” but differed in many respects.
As the Supreme Court has explained, the imposition of restrictions on only
one piece of property or one portion of a larger parcel is evidence of a general
scheme covering only the restricted land. Evans, 796 S.W.2d at 472 & n.2.
Examining the law of numerous other states, the Court explained that only the land
specifically restricted is subject to restrictive covenants, and those covenants
15
benefit only the land so restricted. Id. When a landowner imposes different
conditions on different portions of his land or subdivides the land in stages, “for
purposes of the implied reciprocal negative easement doctrine, each separate
recording create[s] a separate and distinct subdivision with its own set of
restrictions benefiting and burdening only the land in that particular subdivision.”
See id. (citing with approval Duvall v. Ford Leasing Dev. Corp., 255 S.E.2d 470,
473 (Va. 1979); Bernui v. Tantallon Control Comm., 488 A.2d 186, 191 (Md. Ct.
Spec. App. 1985)).
Accordingly, we conclude that the Small Tract was not part of a general plan
or scheme of development such as would bring it within the exception to the
general rule that requires privity of contract. Hooper, 171 S.W. at 272; Ski
Masters, 269 S.W.3d at 669.
We turn next to the contention that Country Community and the
homeowners may enforce the residential-use restriction because the recitals in the
Small Tract Declaration indicate that the restriction was intended for the benefit of
owners of land in the subdivision. E.g., Ski Masters, 269 S.W.3d at 668–69. The
recitals in the Small Tract Declaration state that Country Community:
• “desires to provide and adopt a set of conditions, covenants, and
restrictions designed to govern, control, and preserve the value of the
Property and to preserve the value of property located within
Timberlake Village; for the development, improvement, sale, use, and
enjoyment of the Property and property located within Timberlake
Village.” (emphasis added).
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• “desires to subject the Property to the conditions, covenants, and
restrictions hereinafter set forth, for the benefit of the owners of the
Property and for the benefit of owners of property located within
Timberlake Village.” (emphasis added).
But the operative provisions of the Small Tract Declaration make no mention of
property located within Timberlake Village or owners thereof.
In other words, the Small Tract Declaration gives the owners of property in
Timberlake Village no rights whatsoever. The paragraph immediately after the
recitals states: “NOW, THEREFORE, Declarant hereby declares that the Property
shall be . . . subject to the following conditions, covenants, and restrictions . . . all
of which . . . shall inure to the benefit of each Owner of any part of the Property.”
(emphasis added). The Small Tract Declaration defines “Owner” as one owning
all or part of the Small Tract, and does not include owners of property in the
subdivision.
Further, the Small Tract Declaration confers the power to enforce the
restrictions in the Small Tract Declaration only to owners of the 3.9332-acre tract
or portions thereof. In this regard, it states: “Each Owner [of the Small Tract or a
portion thereof] is empowered to enforce this Declaration.”
It is clear from the recitals that Country Community’s desire to benefit the
homeowners in the subdivision was a reason the grantor executed the Small Tract
Declaration. But whatever the grantor’s motivation, the plain language of the
Small Tract Declaration created property rights only with respect to owners of the
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Small Tract or portions thereof. First, it states that the benefits it creates “shall
inure” or take effect only to the benefit of those owners, but does not mention
owners of property in the subdivision. See BLACK’S LAW DICTIONARY 900 (9th ed.
2009) (defining “inure” as “to take effect; to come into use”). The omission of any
mention of the Timberlake Village property owners from this provision raises a
presumption that the parties did not mean to confer a legal benefit on owners of
property within the subdivision. CKB & Assocs., Inc. v. Moore McCormack
Petroleum, Inc., 734 S.W.2d 653, 655 (Tex. 1987); Calvary Temple, 288 S.W.2d at
874 (such an omission is “strongly probative” and raises a “presumption . . . that
the restrictions were inserted in the deeds for the benefit alone of the owners of
[the identified] property”). Second, the enforcement provision likewise indicates
that the Timberlake Village owners may not enforce the Small Tract Declaration.
And these operative provisions of the Small Tract Declaration are unambiguous.
The recitals, which reflect the intent to benefit property owners within
Timberlake Village, cannot control the operative clauses of the Small Tract
Declaration. Gardner, 168 S.W.2d at 280; see also Furmanite Worldwide, 339
S.W.3d at 336. Nor can they enlarge the operative clauses. Gardner, 168 S.W.2d
at 280; Furmanite Worldwide, 339 S.W.3d at 336. Where the document’s
enforcement clause provides unambiguously for a means of enforcement of the
document’s terms, we cannot read a recital to enlarge that power or vest power in
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individuals not named. We therefore hold that the homeowners have no property
interest in the Small Tract and therefore lack standing to enforce the Small Tract
Declaration’s terms. The same logic applies to Country Community; although it
recorded the Small Tract Declaration, it no longer holds any property or interest in
the Small Tract, and nothing in the Small Tract Declaration reserves for Country
Community any right of enforcement in the absence of such ownership. 1
Accordingly, we hold that neither Country Community nor the homeowners have
standing to recover damages for the condemnation of the residential-use restriction
applicable to the Small Tract. 2
Our interpretation of the Small Tract Declaration is consistent with Texas
law regarding enforcement of restrictive covenants in comparable circumstances.
Texas courts have often held that landowners may not enforce deed restrictions
applicable to another’s property, absent privity of contract or a demonstration that
both parcels are part of a common, general plan or scheme for their development.
1
Further, Country Community did not seek to recover damages in its capacity as
original grantor of the small tract, but rather in its capacity as an owner of land
within the subdivision.
2
Country Community and the homeowners also argue that their status as
defendants, rather than plaintiffs, is evidence of their standing to defend against
HMW’s claims and of their standing to bring claims against HMW for damages.
But neither the alignment of the parties—who originally sued whom—nor any
action by HMW is sufficient to confer standing on Country Community and the
homeowners if it is otherwise lacking. Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 445–46 (Tex. 1993); Green Tree Servicing, LLC v. Woods, 388
S.W.3d 785, 790 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Accordingly, we
reject Country Community and the homeowners’ contention that their status as
defendants gives them standing.
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E.g., Wasson Interests, 405 S.W.3d at 974; Sills, 617 S.W.2d at 284; Nelson, 487
S.W.2d at 846; Jobe, 458 S.W.2d at 948; Moody, 278 S.W.2d at 923; Russell
Realty, 233 S.W. at 999.
The cases upon which Country Community and the homeowners rely are
distinguishable. Country Community and the homeowners cite City of Heath v.
Duncan, 152 S.W.3d 147 (Tex. App.—Dallas 2004, pet. denied), Harris County
Flood Control District v. Glenbrook Patiohome Owners Ass’n, 933 S.W.2d 570
(Tex. App.—Houston [1st Dist.] 1996, writ denied), and City of Houston v.
McCarthy, 464 S.W.2d 381 (Tex. App.—Houston [1st Dist.] 1971, writ ref’d
n.r.e.). In each of these cases, the governmental authority and the parties seeking
damages owned property within a single subdivision; thus, each property was
subject to the same restrictions. City of Heath, 152 S.W.3d at 149 (city owned
property within same subdivision as homeowners, and all properties at issue were
subject to same residential-use restrictions); Glenbrook, 933 S.W.2d at 573 (flood
control district purchased 20 patiohomes within subdivision, which it sought to
destroy, and sought to condemn portion of common area within subdivision);
McCarthy, 464 S.W.2d at 382–83 (city purchased land from grantors, who
imposed use restrictions, then sought to condemn additional land owned by
grantors). Country Community and the homeowners, by contrast, bear the burden
to establish that the residential-use restriction in the Small Tract Declaration was
20
imposed for the benefit of their land. Webb v. Voga, 316 S.W.3d 809, 813 (Tex.
App.—Dallas 2010, no pet.). They have not met this burden.
Nor does Calvary Temple, discussed above, compel a different result. 288
S.W.2d at 870. In that case, all of the parties owned land within a subdivision on
which restrictive covenants had been imposed, limiting all of the lots to residential
use. Id. at 869–70. Each deed, however, contained an enforcement provision
stating, “It shall be lawful for any person owning land fronting on ____ Street . . .
to institute and prosecute appropriate proceedings” for breach of the covenants. Id.
at 870. In each deed, the space shown as a blank in the foregoing quotation
contained the name of the street on which the property conveyed fronted as shown
by the plat or map. Id. The appellant, which sought to build a church on lots
fronting on Ross Street (now West Alabama Street), sought to dissolve a temporary
injunction preventing the construction of the church. Id. The appellant argued
that, at the time of the motion to dissolve the injunction, none of the appellees
owned property fronting on Ross Street, and thus none had the right to enforce the
deed restriction applicable to the subject lots. Id. We held that the trial court did
not err in refusing to dissolve the injunction, based on the procedural posture of the
case and the appellant’s failure to present evidence sufficient to overturn the
injunction. Id. at 874. Our holding was premised on the fact that all of the parties
to Calvary Temple owned land subject to the restrictions and thus potentially
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subject to a general plan for development, which is not the case here. Id. at 873–
74.
We sustain HMW’s first issue. Because our resolution of the standing
question is dispositive, we do not reach HMW’s remaining issues or the issues
presented by Country Community and the homeowners.
Conclusion
We vacate the judgment of the trial court and dismiss the case. We dismiss
all pending motions as moot.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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